
    William Bradshaw, Resp’t, v. Rome, Watertown and Ogdensburg R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Evidence—Damages—Value of property similar to that lost—When Admissible.
    The plaintiff brought this action to recover damage for the loss of certain timber, occasioned by reason of the defendant's negligence. On the question of damages, the defendant attempted to show, by the plaintiff’s witnesses, the value of other timber sold by other parties. , This evidence was excluded. Held, that there was no error in the exclusion of this evidence. The knowledge of the witness may'have qualified him to testify as to the market value of the property referred to, but the rules of evidence do not permit direct evidence to be given of the term of a contract of sale of similar property between other parties.
    8. Negligence—Evidence—Railroads.
    In an action to recover damages for injuries done to plaintiff’s land by fire, alleged to be caused by defendant’s negligence in running an engine upon its road, which was improperly constructed, or out of repair, or negligently and carelessly managed, Held, that while the mere escape of burning coal iiom the fire-box, fire-pan, or smoke stack, is not sufficient evidence of negligence of the railroad, the act of the negligence is made up of all the facts and circumstances existing when the coals escaped. The dryness of the atmosphere and of the earth, and of all the matter that was on the premises of the railroad at that place, the blowing of the wind, and the strength of it, and the direction from which it came; the accumulation of weeds, grass and rubbish by the side of defendant’s track, between it and the plaintiff’s lands, were all the constituents of the act of defendant, and went together to make it negligence.
    An appeal from a judgment entered upon a verdict, rendered at the Orleans circuit in the plaintiff’s favor, and from an order denying the defendant’s motion for a new trial, founded upon the judge’s minutes. The action was to recover damages for injuries done to the plaintiff’s land by fire, in August, 1881, caused, as the plaintiff alleged, by ■the careless and negligent act of the defendant, in running an engine upon its road, which was improperly constructed or out of repair, or negligently and carelessly managed by the engineer, in charge on the occasion in question.
    The defendant’s road runs east and west as it passes the adjoining lands of the plaintiff, which are situated on the north of the defendant’s lands.
    The plaintiff’s evidence tended to prove that as one of the defendant’s engines attached to a freight train, going west, passed the plaintiff’s lands, large lumps of cinders and pieces of coal of the size of walnuts and some as large as three or four inches in diameter, on fire and red hot, escaped from underneath the engine, and fell on the track, some of them remaining on the road-bed and others as they fell, bounded off the track and fell to the ground, half way from the rails to the fences inclosing the defendant’s lands, for the distance of from ten to fifteen rods along the track.
    That at this time, there was accumulated on the defendant’ s lands, a large amount of dry grass and weeds, and other rubbish and dry logs, the ground never having been cleared since the construction of the road ; that the cinders and coals, as soon as they fell, set fire to the railroad ties and dry material, between the tracks and the fence and from 'which the tire immediately escaped from the lands of the defendant to the lands of the plaintiff, doing much damage, by burning up the soil and standing timber. This occurred in a dry time, some of the witnesses say, very dry time.
    During the afternoon of the day mentioned, the wind was blowing a stiff breeze across the tracks towards the plaintiff’s premises.
    The plaintiff also gave evidence tending to show, that the fire box to the engine, was so constructed, that coals and cinders from three to three and a half inches large could escape, from the fire-box to the fire-pan, when the grates to the furnace were moved; and also when both dampers therein were open and the engine moving at a rapid rate, coals and cinders, of the size mentioned would be carried by the force of the draft, from the fire-pan and scattered along the road bed. The plaintiff also gave evidence tending to show, that as the engine on this occasion, passed the plaintiff’s lands, cinders on fire, as large as walnuts, escaped from the smokestack. The train was running at a rapid rate of speed. Upon this evidence, the plaintiff relied to establish the defendant’s negligence. The defendant’s evidence tended to prove, that the fire-box, fire-pan and smoke stack of this engine, were properly constructed, after the most approved pattern then in use. And the same was on that day in good order and was carefully and properly managed by the engineer. The evidence tended to show that the damages suffered by the plaintiff, by the reason of the fire, were equal to the amount of the verdict. At the close of the plaintiff’s case, the defendant moved for a nonsuit, which was denied, and an exception taken.
    
      Edmund B. Winn, for app’lt; Benjamin E. Williams„ for resp’t.
   Barker, P. J.

The motion for a nonsuit was properly denied.

It is conceded by the defendant, and it is within the knowledge of all intelligent and observing men, that a locomotive engine can now be so constructed and run at the usual and ordinary rate of speed, so as not to scatter live coals and cinders of dangerous size or quantity. It is claimed, however, that the mere escape of burning coal from the fire-box, fire-pan, or smoke-stack, is not sufficient evidence of negligence, on the part of the defendant. This may be conceded. The plaintiff does not rely upon that fact alone. McCaigv. Erie R. R. Co:, 8 Hun, 599.

The defendant’s negligence did not consist in that fact merely.

The act of the negligence was made up of all the "facts and circumstances existing when the coals escaped. The dryness of the atmosphere and of the earth and of all the matter that was on the defendant’s premises at that place, the blowing of the wind and the strength of it, and the direction from which it came, the accumulations of the weeds, grass, and rubbish by the side of the defendant’s track, between it and the plaintiff’s lands, were all the constituents of the act of the defendant, and went together to make it negligence.

This case is controlled by Webb’s case against this defendant (49 N. Y., 420), in which the facts are stated, and on comparison are found to be strikingly similar, in all material respects, to the one at bar, where a judgment in the plaintiff’s favor was sustained.

We may dismiss, without further consideration, the exception taken to the refusal to grant a nonsuit. The other exceptions relate to the reception and rejection of evidence on the question of damages.

_ The defendant offered to show that standing timber, similar to standing timber of the plaintiff’s, which was burned, had been bought for twenty-five or thirty dollars per acre, which was objected to by the plaintiff and excluded. We seé no error in this ruling, as it was an attempt to prove, by the plaintiff’s own witnesses, the price which had been paid by other parties on a sale of other timber lands. The knowledge of the witness on this subject may have qualified him to speak of the market-value of the property referred to, but as evidence from which the jury were to determine the value of the property destroyed, the rules of evidence do not permit direct evidence to be given of the terms of a contract of sale of similar property between other parties. Such evidence might take the plaintiff by surprise, and is generally misleading. There is no pretense that wood land, in that locality or elsewhere, has a fixed and uniform market-value per acre, the same as grain produced, or other merchandise of a particular grade or standard have sold by weight or measure on the markets. The other exceptions have been examined, and we fail to discover any error of such importance as to require a reversal of the judgment.

Judgment and order affirmed.

Haight, Bradley and Dwight, JJ., concur.  