Perry v. Branning Manufacturing Co., 176 N.C. 68 (1918)

Sept. 18, 1918 · Supreme Court of North Carolina
176 N.C. 68


(Filed 18 September, 1918.)

1. Negligence — Fires—Prima Facie Case — Burden of Proof.

Where there is evidence tending to show that damage by Are to plaintiff’s land had been caused by defendant’s engine, a prima facie case of negligence is made out, shifting the burden of proof on the defendant to show that the fire was not due to any defective condition of the engine or to any negligence of its employees in its management or operation.

*692. Evidence — Corroboration — Instructions—Requests—Appeal and Error— Rules of Court.

A witness may testify to statements he had made to the defendant’s agent when in corroboration of his testimony; and where the record states that it was confined to that purpose, or there was no request made that it be-so confined, it will not be considered as reversible error on appeal. Rule 27, 164 N. C., 438.

3. Negligence — Evidence—Fires—Defective Engines.

Where there is evidence tending to show that defendant’s engine set out fire to the damage of the plaintiff’s land, testimony of a witness that he had seen the same engine casting sparks a number of times before the fire started is competent.

4. Appeal and Error — Evidence—Prejudice—Harmless Error.

Testimony that is irrelevant, uncertain, and indefinite, and which does not appear to have prejudiced the appellant’s right, and which could not have influenced the verdict, will not be considered as reversible error on appeal, nor will unanswered questions be so considered unless it is in some sufficient way made to appear to the court that their exclusion was prejudicial to his rights.

ActioN tried before Kerr, J., and a jury, at February Term, 1918, of Bertie.

Tbe action was brought to recover damages for tbe negligent burning of timber and other property on plaintiff’s land. There was evidence tending to show that the fire was set. out on the land by the defendant and came from the latter’s engine. The court charged that if the fire was caused by the defendant’s engine emitting sparks or coals, which fell upon the plaintiff’s land and caused the fire, the burden would be shifted to the defendant to show that the firq was not due to any defective condition of its engine, nor to any negligence in its management or operation. There were other instructions, to which no exceptions were taken. Certain questions of evidence are raised which will be noticed in the opinion:

■ The jury returned a verdict for the plaintiff on the issue as to negligence, and assessed her damages at $2,800. Judgment was entered upon the verdict, and defendant appealed.

' Winborne & Winborne and Gilliam, & Davenport for plaintiff.

Pruden & Pruden and Winston & Matthews for defendant.

Walker, J.,

after stating the case: There was ample evidence to show that the fire was caused by the defendant’s engine, and the charge of the court, as to the burden of proof, is fully sustained by numerous cases heretofore decided in this Court. We will cite only a few of them: Knott v. R. R., 142 N. C., 238; Williams v. R. R., 140 N. C., 623;. Whitehurst v. R. R., 146 N. C., 591; Cox v. R. R., 149 N. C., 86; Currie *70 v. R. R., 156 N. C., 419; Aman v. Lumber Co., 160 N. C., 369, and tbe recent case of Meats v. Lumber Co., 172 N. C., 289, where tbe subject .is fully discussed and many authorities cited, the entire trend of which is strongly against the defendant’s contention in this appeal. We held in those eases that the authorities place the burden on the defendant to rebut the presumption of negligence, arising from proof connecting it with the origin of the lire, by evidence which will satisfy the jury that the engine was properly equipped, that competent men were in charge of it, and that it was prudently operated; “and necessarily the burden of the issues embracing these facts alone is on the defendant.” Currie v. R. R., 156 N. C., 423, where it is said that the presumption of negligence arising from the fact of setting out the fire which caused the burning is one of fact and not of law, and is itself evidence of negligence; and, further, that the evidence in the case should be submitted to the jury to find the ultimate fact in connection with the presumption of evidence and the burden which is imposed upon the defendant or person against whom the presumption arises. We said in Kornegay’s case, supra: “When it is shown that the fire originated from sparks which came from the defendant’s engine, the plaintiff made out a prima facie case, entitling him to have the issue as to negligence submitted to the jury, and they were justified in finding negligence, unless they were satisfied, upon all the evidence in the case, that in fact there was no negligence, but that the defendant’s engine was equipped with a proper spark-arrester and had been operated in a careful or prudent manner.” The reason for the presumption in such a case was well stated by Ghief Justice Smith, in Aycock v. R. R., 89 N. C., 329, which was approved by the Court, through Justice Burwell, in Haynes v. Gas Co., 114 N. C., 203, and in many subsequent cases, as follows: “A numerous array of cases are cited in the note (R. R. v. Schurtz, 2 Am. & Eng. R. R. Oases, 271) in support of each side of the question as to the party upon whom rests the burden of proof of the presence or absence of negligence, where only the injury is shown, in case of fire from emitted sparks, while the author favors the class of cases which impose the burden upon the plaintiff, we prefer to abide by the rule so long understood and acted on in this State, not alone because of its intrinsic merit, but because it is so much easier for those who do the damage to show the exculpating circumstances, if such exist, than it is for the plaintiff to produce proof of positive negligence. The servants of the company must know and be able to explain the transaction, while the complaining party may not; and it is just that he should be allowed to say to the company, ‘You have burned my property, and if you are not in default, show it, and escape responsibility.’ ” It is said in Moore v. R. R., 173 N. C., at p. 313: “There is no difference of opinion as to the law applicable to this case. It is settled that if the *71plaintiff bas introduced evidence sufficient in probative force to justify a jury in finding tbat tbe fire was caused by a spark from defendant’s engine, tbe issue should bave been submitted, tbe weight of tbe evidence being a matter for tbe jury. In such ease tbe defendant is called upon to prove tbat its engine was properly equipped and operated. If so equipped and operated, there is no negligence or liability upon tbe part of defendant,” citing Williams v. R. R., 140 N. C., 624; Aman v. Lumber Co., 160 N. C., 371; McRainey v. R. R., 168 N. C., 571. We therefore bold tbat tbe charge of tbe learned judge was correct, as it followed tbe established precedents. Boney v. R. R., 175 N. C., 354.

Tbe testimony of W. M. Stokes, to which defendant excepted, was competent in all respects. What be said to C. Y. Liverman, defendant’s witness, was corroborative of bis own testimony as to tbe fire. Whitehurst v. R. R., supra; Matthews v. Insurance Co., 147 N. C., 342; Bowman v. Blankenship, 165 N. C., 519; Elliott v. R. R., 166 N. C., 481. Tbe particular ground of tbe objection, as stated in tbe brief of defendant, is, tbat it was not restricted by tbe judge to tbe purpose of corroboration. But tbe record states that it was, and we are bound by tbe statement. At any rate, there was no request tbat it be so restricted. This evidence having been so confined, tbe argument tbat tbe declaration was made to Mr. Liverman, superintendent of tbe defendant, is of no avail; and, further, it is evident tbat it was not permitted to be used for tbe purpose of charging tbe defendant with liability.

It may be well to remind tbe-profession of Rule No. 27, which was adopted some time ago (164 N. C., p. 438), by quoting it again: “When testimony is admitted, not as substantive evidence, but in corroboration or contradiction, and tbat fact is stated by tbe court when it is admitted, it will not be ground for exception tbat tbe judge fails in bis charge to again instruct tbe jury specially upon tbe nature of such evidence, unless his attention is called to tbe matter by a prayer for instruction; nor will it be ground of exception tbat evidence competent for some purposes, but not for all, is admitted generally, unless tbe appellant asks, at tbe time of admission, tbat its purpose shall be restricted.”

• Tbe statement of tbe witness, W. M. Stokes, tbat be bad seen tbe same engine casting sparks a number of times before tbe fire started, was competent. Knott v. R. R., 142 N. C., 238; Whitehurst v. R. R., supra; Daniels v. R. R., 158 N. C., 418; Kerner v. R. R., 170 N. C., 94; Meares v. Lumber Co., 172 N. C., 289. See, also, Texas, etc., R. R. Co. v. Watson, 190 U. S., 287, and Texas, etc., R. R. Co. v. Roseborough, 235 U. S., 429.

Tbe question in regard to tbe sale of land by tbe grandmother, if relevant and otherwise competent, was too uncertain and indefinite; and as to tbe question relating to the defendant’s survey of the land, it was not *72necessary to notify tbe plaintiff, and it, was immaterial whether she was notified or not. The exclusion of the question asked the witness, L. E. Stokes, when he was recalled, is not well taken, and, besides, is harmless. The question was a mere repetition of the defendant’s cross-examination of the witness when on the stand the first time, and the question of damages was then exhaustively investigated. It does not appear that his answer would have been favorable to the defendant, nor does it appear what his answer would have been, so that the Court can see that the ruling was prejudicial. In Jenkins v. Long, 170 N. C., 269, the question, “Did you ask where he was ?” was excluded. Justice Allen said: “There is nothing on the record to show what would have been the answer of the witness, nor what was expected to be proved, and we cannot see that the defendants have been prejudiced by the ruling of the court. It may be that .the witness did not ask where the plaintiff was, or, if he did, that the person of whom the inquiry was made did not know, or, if he knew, that she would not tell him, or, if she told him, that the answer would not be prejudicial to the caus.e of the plaintiff. An appellant is required to show error, and in order to get the benefit of evidence excluded, it must reasonably appear what it is intended to prove, and that the exclusion of the evidence is prejudicial.” There are many eases to the same effect. It may be said, generally, that if any ruling upon the evidence was technically erroneous, it was harmless, it having no appreciable influence on the result. Harris v. R. R., 173 N. C., 110. It was held in Carson v. Insurance Co., 171 N. C., 135, that if the exceptions, considered as a whole, are not of sufficient importance, or not so material as to justify a reversal, and when dealt with seriatim there is no substantial error in law, the judgment will not be disturbed.

We have already considered the exceptions to the charge and found them to be groundless, and upon a review of the whole record we can find no error therein.

No error.