concurring: In Williams v. R. R., 140 N. C., 624, the rules of negligence applicable to a case of this kind are thus summed up :
“1. If fire escape from an engine in proper condition, having a proper spark arrester, and operated in a careful way by a skillful and competent engineer, and the fire catches off the right of way, the defendant is not liable, for there is no negligence.
“2. If fire escape from an engine in proper condition, with proper spark arrester, and operated in a careful way by a skillful and compe*317tent engineer, but the fire catches on the right of way, .which is in a foul and negligent condition, and thence spreads to the plaintiff’s premises, the defendant is liable. Moore v. R. R., 124 N. C., 341.
“3. If fire escape from a defective engine, or defective arrester, or from a good engine not operated in a careful way or not by a skillful engineer, whether the fire catches off or on the right of way, the defendant is liable.
“In the first case there would be, as above stated, no negligence. In the second, the foul right of way would be negligence, and in the third the defective engine or spark arrester, or the negligent operation of a good engine, would be negligence.”
In this case it is true the evidence of the defendant of a proper spark arrester and a competent engineer cannot be considered on a motion to nonsuit, but there is no evidence from the plaintiff to show negligence in that respect, nor even that the fire “escaped from its engine.”
Neither is there any evidence that the fire caught on the right of way, but the contrary appears from the right of way not having been burned over. It is true that if the origin of the fire is traced to the defendant the burden would then be upon it to show that it was not negligent. But the plaintiff’s evidence failed to show the origin of the fire.
In McRainey v. R. R., 168 N. C., 571, and that class of cases the fire started on the right of way, and this is evidence of negligence under Rule 1 as above stated in Williams’ case. In Aman v. R. R., 160 N. C., 371, and like cases there was evidence that the engine threw sparks and live coals, which was evidence of negligence. But there is nothing of the kind in this ease.
In Deppe’s case, 152 N. C., 80, which comes nearer this case on the facts than any other relied on by the plaintiff, the engine had been switching for three-quarters of an hour near the mill, and it was shown that the ventilator on top of the mill was open, that the fire started there soon after and the smoke from the engine entirely enveloped the mill, and it was on a bright -summer day so that sparks could not be seen in the smoke. In this case there was no evidence except that an engine passed by not very long before the fire occurred, but there was nothing to indicate that the engine was throwing sparks or that its smoke, bearing sparks, enveloped the plaintiff’s property, nor any evidence tending to show the absence of a spark arrester or that the engine was throwing .sparks or that it was defectively equipped or operated.
In Kemp v. R. R., 169 N. C., 731, though the fire started in defendant’s depot which caught fire in the night, and, it was alleged, from a *318passing engine, and this fire extended to the plaintiff’s property, a judgment of nonsuit was sustained because it was not shown that the depot was set fire by sparks from an engine.
The case exactly like this on the facts in McGuire v. R R., 154 N. C., 384, where it was not shown that the fire began on the right of way, though it was burned over and no evidence that the engine threw out sparks. Though there was a verdict for the plaintiff, the Court held that there should be a nonsuit, for the x>laintiff “must not only prove that the fire might have proceeded from defendant’s locomotive, but must show by reasonable affirmative evidence that it did so originate,” citing Ice Co. v. R. R., 126 N. C., 798.
This case does not come within the rule laid down in Williams v. R. R., supra, nor under any other precedent in' our books, as I understand them. There is no evidence that the engine was defective or defectively operated or that it threw out sparks, and the fire did not originate on the right of way.
It would be dangerous and might lead to great injustice to hold the railroad company responsible for every fire that breaks out after an engine has passed, when the fire originated off the right of way and there is no evidence beyond the fact that an engine passed not long before the fire began. This would make the railroad company an insurer lof all the property along the right of way, unless it can show that the fire was not caused by its engine.
While direct evidence that the fire was caused by the negligence of the defendant is not required, but it may be inferred by the jury from the .attendant circumstances, there must be more than bare evidence of a possibility, or even a probability, that the fire was so caused. As the counsel for the defendant well says, there must be more than the argument of solicitor, on one occasion: “Gentlemen of the jury, there was a hog. Here is a negro. Take the case.”