Given that Heat Wave employees were spraying fire within 20 feet of OmniSource's machine and that, given the wind's speed and direction, sparks were flying in the direction of the machine immediately before the machine caught on fire, there is reasonable affirmative evidence connecting the fire to Heat Wave's conduct. See, e.g., Patton v. Pail, 252 N.C. 425, 429-30, 114 S.E.2d 87, 90-91 (1960); Simmons v. John L. Roper Lumber Co., 174 N.C. 220, 93 S.E. 736, 738 (1917); cf. Moore, 173 N.C. 311, 92 S.E. at 2 (plaintiff's case not sufficient to go to the jury "in the absence of any evidence that the [defendant was] emitting sparks at the time" it passed plaintiff's property); Maguire v. Seaboard Air Line Ry., 154 N.C. 384, 70 S.E. 737, 738-39 (1911) (finding that plaintiff had not made a sufficient showing of causation because there was no evidence that the defendant emitted sparks or about the "character and direction of the wind"). There is a genuine issue of material fact as to causation and there is sufficient circumstantial evidence of causation that a reasonable jury could find that Heat Wave's negligence caused the fire.
No citation or authority is needed to support the above well-established and universally accepted statement of the law of circumstantial evidence. However, we cite Maguire v. R. R., 154 N.C. 384, 70 S.E. 737, in which some of the above principles are discussed. In that case the plaintiff showed that the railroad's right-of-way was in foul condition and that combustible material had been allowed to accumulate which caught fire and spread to the plaintiff's lands.
"The burden rested upon the plaintiff to establish by competent evidence two facts alleged in her complaint: first, that the defendant negligently permitted combustible matter to accumulate on its right of way, and, second, that the defendant communicated fire from its engine to its foul right of way, which fire was thence communicated to the lands of the plaintiff." Maguire v. R. R., 154 N.C. 384, 70 S.E. 737. It is not sufficient for the plaintiff to prove that the fire might have started from a fusee thrown out by an employee of defendant, starting a fire on a foul right of way which spread to her land; she must show these facts by reasonable affirmative evidence. Wilson v. Lumber Co., 194 N.C. 374, 139 S.E. 760; McBee v. R. R., 171 N.C. 111, 87 S.E. 985; 22 A.J. 653; Anno. 42 A.L.R. 795 (N.C. cases p. 796); ibid., pp. 799, 820.
A verdict based upon speculation or conjecture cannot stand. (11 R. C. L. 994; 33 Cyc. 1367; Holt v. Spokane P. Ry. Co., 4 Idaho 443, 40 P. 56; Hargis v. Paulsen, 30 Idaho 571, 166 P. 264; Charlotte Harbor N. Ry. Co. v. Orchard, supra; Turner v. Atlanta St. A. B. Ry. Co., 197 Ala. 169, 72 So. 388; Maguire v. Seaboard Air Line Ry. Co., 154 N.C. 384, 70 S. E 737; Allen v. Maine Central R. Co., supra.) Proof that an engine emitted sparks is not proof of negligent construction or operation, and does not warrant submission of such question to the jury.
In McBee v. R. R., 171 N.C. 111, this Court held that "mere proof of a foul right of way, without evidence that the fire was set out by a spark from a passing engine, is insufficient to establish actionable negligence. It has been repeatedly held that in addition to the foul condition of the defendant's right of way, plaintiff must prove that the fire was set out by the defendant in order to establish negligence." While, of course, the origin of a fire can be proved by circumstantial evidence, yet the circumstances must have sufficient probative force to justify a jury in finding that the fire originated from a spark or was otherwise set out by defendant's engine before the issue can be submitted. McCoy v. R. R., 142 N.C. 384; Maguire v. R. R., 154 N.C. 384; Moore v. R. R., 173 N.C. 311; Dickerson v. R. R., 190 N.C. 292. Upon the allegations in the complaint and the proof adduced at the trial, we are of the opinion that the trial judge was justified in directing the verdict.
The entire charge on this aspect placed the responsibility on defendant only in regard to the loose scattered cotton and trash, the foul and inflammable condition that defendant negligently permitted on the right of way. There was no evidence that plaintiff put any inflammable matter on defendant's right of way. The case of Maguire v. R. R., 154 N.C. 384, cited by defendant is no authority in the present case. In the Maguire case it was held in general "When the evidence raises no more than a mere conjecture as to defendant's negligence, it is error to submit the case to the jury.
In Aman's case, 160 N.C. 371, there is evidence that the engine threw sparks and live coals. In Maguire's case, 154 N.C. 384, the fire occurred off the right of way, and, as in this case, there was no evidence that the engine threw out sparks. There was a verdict for plaintiff, but this Court unanimously sustained the motion to nonsuit, saying: "Where plaintiff alleges that he has been injured by fire originating from sparks issued from defendant's locomotive he must not only prove that the fire might have proceeded from defendant's locomotive, but must show by reasonable affirmative evidence that it did so originate," quoting from Ice Co. case, supra.
It is undoubtedly the duty of a railroad company to keep its right of way for a reasonable distance from its track clear of such substances as are liable to be ignited by sparks and cinders from its engines. Maguire v. R. R., 154 N.C. 384; McCoy v. R. R., 142 N.C. 383. But to establish negligence in that respect there must be affirmative evidence of an accumulation of combustible matter on the right of way. Black v. R. R., 115 N.C. 667; Livermon v. R. R., 131 N.C. 527; Simpson v. Lumber Co., 133 N.C. 95.
272 N.C. at 30, 157 S.E.2d at 723. See, Maguire v. R.R., 154 N.C. 384, 70 S.E. 737 (1911). Compare, Rountree v. Thompson, 226 N.C. 553, 39 S.E.2d 523 (1946); Continental Insurance Co. v. Foard, 9 N.C. App. 630, 177 S.E.2d 431 (1970); Mills, Inc. v. Foundry, Inc., 8 N.C. App. 521, 174 S.E.2d 706, cert. denied 277 N.C. 111 (1970); with, Lawrence v. Power Co., 190 N.C. 664, 130 S.E. 735 (1925); Stone v. Texas Co., supra, Gaston v. Smith, 22 N.C. App. 242, 206 S.E.2d 311, cert. denied 285 N.C. 658, 207 S.E.2d 753 (1974); Collins v. Furniture Co., supra.
The evidence in this case revealed that there were several smokestacks in the general area of plaintiff's warehouse; that children and others often walked along the railroad track; that workmen smoked outside the building; that there had been previous "unexplained" fires in the same grass; and that a railroad track was located next to the high grass. In Maguire v. R. R., 154 N.C. 384, 70 S.E. 737 (1911), fire occurred along the right-of-way next to the railroad track, but there was no evidence that the locomotive using the track emitted sparks. The Supreme Court held that defendant's motion for nonsuit should be granted and said: