
    George W. Eighme, Resp’t, v. The Rome, Watertown & Ogdensburg R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    Railroads — Liability fob, fire originating on its premises.
    A fire was discovered after the passing of a train among the grass and weeds by the side of defendant’s track opposite of plaintiff’s premises, which were unoccupied. It appeared that the grass had been allowed to grow there for a year or so, and that defendant’s station agent saw the fire, but paid no attention to it, as some boys were trying to put it out. While he was at supper the fire spread to plaintiff’s premises ^vnd consumed them. Held, that the fire having originated on defendant’s premises and inflammable matter by the side of its road having become the medium for the spread of the fire to plaintiff’s premises, defendant was charged with the duty of using all reasonable means to arrest it so as not to injure plaintiff, and was liable for the failure of its agent to do so, although the engine was not shown to be out of order.
    Appeal from a judgment entered upon the verdict of a jury in the sum of $1,384.97, rendered at the Niagara circuit, in October, 1889, and from an order denying the defendant’s motion for a new trial made on the minutes of the court.
    
      Edmund B. Wynn, for app’lt; A. K. Potter, for resp’t.
   Macomber, J.

This action was brought to recover the value of a house situate in Wilson, N. Y., destroyed by fire on the 25th day of April, 1888, alleged to have been caused by the negligence of defendant or its employees and servants. The house was located on the south side of the defendant’s railroad and near its depot, the rear portion of the lot touching upon the defendant’s railroad. On the day mentioned, one of the defendant’s trains had passed over the road westwardly stopping at this station, the locomotive being brought to a stand in the vicinity of and opposite the plaintiff’s lot. Soon after the train passed on and before it was ont of sight, a fire was discovered in the grass and weeds along the defendant’s road opposite the plaintiff’s premises.

The contention in behalf of the plaintiff at the trial was, that the fire passed from the lands of the railroad to those of the plaintiff and burned towards the house about twenty rods distant. through the grass that was there growing, and finally caused the destruction of the building. So much of the plaintiff’s case is hardly controverted. Evidence was given for the purpose of showing that the locomotive, which was supposed to discharge the coals causing the fire, was defectively constructed or was out of repair. But this branch of the case was entirely withdrawn by the trial judge from the jury, under instructions advising them that there was not sufficient evidence to hold the defendant liable by.reason of any such defects in the engine. The case, therefore, narrowed itself' down to one of diligence or care in the station agent in suppressing the fire after he had been apprised of its existence. . The fire originated about four o’clock in the afternoon. The attention of the station agent was called to it soon thereafter, and before it had passed to the plaintiff’s premises, but he made no effort to extinguish it, except that he stepped out' of the station building and observed that two boys were engaged in the effort to smother the flames, and that, so far as he could observe or was informed, they had succeeded in so doing. Further than this, he seems not to have given the matter any personal attention. It is claimed in his behalf that he did all that could be reasonably expected of him under the circumstances, inasmuch as he had no assistant or clerk to take his place, and that his duties were so various as to require him not.only to act as ticket agent, but as train dispatcher, telegraph operator and station master. Yet, at 5.30 o’clock, notwithstanding the multiplicity of such duties, he left the station to go to his home for supper, and while seated at table he was informed that the plaintiff’s house was on fire. It was then too late, with the appliances at hand in the village, to avert the total destruction of the house.

The court, in substance, charged the jury, that if they were satisfied that there was carelessness or inattention on the part of the defendant and of its agent at that station in the effort to check and subdue the fire, and that plaintiff himself was not chargeable with any want of care on his part, there could be a recovery in the case if the jury were satisfied that the fire originated upon the premises-of the defendant from coals coming from the locomotive, even though the engine was not shown to have been made without proper appliances for either the extinguishment of sparks from the. smoke-stack, or the retention of the coals in the fire-pan. This portion of the charge presents the material question raised on this appeal.

Touching the plaintiff’s failure to extinguish the fire after the same had communicated with his own premises, little, if anything, need be said, for the premises were vacant, and had been for some time, as the plaintiff resided at a considerable distance therefrom and knew nothing about the threatened dangers to it, and neither he or any agent of his was in a position to assist in the protection of the property.

The learned counsel for the appellant says, in his brief, that' •this case is essentially different from any railroad fire case that he has ever known to be presented for review on appeal. We agree with him that it has one feature which separates it from the general run of cases where reclamation is made upon a railroad for damages caused by the escape of cinders or sparks from the-locomotives, in that, under the ruling of the trial judge, there can be no pretense made in this case that the locomotive was either defectively constructed or carelessly managed. Yet, that the fire was started on the defendant’s premises from the escape of coals or cinders from this locomotive admits of no reasonable doubt under the evidence. Testimony was given to the effect that the defendant had permitted the grass to grow along the wayside of its tracks so that the same was of considerable height, nearly a foot and a half, in the vicinity of the beginning of this fire. There was some evidence to show that this had been permitted to remain in such condition for a year or so. Further than this, there is nothing to show that the defendant had permitted the accumulation of combustible matter.

In the case of O'Neill v. N. Y., O. & W. R. R. Co., 115 N. Y., 579; 26 N. Y. State Rep., 268, which was an action to recover damages for injuries to certain woodlands belonging to the plaintiff lying near the defendant’s road, set on fire through the negligence of the defendant, where it appeared that the sparks from the locomotive passing on the defendant’s road set fire to brush, wood, old rails and other combustible material which it had allowed to accumulate on its lands, the fire spreading to the plaintiff’s premiles through the lands of another, it was held that, even conceding that the escape of the fire from an engine is inevitable, a railroad company is bound to remove combustible material from its path and to prevent such accumulation thereof by the side of the tracks as will, in consequence of fire falling upon it, endanger the property of others.

In Webb v. Rome, Watertown & Ogdensburgh R. R. Co., 49 N. Y., 420, the negligent act consisted not merely in suffering coals to fall from the engine, but was made up of other circumstances, such as, among others, the dryness of the atmosphere, of the earth and its herbage, and the accumulation of weeds, grass and rubbish, by the side of the defendant’s tracks; a recovery therein was sustained on the ground of an omission of duty by the railway’s employees to protect the plaintiff’s property damaged by fire originating on the company’s lands.

In Coolidge v. Rome, Watertown & Ogdensburgh R. R. Co., 23 N. Y. State Rep., 459, which was an action to recover damages for injuries to the plaintiff’s farm, caused by fire set by live coals and sparks dropping from the defendant’s locomotive and communicating to the plaintiff’s lands, it was held that, assuming the engines to have been properly constructed, it was a question of fact for the jury whether the dropping of the coals did not show that the engine was out of order or improperly managed.

In Douglass v. Rome, Watertown & Ogdensburgh R. R. Co., 23 N. Y. State Rep., 456, which was an action to recover for hay alleged to have been destroyed by fires kindled from sparks or coal that-fell from the defendant’s engine, evidence was given tending to show that where the fires occurred 'the defendant had permitted old ties, dry grass and weeds to accumulate along the sides of-its tracks. The fires were discovered immediately after the defendant’s train had passed; the spreading thereof to the plaintiff's lands was caused by the accumulation of rubbish along the defendant’s track; the fires were set by coals and sparks that were scattered along its tracks by one of its engines, some of them as large as a butternut. It was held that such facts are sufficient to justify the submission of the defendant’s negligence to the jury.

In Tanner v. The N. Y. C. & H. R. R. R. Co., 108 N. Y., 623 ; 13 N. Y. State Rep., 501, the plaintiff’s goods, which were shipped on the defendant’s road, to be transported to Rome, were destroyed by fire while in a freight car at Rome, the fire being communicated to the car from the freight depot, near which it was standing. The fire was caused by sparks thrown from a defective engine which set the depot on fire. Evidence was given by the defendant to show that, the smoke-stack and the spark-arresting arrangement of the locomotive that was supposed to have caused the fire were iu perfect condition, and that the fire could not have been set by the sparks therefrom. It was held that the burning of the car containing the plaintiff’s goods was, under the conditions existing at the time, a natural result of the burning of the freight house, and if that was attributable to the negligence of the defendant, it was responsible for the loss of the plaintiff’s goads. In none of these cases, it is true, did it affirmatively and distinctly appear that the locomotive was properly constructed and properly managed’, but the decisions therein afford analogies from which we think we can safely arrive at the same conclusion as the learned trial judge in this instance.

The fire having its origin on the defendant’s premises, and inflammable matter by the side of the railroad becoming a medium to spread the fire to the plaintiff’s premises, the defendant was charged in law with the duty of using all reasonable means to arrest the fire so as not to injure the plaintiff. The evidence is sufficient, we think, to sustain the finding of the jury in this regard, and that the defendant’s agents failed to exercise proper and reasonable diligence in preventing the spread of the fire from the lands of the railroad to the house of the plaintiff.

The judgment and order appealed from should be affirmed.

Dwight, P. J., and Corlett, J., concur.  