
    J. Henry Smith and Others, Respondents, v. New York Central and Hudson River Railroad Company, Appellant. Carrie G. Smith and Dutchess and Columbia Patrons Fire Relief Association, Respondents, v. New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    November 13, 1914.
    Railroad — liability for burning of barn by sparks from locomotive — evidence — condition of spark arrester.
    Action against a railroad company to recover damages for the burning of a barn and its contents near the defendant’s tracks alleged to have been caused by sparks from a locomotive. Evidence examined, and held, that a judgment in favor of the plaintiff should belafflrmed.
    An inspection of the spark arresters made two days after the accident is not decisive without clear evidence that in the meantime nothing had been done to change them.
    The question whether the spark arrester used by the defendant was of the standard type and pattern as ordinarily used was properly submitted to the jury, since one witness had testified that another railroad used a finer mesh.
    Thomas, J., dissented.
    Appeals in each case by the defendant, the New York Central and Hudson River Railroad Company, from two judgments of the Supreme Court in favor of the plaintiffs, one in each case, entered in the office of the clerk of the county of Dutchess on the 9th day of January, 1914, upon verdicts of the jury, and also from two orders, one in each case, entered in said clerk’s office on the 26 th day of January, 1914, denying the defendant’s motions for a new trial.
    
      Robert Wilkinson, for the appellant.
    
      Walter Farrington [George Card with him on the brief], for the respondents.
   Putnam, J.:

These judgments were for damages by the burning of a barn and its contents near the tracks of the Harlem division of the defendant’s railroad at Dover in Dutchess county. The upper part of this barn of three stories was nearly filled with hay. The structure was ninety-six feet long and sixty-six feet wide and about fifty feet in height, surmounted by two cupolas about twelve feet from either end. The barn was a distance stated from one hundred and ten to one hundred and twenty-five feet west of defendant’s tracks. It had an opening in the roof for the operation of the hay fork, also slats in the cupolas left a space through which sparks could enter. A train bound to the north at this locality has quite a heavy grade and also to round a curve. On the night in question the Pittsfield express, a train of five or six cars, passed just after dark, and in running up this grade a large volume of sparks was emitted, which rose as high as the top of the barn and were observed by several witnesses as of a size stated to be as large as a walnut. As to the wind the evidence was conflicting; some witnesses testified it was from the eastward and towards this barn. Soon after the train passed fire broke out about the cupola at the eastern end of the barn.

Whether the sparks from defendant’s locomotive caused this fire was a question of fact. An affirmative verdict upon that special issue is well sustained by the fire breaking out so soon after the engine had been seen emitting many sparks, and the appearance of these flames on the roof and the cupola before any part of the lower stories of the structure, with the absence of any other cause to which the fire could be attributed.

The complaint charged defendant with permitting hot coals, cinders and fire to come out from said locomotive and train and drop upon the roof and roofs of said barns and buildings.” This was sufficient to cover evidence that the sparks came through the cupola, which may be deemed a part of the roof, since architecturally a cupola is defined by the Standard Dictionary as a ‘‘hemispherical roof.” Defendant’s objection and motion for a continuance on the ground of surprise at this testimony regarding the cupola were properly overruled.

Appellant’s counsel urged that the statements as to large sized sparks were not confirmed by the production of any cinders in court. This, however, was a matter for the jury, who naturally took account of the manner that the escaping sparks were noted and observed and doubtless allowed for the visual appearance of such shining objects at night. There is nothing contrary to known facts in such sparks passing over this distance and rising as high as fifty feet and landing still alive so as to set fire to hay or like inflammable substance. (Goss, Locomotive Sparks [N. Y. 1902], chap. VI.)

The defendant’s evidence tended to show that this locomotive had a spark arrester like defendant’s other engines of the pattern of one-quarter inch mesh with three wires to the inch. The defendant’s engineer and fireman say that on the night in question they observed nothing unusual as to the forepart of the locomotive and the spark arrester. On an inspection two days after the fire it was testified that the spark arrester was found in good order and a photograph of its mesh as it then appeared, regular and unbroken, was admitted in evidence. Plaintiffs urged that the size and volume of the escaping sparks indicated that this spark catcher was not screened to a mesh of even one-quarter of an inch, or that if so screened it was in improper condition, perhaps with holes, to allow the passage of sparks of the size and volume observed. An inspection taken two days after the accident is not decisive, without clear evidence that in the meantime nothing had been done to change the netting. Here the evidence was as to the state of the spark arrester, not at the time the fire occurred, but two days later, and cannot overcome the word of many witnesses, who saw sparks escaping from this locomotive of such a size and in such quantities as might properly sustain the inference that it was out of order.” (White v. N. Y. C. & H. R. R. R. Co., 90 App. Div. 356; Peck v. N. Y. C. & H. R. R. R. Co., 165 N. Y, 347.) On a steep grade some emission of sparks may be necessary, but the size and volume of the sparks here testified to raised an issue for the jury.

The court left to the jury whether the spark arrester was of the standard type and pattern as ordinarily used. But a separate question, as formulated for a special verdict, was whether the sparks that caused the fire were discharged from defendant's locomotive because its arrester was insufficient or defective. The court rightly declined to tell the jury that the “ uncontradicted proof” is that the spark arrester was of “the proper type and design,” since one witness had testified that the Central Railroad of Hew England used a finer mesh of one-eighth inch, and that ordinarily the mesh was from one-eighth to one-quarter of an inch. The jury, and not the court, is to say what was a “ proper ” design. Such a netting or screen for sparks has to be often inspected to guard against holes breaking through. In the absence of testimony as to its actual condition on the night of this fire, the jury’s inference of negligence is not opposed by such a preponderance of testimony in behalf of defendant as would justify setting aside this verdict as against the weight of evidence.

I advise that the judgments and orders be affirmed, with costs.

Jenks, P. J., Carr and Stapleton, JJ., concurred; Thomas, J., dissented for error, of the trial court in charging that the jury could consider that the equipment was not of a standard type. It was of the construction in general use on important railroads, and plaintiffs’ witness testified that the usual dimensions were from one-eighth to one-quarter inch mesh, although his experience and knowledge were some six years distant from the date of trial.

In each case judgment and order affirmed, with costs.  