
    Henry C. Crofoot, Respondent, v. The Syracuse, Binghamton and New York Railroad Company, Appellant, Impleaded with William W. Wright.
    
      Injury to a storehouse, erected under a revocable license on a railroad company's land by an engine running into an open switch — the failure to remove a water tank or a switch concealed thereby is 'lot evidence of negligence — charge giving too much discretion to the jury.
    
    In an action brought against a railroad company to recover the value of a storehouse which had been erected by the plaintiff and another person upon the railroad company’s lands pursuant to a revocable license, it appeared that the storehouse was destroyed by a fire communicated to it from a wreck on the railroad caused by a train running into a misplaced switch located adjacent to the storehouse.
    The only reasonable conclusion from the evidence was that the switch had been opened by someone with criminal intent.
    
      Held, that it was error for the trial' judge to allow the jury to find that the displacement of the switch was the act of some trainmen for which the defendant might be held liable;
    That, as the plaintiff and his associate knew that the switch was partly hidden by a water tank at the time they obtained permission to erect the storehouse, no actual negligence upon the part of the defendant could be predicated upon its failure to change the location of the w„ater tank or switch or its method of using them;
    That the following charge: “If you find from the evidence, applying it perfectly fairly, that this company was not negligent in the operation of its road, that they took such precaution as a prudent and careful man would have taken in the conduct of his business, why then, gentlemen, you need go no further; * * - if you find the reverse, that the company was negligent in causing the accident * * "* then you assess the damages,” was erroneous in that it left the jury too gr.eat a discretion in determining what would constitute negligence on the part of the railroad company.
    Appeal by the defendant, The Syracuse, Binghamton and New York Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Cortland on the 24th day of May, 1901, upon the verdict-of a jury, and also from an order entered in said clerk’s office on the 5th day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    The action is brought by plaintiff to recover the value of a storehouse and contents owned by plaintiff and defendant Wright, which were burned on the night of December 12, 1895. The complaint, charges that the fire was the result of the negligence of the railroad, company.
    The fire was started by the overturning of a locomotive engine hauling an express train, which in passing the station at Preble,, where the storehouse was erected, ran into an open switch, collided with some freight cars and resulted in the overturning of the engine, the killing of the engineer,.the burning of the cars which made up the express train, and from these burning cars the fire was. communicated to the storehouse.
    
      Jenney. c& Jehney, for the appellant.
    
      John 8. Conway and Lawrence T. Jones, for the respondent.
   Kellogg, J.:

The cause of the accident was an - open or misplaced switch... The switch was what is known as a Horton safety switch. It-could connect the side track with the main track only by raising a. lever weighted by an iron ball and held in that position. When released the weighted lever dropped to the ground and disconT nected the side track from the main track. When not used to-move cars upon the side track it was kept locked with a padlock. A standard was connected with the switch provided with elevated, targets which worked automatically and indicated to approaching-trains the condition of the switch. If open a red target showed by day and a red light by night. If disconnected a white target was shown in the daytime and a white light in the night time. The accident occurred at eleven o’clock on Sunday night. On examination of the switch immediately after the accident the lever of the switch was found to be raised and fastened in that position with a portion of fence board and an iron bar. The lock was found to have been broken. The target light was out and the wick turned down into the oil. The accident did not disturb the switching apparatus, the standard or the target light. These facts are supported by the undisputed testimony on the trial, except a single witness, Doctor Matthews, who says in substance that he had the impression that he saw the light burning after the accident, but I don’t know.” It was proven that all trainmen carried keys which unlocked the padlock which secured the switch lever. It was also proven that the switch had not been used to run cars upon the side track at any time after Saturday night prior to the accident, which occurred on Sunday night, and that, a milk train moved over the main track going south (in the same direction the express train was going) at six o’clock Sunday morning. The station agent, Wright, who was equal owner with plaintiff of the storehouse and contents, testified that the freight cars on the side track at the time of the accident were placed there Saturday night; he saw them there Sunday. It would, therefore, seem to have been conclusively established that no trainmen in their discharge of their duties had negligently left the switch in the condition in which it was found. Uor is there any proof that trainmen ever before had kept the switch open by propping up the lever in any manner, or had ever before broken the padlock or turned down the target light. It was also shown by witness Wright, whose duty it was to clean and light the target lamp on this switch, that the light was burning at nine o’clock p. m., two hours before the accident, showing the switch to be closed and in proper condition for the safety of trains moving south on the main track. The only reasonable conclusion from this testimony is that the switch had been operated purposely, and permanently connected the siding with the main track and the light extinguished, between nine and eleven o’clock p. >l, by some one with a criminal intent to derail the next south-bound train, and the company was in no way responsible for this act of displacement. It was, therefore, error on the part of the learned trial court to submit to the jury, over the objection and exception of defendant, that they might find that the displacement was the result of the act of some trainmen, for which defendant' might be held liable. Station Agent "Wright had been in charge of this station for many years, and is also interested with plaintiff in the action. He testified: “ I never thought there Was any necessity for émploying a switchman for the sole purpose-of taking care of that switch,” and the learned court properly charged the jury that it was unreasonable to expect that some man would stay there on the part of the company and watch -and' care for this switch.”

There is no evidence whatever in the case from which the jury had a right to conclude that the engineer was negligent in running his train. The alleged negligence of defendant is, therefore, narrowed down to-the single proposition, was it, so far as plaintiff and Wright are concerned, actionable negligence on the part of the company to continue to, maintain, after the permission was given to build the storehouse, the same condition of things as were before maintained, that is, the water tank and the switch partially hidden thereby ? It seems to me the statement, of the proposition raises no doubt whatever. The defendant owed no duty to the plaintiff and Wright' to remove the water tank oi- to make the targets upon the switch less obscure. The situation of both water tank and switch were well known to both Wright and plaintiff when they obtained permission to erect a building on defendant’s premises. They obtained without pay a license or permission revocable on sixty days’ notice. There was no promise to .pay rent, and no promise express or implied to change the water tank or switch, or change the methods of using either or change defendant’s method of doing its business. The rule in such a case is that the person obtaining the permission must assume all the ordinary risks attached to the nature of the place and the business carried on. Even had plaintiff promised to pay a rental for the ground he was to occupy, he could not require defendant to change the location or management of the switch, or require defendant to employ a man to watch or attend it. It was, therefore, error on the part of the learned court to leave it to the jury to say whether in this respect defendant might not have failed in its duty to plaintiff and Wright.

So far as I am able to- discover the foregoing are the only propositions submitted to the jury. They are, however, by the charge not very clearly defined. It is impossible to say what the jury ■might have understood the learned court to mean in its final instruction in this language: So, gentlemen, you will take this case, and if you find from the evidence, applying it perfectly fairly, that this company was not negligent in the operation of its road, that they took such precaution as a prudent and careful man would have taken in the conduct of his business, why then, gentlemen, you need go no further; * * * if you find the reverse, that, the company was negligent in causing the accident, * * * then you assess the damages.” This portion of the charge was excepted to. That this instruction gave the whole field to the jury to speculate in and discover that according to their private notions the business had not - been conducted prudently, or in conformity with the jury’s idea as to how a railroad business should be conducted, is apparent. The danger of sending a jury to sea without a pilot or compass might be less if the learned court should instruct the jury to report, in writing, the precise negligent act or omission upon which they based their verdict. Then, if the court were unable to instruct them what must be found to sustain a verdict, the record would still show what they did find.

The exceptions to the charge and the requests to charge fairly raised the several propositions we have referred to, and the charge and disposition of the requests were a practical instruction to the jury that they had a right to speculate, and there was no legal limit to their inquiry and no legal standard by which they were to judge the defendant guilty or not guilty of a failure in its duty to this plaintiff.

Under such a presentation, the jury might well have come to the •conclusion that the defendant was negligent in not providing more men to extinguish fires when defendant’s locomotives overturned;

•or they might have concluded that a prudent conduct of a railroad business does not admit of unforeseen accidents, and that evéry accident, not traceable to the act of God, necessarily establishes negligence in business management. The error of leaving so wide •a discretion to a jury is too obvious for comment.

The judgment should be reversed, a new trial granted, with costs' to appellant to abide the event.

■ All concurred.

Judgment and order reversed on law and facts, and new trial granted, with costs to appellant to abide event.  