#### R. W. GAINEY and Wife, EFFIE GAINEY, v. ROCKINGHAM RAILROAD COMPANY, a Corporation.

(Filed 1 February, 1952.)

1. Railroads § 7 — Evidence that engine set fire in inflammable material negligently permitted to remain on right of way takes case to jury.

Evidence tending- *to show*that defendant railroad company allowed its right of way to become foul with weeds, broomstraw, etc., that immediately after the passage of defendant’s coal-burning engine a fire started in the inflammable material on the right of way and spread to plaintiff’s house and destroyed it, with further evidence that cinders and hot ashes were found on the right of way at the point where defendant’s engine had stopped, *is held*sufficient to be submitted to the jury on the issue of defendant’s negligence in permitting its right of way to become and remain in such dangerous condition, and it is immaterial whether such negligence caused the injury through sparks from the smokestack or live coals or clinkers from the engine.

2. Trial § 22a—

On motion to nonsuit, every reasonable inference and intendment arising from the evidence must be resolved in favor of plaintiff.

3. Trial § 20—

The weight of the evidence and the credibility of the witnesses are exclusively within the province of the jury, and on motion to nonsuit the sole, duty of the court is to determine whether there is any evidence upon which the jury can properly base a verdict.

Appeal by defendant from *Olement, J.,*June Term, 1951, RichmoND.

Civil action to recover damages for tbe destruction of plaintiffs’ borne by fire as a result of defendant’s negligence.

Plaintiffs charge defendant witb negligence in tbe operation of its locomotive and in allowing inflammable and combustible matter to accumulate and remain on its right of way.

Plaintiffs offered evidence tending to show substantially these facts:

Plaintiffs’ residence was located approximately 100 yards east of defendant’s track. Defendant bad allowed its right of way to become foul witb bushes, weeds, grass, broomstraw and broom sedge, which bad grown “waist-high . . . right up to tbe crossties. Tbe weeds and grass was dry when tbe bouse burned.” Tbe fire started about six inches or a foot on *115tbe side next to plaintiffs’ bouse and went from that point to tbe plaintiffs’ bouse. Defendant’s train, consisting of a coal-burning locomotive, two empty cars and a caboose, passed plaintiffs’ borne at about 10:30 o’clock on tbe morning of 25 March, 1950. Tbe train was stopped a short distance from tbe tracks of tbe Seaboard Air Line Eailroad for tbe switchman to make the necessary rail adjustment to allow defendant’s train to cross. Immediately after defendant’s train proceeded across tbe Seaboard tracks, fire was discovered by plaintiffs’ son and some other boys within six inches or a foot of tbe crossties of defendant’s track. Some of defendant’s crossties were also burned. This fire ignited tbe dry weeds, grass and broom sedge which bad been allowed to accumulate on defendant’s right of way and was fanned by a 40 to 50 mile an hour westerly wind so that it spread through an uncultivated field which was overgrown with combustible material to tbe plaintiffs’ bouse, where it kindled a blaze in tbe dry hens’ nests under plaintiffs’ bouse and completely consumed plaintiffs’ residence and its contents. Plaintiff bad tbe aid of witnesses who testified that hot embers, coals and ashes were seen on tbe right of way at tbe point where defendant’s train stopped before crossing tbe Seaboard track. One witness testified: “Tbe fire did not burn back over toward tbe Seaboard right of way that day. I saw cinders and ashes that were hot, just been let out. Started shifting and let them out of tbe engine; that is where I first saw tbe fire. That is where I saw tbe hot embers. Tbe fire burned from there continuously up to tbe bouse.” Sparks from tbe fire were blown a distance of 200 yards toward and past plaintiffs’ bouse. There was no fire in tbe neighborhood before tbe train passed.

Defendant offered evidence largely in contradiction of that of plaintiffs. Upon this contradictory evidence, tbe jury rendered a verdict in favor of plaintiffs, and from tbe judgment entered on tbe verdict, defendant appealed, assigning errors.

*J ones & J ones for plaintiffs, appellees.*

*Bynum <& Bynum and McLean & Stacy for defendant, appellant.*

VALENTINE, J.

This appeal challenges tbe correctness of tbe court’s action in overruling defendant’s demurrer to tbe evidence and motion for judgment as of nonsuit.

Plaintiffs’ evidence was abundantly sufficient to raise tbe reasonable inference that defendant bad negligently allowed combustible material to gather and remain in large quantities on its right of way near its track in tbe vicinity of plaintiffs’ property and that this inflammable material was ignited by sparks, coals and embers emitted from defendant’s engine. This evidence makes out a case for tbe plaintiffs and was correctly submitted to tbe jury under proper instructions of the court and under tbe *116rules established by many decisions of this Court. *Moore v. R. R.,*124 N.C. 338, 32 S.E. 710; *Williams v. R. R.,*140 N.C. 623, 53 S.E. 448; *Knott v. R. R.,*142 N.C. 238, 55 S.E. 150; *McRainey v. R. R.,*168 N.C. 570, 84 S.E. 851; *Broadfoot v. R. R.,*174 N.C. 410, 93 S.E. 932; *Betts v. R. R.,*230 N.C. 609, 55 S.E. 2d 76.

Our duty here is limited to the single question of determining whether there is any evidence for the jury to consider and upon which it could properly base a verdict. This requires an interpretation of the plaintiffs' evidence in the light most favorable to them. Every reasonable inference and intendment arising from the evidence must be resolved in favor of the plaintiffs before a nonsuit is in order. *Henderson v. R. R.,*159 N.C. 581, 75 S.E. 1092; *Powell v. Lloyd,*234 N.C. 481, 67 S.E. 2d 664.

Whether the fire originated from sparks emitted from the smokestack or from the live coals or clinkers dropped or thrown from the fire box is of no consequence. If the defendant permitted its right of way to become and remain in a dangerous condition and if the combustible material on its right of way caught fire from sparks or live clinkers blown, thrown or dropped from defendant’s engine and if the fire so ignited burned through the inflammable material on defendant’s right of way and from there spread to other combustible material so that it passed or was blown to and burned the plaintiffs’ residence, the defendant was guilty of such negligence as renders it liable for the damage sustained by plaintiffs. *Knott v. R. R., supra; Aycock v. R. R.,*89 N.C. 321; *Phillips v. R. R.,*138 N.C. 12, 50 S.E. 462; *Simpson v. Lumber Co.,*133 N.C. 95, 45 S.E. 469; *Betts v. R. R., supra.*

The evidence of the plaintiffs tended to show negligence in that the combustible material which defendant had allowed to accumulate and remain on its right of way was ignited by the live embers, coals and cinders dropped from defendant’s locomotive, which fire spread directly to and destroyed plaintiffs’ residence and its contents. The weight and sufficiency of this evidence as well as the credibility of the witnesses are questions exclusively within the province of the jury. *In re Will of Morrow,*234 N.C. 365, 67 S.E. 2d 279.

Measuring the evidence of plaintiffs by the rules laid down by the court, we reach the conclusion that plaintiffs’ evidence made out a case for the jury and the motion for judgment as of nonsuit was properly overruled. The other exceptions are formal and require no discussion.

In the trial of the case in the court below, we find

No error.