
    The People of the State of New York, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. (Action No. 2.)
    Fourth Department,
    March 5, 1913.
    Railroad — negligence—injury to forest preserve by fire — defective locomotives ■—failure of railroad to remove inflammable material from right of way — evidence — condition of defendant’s locomotive prior to fire — damages — value of trees killed by fire.
    Action by the People to recover damages caused by the alleged negligence of the defendant railroad in setting fire to a portion of the forest preserve owned by the State and abutting upon the defendant’s right of way. The evidence showed conclusively that defendant upon the day the fire started ran over its tracks five or more locomotives having grossly defective fireboxes and ashpans, which would allow live coals to be thrown therefrom.
    
      Held,, that the evidence was sufficient to justify the jury in finding that the fire was started because of defective locomotives.
    The defendant was negligent in allowing cut grass, bushes and timber to remain upon and adjacent to its right of way during the entire summer, and the jury were justified in finding that the spread of the fire to the State lands was caused by such negligence.
    Under the circumstances aforesaid the defendant would be liable independent of section 72 of the Forest, Fish and Game Law, requiring railroads passing through forest lands to remove inflammable materials from them right of way.
    Although the plaintiff’s bill of particulars stated that the forest fire started on a certain day it was proper to admit evidence of the numbers of the locomotives and the number of trains which passed over the tracks prior to that day, in order to establish the defendant’s negligence, there being evidence that an examination of the locomotives made a few days prior to the fire showed that the fireboxes and ashpans were out of repair and did not comply with the law and that they actually scattered live coals.
    In such action the defendant is not entitled to have deducted from the damage to State lands the value of the timber which was killed by the fire, for the State Constitution prohibits the marketing of the same. Robson and Foote, JJ., dissented in part.
    Appeal by the defendant, The New York Central and Hudson Elver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 5th day of July, 1912, upon the verdict of a jury for $13,086; also from an order entered in said clerk’s office on the 20th day of July, 1912, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 10 th day of June, 1912, denying the defendant’s motion for a nonsuit.
    The action was commenced on the 18th day of July, 1910, by order of the Forest, Fish and Came Commissioner to recover damages sustained by the plaintiff because of the alleged negligence of the defendant in setting fire to a portion of the forest preserve owned by the State, and which abuts upon the right of way of the Malone branch of the defendant’s railroad, which extends from the city of Utica to Malone.
    The defendant appeals from the judgment upon the grounds, as urged, that the evidence fails to establish actionable negligence against it, and that the verdict of the jury upon that issue is contrary to and against the weight of the evidence, because of alleged errors committed by the learned trial court in the admission of evidence and in charging the jury, and because, as it is claimed, the verdict is excessive,
    
      
      Martin E. McClary, for the appellant.
    
      Thomas Carmody, Attorney-General [John T. Norton and Benjamin McClung of counsel], for the respondent.
   McLennan, P. J. :

It is conceded that the title to the lands which are the subject of this litigation, and which were damaged by the fire in question, is in the State of New York, and that such lands are a part of the forest preserve of the State; that the Malone branch of defendant’s railroad extends for a considerable distance through the lands comprising such forest preserve, and which abut upon the right of way of said railroad, and that at all of the times herein mentioned the defendant has operated upon and over such right of way a steam railroad.

The summer and early fall of the year 1908 was an exceptionally dry period, and a great many forest fires were started and raged along and adjacent to defendant’s right of way, spreading over a considerable area of the forest preserve at different points.

In the complaint it was alleged, in substance, that all of such fires between Woods lake and Beaver river were started and occasioned through the negligent operation of defendant’s railroad over and upon its right of way, and damages resulting from all of such fires, amounting to $30,000, were demanded. By reason of the provisions of certain orders requiring the plaintiff to furnish bills of particulars (the validity of which are not questioned upon this appeal), when it came to the trial of the action the plaintiff was limited in its proof to establishing the fact that on the 14th day of October, 1908, a fire was started on the defendant’s right of way through its negligence at a point between mile post 75.09 and mile post 75.25, about one and five-sixths miles northerly of Woods Lake station and about two and one-half miles southerly of Beaver Eiver station, and the plaintiff was also limited to showing that through the negligence of the defendant said fire was permitted to spread over and upon a large area of the adjoining lands of the forest preserve, and the proof as to the damages was limited to such as resulted from the starting and spreading of such fire.

That on the 14th day of October, 1908, the day in question, a fire was started on defendant’s right of way between the points specified and that it spread over a considerable area of the forest preserve abutting upon or adjacent to such right of way is not seriously disputed by the defendant, hut the defendant strenuously contends that the evidence does not support the finding that such fire was started and allowed to spread because of its negligence.

There was no eye-witness to the starting of the fire, and, therefore, the evidence of defendant’s negligence was necessarily circumstantial.

Upon the circumstances attending the starting and spreading of the fire depends the question of whether or not the same resulted through the negligence of the defendant. It was shown by the “ train sheets ” of the defendant, introduced in evidence by the plaintiff, that on the 14th day of October, 1908, several trains of the defendant, drawn by its locomotives, of given numbers, passed the point at which the fire in question was started. It also .appears that on the 7th and 10th days of October, 1908, the supervisor of equipment of the Public Service Commission, Second District, pursuant to instructions given because of the complaint as to the numerous fires along the defendant’s right of way, examined the fireboxes and ash-pans of-several of the defendant’s locomotives at Utica, Malone and Tapper Lake Junction, and it was found that such' fireboxes and ashpans were seriously defective and did not comply with the provisions of the statute in such case made and provided. It is shown by the testimony that on the 14th day of October, 1908, the day on which the fire in question was started, certain of the locomotives of the defendant, the fireboxes and ashpans of which had been found to be defective, passed the point where the fire started, and it was shown that the defects in such fireboxes and ashpans were such as to permit the free escape of live coals in considerable quantities and of considerable size upon the defendant’s right of way. The details of the defects in such fireboxes and ashpans are fully set forth in the evidence, and it leaves no doubt that they were defective and in such condition as to permit live coals and cinders to fall about the tracks of the defendant. No repairs were attempted to be made of such fireboxes and ashpans from the time of the inspection by the Public Service Commission, when the defendant was informed of their defective condition, until after the fire in question. Of course, it was impossible for the plaintiff to prove that a defective firebox or a defective ashpan on a particular engine caused the starting of the fire in question, but it is undisputed that at about two o’clock of the morning of October 14, 1908, there was no fire along the defendant’s right of way between Beaver Biver station and Wood Lake station; that shortly after nine-thirty o’clock of the morning of October 14, 1908, there was an active fire on and off of the right of way from mile post 75.10 to mile post 75.25, burning quite fiercely along the right of way in question for quite a distance.

We think the evidence very conclusively shows that on the 14th day of October, 1908, the defendant ran upon its right of way, adjoining the lands of the plaintiff at the location in question, five or more locomotives with grossly defective fireboxes and ashpans; in fact, so defective as to make it reasonably certain that live coals and cinders would be thrown therefrom upon the right of way. It appears that a fire did in fact start upon that day upon the right of way, and there is no other explanation as to how it could have started except from the act of the defendant in running its locomotives over such point with defective fireboxes and ashpans.

We think the evidence clearly permitted the jury to determine that the fire in question was started because of the defective fireboxes and ashpans used by the defendant upon its locomotives.

It also appears, and practically without contradiction, that on the defendant’s right of way, between the points in question, were cut grass and bushes, some gathered in piles and others lying upon the right of way, where they were cut, none of which had been removed. There were also old logs and sticks, some cut that summer, all piled in the right of way, evidently to take away or burn,” but not removed. This condition of the right of way had existed all that summer and such rubbish was all burned in the fire which occurred. The starting of the fire, the spreading of it onto the adjoining property, constituting the forest preserve, by reason of the accumulation of inflammable material on defendant’s right of way, is all very clearly portrayed in the evidence. So is also the progress of the fire, and it seems to me that such evidence very conclusively shows that the fire was started because of the negligence of the defendant in permitting the fireboxes and ash-pans of its locomotives to be out of repair and in such condition as to permit live coals of unusual size to be thrown about the tracks, which would naturally cause a fire under the conditions which existed at the time in question, and that the defendant in permitting upon its right of way an accumulation of leaves, dead grass and dead timber, and other inflammable materials, was negligent is clearly shown by the evidence which is of such character as to reasonably account for the spread of the fire in question onto and over the premises of the State known as the forest preserve.

We have no hesitation, upon all the evidence, in concluding that the jury was justified in finding that the fire in question and its spread which occasioned the damages to the plaintiff’s property was caused by the negligence of the defendant.

We think that this proposition would be true even independent of section 72 of the Forest, Fish and Game Law, as the same was in force at the time in question. The obligation of the defendant is, if possible, emphasized by such law. It provides: “Every railroad company shall, on such part of its road as passes through forest lands or lands subject to fires from any cause, cut and remove from its right of way along such lands, at least twice a year, all grass, brush and other inflammable materials. Where the railroad runs through forest lands in counties containing part of the forest preserve, it shall so cut and remove the same from its right of way whenever required by the commissioner; employ in seasons of drought and before vegetation has revived in the spring, sufficient trackmen to promptly put out fires on its right of way; provide locomotives thereon with netting of steel or iron wire so constructed as to give the best practicable protection against the escape of fire and sparks from the smoke stacks thereof and adequate devices to prevent the escape of fire from ash pans and furnaces which shall be used on such locomotives. * * * No railroad company or employee thereof shall deposit fire coals or ashes on its track or right of way near such lands. In case of fire on its own or neighboring lands, the railroad company shall use all practicable means to put it out. * *

Section 74 of said law provides: “A person * * * who suffers a fire on his own lands to extend therefrom or to State lands, * * * shall * * * be liable to the State or any person for the damages caused by such wrongful act. ■ If State lands in the forest preserve are or have been damaged wilfully or negligently as aforesaid, an action to recover the damages shall be maintained in the name of the People of the State on the order of the commissioner by counsel designated by him and recovery shall be had therefor. * * * ” (See Gen. Laws, chap. 31 [Laws of 1908, chap. 130], §§ 72, 74.)

Under the evidence, as we have attempted to briefly detail it, and under the provisions of the statute, we think there can be no doubt that the jury was justified in concluding that the defendant was guilty of negligence which caused the fire in question to start and permitted it to spread upon the lands of the plaintiff and we think that for whatever damages resulted therefrom- the defendant is liable.

The defendant urges that reversible error was committed by the trial court in the admission of evidence to which objection was made and exception duly taken. The first alleged error relates to the admission of the testimony of the witness, Tessier, called by the plaintiff, and who was the chief dispatcher of the Malone division of the defendant’s railroad. He produced, pursuant to plaintiff’s subpoena, the reports or train sheets showing the trains which passed over such division from day to day. After the witness had stated that he was the chief train dispatcher and that he had with him the train sheets which he had been subpoenaed to produce, he was asked the question: “ Will you start with the first of October and tell us of the passenger trains that passed by the point between Woods Lake and Beaver Eiver, and the time of the passage of those trains, giving the number of the engine and the number of the train ? ” Objection was made to the question on the ground that it was immaterial as to what trains passed over the road between the first of October and prior to the fourteenth, the date when the fire occurred. Defendant’s counsel asserted that because of the bill of particulars, stating that the fire started on the 14th day of October, 1908, any question as to the passage of trains prior to that day was immaterial. Counsel for the plaintiff responded as follows: “We don’t intend to interfere with our bill of particulars. This is proof on the question of negligence, to show what trains and engines they were using on that road and using continuously.” The objection was overruled. The court stated, in substance, that the evidence was not received as any evidence as to the amount of damages but simply as evidence upon the question of negligence. The witness then stated (referring to the train sheets) the trains which had passed over the territory in question between the first and thirteenth days of October, giving the numbers of the trains and the numbers of the engines drawing the same. He also, without further objection, gave like data as to trains and engines which passed over that part of the road on the fourteenth day of October.

It is also urged that evidence was improperly admitted showing the conditions of certain of defendant’s locomotives operated between the points in question prior to the fourteenth day of October, the alleged date of the starting of the fire in question.

It seems to me that all this evidence was competent as bearing upon the question of defendant’s negligence. It tended to show the manner in which the defendant had been accustomed to operate its motive power on the branch of its railroad for several days immediately preceding the day upon which the fire in question was started. The evidence of the plaintiff tended to show that a few days prior to the starting of the fire an examination was made of a large number of the engines of the defendant operated over this branch, and that they were all discovered to be out of repair; that the fireboxes and ashpans thereof were not in such condition as to comply with the law, but were in such condition as to make their operation reasonably certain to cause a fire. It was shown that on many engines the fireboxes and ashpans were in such condition as to permit live coals of unusual size to escape upon the tracks, and it was also shown that after the examination of such engines, and after the attention of the defendant had been especially called to their condition, they were not repaired, and no means were taken by the defendant between the date of such examination and the date of the fire in question to remedy the defects.

It also appears that some of such engines as they proceeded up and down the road scattered live coals and cinders in such manner as could not have resulted if they had been in a proper condition and in the condition required by the statute.

It seems to me that this question of the competency of this evidence is fully discussed and decided adversely to the defendant’s contention in the case of Jacobs v. New York Central & Hudson River Railroad Co. (107 App. Div. 134). Justice Hiscogk, writing for this court, said: The evidence that the same engine which is alleged to have set plaintiff’s buildings upon fire had started other fires both upon the occasion in question and another one, under the circumstances disclosed in the case, was competent. Taken in connection with the other established facts it indicated that the engine was throwing sparks and cinders of a kind which could not have escaped if the mesh had been in proper order. [Slossen v. B. C. R. & N. R. Co., 60 Iowa, 215; Peck v. N. Y. C. & H. R. R. R. Co., 165 N. Y. 347, 352.] ” The court further said: Complaint is made because the trial justice allowed the plaintiff to testify that upon other occasions within a period immediately preceding the fire locomotives, not identified as the one passing just before the fire, had thrown cinders as far as his buildings. This evidence was limited to engines drawing passenger trains as they passed plaintiff’s property. There was no suggestion upon the part of defendant, which, of course,' was possessed of ready information upon this subject, that there was any material difference in the construction, operation or fuel used by its passenger locomotives. Therefore we are entitled to assume that the conditions under which these locomotives, upon other occasions in passing over the same spot and drawing the same kind of trains, threw sparks and cinders, were substantially the same as those which governed upon the occasion when one of them is alleged to have thrown the cinders which fired the buildings. * * "x" We think that it was permissible for plaintiffs to show, as tending in a general way to sustain their claim, that before the fire defendant was operating engines which threw sparks and cinders as far as the buildings in question. This at least tended to establish that an engine might throw an ignited cinder as far as this, and that, therefore, it was entirely reasonable and probable to assume that the buildings had been set on fire by a cinder thrown this distance from' the passing locomotive. * * * In Sheldon v. Hudson River R. R. Co. (14 N. Y. 218) the evidence tended to establish, just as in this case, the identity of the particular engine which had caused the fire. Nevertheless evidence was permitted that upon other occasions other locomotives had emitted sparks. * * * The same general rule has been upheld in Field v. N. Y. C. R. R. (32 N. Y. 339); Crist v. Erie Railway Co. (58 id. 638); Hinds v. Barton (25 id. 544). In the latter case the court says: ‘ It was the object of the plaintiff to show the cause of the fire; and this, doubtless, had to be established by circumstances. If any one had seen the sparks leave the engine and. proceed to and ignite the buildings this would have been such clear, positive and direct testimony as would, doubtless, have rendered any resort to circumstantial testimony unnecessary. But if no such positive testimony was given, or, if given, it became necessary to sustain it by other testimony, then it was most pertinent and important to show that on previous occasions the engine had emitted sparks which passed over a greater space than that between it and the buildings consumed on the present occasion and caused the ignition of other buildings or materials. * * "x" ’ It was well remarked in that case (Sheldon Case, supra) — and what was said is applicable to the present — that the admission of such evidence is essential to the administration of justice, inasmuch as circumstantial proof must, in the nature of things, be resorted to, and inasmuch as the jury cannot take judicial cognizance of the fact that locomotive engines do emit sparks and cinders which may be borne a given distance by the wind.”

So that upon this authority and many others which might be cited we conclude that the evidence objected to by the defendant was competent for the purpose of showing that the defendant was guilty of negligence. The plaintiff being unable to point out the particular defect in the particular engine which caused the fire, it resorted to the only other means at hand, to wit, to show that the engines operated by the defendant over this branch of its railroad, one or all of which were defective, were in such condition as to cause the fire which resulted in the damages to the plaintiff.

It seems to me that the charge of the court to which exception is taken in no sense presents reversible error and need not be considered.

The only remaining question to be considered upon this appeal is whether or not the verdict of the jury upon which the judgment in this case is based is excessive.

The evidence very clearly indicates that a certain number of acres of the forest preserve were injured or destroyed by the fire which, as we have seen, the defendant by reason of its negligence caused to start and spread. The value of such forest preserve was shown by the witnesses to be about fifteen dollars per acre before the fire and approximately three dollars per acre after the fire. There is considerable controversy as to the rule of damages in this case. The defendant claims that it is entitled to be credited with the value of the timber which it had killed upon the forest preserve. Whether or not the defendant is entitled to have offset in its favor the value of the timber after the fire and which was killed by it, involves the interpretation of the provisions of section 7 of article 7 of the State Constitution, which provides as follows:

“Forest Preserve.—§ 7. The lands of the State, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. ' They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.”

Practically the contention of the defendant in this regard is that the timber, assuming that it was guilty of negligence in killing the same, should have been marketed or sold by the State, thus reducing the damages resulting from the defendant’s negligence.

My notion is that under the provisions of the Constitution, to which attention has been called, the State was not permitted to market the timber made dead by the negligence of the defendant, and that there was no way in which it could have properly minimized the damages which through the negligence of the defendant had been sustained by it. I am quite inclined to believe that the Legislature might have provided a means by which dead timber, whether resulting from the negligence of a wrongdoer or otherwise, could be removed from the forest preserve and utilized; but such apparently was not the intention of the People of the State when the provision of the Constitution was adopted. It prohibits in express terms the sale or removal of any timber from such lands, and it is hard to conceive how a wrongdoer can insist in a case like the one at bar that the State shall remove any dead timber in reduction of damages caused by such wrongdoer affecting .State lands. Legislation in that regard might be employed. Indeed, it would seem that if from the negligent act of another or by mere accident certain trees in the forest preserve were killed and it was for the interests of all parties that such killed trees should be utilized or removed or made available for any purpose it would be wise legislation to permit the removal of such trees; but the provision of the Constitution as it now stands, as it seems to me, is positive to the effect that no timber, either dead or alive, shall be sold or removed from the forest preserve, and so I cannot conceive how in a case like the one at bar the defendant is in a position to claim that the value of the trees in the forest preserve which by its negligence it has killed should be credited to it in reduction of damages, although such trees under the provisions of the Constitution cannot be sold.

We think in this regard that the defendant’s contention is untenable. The trial judge was right in permitting the jury to find the value of the forest land before the fire and the value thereof after the fire, eliminating from the verdict the value of the timber that was destroyed by the defendant.

Upon all the facts and circumstances, I conclude that the verdict is right and that the judgment and orders appealed from should be affirmed, with costs.

All concurred, except Robson and Foote, JJ., who dissented and voted for modification of the judgment by reducing the recovery to the lower amount found by the jury, viz., $2,908, and for affirmance, without costs, as so modified.

Judgment and orders affirmed, with costs.  