AlleN, J.
Tbe exceptions appearing in tbe record present for our consideration tbe following contentions made by tbe defendant:
(1) Tbat tbe plaintiff was negligent in permitting combustible matter to remain on bis lot near tbe track of tbe defendant, and tbat this was tbe proximate cause of tbe injury to bis property. •
(2) Tbat if, ordinarily, it would not be negligence in tbe plaintiff to permit combustible matter to remain on bis lot, a higher duty should be imposed on him in this case, because be bad recovered judgment against tbe defendant in another action on account of hazard to this property by tbe operation of defendant’s trains, and bad been thereby compensated for ordinary risks.
(3) Tbat it being' in evidence tbat tbe fire, after its origin, was under tbe control of an employee of tbe plaintiff, tbe defendant, although negligent in setting out tbe fire, would not be liable for tbe consequences which followed.
(4) Tbat bis Honor erroneously imposed tbe duty on tbe defendant of equipping its engine with a modern spark arrester.
(5) Tbat bis Honor stated as a contention of tbe plaintiff tbat tbe engine emitted an unusual quantity of sparks, when there was no evidence to support tbe contention.
(6) Tbat bis Honor, in a part of bis charge, made tbe liability of tbe defendant depend upon whether tbe plaintiff was negligent in permitting bis lot to become and remain in a foul condition.
(7) Tbat bis Honor erroneously charged tbe jury tbat tbe measure of damage for burning tbe building was tbe difference in tbe value of tbe land before and after tbe fire.
[222]*222(8) That Ms Honor erroneously permitted the tenant of tbe plaintiff to testify that he had received no notice, under the ordinance in evidence, to remove trash, etc., from the sidewalk.
(1) This contention of the defendant seems to be fully met by the decision in Wyatt v. R. R., 156 N. C., 314, in which it was held that “an owner of land has a right to use it in the ordinary and usual way, and is not bound to remove dry grass, weeds, leaves, or other combustible material from his land adjoining a railroad right of way, in anticipation of probable negligence on the part of the railroad company, and a failure to perform such acts will not make him guilty of contributory negligence so as to preclude a recovery for damages caused by a .fire originating through the railroad company’s negligence.” If the rule was otherwise, the defendant has not pleaded contributory negligence, and no issue was tendered presenting this question; and this objection would also be applicable to the next contention of the defendant.
(2) The second proposition insisted upon may be admitted, and the liability of the defendant would not be affected, because negligence is not an ordinary risk, and his Honor told the jury in clear and direct terms that the plaintiff could not recover if the engine was properly equipped with a spark arrester and was prudently operated by a competent engineer. He imposed the burden on the plaintiff of proving negligence, and instructed the jury that they were confined to the consideration of the two acts of negligence alleged — the defective spark arrester and the negligent operation of the train — and if the defendant was negligent in these respects, as the jury has found, the prior negligent conduct of the plaintiff, if any, would not prevent a recovery. The question is analogous to one considered in Arthur v. Henry, 157 N. C., 393, where it was- held that consent given by the plaintiff to the defendant to blast for rock near Ms home would not prevent a recovery for injuries resulting from negligence in the operations.
(3) This position finds support in Doggett v. R. R., 78 N. C., 311, but it is not necessary for us to consider the facts and the reasoning in that case, because it appears from the evidence in this that two fires were set out by the engine of the defendant, [223]*223and that it was the first fire which was under the control of an employee of the plaintiff, and that after he extinguished it and left the premises, the property of the plaintiff was destroyed by the second fire.
(4) When the charge of his Honor is considered as a whole, which it is our duty to do, the criticism of it, as presented by the fourth, fifth, and sixth contentions of the defendant, are not, in our opinion, sustained by the record.
It is true that the word “modern” is used in connection with the appliances which the defendant was required to furnish, but “modern appliances” do not necessarily mean “the latest and best appliances,” which the defendant insists was the effect of the charge, and could not have been so understood by the jury.
The Century Dictionary defines “modern” as “pertaining to the present era, or to a period extending from a not very remote past to the passing time; not ancient or remote in time; not antiquated or obsolete,” and says by way of illustration, that Modern History comprises the history of the world since the fall of the Eoman Empire or the close of the Middle Ages, and that modern fashions, tastes, inventions, and science generally, refer to the comparatively brief period of from one to three or four generations.
His Honor told the jury that it was the duty of the defendant “to have its engines properly equipped with such appliances for the arresting of sparks as are in general and approved use — not such as will prevent any spark from escaping, but such appliances as are in general and common use, and that will subserve the purpose intended,” and again, “If you find by the greater weight of the evidence the spark which set fire to the grass, and which fire was communicated to and destroyed the building, was caused by the failure of the defendant to properly equip its engine with a spark arrester that was modem and in common use, or they failed to properly operate or manage it, it would be negligence on the part of the defendant company.”
If his Honor stated a contention of the parties not supported by evidence, it was the duty of counsel.to call it to his attention; but one of the witnesses testified that a shirt hanging in her garden was set on fire from the train; that as she approached the railroad crossing she had to put her apron over her head to [224]*224keep the cinders from burning her, and that about that time sparks from the train set fire to the grass on the plaintiff’s lot, which is, we think, some evidence that the quantity of sparks was unusual, and particularly so when considered in connection with the evidence of the conductor of the defendant, that the spark arrester was in good condition and that the engine did not throw any sparks.
The part of the charge which the defendant thinks made the liability of the defendant depend upon the negligence of the plaintiff in permitting his lot to remain in a foul condition is where his Honor says: “There is another aspect to this case which you will take into consideration. It is for you to say what the proximate cause was.
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AlleN, J.
Tbe exceptions appearing in tbe record present for our consideration tbe following contentions made by tbe defendant:
(1) Tbat tbe plaintiff was negligent in permitting combustible matter to remain on bis lot near tbe track of tbe defendant, and tbat this was tbe proximate cause of tbe injury to bis property. •
(2) Tbat if, ordinarily, it would not be negligence in tbe plaintiff to permit combustible matter to remain on bis lot, a higher duty should be imposed on him in this case, because be bad recovered judgment against tbe defendant in another action on account of hazard to this property by tbe operation of defendant’s trains, and bad been thereby compensated for ordinary risks.
(3) Tbat it being' in evidence tbat tbe fire, after its origin, was under tbe control of an employee of tbe plaintiff, tbe defendant, although negligent in setting out tbe fire, would not be liable for tbe consequences which followed.
(4) Tbat bis Honor erroneously imposed tbe duty on tbe defendant of equipping its engine with a modern spark arrester.
(5) Tbat bis Honor stated as a contention of tbe plaintiff tbat tbe engine emitted an unusual quantity of sparks, when there was no evidence to support tbe contention.
(6) Tbat bis Honor, in a part of bis charge, made tbe liability of tbe defendant depend upon whether tbe plaintiff was negligent in permitting bis lot to become and remain in a foul condition.
(7) Tbat bis Honor erroneously charged tbe jury tbat tbe measure of damage for burning tbe building was tbe difference in tbe value of tbe land before and after tbe fire.
[222]*222(8) That Ms Honor erroneously permitted the tenant of tbe plaintiff to testify that he had received no notice, under the ordinance in evidence, to remove trash, etc., from the sidewalk.
(1) This contention of the defendant seems to be fully met by the decision in Wyatt v. R. R., 156 N. C., 314, in which it was held that “an owner of land has a right to use it in the ordinary and usual way, and is not bound to remove dry grass, weeds, leaves, or other combustible material from his land adjoining a railroad right of way, in anticipation of probable negligence on the part of the railroad company, and a failure to perform such acts will not make him guilty of contributory negligence so as to preclude a recovery for damages caused by a .fire originating through the railroad company’s negligence.” If the rule was otherwise, the defendant has not pleaded contributory negligence, and no issue was tendered presenting this question; and this objection would also be applicable to the next contention of the defendant.
(2) The second proposition insisted upon may be admitted, and the liability of the defendant would not be affected, because negligence is not an ordinary risk, and his Honor told the jury in clear and direct terms that the plaintiff could not recover if the engine was properly equipped with a spark arrester and was prudently operated by a competent engineer. He imposed the burden on the plaintiff of proving negligence, and instructed the jury that they were confined to the consideration of the two acts of negligence alleged — the defective spark arrester and the negligent operation of the train — and if the defendant was negligent in these respects, as the jury has found, the prior negligent conduct of the plaintiff, if any, would not prevent a recovery. The question is analogous to one considered in Arthur v. Henry, 157 N. C., 393, where it was- held that consent given by the plaintiff to the defendant to blast for rock near Ms home would not prevent a recovery for injuries resulting from negligence in the operations.
(3) This position finds support in Doggett v. R. R., 78 N. C., 311, but it is not necessary for us to consider the facts and the reasoning in that case, because it appears from the evidence in this that two fires were set out by the engine of the defendant, [223]*223and that it was the first fire which was under the control of an employee of the plaintiff, and that after he extinguished it and left the premises, the property of the plaintiff was destroyed by the second fire.
(4) When the charge of his Honor is considered as a whole, which it is our duty to do, the criticism of it, as presented by the fourth, fifth, and sixth contentions of the defendant, are not, in our opinion, sustained by the record.
It is true that the word “modern” is used in connection with the appliances which the defendant was required to furnish, but “modern appliances” do not necessarily mean “the latest and best appliances,” which the defendant insists was the effect of the charge, and could not have been so understood by the jury.
The Century Dictionary defines “modern” as “pertaining to the present era, or to a period extending from a not very remote past to the passing time; not ancient or remote in time; not antiquated or obsolete,” and says by way of illustration, that Modern History comprises the history of the world since the fall of the Eoman Empire or the close of the Middle Ages, and that modern fashions, tastes, inventions, and science generally, refer to the comparatively brief period of from one to three or four generations.
His Honor told the jury that it was the duty of the defendant “to have its engines properly equipped with such appliances for the arresting of sparks as are in general and approved use — not such as will prevent any spark from escaping, but such appliances as are in general and common use, and that will subserve the purpose intended,” and again, “If you find by the greater weight of the evidence the spark which set fire to the grass, and which fire was communicated to and destroyed the building, was caused by the failure of the defendant to properly equip its engine with a spark arrester that was modem and in common use, or they failed to properly operate or manage it, it would be negligence on the part of the defendant company.”
If his Honor stated a contention of the parties not supported by evidence, it was the duty of counsel.to call it to his attention; but one of the witnesses testified that a shirt hanging in her garden was set on fire from the train; that as she approached the railroad crossing she had to put her apron over her head to [224]*224keep the cinders from burning her, and that about that time sparks from the train set fire to the grass on the plaintiff’s lot, which is, we think, some evidence that the quantity of sparks was unusual, and particularly so when considered in connection with the evidence of the conductor of the defendant, that the spark arrester was in good condition and that the engine did not throw any sparks.
The part of the charge which the defendant thinks made the liability of the defendant depend upon the negligence of the plaintiff in permitting his lot to remain in a foul condition is where his Honor says: “There is another aspect to this case which you will take into consideration. It is for you to say what the proximate cause was. If you find as a fact that the engine was properly equipped, properly managed and operated, and sparks were emitted that set fire to property off the right of way; that is to say, if sparks were emitted from the engine that was properly equipped, managed and operated, and fell upon the land of the plaintiff off the right of way, there would not be any breach of duty on the part of the defendant because his property was burned, and the defendant would not be responsible; if you should also find that the plaintiff allowed his premises to become so foul with combustible matter that no reasonably prudent man would allow it to stay in that condition near a railroad, and that the cause of the injury was not the negligence of the defendant, but the proximate cause was the negligent act of the plaintiff in allowing his lot to remain in a foul condition; and if you shall find from all the facts and circumstances and by the greater weight of the evidence that it was not the act of a reasonably prudent man having regard to the rights of others to permit the condition in his lot, and that it was a case of negligence on his part, then that would be a bar to recovery, and you would answer the first issue No.’ If, however, you find that the engine was not equipped with modern, proper spark arrester, and that it was not properly managed and operated, and that the proximate cause of the injury to the plaintiff’s property was the negligence of the defendant to provide proper appliances and equipment to the engine, then it is your duty to answer that first issue ‘Yes.’ ”
[225]*225This was, in effect, instructing the jury to answer the first issue “No” if the spark arrester was in good condition and the train prudently operated, or if the foul condition of the lot of the plaintiff was the proximate cause of his loss, and that the issue could not be answered in favor of the plaintiff unless the jury found that the engine was not properly equipped with a spark arrester and was not properly managed and operated, and that this was the proximate cause, which was more favorable to the defendant than it was entitled to.
(7) The‘measure of damage was stated correctly in the charge. Williams v. L. Co., 154 N. C., 310. The house destroyed by the fire was a part of the land, and the injury was to the freehold. The inquiry, therefore, for the jury was, “How much has the land been depreciated in value by the fire?” which is but another way of ascertaining the difference in the value of the land before and after the fire.
It was, of course, competent to introduce evidence as to the .size of the house, the quality and cost of the material used in its construction, 'the workmanship, and other relevant facts, as bearing on the question of the decrease in value of the land.
(8) As the liability of the defendant was made to depend solely upon failure to provide a proper spark arrester, or to operate its train prudently, if these facts were found to exist, the prior negligence of the plaintiff, if any, would not have prevented a recovery, and in this view the ordinance introduced by the defendant, and the evidence of the tenant of the plaintiff that he had not been notified to remove trash from the sidewalk, would be irrelevant and harmless; but as the ordinance was admitted requiring no.tice to be given under certain conditions, it was not improper to permit the plaintiff to prove that the notice had not been given.
Upon a review of the whole record, we find
No error.