WaleeR, J.,
.after stating the case: The contention of the defendant, based upon the testimony of the witness, W. J. Angier, which was admitted by the Court over defendant’s objection, is that the plaintiff in his complaint alleges, as the only acts of negligence on the part of the defendant, that the right-of-way was foul and the spark-arrester attached to the smoke-stack was defective, and there being no allegation in regard to the fire-bos, any evidence as to a defect in that was irrelevant and prejudicial. It does not .appear to us, after a careful reading of the complaint and giving it that liberal construction with a view to substantial justice between the parties which is required by the law (Revisal, sec. 495), that the plaintiff has thus restricted himself to proof only of the defect in the spark-arrester and the bad condition of the right-of-way. It is true, he alleges that the spark-arrester was defective, but in the seventh section of the complaint he states generally that the fire was caused by a spark emitted from the engine, which ignited the combustible material on the right-of-way and thence spread to his standing timber, which was destroyed. But can it make any difference in the legal aspect of the case, whether the spark or live coal came from the smoke-stack or the fire-box, even assuming them to have been in the best condition, if eventually it fell upon the foul right-of-way and produced the conflagration ? We think not, because the permitting its right-of-Avay to remain in a dangerous condition was an act of negligence, sufficient of itself to cause the damage and necessarily proximate to it, if
tbe fire immediately, and without any intervening efficient and independent cause, spread to the plaintiff’s woods.
Aycock v. Railroad,
89 N. C., 321;
Phillips v. Railroad,
138 N. C., 12;
Railroad v. Kellogg,
94 U. S., 469.
If one does an act, lawful with respect to the complaining party, and does it in a proper way, the ensuing loss, if there is any, is not, in the legal sense, an injury, but
damnum absque injuria.
If the act is unlawful, or is done in an unlawful manner, it is an actionable wrong; and of course if it is done negligently, or, in other words, if in doing it he fails to exercise the foresight of a man of ordinary prudence and by reason thereof does not see that some damage will follow, when otherwise he would have discovered it, the wrongdoer is liable for the damage which proximately results.
Drum v. Miller,
135 N. C., 204;
Jones v. Railroad,
and
Hudson v. Railroad,
at this term.
The quality or particular character of the act of negligence is immaterial, so that it is sufficient to produce the injury. The Judge, after reciting substantially the allegation of the complaint, charged the jury in this case that before they could bring in a verdict for the plaintiff they must find that the defendant committed the very acts of negligence so set forth by him, that is, that the spark-arrester was defective and the right-of-way foul, and that by reason of the defect in the sparlc-arrester a spark was emitted from the engine and fell on the right-of-way, where it ignited the inflammable material there lying and caused the destruction of the plaintiffs’ property. So that the jury must have found that the spark-arrester was defective and the right-of-way foul, as they gave the plaintiff their verdict.
By the charge the testimony as to the fire-box and ash-pan was virtually taken from the jury. There were two acts of carelessness specified by the plaintiff in one part of his complaint, namely, having a defective spark-arrester and keeping a foul right-of-way; but when he came to allege, in another
part, tbe negligence that caused the injury, he departed from this specific allegation and charged generally that the spark fell from the engine, without describing the particular place from which it was emitted, and that by reason thereof the fire was started on the right-of-way. In no view of the matter is it material to inquire how if happened to fall from the engine, so that it lighted on the right-of-way, which was in bad condition, and caused the fire.
Simpson v. Railroad,
133 N. C., 95;
Troxler v. Railroad,
74 N. C. 377;
Wise v. Railroad,
85 Mo., 178. It does not necessarily require two acts of negligence to make a wrong. The jury must have found, as we have already said, that the right-of-way was foul, for there was no allegation that the spark fell outside of it, but on it, and if they followed his Honor’s charge — and it must be assumed that they did — we are bound to conclude that they so found, as the foulness of the right-of-way was one of the integral elements of the negligence charged in the complaint, and they were clearly instructed, as has been shown, that unless they found the facts to be as therein alleged, they should return a verdict for the defendant. Having found this act of negligence, it was sufficient to sustain the verdict, and any error as to the fire-bos and ash-pan, if there be any, was of course harmless.
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WaleeR, J.,
.after stating the case: The contention of the defendant, based upon the testimony of the witness, W. J. Angier, which was admitted by the Court over defendant’s objection, is that the plaintiff in his complaint alleges, as the only acts of negligence on the part of the defendant, that the right-of-way was foul and the spark-arrester attached to the smoke-stack was defective, and there being no allegation in regard to the fire-bos, any evidence as to a defect in that was irrelevant and prejudicial. It does not .appear to us, after a careful reading of the complaint and giving it that liberal construction with a view to substantial justice between the parties which is required by the law (Revisal, sec. 495), that the plaintiff has thus restricted himself to proof only of the defect in the spark-arrester and the bad condition of the right-of-way. It is true, he alleges that the spark-arrester was defective, but in the seventh section of the complaint he states generally that the fire was caused by a spark emitted from the engine, which ignited the combustible material on the right-of-way and thence spread to his standing timber, which was destroyed. But can it make any difference in the legal aspect of the case, whether the spark or live coal came from the smoke-stack or the fire-box, even assuming them to have been in the best condition, if eventually it fell upon the foul right-of-way and produced the conflagration ? We think not, because the permitting its right-of-Avay to remain in a dangerous condition was an act of negligence, sufficient of itself to cause the damage and necessarily proximate to it, if
tbe fire immediately, and without any intervening efficient and independent cause, spread to the plaintiff’s woods.
Aycock v. Railroad,
89 N. C., 321;
Phillips v. Railroad,
138 N. C., 12;
Railroad v. Kellogg,
94 U. S., 469.
If one does an act, lawful with respect to the complaining party, and does it in a proper way, the ensuing loss, if there is any, is not, in the legal sense, an injury, but
damnum absque injuria.
If the act is unlawful, or is done in an unlawful manner, it is an actionable wrong; and of course if it is done negligently, or, in other words, if in doing it he fails to exercise the foresight of a man of ordinary prudence and by reason thereof does not see that some damage will follow, when otherwise he would have discovered it, the wrongdoer is liable for the damage which proximately results.
Drum v. Miller,
135 N. C., 204;
Jones v. Railroad,
and
Hudson v. Railroad,
at this term.
The quality or particular character of the act of negligence is immaterial, so that it is sufficient to produce the injury. The Judge, after reciting substantially the allegation of the complaint, charged the jury in this case that before they could bring in a verdict for the plaintiff they must find that the defendant committed the very acts of negligence so set forth by him, that is, that the spark-arrester was defective and the right-of-way foul, and that by reason of the defect in the sparlc-arrester a spark was emitted from the engine and fell on the right-of-way, where it ignited the inflammable material there lying and caused the destruction of the plaintiffs’ property. So that the jury must have found that the spark-arrester was defective and the right-of-way foul, as they gave the plaintiff their verdict.
By the charge the testimony as to the fire-box and ash-pan was virtually taken from the jury. There were two acts of carelessness specified by the plaintiff in one part of his complaint, namely, having a defective spark-arrester and keeping a foul right-of-way; but when he came to allege, in another
part, tbe negligence that caused the injury, he departed from this specific allegation and charged generally that the spark fell from the engine, without describing the particular place from which it was emitted, and that by reason thereof the fire was started on the right-of-way. In no view of the matter is it material to inquire how if happened to fall from the engine, so that it lighted on the right-of-way, which was in bad condition, and caused the fire.
Simpson v. Railroad,
133 N. C., 95;
Troxler v. Railroad,
74 N. C. 377;
Wise v. Railroad,
85 Mo., 178. It does not necessarily require two acts of negligence to make a wrong. The jury must have found, as we have already said, that the right-of-way was foul, for there was no allegation that the spark fell outside of it, but on it, and if they followed his Honor’s charge — and it must be assumed that they did — we are bound to conclude that they so found, as the foulness of the right-of-way was one of the integral elements of the negligence charged in the complaint, and they were clearly instructed, as has been shown, that unless they found the facts to be as therein alleged, they should return a verdict for the defendant. Having found this act of negligence, it was sufficient to sustain the verdict, and any error as to the fire-bos and ash-pan, if there be any, was of course harmless.
The view we have taken is fully supported, we think, by the recent decision of this Court in
Williams v. Railroad,
140 N. C., 623, where the
Qhief Justice,
with great clearness, summarizes the law of negligence bearing upon cases of the class to which this belongs. We said in
Simpson v. Railroad, supra:
“It can make no difference with respect to the plaintiff’s right to recover whether the burning (of plaintiff’s timber) was caused by a defective engine or by setting on fire combustible material carelessly left by the defendant on its right-of-way.” See also
Craft v. Timber Co.,
132 N. C., 151, in which the question of the liability of a railroad or a logging-road for fires started on its right-of-way by its engines is con-
siclerecl. Tlie decisions in other jurisdictions seem to be in perfect accord with our own on this question. 3 Wood on Railways (Ed. 1894), sec. 329; Baldwin Am. Railroad Law, 440;
Railroad v. Salmon,
39 N. J. L., 299 ;
Railroad v. Rogers,
62 Ill., 346;
Longabaugh v. Railroad,
9 Nev., 271;
Salmon v. Railroad,
38 N. J. L., 5. In Baldwin Am. R. Law, p. 441, it is said: “To support the action in these cases for burning property, it is not necessary to show that there was negligence in letting the engine scatter sparks. It is inevitable that some sparks should escape.- The actionable negligence is that, notwithstanding this, the company left material on its premises upon which such sparks would naturally fall, and which they would naturally set ablaze.” A typical ease upon this subject is that of
Railroad v. Medley,
75 Va., 499, where
Staples, J.,
says for the Co-urt:
“A
railway company may be supplied with the best engines and the most approved apparatus for preventing tire emission of sparks, and operated by the most skilful engineers. It may do all that skill and science can suggest in tlie management of its locomotives, and still it may be guilty of gross negligence in allowing the accumulation of dangerous combustible matter along its track, easily to- be ignited by its furnaces, and thence communicated to the property of adjacent proprietors. Conceding that a railroad company is relieved of all responsibility for fires unavoidably caused by its locomotives, it does not follow it is exempt from liability for such as are the result of its negligence or mismanagement. The removal of inflammable matter from tlie line of the railroad track is quite as much a means of preventing fires to adjoining lands as the employment -of the most improved and best constructed machinery.”
It all comes to this, that whether the spark-arrester or the fire-box was defective or not, if a spark was emitted from the engine and kindled tire fire on defendant’s right-oNway because it was foul, it is liable to the plaintiff for the loss of his timber caused thereby, and that fact having evidently
been found by tibe jury, all evidence as to the defectiveness of the fire-box or .as to live coals dropping therefrom, and even that as to the spark-arrester, was irrelevant and harmless. ■
The testimony of the witnesses Adcock and Enquay was clearly competent, and there can be no doubt that it was relevant to the issue being tried. That they had seen the same engine which caused the fire when plaintiff’s timber was burned, as it passed and repassed, and that sparks were flowing from the smoke-stack, and that between February and April, as stated by one of the witnesses, “it set fire on the right-of-way” near where the timber stood, must be some evidence bearing upon the actual condition of the engine and showing that it was defective in some way. But the very question has been recently decided by this Court and such evidence held to be relevant.
Johnson v.
Railroad, 140 N. C., 581. It is therefore useless to prosecute the inquiry any further. The case of
Ice Co. v. Railroad,
126 N. C., 797, instead of being an authority against the admissibility of the testimony, by the plainest implication decides it to be competent and relevant. But as was the case with the other evidence to which the defendant objected, the questions put to the witnesses Adcock and Euquay were immaterial and the answers thereto did no harm, as it made no difference whether the engine was defective or not, the bad condition of the right-of-way, which fact was manifestly found by the jury, being fully sufficient to sustain their verdict.
We find no error in the trial of this case.
No Error.