
    (61 Misc. Rep. 195.)
    NICHOLS et al. v. LEHIGH VALLEY R. CO.
    (Schuyler County Court.
    November, 1908.)
    Railroads (§ 482)—Fires—Evidence.
    In an action against a railroad company to recover damages for a fire caused by inflammable material on defendant’s right of way, evidence held sufficient to establish defendant’s negligence.
    [Ed. Note.—For other cases, see Railroads, Dec. Dig. § 482.*]
    Appeal from Justice Court.
    Action by Evelyn A. Nichols and Hanna Nichols against the Lehigh Valley Railroad Company. Judgment for plaintiffs before a justice, and defendant appeals. Affirmed.
    Diven & Diven, for appellant.
    George M. Velie, for respondents.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   NYE, J.

This action was brought to recover damages alleged to have been occasioned by a fire negligently set by the defendant or its employes. The negligence complained of consisted in allowing to accumulate upon the defendant’s right of way inflammable material which was liable to become ignited from sparks emitted from passing locomotives. The evidence shows that in the fall or summer of 1906 the defendant causeil the grass and weeds along its right of way to -be mowed, which it then permitted to lie in the swath upon the ground; that on or about March 20, 1907, a fire started in this material and spread upon the adjoining lands of the plaintiffs, and burned over about three acres of grape vineyard, causing the damage that is sought to be recovered for in this action. The cause was tried before a justice of the peace without a jury, and a judgment rendered against the defendant for $180 damages and $2.35 costs.

The appellant insists that the proof of negligence was insufficient to impose liability, and that the damages awarded are excessive. It appears from the evidence that the appellant’s railroad passes through .the respondents’ farm, in a northerly and southerly direction; that upon the respondents’ farm, and adjoining appellant’s road upon the east, is a grape vineyard of about 7 acres in extent; that in the fall or summer of 1906 the appellant’s employes mowed the grass and weeds upon either side of the tracks, and left it lying in the swath upon the ground; that at the point where appellant’s road passes through respondents’ farm there is a grade of about 21 to 23 feet to the mile.

It appears from the testimony of appellant’s station agent at_ Hector that the vineyard in question is about 40 rods south of and in sight from Hector station; that on the day of the fire which burned this vineyard he was on duty at the station; that train No. 4, a passenger train, passed the station at 11:52 o’clock; that, after passing the station, the train passed up the grade and along the track on the west of the vineyard; that two minutes after this train left the station he went to dinner; that at the time the train passed he saw no fire along the tracks, and that there was no fire in sight; that he returned to the station about 12:30 o’clock; that at that time men were watching the fire, which was practically out; that the smoke was drifting eastward in the direction of the vineyard. A track workman in appellant’s employ testified that on the day of the fire he was working up the hill from the fire; that he saw the fire about noon; that he- first saw the fire burning inside the railroad fence, and the ground was all burned between the track and the fence; that, when he first saw the fire, it was going away from the track and toward the vineyard; and that he put the fire out in the vineyard.

The appellant was operating its road under lawful authority past the respondents’ vineyard, upon its own land, and there is no direct proof of negligence in the management of its engines, yet the evidence was, it seems to me, in the absence of explanatory evidence on the part of the defendant, sufficient to justify the justice in finding that the defendant negligently permitted along its right of way an accumulation of combustible material, consisting of dried grass and weeds; that sparks or cinders from defendant’s engine ignited the same, causing the fire which spread onto the plaintiffs’ land and caused the damage complained of.

In Billings v. Fitchburg R. Co., 58 Hun, 605, 11 N. Y. Supp. 837, the court says:

“It is hardly possible in cases of this kind, occurring in the country, and often at a distance from houses, to prove by eyewitnesses that sparks from the engine ignited the fire; and the proof, therefore, must be such as the circumstances permit.”

In Brown v. Buffalo, R. & P. R. R. Co., 4 App. Div. 465, 38 N. Y. Supp. 655, it was held:

“Whether a railroad company was negligent in not removing from its right of way weeds and grass which had been mown and left there during the dry summer months, and in which a fire started from sparks from an engine, is a question for the jury.”

In O’Neill v. New York, O. & W. R. Co., 115 N. Y, 579, 22 N. E. 217, 5 L. R. A. 591, the court says:

“That, conceding the escape of fire from an engine is inevitable, * * * a railway company is bound to remove combustible material from its path, or, at least, prevent such an accumulation thereof by the side of its tracks as will, in consequence of fire falling upon it, endanger the property of others.”

It was held in Hoffman v. King, 160 N. Y. 618, 55 N. E. 401, 46 L. R. A. 672, 73 Am. St. Rep. 715, that the trial court properly submitted the question of negligence to the jury upon the theory that properly constructed locomotives, with' the most approved' spark arresters, will of necessity emit some sparks, and that consequently, in periods of drought, the duty devolved upon the defendants of keeping their right of way free from combustible material which was liable to be ignited from sparks so emitted.

Upon the question of damages, plaintiffs’ evidence was to the effect that the farm was of the value of $8,000 before the vineyard had been burned and $7,800 after the vineyard had been burned. It is the rule ordinarily that where the cost of repairing the injury, or the expense of restoration of the land to its former condition, is less than the diminution in value of the whole property, the cost of restoration is the proper measure of damages, to which might be added the loss of the use of the property in the meantime; but, where the plaintiff proves the amount of damage by showing the value of the premises before and after the injury and the defendant does not show the damage in any other way, the damages may be assessed as plaintiff suggests, and the defendant cannot complain upon appeal. Hartshorn v. Chaddock, 135 N. Y. 116, 31 N. E. 997,17 L. R. A. 426. It was therefore proper for the plaintiffs to prove their damage in the way it was proven; and, if the defendant was not satisfied with the mode, or believed that the cost of restoration would be less than the diminution in value, it was its privilege to make proof of it, and, not having done so, it cannot now complain. The rule governing the consideration of appeals has been stated in various ways, but all are to the same purport.

In Sanger v. French, 157 N. Y. 213, 51 N. E. 979, O’Brien, J., says :

“A court on appeal cannot set aside the findings of the trial court merely because they are of opinion that upon the record before them they would feel constrained to find the fact the other way. It must appear judicially from the record that the findings are against the weight and preponderance of proof so plainly that it can be held that the trial court or referee could not reasonably arrive at the conclusion expressed in the decision.”

It follows that the judgment appealed from must be affirmed,' with costs to the respondents.

Judgment affirmed, with costs to respondents.  