The motion for judgment of nonsuit is upon the ground that the evidence shows that the sparks did not come out of the smokestack of the engine, but was thrown from the cab, and as this was unauthorized and not in the performance of a duty, the defendant is not liable therefor, and upon the further ground that the two fires met, for one of which the defendant was not responsible, and that it is impossible to say which fire caused the damage.
The answer to the first position is, that the complaint does not allege that the fire came from the smokestack, but from the engine; and when evidence is offered, conforming to the allegations of the complaint, which connects the defendant with the origin of the fire, a judgment of nonsuit cannot be entered, because the burden is then on the defendant to show the exercise of due care to avoid injury. Currie v. R. R., 156 N. C., 419.
The second position involves a question of fact in controversy, which could only be settled by the jury.
The evidence for the plaintiffs, if believed, established the fact that the fire from the west side of the track was stopped at the public road and did not go on the lands of the plaintiffs, while the evidence for the defendant showed that the fire which came from the engine was extinguished and never reached the plaintiffs’ land.
With this sharp conflict between the plaintiffs and defendant, his Honor adopted the only course open to him by submitting the queston to the jury under an instruction that if the fire from the west of the track burned the land, or if the two fires met, and the fire that came from the engine would not have wone on the land but for the fire from the west, in either event to answer the issue in favor of the defendant.
The evidence of the declarations of the witness Pugh do not fall within the rulo excluding the declarations of an agent as to a past occurrence, and was clearly competent for purposes of impeachment, to which it was confined.
The witness had testified for defendant that he knew where the fire came from which burned the plaintiffs’ land, and that it was from the west of the track, and the plaintiff was permitted to impeach him by proving by a number of witnesses he said the fire came from the engine'.
Pate v. Steamboat Co., 148 N. C., 573, and Morton v. Water Co., 168 N. C., 587, are directly in point in support of the ruling admitting the evidence.
In the Pate case, which was an action to recover damages for death by drowning, the plaintiff contended that the boat was not properly equipped for reseating passengers who fell overboard, and that the bateau used for that,purpose was in bad condition. The defendant introduced one Jackson, who was operating the bateau, who testified that the bateau was in good condition, and the plaintiff was permitted to prove by one *283Glover that Jackson told bim the bateau was leaking. Tbe Court beld tbat the evidence was competent, and said: “Of course, the declarations of the boat band, made after the occurrence, are incompetent for the purpose of proving the dangerous condition of the bateau. Southerland v. R. R., 106 N. C., 100. But, having been examined by the defendant as its witness as to the condition of the bateau, it was competent to impeach or contradict his evidence upon tbat point by his declarations on tbat subject to Glover. To lay the foundation for offering such impeaching evidence, it was proper to ask the witness, on cross-examination, the question objected to.”
This was quoted and approved in tbe Morton case.
These are tbe exceptions relied upon by tbe defendant, but we have considered all tbat are dealt with in tbe brief, and we find no error.
It was competent to show the direction of tbe wind on tbe day of tbe fire, and tbat sparks fell from tbe two dead trees which were burning off tbe right of way, as tbe evidence for tbe plaintiff tended to prove tbat tbe fire which caught on tbe right of way set these trees on fire.
Tbe declaration of Batts to one of tbe plaintiffs to tbe effect tbat be' bad been in tbe swamp, trying to put out tbe fire, was com] letent as corroborative of Batts, who was a witness.
Tbe evidence of damages to a grapevine to tbe value of $15 was properly admitted and was covered by tbe complaint, which, after enumerating certain property which was destroyed, said, ‘and other things of great value.”
No error.