
    Orren B. Jacobs and Others, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — buildings burned as alleged by sparks from a railroad locomotive — action maintainable by the owner and insurance companies contributing to the loss — evidence competent on the question whether the fire was caused by sparks from the locomotive, and whether it had a proper spark a/rresier.
    
    Certain buildings and personal property were destroyed by a fire which it was claimed had been caused by sparks which a railroad company negligently permitted to escape from one of its.locomotives. Several..-insurance companies which had issued policies covering-the property paid the amount of the loss and took a pro tanto assignment of the insured’s- right of action against the railroad company. Thereafter the insured and the insurance companies joined in a single action against the railroad company to. recover the damages sustained by them from the fire.
    Upon the'trial it appeared that the roof of .the building upon- which the fire first made its appearance was seventy-seven feet from the railroad; that the weather was very .dry and that a strong wind was. blowing from the direction of the railroad toward the building; that'there was no fire in or near the buildings and that the .flames were discovered shortly after one of the defendant’s - passenger trains had passed.
    Testimony was given to the effect that upon .the occasion, in question the loco.motive drawing such -train started several fires in the vicinity of the buildings and that both upon this and at least one prior occasion it emitted sparks and * cinders of a size and character which could not have escaped through a proper netting.
    
      Held, that the verdict of a jury to, the. effect that the fire was. ¡kindled by, sparks emanating from" the locomotive in question-and that such locomotive was not equipped with a proper spark arrester was justified by the evidence;,
    That it was proper for the insured and the insurance companies to unite in a single aetion.against the railroad company, and that, even if it was improper for them to- so unite, the defendant could only raise such objection by answer or demurrer;
    That a witness having experience might properly be allowed to give testimony to the effect that a spark which could escape through an arrester in proper condition would not be carried alive over the distance between the railroad track and the buildings in question;
    That evidence that the locomotive, which was claimed to have started the fire in question, had started other fires both upon' the occasion in question and upon another one, was competent, for the reason that such evidence, when taken in connection with the other established facts, indicated that the locomotive was emitting sparks and cinders of a kind which could not have escaped if the mesh of the arrester had been in proper order;
    That it was not error for the trial justice to allow the individual plaintiff to show that locomotives drawing passenger trains, which locomotives were not identified as the one which was claimed to have started the fire, had thrown cinders as far as his buildings, for the reason that, as it did hot appear that the defendant contended that there was any material difference in the construction, operation or fuel of its passenger locomotives, such evidence tended to establish that such a locomotive might throw an ignited cinder as far as the plaintiff’s buildings, and thus to establish the probability of the plaintiff’s claim, Stover, J., dissented.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Oswego on the 7th day of November, 1904, upon the verdict of a jury for $3,700, and also from an order entered in said clerk’s office on the 1st day of November, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    Certain buildings and personal property belonging to the plaintiff Jacobs were destroyed by fire, which, it is claimed, was caused by sparks negligently permitted by the defendant to escape from one of its locomotives. Each of the other plaintiffs had issued a policy of insurance upon this property and, after the fire, settled the loss and its responsibility as insurer at the sum of $930 and took an assignment of plaintiff’s rights and cause of action against the defendant to that amount. And subsequently this action was instituted by the owner and said insurance companies jointly to recover the loss claimed to have been occasioned by defendant’s negligence. The defendant did not by demurrer or answer raise the question that there was misjoinder of. parties plaintiff, or of causes, of action.
    
      
      Henry Purcell, for the appellant.
    
      Irving G. Hubbs and C. I. Miller, for the respondents.
   Hiscock, J, :

While the evidence tending to establish that the property was set on fire by one of defendant’s engines was circumstantial, we think it was sufficient to permit the jury to find as it did. It appeared that the roof of the building where the fire made its appearance was seventy-seven feet from the railroad; that it was very dry and a strong wind blowing from the direction of the railroad towards the buildings; that there was no fire in or near the building where the flames first appeared and that very shortly after, one of defendant’s trains passed the fire was observed upon the outside of the building.

There was also evidence which permitted the jury to infer that the engine which passed at this time was not equipped with a proper spark arrester. Various witnesses gave testimony which, taken together, was to the effect that this engine upon the occasion in question started several fires in the vicinity of plaintiff’s property, and that both upon this and at least one prior occasion it emitted sparks and cinders of a size and character which could not have escaped through a proper netting. It is true that evidence was given in behalf of the defendant tending to contradict some of that given in behalf of the plaintiffs, but, upon the issue of fact thus presented to the jury, there was no such preponderance of evidence in behalf of the defendant as justifies our setting aside the verdict as against the weight of evidence.

We, therefore, conclude that plaintiffs established a cause of action upon the main proposition. (Crist v. Erie Railway Co., 58 N. Y. 638 ; White v. N. Y. C. & H. R. R. R. Co., 90 App. Div. 356 ; Jamieson v. N. Y. & Rockaway Beach R. Co., 11 id. 50 Munson v. N. Y. C. & H. R. R. R. Co., 55 id. 523 ; Peck v. N. Y. C. & H. R. R. R. Co., 165 N. Y. 347.)

It is claimed, however, that various 'errors were committed by the ' court in its rulings upon the tidal which necessitate á reversal of the judgment, and it seems proper to consider some of these.

It is urged that each of the plaintiffs had a separate, independent claim and cause of action against the defendant, and that, therefore, it was improper for them to unite in bringing this action, which embraced three distinct causes of action.

The facts do not, in our opinion, sustain this contention. The complaint is that defendant by its single negligent act caused the destruction of the property and thereby became liable. This constituted a single and entire cause of action which was not separated into several distinct ones because different parties acquired an interest therein, and it was proper that all of the parties interested should be joined as plaintiffs. (Code Civ. Proc. § 446 ; Brett v. First Universalist Society of Brooklyn, 5 Hun, 149 ; affd., 64 N. Y. 651; Pratt v. Radford, 52 Wis. 114; Home Mutual Insurance Company v. O. R. & N. Co., 20 Oreg. 569; Continental Insurance Co. v. Lumber Company, 93 Mich. 139; Lake Erie & W. R. R. Co. v. Falk & Phoenix Ins. Co., 62 Ohio St. 297; Swarthout v. Chicago & Northwestern Ry. Co., 49 Wis. 625 ; Crandall v. Goodrich Transportation Co., 16 Fed. Rep. 75; Loomis v. Brown, 16 Barb. 325; Munson v. N. Y. C. & H. R. R. R. Co., 32 Misc. Rep. 282.)

If it was improper to thus join in one action the three parties interested in a recovery against defendant for its alleged negligent act, defendant was bound to raise this objection by its pleading. (Code Civ Proc. §§ 498, 499; Kelly v. Jay, 79 Hun, 535; Isear v. Hoadley, 44 App. Div. 161.)

The evidence of the witness Parks, offered for the purpose of showing that a spark which could escape through an arrester in proper condition would not be carried alive for the distance between defendant’s track and plaintiff’s building, does not present cause for reversal.

In the first place the evidence given by the witness is so indefinite and so in accordance with common experience that we do not regard it as very material. But in the second place evidence of this kind by a witness who has had experience seems to be entirely justified by the authorities. (Peck v. N. Y. C. & H. R. R. R. Co., 165 N. Y. 347, 352; Jamieson v. N. Y. & Rockaway Beach R. Co., 11 App. Div. 50 ; affd., 162 N. Y. 630.)

The evidence that the same engine which is alleged to have set plaintiff’s buildings upon fire had started other fires both upon the occasion in question and another one, under the circumstances disclosed in the case, was competent. Taken in connection with the other established facts it indicated that the engine was throwing sparks and cinders of a kind which could not have escaped if the mesh had been in. proper order. (Slossen v. B. C. R. & N. R. Co., 60 Iowa, 215; Peck v. N. Y. C. & H. R. R. R. Co., supra.)

Complaint is made because the trial justice allowed the plaintiff to testify that upon other occasions- within a period immediately preceding the fire locomotives, not identified as the one passing just before the fire, had thrown cinders as far as his buildings.

This evidence was limited to engines drawing passenger trains as they passed plaintiff’s property. There was no suggestion upon the part of defendant, which, of course, was possessed of ready information upon this subject, that there was any material difference in the construction, operation or fuel used by its passenger locomotives. Therefore we are entitled to assume that the conditions under which these locomotives, upon other occasions in passing over the same spot and drawing the same kind of trains, threw sparks and cinders, were substantially the same as those which governed upon the occasion when one of them is alleged to have thrown the cinders which fired the. buildings. The claim that the passenger engine which passed by plaintiff’s building just before the fire threw live sparks or cinders thereon was based upon circumstantial evidence, and was a matter of inference therefrom. We think .that it was permissible for plaintiffs to show, as tending in a general way to sustain their claim, that, before the fire defendant was operating engines which threw sparks and' cinders as far as the buildings in question. This at least tended to establish that an engine might throw an ignited cinder as far as this, and that, therefore, it was entirely reasonable and probable to assume that the buildings had been set on fire by a cinder thrown this distance from the passing locomotive.

The evidence to our mind comes within the rule which was early established by the Court of Appeals, and which has not thus far been reversed or modified, at least as applicable to the facts of this case.

In Sheldon v. Hudson River R. R. Co. (14 N. Y. 218) the evidence tended to establish, just as in this case, the identity of the particular engine which had caused the fire. Nevertheless evidence was permitted that upon other occasions other locomotives had emitted sparks. While it is not necessary to consider the scope and present applicability of all that was said in that case, we are unable to conclude otherwise than that it justifies, under all of the circumstances, the evidence admitted in this case.

The same general rule has been upheld in Field v. N. Y. C. R. R. (32 N. Y. 339); Crist v. Erie Railway Co. (58 id. 638); Hinds v. Barton (25 id. 544).

In the latter case the court says: “ lb was the object of the plaintiff to show the cause of the fire; and this, doubtless, had to be established by circumstances. If any one had seen the sparks leave the engine and proceed to and ignite the buildings this would have been such clear, positive and direct testimony as would, doubtless, have rendered any resort to circumstantial testimony unnecessary. But if no such positive testimony was given, or, if given, it became necessary to sustain it by other testimony, then it was most pertinent and important to show that on previous occasions the engine had emitted sparks which passed over a greater space than that between it and the buildings consumed on the present occasion and caused the ignition of other buildings or materials. Such testimony would show, not only the power of the engine to emit sparks, but the distance they would travel in a state of ignition. * * *

It was well remarked in that case (Sheldon Case, supra) — and what was said is applicable to the present — that the admission of such evidence is essential to the administration of justice, inasmuch as circumstantial proof must, in the nature of things, be resorted to, and inasmuch as the jury cannot take judicial cognizance of the fact that locomotive engines do emit sparks and cinders which may be borne a given distance by the wind.”

We do not deem it necessary to consider any of the other alleged causes of error called to our attention.

All concurred, except Stover, J., who dissented.

Judgment and order affirmed, with costs.  