
    Susannah E. White, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence —finding that a frre was caused by a sparrk from, a passing engine — judicial notice that the escape Of sparks cannot be entirely prevented—evidence that other locomotives of file same company have emitted sparks.
    
    
      Senible, that evidence that a house was situated forty or fifty feet distant from a steam railroad and that upon the forenoon of a June day during an exceedingly dry period a fire was discovered in the roof of the house upon the side toward the railroad; that about fifteen minutes before the discovery of the fire a locomotive drawing a passenger train had.passed the house; that the- wind was blowing toward the house and that there had been no fire therein for some time, is sufficient to enable a jury to draw the inference that the fire was started by a spark from the locomotive.
    The court will take judicial notice of the fact that a locomotive cannot be so constructed as to prevent entirely the escape of sparks, and, in order to render a railroad company liable for damages caused by a fire ignited by a spark from one. of its locomotives, it must appear that the railroad company negligently omitted to fit its engines with appliances which would prevent the escape of sparks of an unusual size or in unnecessary quantities and that it was this negligence which caused the fire.
    While it is the rule that, for the purpose of establishing negligence in the construction of the locomotive, alleged to have caused the fire, evidence may be given generally that locomotives belonging to the same railroad company had on other occasions discharged sparks of an unusual size or in unnecessary quantities, such evidence will not prevail as against testimony given by disinterested witnesses, of their own personal knowledge, that the locomotive in question was in proper condition at the time the fire occurred.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 27th day of April, 1903, upon the verdict of a jury for $733, and also from an order entered in said clerk’s office on the 11th day of April, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Thomas Burns, for the appellant.
    
      J. W. Shea, for the respondent.
   Hiscock, J.:

This action was brought by plaintiff to recover the value of a house and of certain personal property destroyed by a fire' which it . was claimed was caused by a spark negligently permitted to escape from one of defendant’s passing engines. Various grounds of negligence were alleged in plaintiff’s complaint, but the learned trial justice before whom the case was tried permitted a recovery solely upon the ground that the spark arrester in the engine was not in proper condition and that defendant had not used proper care in inspecting it.

We think that the evidence did not warrant the verdict which the jury rendered and that the judgment appealed from must be leyersed.

The jury were entitled to find the following among other facts, some of them upon disputed evidence:

Plaintiff' owned a house which was situated between forty and fifty feet away from defendant’s road. Upon the forenoon of June 15, 1900, during an exceedingly dry period, a fire was discovered in the roof of the house upon the side in whole or part toward the railroad. About fifteen minutes before this discovery an engine ' had passed upon defendant’s road drawing a passenger train; The wind was blowing toward the house and there had been no fire in the latter for some time. As stated, some of these facts were sharply disputed, but we think there was sufficient evidence to permit a jury to find them as stated. From them, certainly if standing by themselves, it probably would have been permissible for the jury to draw the inference that the fire was ignited by a spark from the engine. If, however, we assume that such inference might be and was drawn by the jury, it still would not necessarily follow that the defendant was legally liable for the fire or the damages which resulted therefrom. It had the right to run its engines over its road, and we may take judicial notice of the fact, even if it does not appear in the evidence, that no engine can be so constructed that some sparks will not escape, and a railroad only becomes liable when it has negligently used engines not so fitted with appliances as to prevent the escape of sparks of an unusual size or in unnfeces^ sary quantities. (Brown v. Buffalo, Rochester & P. R. R. Co., 4 App. Div. 465.)

The burden, therefore, rested upon plaintiff to establish not only that her house was set on fife by a spark from ’ defendant’s engine, but that defendant was guilty of negligence in not having a proper spark arrester in its engine, and that on account of such negligence sparks were emitted which caused the fire. We think it is in this respect that she has failed to sustain the burden imposed upon her.

There was no evidence which tended directly to establish that the locomotive which passed before the fire and which must have caused it, if any did, was in a defective condition. No witness either testified that he had examined the spark arrester and found it defective or that he had seen sparks - escaping of- such a size and in such quantities as might properly sustain the inference that it was out of order. One witness was called apparently for the purpose of establishing that the arrester described by the defendant’s witnesses upon the trial as in use upon this engine at the time of the accident was not of a suitable character. We think, however, that his evidence failed in this respect and, moreover, the trial justice distinctly held that no such ground of negligence and causé of recovery was established in the case.

The plaintiff attempted to cover this branch of her case by showing that, at various times during the month preceding the fire, various engines of defendant had been seen to throw out sparks of larger sizes and in larger quantities than should escape through a proper spark arrester, and that some of these sparks were thrown as far as plaintiff’s house. None of this evidence identified the engine in question. It was all very general in its character and did not describe with any definiteness whatever the conditions of grade and load under which the engines threw out the sparks. It is perfectly well understood that engines of different sizes and construction under different strains of drawing trains will produce very different results in the matter of throwing sparks. An- engine laboring with a steep grade or under a heavy load will throw out a much greater quantity of sparks than one being operated under opposite conditions. General evidence of the character described is at best of uncertain value in determining the condition and operations of a specified engine at a particular time and place unless some similarity of. conditions is shown to have existed. (O'Reilly v. Erie R. R. Co., 72 App. Div. 228, 231; Flinn v. N. Y. C. & H. R. R. R. Co., 142 N. Y. 11.)

While the rule laid down in Sheldon v. Hudson River R. R. Co. (14 N. Y. 218), that for the purpose of establishing negligent construction of a specified engine, evidence maybe given generally that engines belonging to the same railroad at other times had discharged an unjustifiable quantity or size of sparks, seems to be established, there does not appear to be any tendency in the latter cases to enlarge the operations or application of such rule.

In this case, however, we are not compelled or permitted to settle the question of defendant’s liability solely by reference to what had occurred upon other occasions than that under investigation. in the case of other locomotives. There is evidence which, in our opinion, rebuts any presumption which might be raised as to the engine in question on account of the manner in which others- had been operated at other times. As already stated, no witness speaking with reference to the locomotive under investigation gave testimony to the effect that it was out of condition. Upon the other hand, various witnesses, of their personal knowledge,, testified to its proper" examination and inspection and-to its proper condition at the time when the fire occurred. They, however, were witnesses in the employ of the defendant. But outside of them and supplementing their evidence, various witnesses, some of them called and, therefore, vouched for by the plaintiff, and others entirely disinterested as between the parties, testified that they saw this engine upon the occasion in question at or near the point of passage by plaintiff’s house, and that it was not throwing- out any improper discharge of sparks. One Smith, a witness called by the plaintiff, testified that he was at work upon the track 400 or 500 feet from plaintiff’s house; that he saw the engine as it passed by and did not see any sparks or coals coming from it. Alvin Tanner, Emma Bowers, a sister of the plaintiff, Frank Bowers, not in the employ of the defendant at the time of the trial, gave evidence to the same effect. Moreover, plaintiff herself, who" testified with considerable particularity to the passage of the engine, stated that she did not observe the emission of-any sparks. While it may be urged that these witnesses did not pay such particular attention to this subject at the time as to be able to say that no sparks escaped from the engine, We still think that we should not" be justified in permitting .a jury to find in spite of their testimony that there was sucli an unusual and unlawful emission of sparks as to indicate that defendant’s -engine was in imperfect condition so as to make it liable for plaintiff’s mishap.

In those cases cited by the learned counsel for the respondent, as authority for the proposition that a jury might find a defective condition in one engine from, what engines not identified with the one in question had done Upon other occasions, there was no such evidence as that above referred to speaking directly of and concerning the "occasion under investigation. The class of evidence permitting a jury to predicate a negligent condition of one locomotive upon the operations of others at other "times, is at variance with the rules of evidence ordinarily applicable to a case of - this character, and as the leading case of Sheldon, v. Hudson River R. R. Co., cited supra, clearly indicates has been allowed largely as a matter of necessity. We think that it would be ah unwarranted extension and application of the rule to allow such evidence to be made the basis of liability in the presence of other evidence given by disinterested witnesses directly indicating that there was an entire absence of fault and negligence.

These views lead us to the decision that the judgment should be reversed and render it unnecessary for ns to discuss various other questions pressed upon our attention by the counsel for the appellant.

All concurred.

Judgment and order reversed and new trial ordered, with costs td the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.  