#### ROBERT ELLIS *vs*THE PORTSMOUTH AND ROANOKE RAIL ROAD COMPANY.

Where A., in ari action against B./or damage, caused by his negligence, shews damage resulting from the act of B., which act, wth the exertion of proper care does not ordinarily produce damage, he makes out *aprima facie*case of negligence, and must recover, unless B. proves he has used proper care or proves some extraordinary a'ccid'ent, which renders care useless.

This was an appeal from the judgment of the Superior Court of Law of Northampton County, at Fall Term, 1841, his Honor Judge Dick presiding. It was an action on the case to recover damages’ for burning five hundred pannels of fence, the property of the plaintiff. The plaintiff proved that he had a line of fence running parallel with the rail road track, belonging to the defendants, at the distance of fifty 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 five hundred pannels 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 or 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 to 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 ver-*139diet 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.

*Iredell*for the plaintiff

to shew the general liability of the defendants in cases of this kind, cited *Wurberville*v *Stamp,*1 Ld. Ray. 264. 1 Leigh’s N. P. 557, 56.1. *Weld*v *Gas Light*Company, 2 Eng. C, L. R. 350. *Brew*v *The New River Company,*25th Eng. C. L. Rep. 634. *Vaughan*v *Menlove,*32 Eng. O. L. R. 613. As to proof of negligence, in such cases, that proof of the injury was *prima facie*proof of negligence, *Christie*v *Griggs,*2 Camp. Rep. 79.

*Whitaker*for the defendant.

The opinion of the Court below does not raise the question whether the burning, &c,, is *prima fade*evidence of neglect, but only lays down the broad proposition that every one is liable for an injury done to his neighbor’s property in the use of his own. In every case of this kind negligence is a material averment in the plaintiff’s declaration, and wbatevever ig material to be averred is equally so to be proved. 1 Chitty Plead. 373. 2 Chjtt. 330, 332. Where one in a highway driving his carriage does an injury to another *not in his care,*he is not from the act alone supposed guilty of a want of due care, Certainly he can excuse himself. In the case of common carriers, who are in the nature of insurers, an injury to a person whom they have undertaken to carry goes to the Jury as evidence of neglect only, which may be rebutted if it appear to the Jury that the defendant used *due care. Stockton*& *Stokes*v *Saltonstall,*13 Peters 181. *Mayhew*v *Bayer,*2 Com. L. R. 454. *Curtis*v *Brinkwater,*22 c. Com. L. R. 51. The cases cited by the plaintiff’s counsel do not support the Judge’s charge. They affirm that negligence must be proved and in the particular cases state what will be evidence to go to the Jury of that negligence, and are all of them cases of injuries by carriers to their own passengers. The charge is wrong, even if an injury had been done to a passenger; there must be negligence and it must be sub*140mitted to the ¿Jury whether there be or not. *22*Com. L. R. 51. 51. The defendants were not liable for doing their duty. By their charter they are authorized to use an engine and 511-6 compelled to travel. *2*Yol. Rev. S,t. ;317. If negligence be necessary to make one liable on the public highway, much more mu'st it be shewn when the defendants were rising a road, their own exclusive property. As to the liability for burning stubble &c. he cited Stat. 6 Aim. C. 31, s. 6.. Stat. Gloucester 6 Ed. 1, c. 5. Saunders 323, b. n. 7. Thomas Co. Lit. Yol. 1st 645, n. 19. Comyns Dig. 1 Yol. Action on the case for negligence, a. 6.

■The .charge only directs t.he Jury to inquire into the burning, which was not denied, -and not as to negligence. But the plantiff was himself in fault and .cannot recover even if the defendants were negligent. The fact of the want of care by the plaintiff ought to have gone to the Jury. His fence was 50 yards!off and combustible enough to take fire from a .spark from a low chimney. *Bradley*v Waterhouse, 14 Com, L. E. 326. *Hart fiel A*v *Royer,*21 Wendell 615. Barn,s ■v *Cole, 21*Wend. 188. 6 Wheaton 311.

Therejwas some evidence of due carefwhich should have been left to the Jury, to wit, that the engines of the defendants usually had spark-catchers, which are known to be permanently fixed to the engines, and are the best preventatives of injury from the sparks, yet discovered.

Gaston, J,

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, or the very nature of his undertaking makes him an. insurer, against unavoidable accidents, is responsible for damage sustained against his will and without his fault. We think, therefore, that the instruction asked for by the ¡counsel for the defendant, was abstractedly correct, viz. that the company are not liable for an injury like that .complained of, if they use all the care to prevent it, *141which the nature of their business allows; but we also think, that as no evidence was offered to shew what care 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 shews damage, resulting from t:heir 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, Judgment affirmed.