
    Coolidge v. Rome, W. & O. R. Co.
    
      (Supreme Court, General Term, Fourth Department.
    
    May 10, 1889.)
    Railroad Companies—Negligence—Fires.
    Where, in an action against a railway company for negligently setting fire to plaintiff’s property, it appears that defendant’s engine dropped coals of fire as large as a butternut, on a portion of the track where there was combustible material, and in a dry and windy time, from which the fire started, a verdict for plaintiff will not be set aside, though the engine was properly constructed, and in good order, as negligence in its management may be inferred from the circumstance of dropping coals of that size.
    Appeal from circuit court, Jefferson county.
    Action by Thomas Coolidge against the Rome, Watertown & Ogdensburgh Railroad Company for negligently setting fire to plaintiff’s property. The plaintiff is the owner of a farm in the town of Philadelphia, Jefferson county, lying adjacent to and either side of the track of the defendant. Portions of it were burnt over and injured by fire in June and July, 1886, and in July, 1887. It is alleged that on each occasion the fire was communicated to plaintiff’s fields by coals of fire and sparks from defendant’s locomotives that were improperly constructed, and that on each occasion the fire and burning of plaintiff’s property were the direct result of such defective and improperly constructed locomotives, and of the negligence of the defendant and its employes. Verdict and judgment for plaintiff, and defendant appeals.
    
      IS. B. Wynn, for appellant. Henry Purcell, for respondent.
   Meewin, J.

The claim of the appellant is that the evidence in this ease does not warrant the finding that the property of the plaintiff has been injured by reason of any negligence of this defendant in the construction or management of its engines. There is substantially no dispute but that the fire which injured the fields of the plaintiff originated upon or near the track of defendant, and spread from that point onto plaintiff’s property. There is evidence tending to show that the fire upon each of the different occasions started from live coals dropped from the engine upon the track, and that coals were there from the size of a walnut to a butternut. The theory of the defendant seems to be that its engines were properly constructed and managed, and that if any fire was set from the dropping of coals or cinders it was unavoidable. Assuming the engines to have been properly constructed, it was a question of fact whether the dropping of coals to the extent the evidence on the part of the plaintiff tended to show did not show that the engines were out of order, or improperly managed. There was evidence to the effect that if the ash-pan was properly adjusted the coals would fall into it, and not on the ground. In Field v. Railroad Co., 32 N. Y. 339, it was held that where it is in evidence that engines properly constructed, and in good order, will not drop coals upon the track, the dropping of coals from defendant’s engines upon the track is of itself evidence of negligence sufficient to charge the defendant. In Webb v. Railroad Co., 49 N. Y. 420, it was held that the question of negligence did not consist merely in suffering the coals to drop from the engine, but that that, together with the dryness of the atmosphere and earth, the strength and direction of the wind, the permitted accumulation of weeds, grass, and rubbish, were all constituents of the act, and went together to make it negligent. In this case, as in that, there are the elements of wind, dryness, and accumulation of rubbish.

As tlie case stood, we think the question of negligence was for the jury to decide. It was carefully submitted to them by the trial judge, and no exception was taken to his charge. Ho sufficient reason is shown for this court to interfere with the result. Ho point is made -as to any ruling on evidence. The amount of damages as found by the jury was within the limits furnished by the evidence. It follows the judgment and order should be affirmed.

Hardin, P. J., and Martin, J., concur.  