
    John P. Douglass, Resp’t, v. The Rome, Watertown and Ogdensburg R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 12, 1889.)
    
    Negligence—Fires caused by locomotive engine—When question of negligence proper for jury.
    In an action to recover for hay alleged to have heen destroyed by fires kindled from sparks or coal that fell from defendant’s engines, evidence tending to show that where the fires occurred,defendant had permitted old ties, dried grass and weeds to accumulate along the sides of its track; that fires were discovered immediately after defendant’s train passed; that they originated on defendant’s land; that their spread on to plaintiff’s land was occasioned hy the accumulation of such rubbish along defendant’s track; that the fires were set hy coals and sparks that were scattered along its track hy one of its engines; that on several occasions after such engine passed, frequent fires sprung up; that sparks, cinders and live coals were scattered along the track by such engine, which varied in size, and that an engine with a suitable grate and spark arrester, when properly operated, would not scatter coals as large as a butternut, is sufficient to justify the submission of the question of defendant’s negligence to the jury.
    Appeal from a judgment entered in Jefferson county on the verdict of a jury, and from an order denying the defendant’s motion for a new trial made on the judge’s minutes, and heard in this court on a case containing all the evidence.
    . Edmund B. Wynn, for app’lt; Arthur L. Chapman, for resp’t.
   Martin, J.

A quantity of plaintiff’s hay was destroyed and his land injured by fires which were kindled from sparks or coals that fell from the defendant’s engines. For the injury thus sustained, the plaintiff recovered in this action. The recovery was based on the defendant’s negligence. The defendant now seeks to reverse the judgment herein on the sole ground that the evidence was insufficient to justify the submission to the jury of the question of its negligence.

The evidence tended to show that where the fires in question occurred, the defendant had permitted old ties, dried grass and weeds (some of which was cut and some remained standing), to accumulate along the sides of its track; that the fires were discovered immediately after the defendant’s train had passed; that they originated on the defendant’s land; that their spread on to the plaintiff’s land was occasioned by the accumulation of such rubbish along defendant’s track; that these fires were set by sparks and coals that were scattered along its track by its engine known as number seventy, which passed the plaintiff’s premises each day at about three o’clock, p. M.; that on several occasions after such engine had passed over the defendant’s road, frequent and numerous fires sprang up along its track; that sparks, cinders and live coals were scattered along the track by such engine; that they came both from the smoke stack and furnace, and varied in size, some being as large as the end of a person's thumb, some larger than a walnut and others larger than a butternut; and that an engine with a suitable grate and spark arrester when properly operated would not scatter coals as large as a butternut. •

This evidence was, we think, sufficient to justify the submission of the question of the defendant’s negligence to the jury. Sheldon v. H. R. R. R. Co., 14 N. Y., 218; Field v. N. Y. C. R. R. Co., 32 id., 339; Webb v. R., W. and O. R. R. Co., 49 id., 421; Bevier v. D. and H. C. Co., 13 Hun, 254; O’Neill v. N. Y., O. and W. Ry. Co., 45 id., 458; 10 N. Y. State Rep., 147; McNaier v. Manhattan Ry. Co., 46 Hun, 502; 12 N. Y. State Rep., 562; Tanner v, N. Y. C. and H. R. R. R. Co., 13 id., 501; 108 N. Y., 623.

We think this question was properly submitted to the jury, and that the judgment should be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.  