On the 19th of April, 1897, the defendant company ran a train over the track of the Norfolk and Carolina Railroad Company, between Tunis and Ahoskie, and soon after said train passed, a fire was discovered in the woods near by, which spread rapidly' and burned the plaintiffs’ wood. The evidence all showed that the fire originated beyond the right-of-way, and the .Judge so told the jury. Two trains of the Norfolk and Carolina had passed over said *117track not long before tbe, fire was discovered, and there was a steam sawmill in operation at tbe time tbe fire was discovered about tbe same distance from tbe fire as tbe railroad track.
There were several witnesses examined, who testified as to tbe length of time after tbe defendant’s train passed before tbe fire was discovered, tbe direction of tbe wind, tbe rapid spread of tbe fire, and tbe destruction of tbe plaintiff’s property.
Tbe plaintiff offered no evidence connecting tbe defendant with tbe fire, except tbe passing of tbe train and tbe fire, and offered no evidence of negligence, unless tbe following is such evidence: A. A. Newsome testified: “I was there and saw tbe train; noticed smoke and sparks; it seemed to be exhausting; at tbe time I called attention to it and noticed sparks, sparks came over from the railroad toward tbe store, and then towards me on tbe east side.” And J. M. Walden, who testified that, “I recollect tbe fire; the wind was west — a little more west; I got to tbe fire first; I saw tbe size of a flour barrel. Tbe southbound train passed 15 minutes before I discovered it; railroad west from origin of fire; mill south; 93 yards from origin of fire to mill, and 85 yards to railroad; I noticed tbe train as it passed; weather very dry and wind rapid; there was much smoke coming out of tbe smoke-stack of engine; thought train slowed up, but am not certain about it; smoke was going directly towards woods; saw smoke and sparks going towards woods.”
This was the evidence upon which tbe plaintiff contended that negligence of the defendant was shown.
Among other evidence, tbe defendant offered tbe testimony of Jeffries as to tbe condition of tbe train, as follows: “I was fireman on train No. 15, engine 945, on tbe 19th of April, 1897. Its equipment for preventing fire was perfect; so far as I know, no change had been made; engine was in good condition. It bad been out of tbe shop about ninety days. I *118continued to fire it until July. I can’t s>ay wbetber the engine was inspected or not. Opening the furnace door decreases the draft. Frequent firing causes black smoke, but .has no effect to- increase sparks when straining. It was a light train. Heavy trains cause engine to strain. The engine was capable of hauling 8 or 10 cars easily; on this occasion it was pulling only three. Spark arrester is not placed iii the smoke-stack of the engine, but over the furnace, and it is stationary. Its effect is to prevent the escape of fire and sparks; does not prevent it entirely; if so', it would wholly cut off draft and engine could not run.”
There was no evidence in the case that contradicted or tended to' contradict this evidence, unless that offered by the plaintiff and quoted above does.
Among other instructions the defendant requested the Court to- charge: 1. That upon the whole evidence the jury must find that the defendant was guilty of no negligence and the plaintiff can not recover.” The defendant also asked the Court to charge that, “If the jury believe the uncontradicted testimony of the defendant’s witnesses, the engine from which the damage is alleged to have come was in good condition, and had a proper arrester, and was skillfully operated and managed, and that plaintiff could not recover.” These prayers were refused and the defendant excepted.
The Court then charged the jury that there was no evidence tending to show that the fire originated on the right-of-way. “So the question of negligence need only be considered with reference to the condition of the engine, and its management and operation at the time.” The Court further charged that, “If the jury find by the preponderance of the evidence that the fire originated from the defendant’s engine, then, if nothing else appeared, the plaintiff would be entitled to damages; so that, if it is shown by the preponderance of evidence that the fire originated from the defendant’s engine, the burden *119shifts to the defendant to show by the greater weight of evidence that the engine at the time was in good repair, and was equipped with approved appliances to prevent the escape of fire, and was at the time managed and operated in a careful manner by a skilful engineer. It is as if this was submitted to you in a separate issue, and if this is shown by the greater weight of evidence, then the plaintiff can not recover, even though the woods caught fire from the defendant’s engine.” Defendant again excepted.
We think there was error in refusing to charge as requested and in the charge as given.
The exception to the refusal to give defendant’s prayers for instruction and the exception to the charge as given, resolve themselves substantially into the same error.
The Court properly instructed the jury that there was no evidence tending to show that the fire originated on the right-of-way, and their only enquiry as to negligence should be as to the train — whether it was properly equipped, manned and managed. Blue v. Railroad, 117 N. C., 644. And it seems to us that he should have told them there was no evidence to show negligence in the running and managing of defendant’s train. The simple fact that the engine emitted black smoke and some sparks as it passed along the track on schedule time, is not such evidence of negligence, if any evidence at all, as should have been submitted to a jury to prove negligence ( Wittkowsky v. Wasson, 71 N. C., 451), as it is shown that all engines emit some smoke and sparks. In fact, it is shown that they can not “live” and work, without doing so.
But if this is not so, the other prayer of the defendant should have been given — “That if the jury believe the uncon-tradicted testimony of the defendant, the engine was in good condition, properly manned and managed, and the defendant was guilty of no negligence on that account, and the plaintiff could not recover.” It is contended that this prayer was *120properly refused, because it only referred to the uncontra-dicted evidence of the defendant. And while it is admitted that there is a rule of that kind, we do not think it applies to a case like this. That rule applies where there is contradictory evidence — evidence on both sides — and is laid down in Gaither v. Ferebee, 60 N. C., 303, and yet the discussion of the rule in that case shows that it should not apply in this case. The case of Harris v. Murphy, 119 N. C., 34 (56 Am. St. Rep., 656), sustains this prayer of the defendant and shows that it should have been given. It is held in Anderson v. Steamboat Co., 64 N. C., 399: “The facts being ascertained, negligence is a question for the Court. When the testimony is all on one side, or is not contradictory, the Court can decide whether there is or is not negligence.” When it is contradictory, it must be submitted to the jury with proper instructions as to the law, that they may find the facts. So it would seem that as all the evidence in thé case, as to the condition of the defendant’s train, was one way, it presented a question of law for the Court, if true, and the Court should have so instructed the jury that if they believed this evidence they should find for the defendant.
The Court also erred in submitting this question, as to the condition and management of the defendant’s train, to be .found by the jury upon the preponderance of the evidence, and the greater weight of the evidence, as there was no evidence on the side of the plaintiff upon that question to preponderate or weigh against the evidence of the defendant.
There was error, for which a new trial is awarded the defendant.
New trial.