
    William Miller, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.
    
      (Supreme Court, General Term, Forth Department,
    
    
      Filed December 26, 1895.)
    
    1. Negligence—Railroads—Fires.
    Where, in an action against a railroad company for fire kindled by its engines, there is no evidence that at the time there was any wind or that the fireman did anything not necessary to the proper running of the train and no fire was left on the railroad land and the engine was in perfect order, there is no basis for predicating negligence.
    9. Same.
    The fact that sparks emitted from the engine were thrown upon the plaintiff’s premises and caused the fire, in case the engine was perfect, does not of itself establish negligence.
    8. Same.
    The rule that sparks or coals may be thrown of such unusual size as to indicate, prima facie, some defect in the engine, does not apply where the case is sent to the jury on the theory that the engine is perfect.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.
    George Doheny, for app’lt;
    William Kennedy, for resp’t.
   MERWIN, J.

The plaintiff owned lands adjoining the track of defendant in the town of Manlius. Hpon two occasions—one on or about June 11, 1891, and the other on or about July 24, 1893—his premises were injured by fire. There is evidence tending to show that the fire was in some way communicated to the land from the engine or train of defendant as it passed along on either occasion. The defendant claims that no negligence on its part was shown, causing the injury. Concededly it was incumbent upon the plaintiff to show such negligence. The negligence charged in each count of the complaint is that the engine was so improperly constructed that sparks and coals of án unusual and extraordinary size and character were emitted therefonn, which communicated fire to plaintiff’s premises and caused the injury. The court, at the request of the defendant, .charged the jury that there was no. evidence in the case that the engine was not perfect in all its parts. The court, however, left it to the jury to say whether the defendant was negligent in cleaning its fire pan at the times in question, and whether or not that negligence caused the fire. There was no fire on the railroad land, and upon the second occasion, as the court charged, there was no wind. Upon the first occasion there was a strong wind, and it .might be. argued that, as the fireman (as the plaintiff testifies) poked or raked the fire, it was blown to some extent on the plaintiff’s premises. But on the second occasion, there being no wind, and no evidence that anything the fireman did was not necessary to the proper running of the train, and no fire being left on the railroad land, and the engine being in perfect order, it is difficult to see on what basis negligence can be predicated.

Upon the theory the case was sent to the jury, the verdict must stand, if it stands at all, on the proposition that the fireman was negligent' in his management of the fire, thereby throwing, in some unexplained way, coal from the fire pan to the plaintiffs land. The evidence does not authorize the conclusion that the fire was caused in this way, at least so for as the second and main cause of action is concerned- It may be,' as alleged in the complaint, that sparks emitted from the engine were thrown upon the plaintiff’s premises and caused the fire. But if, as we assume here, the engine was perfect, that would not of itself establish negligence. McCaig v. Railway Co., 8 Hun, 600; Frier v. President, etc., 86 id. 464; 67 St. Rep. 541. We are referred by the ■plaintiff to cases where it is said that sparks or coals may be thrown of such unusual size as to indicate, prima facie, some defect in the engine. They do not apply here, as this case was sent to the jury on the theory that the engine was perfect. As the case stands, there should, we think, be a new trial.

Judgment and order reversed, and a new trial ordered; costs to abide the event.

All concur.  