
    Juliet Brush, Respondent, v. The Long Island Railroad Company, Appellant.
    
      Negligence—fire caused by sparks from a locomotive igniting dry material near the track—expert evidence as to cinders passing through a certain spark arrester.
    
    Where the complaint, in an action based upon the defendant’s negligence,, alleges that the defendant, a railroad company, “ so negligently and carelessly-managed a Are, which it intentionally kindled and maintained in a certain locomotive, that the Are came into and upon the said premises of the plaintiff,” a liability may be established against the defendant by proof that it used a defective spark arrester upon its locomotive.
    An expert witness cannot testify as to what constitutes an engine properly constructed in the matter of a spark arrester; but, after a certain appliance has been identified as being ordinarily employed, a witness may state as the result of his own experience that cinders shown to him could not be emitted through such an appliance if an engine were “ properly constructed.”
    Where the only evidence as to the construction of the locomotive, which must have caused the fire, comes from persons in the employ of the defendant corporation itself, the corporation is not entitled to have the jury instructed that the evidence showed- the facts to be as so testified to, the decision of this question under the circumstances being properly within the province of the jury. Where there is proof that the fire in question started in briars, dead grass and dry leaves lying near the track, the court may properly charge the jury that the corporation is liable if it permitted the fire, which escaped from the engine, to communicate to stuff that had been allowed to collect so near the track as to make it a source of danger.
    In such a case, evidence as to the starting of the fire in accumulated leaves and cut grass on the defendant’s land is competent, although there is no specific reference in the complaint to the existence of this precise agency in the spread of the fire.
    In actions of tort brought to recover unliquidated damages, the jury may award interest, in their discretion, but they are not bound to do so.
    Appeal by the defendant-, The Long Island Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 23d day of April, 1895, upon the verdict of a jury rendered after a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 1st day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      William C. Beecher, for ,the appellant.
    
      Henry A. Monfort, for the respondent.
   Willard Bartlett, J.:

On the 3d day of April and the 16th day of May, 1893, portions of the plaintiff’s woodland near the Cold Spring station of the Long Island railroad were burned over by a fire, which the proof tended to show proceeded from live sparks or cinders which had escaped from one of the defendant’s locomotives. The plaintiff recovered a verdict at the Circuit, on the ground that the defendant negligently caused the fire either by failing to use the best known means in common use to prevent the escape of sparks, or by suffering inflammable material to be so near the track that it was ignited by burning matter necessarily emitted from an engine with the best appliances in perfect order. From the judgment entered upon this verdict, and an order denying a motion for a new trial, the defendant has appealed.

The appellant complains, in the first place, that the court permitted the plaintiff’s counsel to try the case upon a theory totally different from that presented by the complaint. The allegation in the complaint was that the defendant so negligently and carelessly managed a fire which it intentionally kindled and maintained in a certain locomotive "" * * that the said fire came into and upon the said premises of the plaintiff,” etc. This, it is said, is the allegation of a mismanaged fire, and not of a defective s}iark arrester, while the case was tried on the theory that the defendant’s negligence consisted in using a defective spark arrester upon its locomotive. But we do not think the language of the complaint is so limited in its scope and import. A fire may be mismanaged in many ways, and one of those ways might be by the failure to provide proper means to prevent the escape of the burning material. There is no merit in the objection on the ground of variance.

The second objection argued by the learned counsel for the appellant relates to the admission of evidence as to the value of the plaintiff’s woodland by witnesses, who, as he insists, were not qualified as experts. I agree with him that some of this evidence should not have been received ; but there was proof of value in the case from witnesses who were competent, and I hardly think that the award of the jury was influenced by the testimony erroneously admitted on this branch of the case. The errors in this respect may, therefore, be disregarded.

A more serious objection is that presented by the appellant’s third point, in reference to the testimony of a locomotive engineer named Rundlett, who gave evidence in regal'd to the screens in ordinary use to prevent the emission of dangerous sparks or coals from engines. He identified such a screen, and after it was put in evidence he was asked this question :

“ Will you please look at these cinders, which I now show you, "which have been offered in evidence, and tell me whether, if an engine is properly constructed, such coals or cinders can be emitted ? ”
The defendant’s objection, on the ground that the question was immaterial, incompetent and irrelevant, was overruled, and the witness answered : No, sir, they would not go through.”

If this question stood by itself, and the "witness had given no testimony as to the form of the screen in ordinary use, the ruling of the trial court could hardly be sustained. The question as to what was a properly constructed engine, so far as the spark arrester was concerned, was to be determined by the jury upon proof showing-what were the best appliances commonly adopted to prevent the escape of sparks from locomotives; and the opinion of the witness as to what was or ivas not proper in this respect was inadmissible. But the context in the record shows that what counsel meant by an engine properly constructed,” and what the witness must have understood, was an engine having such a screen as he had just identified as being ordinarily employed; and his answer was simply a statement that the cinders exhibited to him could not pass through such a spark arrester as that. It seems to me that, so intended and understood, the testimony was properly received. The witness was competent to state the results of his experience in this respect, especially as it was contended' in behalf of the defendant that heated cinders in a warm and spongy condition are often forced through the meshes of a spark arrester through which they could not pass when cold ; and the statement that the particular cinders in evidence could not be emitted was, in substance, simply a statement of what, had been his own observation in the matter.

As to the fourth point, that the plaintiff failed to show that the fire was caused by any negligence of the defendant, it is enough to say that there was sufficient evidence not only to justify but require the trial court to submit the question of negligence to the jury.

The fifth point on the appellant’s brief is devoted to the consideration of alleged errors in the charge. The first exception argued is one to that part of the charge in which, in substance and effect, the court stated that sparks would not escape from an engine in good order, and that if any such sparks escaped they would indicate that the locomotive was out of order and that the defendant is liable.” Referring to the charge itself, I am unable to find any statement like that mentioned in this language in the exception. What Mr. Justice Babnabd did say to the jury was this: “You have the opinion of the witnesses that no' engine provided with the best means in common use would throw out such lumps of fire, and you are to say what gives way-—■ whether this railroad engine was in good order with a netting the best in known and in common use, or whether there was something which permitted the escape of sparks which could not escape from such an engine if in good order.” This was not, as counsel seems to have supposed when he took his exception, an assertion by the court that sparks would not escape from an engine in good order, but a reference to the • testimony to-that effect -which still left the whole question to the jury and was, therefore, unobjectionable.

The second exception to which our attention is called relates to the refusal of the court to charge that the evidence showed that the defendant employed appliances which were as good as any known, to prevent the fire. In response to counsel’s request for this instruction, the learned judge said : “ I leave it to the jury.” Here there

was no error. The only evidence as to the construction of the locomotives Nos. 132 and 135, from one or both of which the fire must have proceeded, if the defendant is responsible at all, came-from persons in the employment of the railroad company; and the defendant was not entitled to have the jury instructed that the facts, to which they testified were established by the proof. It was for the jury to say whether such facts were proved or not.

The third exception, to the instruction that the jury were not bound by the exact date, the sixteenth of May, contained in the complaint, is not well taken. Indeed, the complaint did not attempt to fix the exact date, but alleged that the fire occurred “ on or about the 16th day of May.”

The court charged the jury that the defendant was liable if it permitted the fire that escaped from the engine to communicate to-stuff that had been allowed to collect so near the track as to make it a, source of danger. The fourth exception discussed in the brief refers to this instruction, and the contention is that no such question could properly be submitted to the jury under the pleadings, and that there was no proof that the rubbish was, in fact, on the defendant’s land. The evidence as to the starting of fires in the accumulated leaves and cut grass appears to have come.in without objection and was admissible, I think, even though there was no specific reference in the complaint to this precise agency in spreading the fire. As was said in O’Neill v. N. Y., Ontario c& Western Railway Co. (115 N. Y. 519) the fire on the track was the fire of the railroad company as much as if confined in the. engine, and it owed a like duty to see that it did no harm. It can hardly be doubted that the accumulation to which the witnesses referred was on the land of the defendant. One witness speaks of it as being' “ on the railroad ground, where they pretended to own all,” and in the neighborhood of five to ten feet from the rail; and. another says the fire of April 3, 1895, started in a collection of briars and dead grass and dry leaves, probably about six feet from the north of the rail. , •

The final point argued by the appellant is that the court erred in. directing the jury that they must allow interest on their verdict.' Although the word must was not used by the learned judge, liis' language was substantially an instruction to give the plaintiff interest on the sum which the jury fixed as the damages to her woodland. The learned counsel for the defendant, however, evidently did not so understand it at the time of the tidal, for his exception was to the instruction that the jury may cast interest upon the amount found on the first cause of action to date, and that they have the right to add interest to any amount which they may find.” Such a direction would have been wholly unobjectionable; for the the rule in actions of tort to recover unliquidated damages is that the jury may award interest in their discretion but are not bound to do so. (Duryee v. Mayor, 96 N. Y. 477; and see language of Bradley, J., on this subject in Mansfield v. N. Y. C. & H. R. R. R. Co., 114 id. 331.) The exception was so worded as to convey to the mind of the trial judge the impression that he had correctly instructed the jury in regard to this matter of interest, while if it had called attention to the fact that he had not left to the discretion of the jury the cpiestion of including interest in the plaintiff’s damages, the court wo uld doubtless have corrected the error. In the form in which it was taken the exception is not available to the defendant.

The judgment and order should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  