
    Tyler McNaier, App’lt, v. The Manhattan Railway Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 13, 1887.)
    
    Negligence—Railroad—When sufficient evidence to go to juey..
    On the trial of an action for damages for injuries resulting from the effect of a blow received from a very hot cinder which fell from one of" defendant’s engines, it appeared that the plaintiff was walking on Sixth, avenue, in the city of New York, and stopped to look up at one of defendant’s elevated trains that was passing, and while so doing was struck by the cinder, which was about the size of a pigeon’s egg, which came-from the engine attached to the train. There was also proof tending to-show that a locomotive engine properly constructed and kept in repair would not cast out such pieces of red hot cinders. Held, that the evidence, made out a sufficient case to go to the jury.
    Appeal from a judgment in favor of the defendant, entered upon the dismissal of the complaint at the close of the plaintiff’s case on the trial thereof, at the Westchester county circuit.
    
      Joseph S. Wood, for app’lt; Davies, Cole & Rapallo, for resp’t.
   Barnard, P. J.

The proof made out a sufficient case to go to the jury. The plaintiff was a bookkeeper, and on his way home from New York city to Mount Vernon. He was on foot and in the public highway. When he got along Sixth avenue to the middle of the block between Twentieth and Twenty-first streets, one of defendant’s elevated cars came along and passed the plaintiff. He stopped to look up at the train as the engine passed and was hit by a clinker or a cinder over the eye. The clinker or cinder was about the size of a pigeon’s egg, some half an inch broad and somewhat longer, and it was very hot, so hot that it burned the plaintiff. There was nothing between the plaintiff and the locomotive and no other vehicles were passing at the time. There was also given, proof tending to show that a locomotive engine properly constructed and kept in repair in respect to a wire netting calculated to prevent the escape of cinders and ashes from the ash pan would not cast out such pieces of red hot cinders. The injury became very serious to the plaintiff. As to the cause of the injury the proof is, if credited by a jury, certain and positive, that the cinders came from the defendant’s locomotive, and could have proceeded from no other source. The size of the cinder of itself is a strong circumstance against the condition of the locomotive from which it escaped, and with the proof that a properly constructed engine would prevent it, the cause of action became completely proven so far as to entitle it to go to the jury. Seybolt v. New York, Lake Erie, etc., 95 N. Y., 568.

Assuming that a passenger along the street can be in-1 jured by one of the very many locomotives of the defendant by a cinder of this size, something is called for from the company by way of explanation. The passenger cannot be expected to discover the particular engine and give proof as to its condition. The company can easily do so. The case varies some from the case of Searles v. The Manhattan Company (101 N. Y., 661). In that case by “the undisputed evidence all the appliances used upon defendant’s locomotive to prevent the escape of sparks and cinders were skillfully made and were the best known.” Tire non-suit in the present state of the evidence on one side only is against the repeated decision of the court of appeals. Sheldon v. H. R. R. Co., 14 N. Y., 218; Hinds v. Barton, 25 id., 544; Field v. New York, etc., 32 id., 339; Webb v. Rome, etc., R. R., 49 id., 420.

The negligence consisted in the fall of the fire and is not met absolutely by proof that the engine was in good order. The action is made out, if the defendant failed to carefully use a good locomotive. The company would clearly be liable for any direct injury arising from the falling of the burning coals. Lowery v. Manhattan Company, 99 N. Y., 158.

Judgment should be reversed and new trial granted, costs to abide event.

Pratt, J., concurs; Dvkman, J., not sitting.  