Opinion
December Term, 1841.
Where A., in an action against B. for damages, caused by his negligence, shows damages resulting from the act of B., which act, with the exertion of proper care, does not ordinarily produce damage, he makes out a prima facie case of negligence, and must recover, unless B. proves he has used proper care or proves some extraordinary accident which renders care useless.
APPEAL from Dick, J., at Fall Term, 1841, of NORTHAMPTON.
(139) Iredell for plaintiff.
Whitaker for defendant.
It was an action on the case to recover damages for burning 500 panels of fence, the property of the plaintiff. The plaintiff proved that he had a line of fence running parallel with the railroad track, belonging to the defendants, at the distance of 50 feet, in the county of Northampton; that on a certain day in the spring of 1839, immediately after the passage of one of the locomotives belonging to the defendants, the fence was discovered to be on fire and about 500 panels of fence were burnt before the fire could be stopped. The plaintiff's witness further proved that the engines run on the road usually had the spark-catchers on the funnel, but whether they were on upon that day he did not recollect. The defendants introduced no testimony. The defendants' counsel contended that they were only liable for negligence; that if they used the care that the nature of their business allowed, they were not liable. The court charged the jury that if the evidence satisfied them that the plaintiff's fence was burned by fire thrown from the defendants' engine, the defendants were liable for the plaintiff's recovery, upon the principle that every one is bound so to use his own property as not to injure his neighbor. The jury returned a verdict for the plaintiff. The defendants moved for a new trial, which was refused, and judgment being given for the plaintiff, the defendants appealed to the Supreme Court.
It is no doubt a principle of law, as it is of morals, that one should so use his own as not to injure his neighbor, and this rule requires that even in the legitimate enjoyment of property such care shall be used as not to render it likely to impair their enjoyment of property by others. But no man, unless he has engaged to become insurer against unavoidable accidents, is responsible for damage sustained against his will and without his fault. We think, therefore, that the instruction asked for the counsel for the defendant was abstractly correct, viz., that the company are not liable for an injury like that complained of, if they use all the care to prevent it which the nature of their business allows; but we also think that as no evidence (141) was offered to show what they did use in the case under consideration, there was no foundation laid for asking the instruction. We admit that the gravamen of the plaintiff is damage caused by the negligence of the defendants. But we hold that when he shows damage resulting from their act, which act, with the exertion of proper care, does not ordinarily produce damage, he makes out a prima facie case of negligence, which cannot be repelled but by proof of care or of some extraordinary accident which renders care useless. Although, therefore, we do not sanction the doctrine which was laid down as the rule of law in the court below, we do not feel ourselves authorized to reverse the judgment, as that doctrine could not have had the effect to mislead the jury.
PER CURIAM. No error.
Cited: Herring v. R. R., 32 N.C. 406; Scott v. R. R., 49 N.C. 433; Chaffin v. Lawrance, 50 N.C. 180; Bryan v. Fowler, 70 N.C. 597; Aycock v. R. R., 89 N.C. 327, 328; Lawton v. Giles, 90 N.C. 379; Grant v. R. R., 108 N.C. 481; Haynes v. Gas Co., 114 N.C. 208; Mfg. Co. v. R. R., 122 N.C. 888; Williams v. R. R., 130 N.C. 121; Hosiery Co. v. R. R., 131 N.C. 239; Craft v. Timber Co., 132 N.C. 154; Womble v. Grocery Co., 135 N.C. 481; Meredith v. R. R., 137 N.C. 486; Ross v. Cotton Mills, 140 N.C. 120; Overcash v. Electric Co., 114 N.C. 578; Dermid v. R. R., 148 N.C. 197; Deppe v. R. R., 152 N.C. 83; Currie v. R. R., 156 N.C. 423; Hardy v. Lumber Co., 160 N.C. 117; Aman v. Lumber Co., ib., 373; Ridge v. R. R., 167 N.C. 518; Shaw v. Corporation, 168 N.C. 616.