
    Jesse Billings, Resp’t, v. The Fitchburg Railroad Co., App’lt.
    
      (Supreme court, General Term, Third Department,
    
    
      Filed November 28, 1890.)
    
    1. Negligence—Railroads—Fires set by engines.
    Evidence that no fire was seen before defendant’s engine passed, that it was discovered some fifteen minutes afterwards, that no one was about there before the fire, that all engines will emit sparks and that the weather was very dry, is sufficient to be submitted to the jury on the question whether defendant’s engine caused the fire.
    3. Same..
    It appeared that defendant had given permission to any person to cut the growth of weeds along its tracks; that large quantities were left, consisting of brush, weeds and bushes two feet high, and there was a pile of clippings of dry pine. Reid, sufficient to authorize the jury to find that defendant negligently permitted along its track an accumulation of combustible material, which caused the fire which injured plaintiff, and that it was liable.
    Appeal from judgment in favor of plaintiff and from order "denying motion to set aside the verdict and for a new trial on the minutes.
    Action for the negligent burning by defendant of buildings situate near its roadway belonging to plaintiff.
    
      T. F. Hamilton, for appl’t; J. D. Baucus, for resp’t.
   Learned, P. J.

The learned justice in his charge practically held that there was no evidence to warrant the finding that the defendant was negligent in respect to the construction of the engine.

He left it to the jury, however; to determine whether there was negligence on the part of the defendant in permitting the accumulation of dry and dead vegetation along the track, and held that if there was such negligence, and if the fire in such vegetation caught from sparks emitted by the engine, and then extended to and destroyed plaintiff’s property, there might be a recovery.

We need, not, therefore, inquire whether there was proof of imperfect construction of the engine, since the recovery was not on that ground. The question must be whether there was sufficient proof for the jury that the fire was caused by sparks from the engine, and whether there was proof of defendant’s negligence as to the dead vegetation.

There was proof that the fire was not seen along the track before the train passed, and that it was seen some fifteen or twenty minutes afterwards on the east side of the track, the- wind being northwestward, and strong; and that there was no one about there before the fire started. It was also shown that all engines will emit sparks, and that the weather was very dry. How we think that this kind of evidence, which we have briefly stated, was sufficient to be submitted to the jury on the question whether defendant’s engine caused the fire.

So it was held in Smith v. London & South Western Railway Co., L. R., 6 C. P., 14, and such must have been the view taken in Eighme v. The Rome, Watertown & Ogdensburgh Railroad Co., 32 N. Y. State Rep., 757. The case of Shepp v. The New York Central & Hudson River Railroad Co., 21 N. Y. State Rep., 568, is substantially to the same effect, although there was the further fact of the finding of a piece of coal on the track. See Seeley v. The New York Central & Hudson River Railroad Co., 2 N. Y. State Rep., 452, and S. C., 102 N. Y., 719.

It is hardly possible in cases of this kind occurring in the country and often at a distance from houses to prove by eye witnesses that sparks from the engine ignited the fire; and the proof, therefore, must be such as the circumstances permit.

The next question is, whether there was evidence of negligence on defendant’s part in leaving dead vegetation along the track where it would be likely to be ignited. That such acts may be -evidence of negligence is settled. O'Neill v. The New York, Ontario & Western Railway Co., 115 N. Y., 584; 26 N. Y. State Rep., 269, and Redfield on Negligence, §§ 674, 678.

This fire occurred the 10th of April. There was evidence that there were weeds, yarrow, burdock, and whatever grew there the summer before ; that the railroad gave to any who wished permission to cut the growth along the road, and that such persons cut what they wanted and left the rest, which consisted of brush, weeds, and anything of that kind. There were also bushes and weeds described as two feet high.

And there was a pile of dry clippings from pine trees; yellow pine and white pine. Now without going into the detail of this evidence it is enough to say that the jury could well have found that the railroad company negligently permitted along its track an accumulation of combustible material which caused this injury to plaintiff. The defendant is required by statute twice a year to cut down noxious weeds, although this requirement is probably intended for the promotion of agriculture. But aside from this statutory requirement the defendant ought to take reasonable care that the sparks which are quite likely to be emitted from its engine should not fall on combustible material along the track.

We see no ground to sustain any of the exceptions taken by the defendant on the trial.

Judgment and order affirmed, with costs.

Landon and Mayham, JJ., concur.  