
    Annie Sugarman, Resp’t, v. The Manhattan Elevated R. Co., App’lt.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed December 7, 1891.)
    
    1. Negligence—Railroad.
    Plaintiffs awning was set on fire by a coal of fire almost as large as a walnut, emitted from one of defendant’s engines. Defendant’s evidence showed that the apparatus of the engines for preventing the escape of fire were of the most approved path rn, and that orders were issued for frequent examination and reparation, which were habitually carried out; but no evidence was given as to this particular engine. The evidence showed that the engines frequently emitted large sparks and that the ash pans, had openings in the side through which coals might fall. Held, that the conclusion of the court that defendant’s negligence caused the fire was not such error as to call for reversal.
    2. Same—Contributory.
    Plaintiff, on seeing the fire, became frightened and ran away without trying to extinguish it. It was not shown, however, that she could have prevented it. Held, that negligence was not predicable of an instinctive effort to escape impending peril, and, at most, the question of contributory negligence was one for the jury.
    Appeal from judgment of a justice’s court.
    Action to recover for the burning of plaintiff’s awning by defendant. The awning was set on fire by a spark from the engine of defendant’s passing train.
    
      Charles Caldiuell, for resp’t; Byron Traver, "for app’lt
   Pryor, J.

It is requisite to the tortious character of an act that it be either voluntary or negligent. Here the act was involuntary and unintentional; and the question, therefore, is whether it was the effect of negligence.

Upon plaintiff’s proof it appeared that the awning was burnt by a spark or coal of fire emitted from the defendant’s engine ; that the spark or coal .was large; “ almost as large as a walnut.” This evidence was sufficient prima facie proof of defendant’s negligence, McNaier v. R. R. Co., 46 Hun, 502; 12 St. Rep., 562; Field v. R. R. Co., 32 N. Y., 339; Ruppel v. R. R. Co., 13 Daly, 11; McCaig v. R. R. Co., 8 Hun, 599; Seybolt v. R. R. Co., 95 N. Y., 562; Piggot v. R. R. Co., 3 C. B., 229; Scolt v. London Docks Co., 3 H. & C., 596; Mullen v. St. John, 57 N. Y., 567.

Assuming this to be so, the appellant contends that the presumption of negligence was overcome by contrary proof; namely, that the apparatus of the engine for preventing the escape of fire was of the most approved pattern, that orders were issued for its frequent examination and prompt reparation; and that the instructions were habitually carried out. But no evidence was given as to the actual condition of the particular engine whence-issued the spark. It further appeared that defendant’s engines frequently emitted large sparks; that it was impossible for so large-a coal as the plaintiff described to have escaped from the engine had it been in proper condition; and that the ash pans had openings on the side through which coals might have fallen. Clearly a case of conflicting inferences was presented to the learned justice; and we cannot say that, in finding the negligence of the-defendant to have been the cause of the injury, he so erred in his conclusion as to warrant a reversal of the judgment. Mc Naier v. R. R. Co., 46 Hun, 502; 12 St. Rep. 562; Seybolt v. R. R. Co.. 95 N. Y., 562, 567.

But, assuming its negligence to have been the cause of the injury, defendant contends that it is relieved of liability by the contributory negligence of the plaintiff; who testifies that when she-saw the coal fall on the awning she became frightened and ran away without attempting to arrest or extinguish the fire. Conceding, for argument, that the principle of Hamilton v. Mc Pherson, 28 N. Y., 72, is applicable to the case, still, it is not apparent that the plaintiff could have prevented the fire, but the contrary rather, by the question she retorted upon defendant’s counsel. Moreover, it is the settled law of this state that negligence is not predicable of an instinctive effort to escape impending peril. At all events the question of contributory negligence was for the trial justice to solve; and we cannot say that he decided it wrongly. Fero v. R. R. Co., 22 N. Y., 209.

So, the judgment is affirmed, with costs.

Daly, Oh. J., and Bischoff, J., concur.  