
    Billings G. Martin, Resp’t, v. The New York, Ontario & Western Railroad Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    Railroad—Negligence—Fire caused by sparks prom engine.
    Sparks from one of defendant’s engines set fire to brush and old ties piled along its track, A strong wind carried the fire through adjoining lands for a mile, across a river ninety-seven feet wide, over which the trees hung, and 3400 feet further to plaintiff’s timber lands. Held, that the injury to plaintiff’s land was the natural and direct effect of the first firing, and that defendant was liable therefor.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying a new trial.
    
      George H. Carpenter, for app’lt; W. F. O'Neil, for resp’t.
   Learned, P. J.

This is an appeal by the defendant from a judgment on verdict and from an order denying a new trial. The action was brought to recover damages caused to plaintiff’s wood land about the 22d of May, by a fire which is alleged to have originated through defendant’s negligence. The fire started on the east side of defendant’s track in old brush and old ties which were along the track. The brush had been cut the fall previous. The ties had been taken out of defendant’s road. The alleged negligence was in leaving this dry and combustible material along the side of defendant’s track, where it might catch fire from the escape of sparks or burning cinders. The fact of the fire is not disputed. Nor is it disputed that it started as above stated. The defendant claims that the injury done to plaintiff is too remote from the original kindling of the fire, however negligent that was, to permit a recovery.-

The fire started at a point between the Neversink Tunnel and the Fallsburgh Station. From that point to the Neversink River is about one mile. The river is about ninety-seven feet wide. It is described as having a high bank on the west side with large timber. In some places, a witness says, the river was almost closed in and trees leaned over. The east bank was a bark “ slashing ” all the way. That is combustible and easily ignited. The plaintiff's land was about 2,400 feet beyond the river.

There had been a drouth for many days previous. The wind on the day of the fire was blowing strongly from the southwest to the northeast, which was in the direction of plaintiff’s land from the place where the fire started. The fire, starting from defendant’s road, ran through lands of Carley and of O’Neill to the river. There it crossed the river, evidently conveyed by the brush and dry timber on the banks and by the trees reaching over the river, and then continuing on it burned the plaintiff’s woodland. " One witness says that when it reached the river “ it could not but help but go; the wind was driving it over the hill as fast as a man could run.”

It cannot be said that plaintiff’s damages are speculative. They are actual and are the result, direct or remote, of defendant’s negligence.

If the plaintiff had been an owner adjacent to the railroad and the fire starting on the railroad had caught one of plaintiff's trees and had burned it, there could be no doubt of defendant’s liability.

Suppose that from that tree another on plaintiff’s land and still another had caught, and had been destroyed, would it be said that the damages for all but the first tree were too remote? Clearly not. Webb v. R., W. & O. R. R., 49 N. Y., 431. One might as well say, that, if one side of plaintiff’s house adjacent to defendant’s land had caught fire, and the fire had' extended through to the other side of the house, plaintiff’s damages must be confined to the value of the side which first caught fire.

It seems then plain that if the plaintiff’s woodland had been adjacent to the defendant’s track and the fire starting on defendant’s track had extended over plaintiff’s land, defendant would have been liable for all the damage caused thereby, and not solely for the value of the first tree or trees which ignited. A contrary rule would plainly be absurd.

Mow let us suppose, a very possible supposition, that the plaintiff had owned the land of Carley and of O’Meill and all the land between the railroad and that land which he does in fact own. In that case could it be said that he could not recover for the damage done to the whole of the land owned by him ? But what difference, as to defendant’s liability, whether the plaintiff owned all the land from the railroad track to and including that now in question, or whether the intermediate land belonged to some other person ? The damages are more no remote in the one case than in the other. The damages are just as immediate a result of the defendant’s negligence, whether the land over which they extend belongs to one person or in severalty to two.

The question of remoteness cannot depend on the title to the land. To hold otherwise would be absurd. A fire in such cases travels along from tree to tree, from brush to brush, from grass in one place to grass adjoining. The line which divides the ownership of the land neither stops the fire or carries it forward. So that the ownership is utterly immaterial when we are considering whether a certain result is the direct effect of the original fire. It might be material if there were a change of wind, or if some new cause should intervene. There was none here.

The case of Ryan v. N. Y. C. R. R., 35 N. Y., 210, is very gingerly treated in Pollett v. Long, 56 N. Y., at 206, and O'Neill v. N. Y., O. & W. R. R. Co., 115 N. Y., 585; 26 St. Rep., 269. And it is not necessary to comment upon it. It is not the case before us. Whatever may be the law as to a house in a village or city which takes fire from the burning of an adjacent house negligently set on fire by the owner, that is not the question here. It is well settled that where one negligently sets on fire grass or brush, or other combustible material, and the fire extends to the adjacent owner’s land, and destroys wood or grass, such owner may recover the damages. Webb v. Rome, W. & O. R. R. Co., ut supra, and many other cases. It is not necessary for us to justify the distinction made between such cases and that of city or village houses.

The question involved here was considered in the O'Neill case, ut supra. There it was urged that the plaintiff could not recover because the plaintiff’s lands did not lie next to the railroad, but were separated from it by the lands of another. In answer to the point that this objection, though not urged at the trial, could not have been remedied, and miglitj therefore, be heard on appeal, the court said that this fact alone was not decisive. Other circumstances would control, and the court could not say that testimony would not have been shown that the result was to have been anticipated from the moment fire dropped. If so, the destruction of plaintiff’s property was not remote. Thus we see that this is the test; or, as again expressed, the question is whether the result “ was the natural and direct effect of the first firing.” So the learned justice charged in this case. The jury must have found that the destruction of plaintiff’s property was the natural and direct effect of the fire which started in defendant’s land. Such finding is fully sustained. There was no change of the wind. It continued to blow in the same direction. The fire moved rapidly along to the plaintiff’s land. It does not appear that there was anything extraordinary in the circumstance that it passed from one side of the river to the other, when we consider the condition of the banks and the brush and slashing thereon. At any rate nothing but the wind and the condition of the banks carried the fire over. Hence the crossing was to have been anticipated.

The case of Read v. Nichols, 118 N. Y., 224; 28 St. Rep., 867, decided three months after the O'Neill case, makes no reference to it, and is not material here. It was the case of a fire in a village somewhat like the Ryan case. Sparks from a smokestack blown by a strong northeast wind had set fire to a house 280 feet distant ; then the wind died down and changed to a breeze from the south and plaintiff’s building was destroyed. There were no fire apparatus and no ladders long enough to enable persons to go on the roof of the first building. On all these circumstances the court held that the loss was not the direct effect of defendant’s negligence. That case, therefore, belongs to the same class as the Ryan case. It is unlike the other and more familiar cases in which a fire negligently kindled on a man’s ground has, under the operation of the existing natural conditions, extended itself to other land and destroyed woods, crops, grass and fences.

The O'Neill case is so close in point that it is unnecessary to cite cases from other states.

Judgment and order affirmed, with costs.

LANDON and Mayham, JJ., concur.  