
    Albert D. Genung, Resp't, v. The New York & New England Railroad Co., App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    1. Railroad—Fire caused by.
    Proof that prior to the passage of a train there was no fire, and that after it passed plaintiff’s field was burned over by a fire which was traced back to the railroad, where there had been an accumulation of old grass and refuse, is sufficient to justify the presumption that the fire was caused by sparks or coals from the engine which passed, and that such engine was defective or improperly managed.
    ■2. Same—Use of another road.
    The defendant used the tracks of another corporation at this point. It admitted that it ran trains by that place during that month, and there was no proof that any other trains than those of defendant passed over the road during said month. Held, that this justified the inference that the fire was caused by defendant’s engine.
    3. Same.
    Defendant cannot escape liability on the ground that the accumulation of grass and rubbish iyas the result of carelessness of the other corporation, as notwithstanding its presence there would have been no fire but for its own negligence, which was, therefore, the primary cause.
    Appeal from judgment of the Dutchess county court, affirming judgment of a justice’s court in favor of plaintiff.
    
      Walter C. Anthony, for app’lt;
    
      Hansom Baker, for resp’t.
   Dykman, J.

This action was commenced in a court of a justice of the peace in Dutchess county, for the recovery of damages for setting fire to the grass upon the plaintiff’s land and destroying the same by fire.

It was the claim of the plaintiff that his grass was set on fire by sparks or coals which escaped from a locomotive engine of the defendant while passing over the railroad of the Newburgh, Dutchess & Connecticut Railroad in the town of East Eishkill in Dutchess. county, in the month of July, 1891.

Upon the trial the defendant admitted that it run trains over the Newburgh, Dutchess & Connecticut Railroad in the month of July, 1891.

The cause was tried before a justice of the peace without a jury, and he rendered a j udgment in favor of the plaintiff for $100 damages and the costs.

That judgment was affirmed on appeal to the county court of Dutchess county, and the defendant has appealed from the judgment of affirmance to this court.

The insistence on the part of the appellant is, that the proof of negligence was insufficient to impose liability, and that the defendant is not liable or responsible for any condition of the road of the Newburgh, Dutchess & Connecticut Railroad, and we must examine the two questions thus presented.

The testimony on the part of the plaintiff shows that the New-burgh, Dutchess & Connecticut Railroad runs through the farm of the plaintiff. That a field of grass of about six acres ran up to the line of the railroad, and that there was brush and grass on the railroad, besides considerable dry grass and refuse lying among the stone, besides an early June grass also dead at that time.

The plaintiff was drawing rye from a field near the railroad, and, while he was in the barn with a load, a train passed - down over the railroad. There was no fire burning when he went in, and when he went out, after unloading the rye, he saw the fire on the railroad. It was burning the old grass, and the wind was high and they could not extinguish it, although there was another man who came to assist them. It burnt over six acres, and the course of the fire was traced back and found to have started next to the track of the railroad.

No testimony was offered on behalf of the defendant.

The testimony was sufficient to justify the presumption that the fire was caused by sparks or coals from the locomotive which passed down while the plaintiff was in the barn unloading the grain. That was on the 11th day of July, and the admission was. that the defendant ran trains over the railroad at that place in July, and there was no proof that any other trains passed over the road in that month but those of the defendant.

The inference is justified, therefore, that the fire was set by the locomotive of the defendant.

And as there could have been no ignition of the dry substances without the emission of sparks or coals, the presumption is that such emission took place, and that presumption raises an inference that the engine was defective or improperly managed.

The plaintiff thus established a case that was good until it was answered or contradicted, and as there was no defense attempted, the judgment was justified.

The defendant cannot escape liability on the ground that the accumulation of the dry grass, brush and rubbish was the result of the carelessness of the Newburgh, Dutchess & Connecticut Railroad Company.

The defendant adopted the railroad of another company for its own use, and if combustible material had accumulated along the track which was set on fire through the negligence of the defendant, we think it must answer for the consequences.

notwithstanding the presence of the dry material, there would have been no fire but for the negligence of the defendant; such negligence was, therefore, the primary cause of the damage, and imposed liability upon the defendant therefor.

The record discloses no error, and the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  