
    Thomas Brown, Appellant, v. Buffalo, Rochester and Pittsburgh Railroad Company, Respondent.
    
      Negligence — that-engines emit sparks does, not of itself show, negligence-^whether allowing- grass and weeds to accumulate upon the roadbed, from which fires are communicated to adjacent lands, constitutes negligence is a question for the jury.
    
    The complaint in. an action alleged that the defendant, a railroad corporation, had negligently forced large quantities of live coals from its engines and permitted quantities of dried grass and weeds to accumulate upon its tracks and negligently set fire to the same, and permitted and allowed the fires thus occasioned to extend to- the plaintiff’s, land. Upon the trial of the action a nonsuit was- granted- upon the- ground that the facts proved did not com stitute a cause of action and that negligence on the part of the. defendant had not been shown.
    
      Held, that proof that sparks emitted; from the smokestacks of the defendant’s locomotives occasioned fires- did not of itself establish- negligence- unless the emission was- unusual in degree or character, or the- sparks were of extraordinary size and such as would not he emitted from perfectly constructed engines;
    That as the proof showed that the defendant had in part cut, and in part had " neglected to cut, the grass and weeds on its roadbed and had neglected to remove the dry grass and rubbish, the question whether this constituted negligence upon the part of the defendant should have been submitted to the jury.
    Appeal by the plaintiff, Thomas Brown, from a judgment of the County Court of the county of Monroe in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 21st day of December, 1895, upon a nonsuit granted after a trial before the court and a jury at the Monroe County Court, and also from an order entered in said clerk’s office on the 21st day of December, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      The action was originally commenced in the Municipal Court of the city of Rochester, and was brought to recover for the alleged negligence of the defendant in operating its engines along its track which passed adjacent to the farm of the plaintiff in Scottsville. The complaint alleges that the defendant negligently operated its engines over its tracks, and negligently forced large, quantities of live coals from its engines, “ and did negligently permit and allow quantities of dried grass and weeds to accumulate upon their said tracks, and did negligently set fire to- the same, and did negligently permit .and allow said fires to extend to plaintiff’s lands and cause the damage and destruction to property of plaintiff.”
    At the close of the plaintiff’s evidence the defendant moved for ¡a nonsuit “ on the ground that the plaintiff has not shown facts sufficient, to constitute, a cause of action; and on the ground that there are no facts in this case upon which to predicate the charge of negligence on the part of the defendant.” The motion was granted and the plaintiff took an exception.
    . Thereupon the plaintiff asked to go to the jury on the question whether the .defendant' “ was negligent in running engines which threw cóáls a distance óf fifty feet from the tracks which set fires that destroyed a portion of the property in this ease.” The motion - was- denied and an. exception was taken, Thereupon the plaintiff asked to go to the jury on the question whether “defendant was negligent in permitting grass to die down and accumulate upon its tracks or cutting it and leaving, it to remain upon the tracks, so that fire, might be communicated by it to the plaintiff’s premises!” The motion was denied and- an exception was taken. The plaintiff also asked:the. court to submit.the ease to the jury “upon the question of fact whether or-not, in view of" all the "circumstances proven in-th'is .case,, defendant was negligent in the starting of those fires.” The -motion was -denied -and an exception was taken, A motion for a new trial on the minutes was also made and denied.,
    : Judgment -was entered for .the defendant, and the .plaintiff appeals from.the judgment and.order. .
    
      John E. Robson, for the appellant.
    
      Henry G. Danforth, for the respondent.
   Hardin, P. J.:

It was incumbent upon the plaintiff to point out specifically the negligence, or negligent act, of the defendant in operating its trains along its track, and that such negligence caused the injuries of which the plaintiff complained. It was not sufficient to produce evidence indicating that sparks emitted from-the smokestacks of the defends ant’s locomotives occasioned the fire, unless the emission of the sparks was unusual in degree or character, or the sparks were of extraordinary size and such as would not be emitted from-perfectly constructed locomotives. (McCaig v. Erie Railway Co., 8 Hun, 599.)

The evidence was not sufficiently definite and certain to identify any particular engine from which sparks escaped. The grade was ascending adjacent to the plaintiff’s kpids and it was - to be-expected that some sparks, in the reasonable use of the defendant’s engines, would escape. (Frier v. President & Managers of the D. & H. C. Co., 86 Hun, 464; S. C., 33 N. Y. Supp. 886.)

■ In Miller v. N. Y. C. & H. R. R. R. Co. (92 Hun, 282; S. C., 36 N. Y. Supp. 719) it was said : It may be, as alleged in the complaint, that sparks emitted from the engine were thrown upon the plaintiff’s premises and caused the fire. But if, as we must assume here, the engine was perfect, that would not of itself establish negligence.”

In Flinn v. N. Y. C. & H. R. R. R. Co. (142 N. Y. 11) it was said that a railroad company -may not be made liable for the unavoidable -or usual - consequences of the proper operation of its road to adjacent property.” And in that -case it was further held that, the defendant could hot be - charged' with negligence in not .jvully introducing a "new system of arresting sparks upon all of its engines previous to .-the fire, in the absence of evidence that it was-reasonably practicable and possible, so to do. -

(2) It. is .claimed": there .was some evidence of the defendant’s negligencé in its omission to cut "the grass and weeds and remove the debris from the railroad.-premises," and" that -by -reason of such omission and negligent-acts of the defendant a fire started on the premises" of the defendant and’communicated to the premises of the plaintiff and caused damage, and that whether such was the fact or not was a ^question" for the jury to determine.. In support of - such contention the appellant calls our attention to the evidence of Edward. S. Brown." He said that; he: remembered the summer of 1893,, the months of June, July and August of that year, and that it was a dfy season. “The defendant’s track adjoining our premises was very dry; there was grass on it; the grass was dry; I don’t know whether it had been cut or not; I think it had, but I would not be positive; fires oecnred there in- July.” The witness continues: “■On July 22d-We had two fires; the first occurred about ten o’clock, I-saw it start; it started on the railroad side of the fence,, in whatever was there to ignite the grass or weeds; it burned east away from the track; the wind was blowing- west quite hard that morning ; it burned ten acres of hay stubble, two tons, of hay and two shade- trees-, and extended over about a quarter of a mile; we had fourteen- of our own men there that morning, and. the railroad see-tionmen were there.”

- The witness Carver testifies that he-saw fires-- on the plaintiff’s premises in 1893, in the month of July. And he adds : “ I saw the fire of July 22d in the morning; the- condition of the railroad he'd along the Brown farm at that time was very dry; the weeds and grass were very dry "; the weed's, had been cut by the trackmen, and they lay along the side of the rail-road track between that and the fence, and in places where- there wasn’t- as much- they left the grass standing, not cut close like, and they mowed that where the grass was, and where there Was some weeds they would clip them; I observed this in July of 1893; this fire started up> near the top of the hill; my men came .there and Med to get it under control- and jüst managed to keep-it from the buildings, and it burned through ■ to- the highway; it had burned on the railroad side of the fence, between the track and the fence, and of course it had run out and through the lot.” This witness further testified: “ There was some grass and weeds on the railroad bed and occasionally some willows above the crossing and by Ur; Brown’s. * *. * The roadway on each side of the track, between the track and the fence, is Covered with sod. * • •* '* This railroad runs by the Brown farm, on an embankment from three to five feet high; the Brown farm runs up from the-hill ; I think the men had been through that' year cutting the- weeds and grass- about July 1st; it was. pretty dry ña June and July of that year, and the grass and rubbish was very dry;, just as dry on the railroad as on the Brown farm; some of this, grass on the railroad at the time of these fires was probably a foot to a foot and a half high; it would be that some of it at any time; in the winter or spring in places some of it wouldn’t be more than three inches high. I mean at this time of year, at the time the ground was burned, there was something there besides old dry grass; it. would stand up in some places a foot and a half high; in some places it would be quite thick and in some places quite thin; along there where these fires started, in some places it was heavier and in some places lighter. * * * The grass that had been cut was left lying where they .cut it; I saw three of the fires, two occurring in the forenoon and one in the afternoon.” On his re-cross-examination he said that some one had cut the grass and weeds in July. “I couldn’t make an estimate of how much grass you could have collected along the easterly side of the roadway along the Brown farm, if you had gone over it with a rake; I don’t know how much there would be; it would make a good ordinary load if it was all raked up ■; there was some of the weeds and hay lying in swaths as the counsel had called it; it lay there; some of it burned.” And further on in his testimony he-says“I thought there was a load or more of grass I saw . cut along the Brown premises.”

The witness McGuire says that he was present at the fire of July twenty-second, and that he observed the condition of the roadbed between the tracks and the fence,, and he adds: “ Along the track, a foot or two beyond the ties, it was grassy; more or less of the grass and weeds had been cut; it had not not been removed af-ter cutting; along the length of the Brown premises there would be, probably, a load of it;. there were places where it varied in thickness ; places where there was a handful and places where there was a forkful; it had been cut with a grass scythe. * * * I know there was a freight train passed there between ten and noon, ordinarily ; I have -seen it set fires in July, 1893.”

We are inclined to think, according to -the doctrine laid down in O'Neill v. N. Y., O. & W. R. R. Co. (115 N. Y. 579), and the comments made in that case by UnnroETH, J,,'that the evidence we have quoted required the question as- to the defendant’s negligence to be submitted to the jury. In that case it was said that, conceding the escape of .fire from an engine is inevitable, a railroad company is “ bound to move combustible material from its path, or at least prevent such accumulation of rubbish as would, in consequence of -fire falling upon it, be the cause of. danger to another’s property.” Danforth, J., after stating the rule we have- just mentioned, says: “The fire on the track was its fire as much as if confined in the engine, and it owéd a like duty to see that it did no ■harm.” And he further observes: “There was, moreover, in the 'plaintiff’s case abundant evidence of conduct on the defendant’s part in so storing its useless material and retaining upon its premises brush and other refuse matter as to make it quite right and proper :for the jury to declare it .negligent.” That case seems to have been placed upon the general doctrine of negligence, and does not refer t'o section 25 of chapter 283 of the Laws of 1885, which reads as follows': “Every railroad company whose .road passes through waste or forest lands, or lands liable to be overrun by fires within this State, shall twice in each yea/r cut and burn off or remove from its right of way all grass, brush or other inflammable material,■ but under proper cape, and at times when the fines thus set are not liable to spread beyond control.”

Following the O’Neill case is the case of Van Ostrand v. The Walkill Valley Railroad Co. (46 N. Y. St. Repr. 456), decided in July, .1892, by the General Term of the third department, where it was held that “ Whether a railroad, in cutting and leaving by the roadside a quantity of grass and brush exposed to the danger of - fire from its passing engines, is guilty of negligence, is properly a question for the jury.” In that case there was evidence -to show that the defendant had previously cut the grass along the track, and also brush, which it permitted to remain in the vicinity of the track ; that the brush took fire from the sparks of a passing engine and communicated to the plaintiff’s land, and during the trial the court chargéd the jury “ That if they found that such conduct on defendant’s part was negligent, and that the fire was caused by reason of it and could not otherwise have occurred-, and was communicated from this pile of brush to plaintiff’s lands and did this damage, plaintiff was entitled to recover.” The court ■ approved of the language thus used in the charge.

We are of the opinion that the trial court erred in refusing to submit the question to the jury whether the fire which was occasioned by thé sparks falling upon the premises of the defendant and communicated to the premises of the plaintiff, was caused by the negligétice of the defendant, and in- granting the defendant’s motion for a nonsuit. ...

The foregoing views leads us to the conclusion .that a new trial should be ordered.

All concurred.

Judgment and order reversed and a new trial ordered, with costs to abide the event.  