
    Henry Dougherty, Respondent, v. John King and John G. McCullough, as Receivers of the Property of The New York, Lake Erie and Western Railroad Company, Appellants.
    
      Bailroads—the copious emission of sparlcs not of unusual size is not negligence—a finding based on a suspicion that testimony is untrue.
    
    Evidence that a locomotive while starting a train upon a curve emitted sparks not of an unusual size copiously, although not of a greater quantity than a well-regulated spark arrester would emit, is not of itself sufficient, in an action brought to recover the damages resulting from a fire kindled by such sparks, to establish negligence upon the part of the railroad company..
    While testimony may be open to the suspicion that the fact is otherwise than as testified to, yet, if there be no proof to that effect, it is error for the court to charge the jury that they may so find.
    Appeal by the defendants, John King and another, as receivers, etc., of the New York, Lake Erie and Western 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 Sullivan on the '28th day of December, 1896, upon the verdict of a jury for $250, .and also from an order entered in said clerk’s office on the 12th day ■of January, 189Y, denying the defendants’ motion for a new trial made upon the minutes.
    The action was brought to recover damages caused by fire upon the plaintiff’s lands, alleged to have originated from sparks from ■defendants’ locomotive through defendants’ negligence.
    
      Henry Bacon, for the appellants.
    
      John F. Anderson, for the respondent.
   Landon, J.:

The evidence tended to show that on May 15, 1894, the defendants’ engine No. 132, hauling a way freight train upon their railroad, emitted sparks which set fire to dry grass or other combustibles within its right of way, which fire thence ran into the adjoining woodland and advanced in spite of efforts to extinguish it, for about thirty-six hours, when it reached the plaintiff’s lands, more than two miles from the starting point, and there did damage to the amount of the verdict. The place where the fire started was upon a high, steep bank upon a curve in a wooded region. The main question upon the trial was whether the fire was caused by defendants’ negligence. The trial judge submitted two questions to the jury respecting the defendants’ negligence: (1) Whether the spark-arresting appliances of engine No. 132 were out of order or improperly managed; (2) whether the defendants had negligently omitted to keep their right of way free from combustible material.

Respecting the spark arrester of the engine, the trial judge held that it was properly constructed and a proper appliance, but instructed the jury that under the evidence they might find whether upon this occasion it was in proper order or properly managed. He said to them in effect that there was evidence that one of the defendants’ trackmen was instructed to follow up this engine through this district and look out for fires, “ thus leaving the inference for you that it was not properly working in its spark-arresting appliance; ” that although there was other evidence that this instruction was given after the fire in respect to engine 118, and not 132, and evidence on the part of the defendants- that immediately before engine 132 went upon this trip and immediately after it returned from it, the engine and its spark arrester were inspected and were found in perfect con■dition, yet the jury might determine from the whole evidence, including the emission of sparks, whether the spark-arresting apparatus was defective or improperly operated.

The defendants’ counsel excepted to the portion of the charge which assumed that there was testimony identifying the engine as to which instructions to follow were given, as 132, and fixing the time before the date of the fire. The court thereupon said to the jury: “ I have submitted to you a question which I thought the -evidence pointed out. If you do not find the evidence, of course you must just disagree with the court.” Defendants’ counsel then asked the court to charge that there was no evidence fixing the time as of the date of the fire. The court: “ I submit it to the jury.” Defendants’ counsel: “I except.” The court also refused the defendants’ request to charge “ that there is no testimony identifying the engine concerning which order was given to watch it, as number 132.”

We have examined the record and do not find any testimony tending to show that the instructions were given in respect to engine 132, or that such instructions were given before the fire.

The witness William Mitch el testified to such directions being given in respect to the engine run by John Kelly, but that they were given after the fire. Regan, the track foreman, testified that he had instructions to give orders to follow one of the way freight engines and look out for fire, but he did not know which engine it was, and thought the instructions were given after the fire. Barrett, supervisor of the track, called by the defendants, testified that he gave the instructions to Regan, and that he gave them with reference to engine, 118, and not with reference to 132. John Kelly usually ran engine 132, but Barrett testified that it was replaced for a few days by 118, and that the order was given as to 118. Thus, while this testimony may have been open to suspicion that the fact was otherwise, there was no evidence that it was otherwise, and, hence, there was a failure of proof that any order had been given to follow up engine 132, and also that the order had been given as to it before the fire. Hence, the jury had no right to find that such evidence respecting engine 132 had been given, and, therefore, could not make use of it to inculpate engine 132, and the court erred in permitting them to do so. (Linkauf v. Lombard, 137 N. Y. 417, 425.)

There was no evidence that the sparks emitted from the engine were of unusual size, or greater in quantity than a well-constructed spark arréster will emit. This way train had stopped near where the fire kindled to pick up some ties; it was upon a curve, and, no doubt, in starting, the engine emitted sparks copiously. Under the repeated adjudications of the court, this is not of itself evidence of negligence. (Flinn v. N. Y. C. & H. R. R. R. Co., 142 N. Y. 11; Wiedmer v. N. Y E. R. R. Co., 114 id. 462; McCaig v. Erie Ry. Co., 8 Hun, 599; Frier v. D. & H. C. Co., 86 id. 464; Miller v. N. Y. C. & H. R. R. R. Co., 92 id. 282; Brown v. Buffalo, Rochester & P. R. R. Co., 4 App. Div. 465 ; Van Nostrand v. N. Y, L. E. & W. R. R. Co., 78 Hun, 549; Searles v. Manhattan Ry. Co., 101 R Y. 661.)

In Tanner v. N. Y. C. & H. R. R. R. Co. (108 N. Y. 623), cited by plaintiff, the sparks emitted were “ half the size of a walnut.” In Field v. N. Y. C. R. R. (32 N. Y. 345, 346) “ the injury was caused by dropping from the defendants’ engines coals of fire,” and “ their engines were without any screens on the fire boxes or pans to retain the fire.”

Whether the same verdict would have been rendered upon the other branch of the case, we do not know. .

The judgment must be reversed and a new trial granted, with costs to abide event.

All concurred.

J udgment and order reversed and a new trial granted, costs to abide the event.  