The opinion
Brown, J.
Plaintiff testified that be was at home, about 1% miles away, and saw the smoke in the direction of bis land, which lay on the east side of the defendant railroad; that be went immediately to where the smote was, and the fire was burning and smouldering on the east side of the railroad, on the right of way, on top of an embankment, which is about the height of the top of a smokestack of an engine, which evidently is only a few feet away from the track itself. Tbe wind was blowing from the west to the east, in the direction of plaintiff's land, and carried the fire to and burned over this land. There was no fire on the west side of the track.
Another witness testified tbat be was not far away from plaintiff’s land; tbat a train passed by, and about tbe time it bad gotten out of bearing be noticed smoke on tbe right of way of tbe defendant. This was identified as tbe same fire tbat plaintiff bad testified to.
We are of the opinion that the evidence is sufficient in probative force to be submitted to the jury for their consideration. If they are not satisfied by it that the fire was started on the right of way by sparks escaping from defendant’s engine, the defendant would be entitled to a verdict. But if the jury should find that the fire was started in that manner, then it would be incumbent on the defendant to satisfy the jury that its engine was equipped with a proper spark-arrester, in good condition, properly operated by a competent engineer, and that the right of way where the fire started was reasonably clear and free from combustible matter.
Currie v. R. R.,
150 N. C., 419 ;
Williams v. R. R.,
140 N. C., 624 .
Tbe rule governing actions of this character is clearly stated in tbe latter case.
New trial.