
    (67 Hun, 639.)
    WHEELER v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Third Department.
    March 2, 1893.)
    1. Railroad Companies—Eire Set by Locomotive—Evidence.
    In an action against a railroad company for negligently setting fire to plaintiff’s ham, evidence that the fire started on the roof of the bam towards defendant’s track between 12 and 1 o’clock in the afternoon, in the summer time, shortly after defendant’s engine passed up the road, and that the wind was blowing from the direction of the track, is sufficient to show that the fire was set by the engine, without direct preliminary proof excluding the probability that the fire originated from some other source, since the presumption is that at that time no fire or light would be used in the barn, and that a fire originating from the dropping or using of a match in the building would not have started on the roof.
    2. Same—Evidence or Negligence.
    When plaintiff identifies the engine that caused the fire, proof that large cinders were found on the track and on plaintiff’s premises at the time of the fire does not show that the engine was not in good repair, in the absence of evidence showing that the cinders came therefrom, or that it is of similar construction, state of repair, or management to those shown to have emitted the cinders.
    8. Same.
    Where the engine is shown to have the best-known appliances to prevent the emission of sparks, and that it was in good condition before the fire, and when examined two or three days afterwards, the court will not. presume defendant negligent because the engine was old, and imperfect as to its capacity for generating steam.
    4. Same—Subsequent Fires.
    The emission of one large spark from defendant’s engine three days after the fire is not sufficient evidence that the engine was out of order at the time of the fire to warrant the submission of the question to the jury, since there was ample time in three days for some accident to have happened to the spark arrester.
    Appeal from circuit court, Columbia county.
    Action by Caroline E. Wheeler against the New York Central & Hudson River Railroad Company for the destruction of plaintiff’s buildings by fire alleged to have been set by one of defendant’s locomotives. From a judgment dismissing the complaint, plaintiff apappeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Cady & Hoysradt, (J. Rider Cady, of counsel,) for appellant.
    Asbbel Green, (F. L. Westbrook, of counsel,) for respondent.
   PUTNAM, J,

Plaintiff’s buildings were destroyed by fire on June 19, 1890, in the afternoon, between the hours of 12 and 1 o’clock. Defendant’s local freight train, drawn by engine No. 82, bad passed 15 or 20 minutes before. Plaintiff’s buildings stood on the easterly side of and very near defendant’s track, and the wind was blowing from west to the east. The fire started on the roof of plaintiff’s barn towards the railroad. Some of defendant’s employes at the time were in the yard adjacent to the building, but it does not appear that any one saw sparks emitted from the defendant’s engine while passing plaintiff’s premises. Plaintiff contends that there was evidence which should have been submitted to the jury tending to show that the fire occurred on account of the negligent emission of sparks from defendant’s said engine. The trial judge thought otherwise, and nonsuited the plaintiff, deeming that there was no sufficient evidence to show that defendant’s engine caused the fire, or that it was not properly constructed to prevent the emission of sparks. I regard the case as a close one, and have reached a conclusion with considerable hesitation. It is held that in such an action as this, and under such circumstances, after testimony has been produced tending to exclude the probability that the fire originated from any other source, evidence may be given showing that it was possible for the sparks from the engine to reach, the burned building, and facts tending to show that the fire originated from that source and no other. 8 Amer. & Eng. Enc. Law, pp. 7, 8, and notes; Crist v. Railway Co., 1 Thomp. & C. 435, 58 N. Y. 638; Sheldon v. Railroad Co., 14 N. Y. 218; Field v. Railroad Co., 32 N. Y. 339; Hinds v. Barton, 25 N. Y. 547. In this case it is not clear that plaintiff produced the preliminary proof held necessary by above and kindred cases. Although plaintiff’s husband and her hired man were inside the building where the fire originated on the day it occurred, neither were examined with a view of showing that the fire could not have occurred by some act of theirs inside of the barn. It was not shown that they did not use a match within the building' before the fire,—as to light a pipe, or otherwise. It was not shown that children or other persons were not within the barn previous to the fire. In fact, no direct evidence was given by plaintiff tending to show the improbability of the fire’s originating from some cause other than from defendant’s locomotive. But I am inclined to think that direct evidence tending to show that there was no other probable cause of the fire, except sparks from defendant’s engine, was unnecessary, when the facts of the case indicate that the fire probably originated from that cause. The fire was in the summer time, in the middle of the day, and when several men were in the yard adjoining the building. It started a few minutes after defendant’s train passed up the road, on the roof towards defendant’s track, the wind blowing from the direction of the railroad towards the barn. It may be assumed that on the 19th of June, and between 12 and 1 o’clock in the afternoon, no fire or light would be used in the barn. If a match had been dropped or used in the building, a fire originating therefrom would not have started in the roof. I think, therefore, there was evidence tending to show that the fire was started by defendant’s engine, and that the plaintiff, within the authorities cited above, was entitled to have that evidence submitted to the jury, if she also produced any sufficient evidence tending to show negligence on the part of the company. See Railroad Co. v. Doak, 52 Pa. St. 379.

Assuming that defendant caused the fire in question, it remains to be considered whether there was testimony given that said engine Eo. 82 was not in proper condition at the time of the fire, which the trial judge should have submitted to the jury. Defendant was not responsible for the fire if it used proper care. It had the right to run its locomotives at all times on its track, provided they were in proper condition. Collins v. Railroad Co., 5 Hun, 506, 71 N. Y. 609. And it was for the plaintiff to show by evidence, the defect, if any existed, in defendant’s engine. Cosulich v. Oil Co., 122 N. Y. 123, 25 N. E. Rep. 259. The only direct testimony as to the condition of said machine was given by the witness Fisher. He testified it was in first-class condition two or three days before the fire; that the spark arrester was then examined, as it was a few days after the fire, and was found in good repair on each occasion. The fact that large cinders were found on defendant's track and on plaintiff’s premises, 25 paces therefrom, at or about the time of the fire, does not show that the engine was not in good repair, because it is not shown that such cinders came therefrom. In this case plaintiff has identified the engine which caused the fire. No other engine of defendant’s is shown to have passed the burned building at any time near the time of the fire. In cases where it is probable that some engine of a railroad company has started a fire,. and several are shown to have passed at or about the time, evidence that engines on that road have frequently dropped sparks or cinders may be competent. Sheldon v. Railroad Co., 14 N. Y. 218. But such evidence is not competent where the engine that caused the fire is identified, unless it is also shown that such machine is of similar construction, state of repair, or management to those which are shown to have emitted such sparks or cinders. Gibbons v. Railroad Co., 58 Wis. 335, 17 N. W. Rep. 132; Boyce v. Railroad Co., 42 N. Y. 97.

The court cannot presume defendant negligent for using an old engine to draw its freight trains, or one in which it was difficult to keep up steam, in the absence of competent testimony showing its spark arrester defective. We should not imagine that because an engine is not new, and is not perfect as to its capacity for generating steam, its spark arrester is out of order. Defendant’s engine was shown to haAre the best-known appliances to prevent the emission of sparks, and, as we have shown, the only witness sworn as to its condition testified that it was in good state of repair before the fire, and when examined two or three days afterwards. We must remember that this case is not like those where the plaintiffs have been able to show prior to a fire that an engine has emitted large sparks or caused frequent fires. In such cases it has been held, in some instances, that such emission of sparks and fires was some evidence of a defective engine, the effect of which was to throw upon the company the burden of showing that its locomotives were in good condition. In this case no one saw any sparks emitted from engine No. 82 at the time of the fire, nor was there any proof of its causing any fires or emitting any large sparks prior to the fire in question. It was then incumbent on the plaintiff to show an improper condition of its spark arrester or a defect in the engine that might cause the fire. The only testimony offered by the plaintiff tending to show a defect in the spark arrester of engine No. 82, that I am able to discover, was its emitting sparks on two occasions after the fire in question. The occasion testified to by Van Valkenburgh, when a car load of hay was burned, occurred some time after the fire,—I think three or four weeks. Nor does it appear that the fire which destroyed the hay was caused by large sparks, and not by such as are emitted from an engine with the best-known appliances, in the best condition. The witness Lampman testified to another occasion, not, as suggested by plaintiff’s counsel, on June 20th, the day after the fire, but about the 20th of June,—the 20th or the 22d, he is not positive which. He says that a large coal of fire was then emitted from the engine, and fell into his wagon three rods distant, setting fire to the straw. Plaintiff’s contention is that this large spark, described by Lampman, could not have been emitted through a spark arrester in proper condition; and although Fisher testified that the arrester in No. 82 was in good condition both before and after the fire, yet by this testimony of Lampman’s a question of fact was raised which could only be properly determined by a jury. I think that the learned trial judge took the correct view of this testimony. As it was for the plaintiff to show defendant’s negligence, if any, and as Lampman was uncertain whether the occurrence at Coxsackie was on the 20th or 22d, we should assume it occurred on the 22d, three days after the fire. It would not have been proper for the court to have allowed the jury to guess that the occurrence was on the 20th, when the witness himself did not so testify. I think the fact that three days after the fire one large spark was emitted from defendant’s engine could not be properly submitted to the jury as evidence that defendant’s engine was out of order three days before. There was ample time in the three days for some accident to have happened to the spark arrester, or for a hole to have been worn in the netting. Counsel for the plaintiff suggest that a witness testified that no alterations or changes had been made in the engine from June 1st to September 1st of that year. Such evidence, however, should not be deemed as meaning that changes may not have occurred during the time mentioned to the defendant’s engine by use or wear. It has been held, in such an action as this, that evidence that defendant’s engine on the same trip and the same day caused other fires was competent, as tending to show the defective condition of the engine. Slossen v. Railroad Co., 60 Iowa, 215, 14 N. W. Rep. 244. But here the emission of the large spark was several days after the fire. If the affirmative had been with the defendant as to the condition of the engine, and it had produced evidence that the spark arrester was in good condition both before and after the fire, it might have been proper for the plaintiff to have shown in rebuttal the emission of the spark after the fire. Such was the case of Loring v. Railroad Co., 131 Mass. 469.

Plaintiff had the burden of showing that on June 19th defendant’s engine was out of repair, in such a way as to cause the fire that destroyed her building. She failed to produce any evidence from which the jury would have been authorized to find that such locomotive was so out of repair until some days after the fire. The then defective condition of the spark arrester of said engine may have existed prior to the fire which injured plaintiff, or it may, from wear or accident, have developed since the fire. It was for the plaintiff to show the defect prior to the fire. This she failed to do. It would not have been proper for the court below to have allowed the jury to conjecture as to the time the spark arrester became out of order. See Searles v. Railway Co., 101 N. Y. 661, 5 N. E. Rep. 66; Reiss v. Steam Co., 128 N. Y. 107, 28 N. E. Rep. 24.

The court below, I think, did not err in excluding the evidence offered by plaintiff to show that prior to the fire, and in the vicinity of the premises where the fire occurred, sparks and cinders were found on the line of defendant’s road and on plaintiff’s premises. As we have seen, plaintiff identified the engine that caused the fire, and hence the evidence in question was properly excluded by the court. I therefore conclude that the judgment should be affirmed, with costs. All concur.  