
    Almon C. Phelps, Plaintiff, v. The New York Central and Hudson River Railroad Co., Defendant.
    (Supreme Court, Oneida Special Term,
    July, 1905.)
    Negligence — Proximate cause of injury — Setting fire on adjoining land — Permitting it to spread to plaintiff’s land.
    One who negligently starts a fire that spreads to lands immediately adjoining, is liable for the damages, whose proximate cause is the starting of the fire.
    A complaint which alleges that between the land of the plaintiff and the land occupied by the defendant and next adjoining the lands of the plaintiff and defendant is land owned or occupied by one T.; that, during a period of long continued, great and excessive drought, the defendant, a railroad corporation, while running its engines and locomotives past the premises of one T. and past the premises of plaintiff, negligently, carelessly and wilfully managed said engines and locomotives and failed and neglected to employ proper, suitable and sufficient means to prevent the escape of sparks and fire-burning coals therefrom and negligently, carelessly and wilfully threw burning coals and fire from its said engines upon the lands owned and occupied by said T., which set fire to the dry grass and other ignitible and combustible matter upon the land of said T. and from thence spread to and upon the land of the plaintiff and there totally destroyed all the growing timber upon plaintiff’s said land; and that, after the said fire was so set upon the land' of said T., defendant negligently, wilfully, wantonly and carelessly suffered and allowed the same to escape to, and run upon, the land of the plaintiff and to then and there totally destroy all of plaintiff’s said growing wood and timber upon said land to plaintiff’s damage in the sum of $900; and that said damage was not caused wholly or in part by any negligence, carelessness or want of care of the plaintiff, is good.
    
      Demurrer to a complaint in an action for negligence.
    P. H. Fitzgerald, for plaintiff.
    Lewis, Watkins & Titus, for defendant.
   Wright, J.

The complaint describes the lands of the plaintiff and states: “ That between the above described land of this plaintiff and the land so occupied by defendant in Annsville, aforesaid, and next adjoining the lands of the plaintiff and defendant, is land owned or occupied by one John Tanner. That on or about May 2, 1903, and during a period of long-continued, great and excessive drought, the defendant, while running its engines and locomotives on said railroad, and past the premises of said Tanner, aforesaid, and past the premises of this plaintiff, negligently, carelessly and wilfully managed its said engines and locomotives, and failed and neglected to employ proper, suitable and sufficient means to prevent the escape of sparks and fire-burning coals from the engines and locomotives of said defendant, and negligently, carelessly and wilfully threw burning coals and fire from its said engines and locomotives upon the said lands so owned or occupied by said Tanner, and which said sparks, coals and fire did then and there set fire to the dry grass and weeds and other ignitible and combustible matter upon the land of said Tanner, and from thence, spread to and upon the land of this plaintiff, and there totally burned, ruined, injured and destroyed all the growing timber upon plaintiff’s said land.

Plaintiff further alleges, that after the said fire was so set by defendant, its servants, agents and employees, upon the land of said Tanner, aforesaid, that the defendant negligently, wilfully, wantonly and carelessly suffered and allowed the same to escape to and run upon the land of this plaintiff, and to then and there totally burn, ruin, injure and destroy all of the plaintiff’s said growing wood and timber, upon said land, to plaintiff’s damage and injury in the sum of nine hundred ($900) dollars.

The said loss, damage and injury was not caused wholly or in any part by any negligence, carelessness or want of care of this plaintiff.”

The defendant demurs to the complaint upon the ground, that it does not state facts sufficient to constitute a cause of action.

It is urged by the defendant that the damage suffered by the plaintiff was not the immediate result of the negligence of the defendant, but rather the remote result.

The case of Hoffman v. King, 160 N. Y. 618, confines a recovery for damages caused by the spreading of fire negligently started, to the owners of lands immediately adjoining those on which the fire originated. In that case certain inflammable material on the defendant’s land was ignited by sparks from its locomotives. The fire spread across the lands of several intervening owners for a distance of two miles to and upon the plaintiff’s land causing damages thereto. It was held that the damages were too remote. The court lays down the rule that if a person light a fire upon his own premises, upon which he has maintained inflammable material extending to his neighbor’s lands, and the fire, fed by this material, spreads upon the abutting lands, the damage is the proximate result of the act and a liability exists, but this is the limit. See also Webb v. R., W. & O. R. R. Co., 49 N. Y. 420; McCoun v. N. Y. C. & H. R. R. R. Co., 66 Barb. 338.

The law will recognize no difference in the result to the injured adjoining landowner whether the tort feasor be upon his own land when he sets the fire which spreads to and upon the immediately adjoining lands, or whether he be upon a stranger’s land when he sets the fire which spreads to and upon the immediately adjoining lands. In either case the spreading of the fire to and upon the immediately adjoining lands is the natural and probable result of setting it. The wrong consists in the negligent starting of the fire which is, in both instances, the proximate cause of the resulting damage.

The language of Judge McAdam in Connelly v. Rist, 20 Misc. Rep. 31, is applicable to this case. He says: The true rule is that the injury must be the natural and necessary consequence of the defendant’s acts (Ryan v. R. R. Co., 35 N. Y. 210; R. R. Co. v. Reeves, 10 Wall. 176) ; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act. The court in Jex v. Straus, 122 ¡¡ST. Y. 301 said: The law requires that the injury must proceed so directly from the wrongful act that, according to common experience and the usual course of events, it might, under the particular circumstances, have reasonably been expected.’”

Under the complaint in this case the defendant negligently and wilfully set fire to ignitible material upon the land of Tanner, next adjoining which was the plaintiff’s land. That, at the time of excessive drought, the fire would spread to and upon the land of the plaintiff was the natural and probable result, proceeding directly from the wrongful act of the defendants.

It follows, therefore, that the demurrer must be overruled, with cosits.

Demurrer overruled, with costs.  