
    Douglas v. Rome, W. & O. R. Co.
    
      (Supreme Court, General Term, Fourth Department.
    
    April, 1889.)
    Railroad Companies—Negligence—Fires.
    Plaintiff sued a railroad company for negligently causing his property to be burned by sparks and coals from an engine. There was evidence that defendant had allowed combustible matter to accumulate along its tracks; that the fire originated oh defendant’s land immediately after a certain engine passed, and was communicated to plaintiff’s property by means of the rubbish mentioned; that on several occasions the same engine had caused fires by its cinders, sparks, and coals; that the coals came from the smoke-stack and furnace,—some of them being larger than a butternut; and that an engine properly equipped with a suitable grate and spark-arrester would not scatter coals of such size. Held sufficient evidence of defendant’s negligence to be submitted to the jury.
    
    Appeal from circuit court, Jefferson county.
    Action by John P. Douglas against the Rome, Watertown & Ogdens burg Railroad Company, to recover for injuries from fire alleged to have been caused by defendant’s negligence. Verdict and judgment for plaintiff, and defendant appeals.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      JSdmund B. Wynn, for appellant. Arthur L. Chapman, for respondent.
    
      
       On the liability of railroad companies for fires set out by their engines, and what is evidence of negligence in such cases, see Seska v. Railway Co., (Iowa,) 41 N. W. Rep. 596, and note; Railroad Co. v. Ostrander, (Ind.) 19 N. E. Rep. 110, and note; Railway Co. v. Merrill, (Kan.) 19 Pac. Rep. 793, and note; Bradshaw v. Railroad Co., 1 N. Y. Supp. 691, and note.
    
   Martin, J.

A quantity of plaintiff’s hay was destroyed and his land injured by fires which were kindled from sparks or coals that fell from the defendant’s engines. For the injury thus sustained the plaintiff recovered in this action. The recovery was based on the defendant’s negligence. The defendant now seeks to reverse the judgment herein on the sole ground that the evidence was insufficient to justify the submission to the jury of the question of its negligence. The evidence tended to show that where the fires in question occurred the defendant had permitted old ties, dried grass, and weeds (some of which was cut and some remained standing) to accumulate along the sides of its track; that the fires were discovered immediately after the defendant’s train had passed; that they originated on the defendant’s land; that their spread on to the plaintiff’s land was occasioned by the accumulation of such rubbish along defendant’s track; that these fires were set by sparks and coals that were scattered along its track by its engine known as ¡No. 70, which passed the plaintiff’s premises each day at about 3 o’clock p. h.; that, on several occasions after such engine had passed over the defendant’s .road, frequent and numerous fires sprang up along its track; that sparks, cinders, and live coals were scattered along the track by such engine; that they came both from the smoke-stack and furnace, and varied in size, some being as large as the end of a person’s thumb, some larger than a walnut, and others larger than a butternut; and that an engine with a suitable grate and spark-arrester when properly operated would not scatter coals as large as a butternut. This evidence was, we think, sufficient to justify the submission of the question of the defendant’s negligence to the jury. Sheldon v. Railroad Co., 14 N. Y. 218; Field v. Railroad Co., 32 N. Y. 339; Webb v. Railroad Co., 49 N. Y. 421; Bevier v Canal Co., 13 Hun, 254; O'Neill v. Railway Co., 45 Hun, 458; McNaier v. Railway Co., 46 Hun, 502; Tanner v. Railroad Co., 108 N. Y. 623, 15 N. E. Rep. 379. We think this question was properly submitted to the jury, and that the judgment should be affirmed. Judgment and order affirmed, with costs. All concur.  