The charge that “the defendant is not required to take such precautions as will prevent the escape of any fire whatsoever from, its engine, but is required only to use a skilled and competent éngineer and such spark arrester as is, at the time, in general and approved use, and that its engine should be operated in a careful manner, and when it has discharged this duty and fire has escaped from its engine and catches on the right of way, the defendant is not liable, for the law says there has been no negligence on its part” is erroneous, because it omits the view of negligence arising from permitting combustible matter to accumulate on the right of way, and under this instruction it was the duty of the jury to exonerate the defendant from liability if the engine was properly equipped with a spark arrester in general and approved use, and was operated in a careful manner by a competent engineer, although the fire escaped from the engine and ignited combustible matter, which the defendant negligently permitted to accumulate on its right of way, which is contrary to all of the authorities in this State.
It was also misleading to charge the jury that the defendant would not be negligent if it exercised ordinary prudence in keeping or attempting to keep its right of way in proper condition, without explaining to the jury the duty imposed on the defendant as to its right of way, and what was meant by proper condition, as the jury might well have understood that ordinary care was consistent with permitting combustible matter to accumulate on the right of way to the danger of adjoining property.
We might, however, hold that these errors were not fatal upon an inspection of the whole charge, and considered as a whole, if it did not appear that throughout the charge the burden has been placed on the plaintiffs, when it is settled by a long line of authorities, beginning with Ellis v. R. R., 24 N. C., 140, and closing with Williams v. Mfg. Co., 177 N. C., 514, that upon proof that the engine of the defendant set out the fire it was incumbent on the defendant to establish the facts by the greater weight of the evidence, freeing it from liability.
“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, *534but that the defendant’s engine was equipped with a proper spark arrester, and had been operated in a careful or prudent manner. Williams v. R. R., 140 N. C., 623; Cox v. R. R., 149 N. C., 117.” Kornegay v. R. R., 154 N. C., 392.
“The first issue establishes the fact that the defendant destroyed the property of the plaintiff by fire, and from this fact alone the presumption arises that the defendant was negligent. Ellis v. R. R., 24 N. C., 138; Lawton v. Giles, 90 N. C., 380; Manufacturing Co. v. R. R., 122 N. C., 881; Hosiery Mills v. R. R., 131 N. C., 238; Lumber Co. v. R. R., 143 N. C., 324; Deppe v. R. R., 152 N. C., 82; Kornegay v. R. R., 154 N. C., 392.
“These authorities place the burden on the defendant to rebut the presumption of negligence arising from proof connecting it with the origin of the fire, by evidence which will satisfy the jury th.at the engine was properly equipped, that competent men were in charge of it, and that it was prudently operated.” Currie v. R. R., 156 N. C., 423.
“If this fact (that the engine emitted the spark which caused the fire) had been found by the jury from the evidence, to which the judge referred, it would carry the case to the jury, and it would then devolve upon the defendant to show that the engine was in proper condition, and had been carefully handled, or in default of doing so, to take the risk of an adverse verdict. In other words, the fact that a spark from the engine caused the fire, whether on or off the right of way, is evidence of negligence, though not conclusive, and may warrant a verdict of negligence, in the absence of explanatory proof, so that it behooves the defendant to go forward and offer exculpatory evidence unless there are circumstances appearing in the plaintiff’s own evidence upon which he may rely to show care on his part.” Williams v. Mfg. Co., 177 N. C., 514.
And it is well also to state what duty is imposed on the defendant in this particular, the performance of which the defendant must show when the origin of the fire is traced to it.
We agree with his Honor that “the defendant is not required to keep its right of way absolutely clear and clean of all matters whatsoever” that may be ignited, nor is it liable because of an accumulation of combustible matter on the right of way, likely to be the cause of injury, if there through some other agency than its own, and for so short a time that the defendant had no notice of its presence, express or imputed from length of time, and no opportunity to remove it.
It must, however, exercise due card and precaution to avoid injury to the property of others, and to that end must not permit grass and other *535combustible matter to accumulate or remain on its right of way in such quantity and of such character “as are liable to be ignited by sparks and cinders from its engines,” and cause injury (McBee v. R. R., supra), and “so dangerous that it may reasonably be anticipated that injury will occur to adjacent landowners from fires originated thereon from engines being operated on it” (Thomas v. Lumber Co., 153 N. C., 355), and if it fails in this duty, and injury follows, as a result, it must answer in damages under the second rule laid down in Williams v. R. R., 140 N. C., 624, as follows:
“2. If fire escapes from an engine in proper condition, with a proper spark arrester, and operated in a careful way by a skilled and competent engineer, but the fire catches on the right of way, which is in a foul and negligent condition, and thence spreads to the plaintiff’s premises, the defendant is liable. Moore v. R. R., 124 N. C., 341; Phillips v. R. R., 138 N. C., 12.”
For the errors pointed out there must be a