
    Garrett S. Mott, Plaintiff and Appellant, v. The Hudson River Railroad Company, Defendants and Respondents.
    1. Whether the firemen of the city of New York, being incorporated, and charged with the duty, and furnished with, and with the control of, the necessary means to extinguish fires, are liable to the owner of property burned, for loss arising from their negligence in the use of means to put f out the fire, quaere?
    
    2. In an action against a Railroad Company, to recover damages for so neglii gently running a train of its cars, that the train ran over and cut hose lying across the track of the road and attached to fire engines in use at the time by firemen, who were endeavoring to extinguish the fire of buildings burning near the track of the road, whereby, as was alleged, the firemen were unable to subdue the fire they otherwise would have extinguished, and whereby the fire was communicated to other buildings which were burned; it is error to instruct the Jury that, if there was negligence of the firemen in not using proper means to warn the approaching train of the fact of the fire and its locality, and that the hose was across the track, and that if such negligence concurred with that of the Railroad Company in producing the injury, the negligence of the firemen is to be deemed the plaintiffs negligence, and that such fact is a bar to bis recovery.
    3. Whether a railroad company, who have, in fact, provided approved brakes which had been found adequate to stop the train sufficiently quick to avoid such casualties as experience had shown might be anticipated, and which were faithfully used by the servants of the Company, but without avail, should be held liable, merely because, with the very best brakes in use, the train might have been slopped in time, quaere ?
    
    4. In such a case, it is relevant to ask of a competent witness, within what distance could such a train, as that in question, be stopped with ordinary brakes, on an ascending grade, running at such a rate that a man could run faster than the train was going.
    5. A witness who testifies that he is somewhat familiar with railroad brakes and with the operation of them, and has used them on a railroad and knows which are the best brakes, is a competent witness to testify as to the distance within which any given train can be stopped, with a designated class of brakes and a given number of brakemen.
    (Before Boswop.th, Oh. J., and Moncrief and White, J. J.)
    Heard, May 10th;
    decided, June 29th, 1861.
    
      Appeal from an order denying a new trial which the plaintiff had sought on case and exceptions.
    This action was brought to recover from the defendants the damages which the plaintiff alleged-he had sustained from the act of defendants’ servants in running their train across a fire hose, which was employed in putting out a fire upon the plaintiff’s premises. The plaintiff was the owner of a lumber yard, between 54th and 55th streets and near the 11th avenue, in the City of Hew York. The defendants’ railroad lay through this avenue, and at the time of the fire the fire companies of the city in attendance, had laid their hose across the track for the purpose of conveying water from the hydrants to the place of the fire.
    The cause was tried before Mr. Justice Hoppmast, and a Jury, on the 31st day of May, 1860.
    It appeared from the evidence on the trial, that the Railroad Company had a station house at 59th street and another at 71st street, where it was their custom to keep a station man, with signals, to be used to stop trains in case of danger. The firemen did not send to these stations any notice of their having laid hose across the track, but on hearing a train approaching in that direction, sent one of their number up the track, and he met the train between 57th and 58th streets and told the engineer to stop. The train came into the avenue around a curve at 59th street.
    The engineer of the train testified, that he saw the fire from far up the river, but could not tell where it was until he got below certain buildings and trees as he approached it.
    There was other testimony, the particulars of which it is not material to state, bearing upon the question, whether with such notice as the engineer had, the train could have been stopped in season to avoid cutting the hose.
    Among other witnesses, Stephen B. Bowles, being sworn for plaintiff, testified: I am in the business of railroad supplies ; I am somewhat familiar with railroad brakes, and with the operations of them, and have used them on a railroad; I know which are the best brakes.
    
      The witness was then asked the following questions: In 1857, what were the best brakes in use, and how long had they been in use ? With such brakes, within what distance could a freight train be stopped on an ascending grade, running at the rate of fifteen miles an hour ?
    The defendants objected to both these questions as irrelevant, on the ground that in this action the defendants were not liable for any negligence of their own in not using the best brakes, and because as against the plaintiff and his rights involved in this suit, they were not bound to use them. The Court sustained the objection and the plaintiff’s Counsel excepted.
    The witness was then asked: From your experience in brakes, within what distance could a freight train be stopped, with ordinary brakes, on an ascending grade, running at such a rate that a man could run faster than the train was going ?
    This question was objected to by defendants as substituting the opinion of a witness for the judgment of the Jury, and because the witness was not shown to be competent to form an opinion. The question was overruled, and the plaintiff excepted.
    On cross-examination, the witness stated': I have run a railroad train as an engineer—the “ Old ColonyI was not employed as an engineer; I have run trains, twenty, perhaps fifty, times in 1849 and 1850.
    The charge of the Judge to the Jury, so far as it is material to be stated, with reference to the questions passed upon by the Court, was as follows:
    “I. The fire engine department, and its regularly appointed ofiicers in charge of engines, or hose companies, are not prohibited, during a fire and while taking proper measures to extinguish it, from using and occupying the space covered by the railroad tracks of every railroad in the city of New York. But—
    “ II. This right must be exercised with due regard to the particular right of the Railroad Company to the use of its track, a right granted in the present case by the Corporation of Hew York and the Legislature; so that if the engine or hose company could equally well attain the object of arresting a fire by using other portions of a public avenue or street in part occupied by a railroad, or by 'running the engine or hose elsewhere, as by using the railroad track, they would be bound to do so. If there was no other place to lay the hose, or none which was not highly inconvenient, and would seriously delay the extinguishment of the fire, they were entitled to use the track.
    “ III. When such engine or hose company do properly . make use of a railroad track, they are bound to take all ’ reasonable measures and precautions to apprise conductors, engineers, or other persons in charge of trains, which may in regular course of running, be upon the road about the time,of the use and occupation of such track.
    “ IV. The hose or engine company using the track in the present case, are to be considered so far the agents of plaintiff, as that if such company did not take those reasonable precautions, he cannot recover of the defendants. For the purposes of this action any negligence of the fire companies is to be treated as his negligence. He cannot recover if the firemen’s negligence contributed to the accident and damage, nor can he recover if his own neglect contributed to it.
    “ V. But if the firemen were negligent, yet if the defendants’ agents were guilty of gross heedlessness and negligence in managing the train after being apprised of the hose being on the track, or warned to stop, the plaintiff may recover.”
    The plaintiff excepted to the third and fifth propositions above stated, and also to that part of the fourth proposition as to the fire companies being agents of the plaintiff and as to his being affected by or responsible for their negligence.
    In the application of these principles the Judge instructed the Jury that they were to consider whether the fire department were guilty of negligence in laying the hose across the track instead of in another method, which there was some evidence tending to show was possible, and that they were also to consider whether they took that precaution which, as reasonable men, they ought to have taken, to apprise-the employees of the Hudson River Railroad Company of the use of the track by the hose; and he instructed them that if the fire companies were guilty of neglect, the plaintiff had no right to a verdict unless they should find, also, that the agents of the defendants, the engineer, and others in charge of this railway train, were guilty of willful and gross heedlessness in managing the train after they were apprised of the fact that the hose was upon the track, in which case the plaintiff may still recover. He added, in reference to the question of negligence on the part of the servants of the Railroad Company, that if the Jury should believe that the engineer-did make use of all the means at his command to stop the train, the plaintiff cannot recover, although they might believe that such means were, of themselves imperfect, and that there were other means known to science which would have been more effectual to do so.
    And next, that the Company were not bound to exercise the same degree of care to provide for the protection of this hose, as for the property placed under its control and charge.
    Where it is sought to make the Company responsible for the fault of its own agents, the question is, not what could have been done, if the Company had the best means of arresting the engine that science has ever devised, but what could have been done by the engineer or person in charge of the train by the proper employment of the means actually within their reach, and at their command at the ■ time.
    To such portions of these instructions as made the defendants’ liability depend on the firemen’s freedom from negligence, and exonerated the Railroad Company from obligation as toward the plaintiff to provide the best means for stopping the trains, the plaintiff excepted.
    
      The Jury found a verdict for the defendants, upon which judgment was entered; and the plaintiff having moved for a new trial upon a case and exceptions, appealed to the General Term both from the judgment and from the order denying a new trial.
    
      David Dudley Field, for plaintiff and appellant.
    (The points are not inserted here, as they simply rehearse the exceptions taken, as above stated, which the counsel relied on.)
    
      William Fullerton, for defendants and respondents.
    I. The Eire Department was constructively in Mott’s employ in putting out the fire, which was destroying his property. This action is founded upon the relation of master and servant, which for all legal purposes, may be said to exist in such a case.
    It follows, therefore, that the plaintiff was responsible for any negligence of the Eire Department whilst extinguishing the fire which contributed to the accident.
    II. The firemen and the plaintiff himself were guilty of the negligence which caused the accident, in that no timely notice thai the hose was on the track, was given to the approaching train.
    III. It was proper to charge the Jury that the defendant was not guilty of negligence if the officers in charge of the train used all the means at their command at the time to stop the train.
    Whether their brakes, therefore, were of the most approved pattern or not, was not a question for inquiry. (Owen & Lugar v. Hudson River R. R. Co., 2 Bosw., 374 ; Button v. Same, Id., 380, note.)
    The verdict establishes the fact that the defendant was not guilty of any negligence which contributed to the accident.
    IV. The damage done to the plaintiff’s property by fire by reason Of the injury to the hose, is too remote to be the subject of a recovery in this action, and he would not be entitled to recover even if a new trial were granted.
    In cases of deliberate or malicious wrong, the law affords liberal relief, and in case of mischievous acts injurious to others, the party in the wrong is often made answerable for consequences very remote from the original act.
    But in cases of tort without aggravation, where the / conduct of the defendant cannot be considered so morally [ wrong or grossly negligent as to give a right to exemplary or vindictive damages, the extent of remuneration is restricted to the immediate consequence of the act. (Sedgwick on Damages, 82.)
    The party complaining in such a case must show that the particular damage in respect of which he proceeds is the legal and natural consequence of the wrongful act. (Clark v. Brown, 18 Wend., 213, 229.)
    The action in this case was to recover damages for maintaining improper fences, by reason of which the plaintiff’s ox broke into the defendant’s cornfield, and ate so much green corn that he died.
    Judge Sutherland held, that “ the loss of the plaintiff’s ox was not the direct and necessary consequence of the neglect of the defendant to repair his fence.” (216 ; see also 1 Chitty Plead., 388 ; 8 East., 3 ; 2 Taunt., 314 ; 19 John., 228.)
    So, in Alabama, in case of malicious prosecution, whereby the plaintiffs were driven to an assignment, the loss in the sale of the goods made under the assignment was held not to be a proximate or natural consequence of the malicious prosecution. (Donnell v. Jones, 13 Ala., 490, quoted in Sedg. on Dam., p. 82.)
    A still stronger case arose in Massachusetts:
    An assault and battery was committed on the person of a pauper; and the contractor for the support of the poor, at a fixed sum per annum, brought his action, alleging that he was put to increased expenses for the support of this pauper during the illness consequent upon the assault. The Court held the damages too remote. (Anthony v. Slaid, 11 Metc., 290. See remarks in Sedg. on Dam., pp. 87, 88, on the case of Dewint v. Wiltsie, 9 Wend., 325.) The direct injury in the present case was to the hose which was cut. The consequential or remote injury was the burning of the plaintiff’s property.
    The party who brings his action upon a promissory note is limited in his recovery to the actual sum due, and interest at seven per cent. The legal interest of the money is the measure of damages. All other expenses which the plaintiff may have necessarily incurred in carrying on a litigation to recover what no honest man would have withheld from him, are, in law, too remote to form a part of the recovery. (See also Pacific Insurance Co. v Conard, Baldwin, 138.)
   By the Court—Moncrief, J.

The Jury was instructed in substance, that when an engine or hose company make use of a railroad track by laying the hose upon it, to effect the extinguishment of a fire, they are bound to take all reasonable measures and precautions to apprise conductors, engineers or other persons in charge of trains, which may, in regular course of running, be upon.the road about the time, of the use and occupation of the road.

That the plaintiff “ cannot recover, if the firemeh’s negligence contributed to the accident, and damage,” unless “the defendants’ agents in charge of the train were willfully and grossly negligent after they were apprised of the hose being upon the track,” in which case “the plaintiff may recover.” That “for the purposes of this action, any negligence of the fire companies is to be treated as” the plaintiffs’ “negligence,” and that he cannot recover if their negligence contributed to the accident and damage.

The plaintiff excepted to each of these instructions.

It is difficult to conceive of any principle on which the defendants should be held responsible to the plaintiff for loss or damage caused to his property, by the spreading of a fire occasioned by the cutting of the hose in use by the firemen engaged in extinguishing the fire, where such cutting was caused by the defendants’ servants negligently running an engine or train of cars over it, and on which the firemen should not be held liable if it was through their negligence alone that the hose was cut.

The firemen are incorporated and are charged with the duty and furnished with the necessary means, (and with the control of such means,) to extinguish fires. (Davies’ Laws, pp. 392, 394, sec. VII, 485, § 74, 722 ; Corporation Ordinances, (Revision of 1859,) pp. 207, 210, 213, § 31, p. 219, § 51, p. 224, § 71 ; sub. 2, 226, § 73 ; (Laws of 1860, p. 444, § 29.)

Any person or officer, charged by law with the performance of a plain and absolute duty, is liable to a person injured by his negligence in not performing it, or by negligence in the manner of performing it. The cases of Adsit and others v. Brady, (4 Hill, 630,) Hutson and wife v. The Mayor, &c., of New York, (5 Sand. S. C. R., 289, and 5 Seld., 163,) The Mayor, &c., of New York, v. Bailey, (2 Denio, 433,) illustrate the general rule. Unless there be some statute or consideration of public policy, exempting the firemen from liability for injuries caused by their negligence in not performing duties imposed upon them by law, they are equally liable as commissioners of highways for not performing a positive duty, when the means at their command are sufficient for the prupose. No such statute has been called to our attention; nor has any principle of public policy been stated in support of such an exemption.

The duty which the defendants have violated, in the present case, if any, is not one owing to any person being or then having property on the train of cars in question. If they have violated any duty, it is a duty they owe to the community generally, and to the plaintiff as one of its members, to use such care and diligence in operating their road, as not to injure any person or property that may rightfully, at any time, be on the track of their road.

It is quite clear that the defendants cannot be made to pay any damage which the plaintiff may have sustained by reason of the negligence of the firemen.

.. But it does not follow that if the plaintiff’s property was burned in consequence of the negligent severing of the hose carrying water to his buildings at the time on fire, he cannot recover of the defendants, if the severing of the hose was the result of the concurring negligence of the defendants’ servants and the firemen. If this act was done by the concurring negligence of the two, in such sense that the hose would not have been cut if either had been free from negligence, then the plaintiff is entitled to recover, unless it be a sound proposition that the damages are too remote to present a case of liability. '

•In the case supposed, the firemen and the defendants were joint actors in the wrong doing in such sense, that by the concurrence of the default of each the injury was produced.

Such a case is, in principle, like Colegrove v. The Harlem Railroad Company, and The New York and New Haven Railroad Company, (6 Duer, 382 ; 20 N. Y. R., 492.)

In that case, the Harlem Railroad Company owed, at the time of the injury, a special duty to the plaintiff. So, in the present case, the firemen, at the time of the casualty complained of, owed a special duty to the plaintiff in this action, and were eng’aged in performing it.

In the case cited, the Hew Haven Railroad Company owed no other duty to Colegrove than they owed to all persons who might be passengers in any train of the Harlem Company, and that duty was less extensive and entirely different from the duty it owed to its own passengers. In the case before us, the defendants owed no other duty to the present plaintiff than it owed to every person owning property in the City of Hew York; to use reasonable care and diligence not to frustrate or render ineffectual means in use to extinguish an existing fire, when such means consisted in part of hose rightly laid across or stretched along the track of its road.

The ground on which the defendants are charged in such a case is, that the wrong was done by an act, in the doing of which it was an actor. The fact that others cooperated or concurred with it in effecting the wrong, does not affect the question or measure of its liability.

If negligence, in such a case, can be imputed to the firemen then present, or to any or either of them and to only a part of them, the result is the same,

Whoever was' guilty of and responsible for the concurring negligence, they and the defendants are the parties ■ in fault; and it is by their and the defendants’ concurring negligence that the loss and damage were caused. The defendants’ liability is not affected by the consideration, whether only one or several of the firemen are in law to be deemed guilty of the negligence, in not taking proper and timely precautions to inform the defendants’ servants of the existence and locality of the fire, and that hose was then lying on the track to obtain the Supply of water ®f§quisite to extinguish it.

The difficulty in the case opcasioned by the charge is, ■ that the Jury may have found the defendants guilty of negligence, and yet have rendered a verdict against the plaintiff, because they foúnd the firemen also guilty of negligence, and that the injury was caused by the concurring negligence of the firemen and of the defendants’ servants.

An instruction to render a verdict for the defendants, on finding such to be the facts, is erroneous. If there had been no other evidence in respect to the question of the defendants’ negligence than that given on the part of the plaintiff, we cannot say that a verdict finding negligence would be contrary to evidence.

At the same time, if the cause had been submitted under an instruction that if the Jury, upon the whole evidence, believed the defendants’ servants were not guilty of negligencein not sooner discovering that hose was on the track, nor in the use of the means at their command to stop the train after discovering that fact or having grounds to believe it existed, then they should find for the defendants, we should not interfere with the verdict on the ground that it was contrary to evidence.

On the grounds stated, there must be a new trial. The exceptions to the rulings upon the questions put to S. B. Bowles, in connection with the charge as to there being no evidence that the engineer had sufficient means in his power to arrest the engine without running over the hose after discovering it, and that if he used all the means' in his power, the Company was not liable, are not free from difficulty.

The plaintiff was certainly bound to show the defendants negligent. Assuming the firemen to have not been guilty of negligence, the charge is broad enough to exonerate the defendant, if it had appeared that the defendant’s train had no brakes, and that was the whole cause of the injury, provided the defendants^ engineer did all he could wjtlithe means aUhis^ commai^d to arrest the progress of the train, _ We are not prepared to holcUw^^uFfurther consideration, that the defendant can be charged, merely because with the very best brakes in use, the train might have been ' stopped without injuring the hose, if in fact the train had approved brakes, which had been found sufficient to arrest the progress of the train and avoid injuries to occur, if at all, from want of adequate power to stop a train sufficiently quick to avoid such casualties as experience had shown might be anticipated and were to be guarded against.

We think the last question put to Mr. Bowles was relevant, and that enough was shown to make him a competent witness in respect to the matter inquired about.

He said he was somewhat familiar with railroad brakes, and with the operation of them, and has used them on a railroad and knows which are the best brakes. We see nothing in the evidence, or in reason, favoring the idea, that a person of experience cannot state with great accuracy, the distance within which any given train can be stopped with a designated class of brakes and a given number of brakemen.

As a new trial must be directed, we have not deemed it material to discuss or pass upon any other exception or point in the case.

The judgment is reversed and a new trial ordered, with costs to abide the event.

Ordered accordingly.  