
    James B. O’Reilly and William T. O’Reilly, Respondents, v. Erie Railroad Company, Appellant.
    
      Negligence —fire spreading to private land from, a railroad’s right'of way on which inflammable material had collected—proof of its catase—proof as to the emission of sparhsfrom locomotives at another place on the railroad.
    
    
      Semble, that evidence given upon the trial of an action to recover damages resulting from fires, which were alleged to have been started by sparks emitted from the defendant’s locomotives and which spread from the defendant’s right of way, where inflammable material was negligently allowed to accumulate, to ■ the plaintiffs’ land, to the effect that each of the fires was discovered within a short time after one of the defendant’s locomotives had passed the plaintiffs’ premises, is sufficient to sustain a finding that sparks from such locomotives caused the fires, notwithstanding that the witnesses do not testify to seeing any sparks come from the locomotives in question hor that such locomotives were laboring to any extent.
    Evidence given by a witness who lived a mile and a half east of the place where the fires started, that at different times before the fires the defendant’s locomotives “ scattered fire from their smoke stacks while laboring, working and drawing trains ” at the place where he lived, is not admissible for the purpose of establishing that the fires were started by the locomotives which passed the plaintiffs’ premises just before the fires started, where it is conceded that the' engines which were alleged to have caused the fires were properly constructed and in good order, and there is no evidence that the locomotives observed by the witnesses and those which were alleged to have caused the fires were of a similar kind or were working under the same conditions;
    Appeal by the defendant, the Erie Railroad Company, from a judgment of the County Court of Sullivan county in favor of the plaintiffs, entered in the office of the clerk of the county of Sullivan on the 16th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the -20th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    The action is to recover damages from the defendant for negligently permitting dry and inflammable material to accumulate on its. right of way, which was ignited by sparks from its engines, the fire resulting therefrom spreading over onto plaintiffs’ land.
    , The jury found a verdict for the plaintiffs, and from the judgment entered thereon, and from an order denying a new trial on the minutes, this appeal is taken.
    
      
      Henry Bacon, for the appellant.
    
      John F. Anderson and Fra/nk 8. Anderson, for the respondents.
   Parker, P. J.:

Under the rule of law which was adopted at the trial, the plaintiffs were obliged to establish two facts in order to recover in this action. The first was, that the defendant had negligently permitted dry and inflammable material to accumulate along its track opposite the plaintiffs’ lands and to be in a condition liable to be ignited from sparks ejected from its engines. The second was that the fires in question were actually ignited in this material by sparks from the engines which passed but a short time before the fires were discovered.

As to the fact first above stated, the evidence presented a fair question for the jury, and was of such a character as does not warrant us in reversing their conclusion.

As to the second question, while the evidence as to the origin of the three several fires does not by any means exclude all other causes, there is probably sufficient to sustain the finding that each was set by sparks from the engine which passed that locality but a short time before the fires were seen to break out.

As to the first fire, in April, 1896, the witness Lewis testified, substantially, that he was on the track in plain view of the locality when a train passed; that he saw no fire in that vicinity then; that after the train passed, he saw the fire break out in some grass and leaves that had been cut the year previous on the defendant’s right of way. Another witness, Turner, who was about a quarter of a mile away, testified to seeing the fire breaking out in the same place just after that train had passed.

As to the second fire, which occurred on April 11, 1900, the witness Bush, who was at home on the opposite side of the Delaware river, saw a small fire burning on the right of way soon after noon. It was some fifteen or twenty feet from the' track, and subsequently spread over onto the plaintiffs’ lands. A freight train had gone west some fifteen or twenty minutes before he saw the fire.

As to the third fire, on April 19, 1900, the witness Tyler, who was also on the opposite side of the Delaware river, just after the way freight had gone east,, saw a fire start on the east side of the track between it and the stone wall on the defendant’s lands. He saw no fire there in that vicinity before the train went by. That fire burned fast and spread onto the plaintiffs’ lands. ¡Neither of these witnesses testify to seeing any sparks come from the .engines nor that the engines were laboring to any extent. The first two, however, were hauling freight trains going west on an up grade. The third was hauling :a light freight train east on- a down grade and going fast.

Probably this evidence should be deemed sufficient to sustain the jury’s conclusion that sparks from such engines set the fires in question. (O'Neill v. N Y., O. & W. R. Co., 115 N. Y. 579; Webb v. R., W. & O. R. R. Co., 49 id. 420.)

The plaintiffs, however, in addition to this line of evidence proved an additional fact, under the. defendant’s objection, which presents a serious question as to whether this verdict should be allowed to stand.

A witness, Moses Tyler, who lived a mile and one-half east of the place where these fires started, was allowed to testify that engines of the defendant running over its road at different times before the fire caught in 1896'and in 1900 scattered fire from their smoke stacks while laboring, working and drawing trains ” at the place where he lived, and this evidence was received as tending to establish the claim that the engines which passed just before the fire set the fires in question.

Was it legitimate evidence to establish such a claim? It was conceded that the engines which are claimed to have set the fires were-properly constructed and in good order. Ho claim is made of any defect on their part. But no evidence whatever is given as to the condition of the engines to which the witness Tyler referred. They may have been badly Out of order or of an ancient and defective construction. Also; there is no evidence of how the work which they had to do in passing his place compared with that which the engines in question were doing when the fires in question were set nor as to whether they were burning the same kind of fuel. In short, there is an titter failure to show that the engines to which the witness referred were of a similar kind to or were working under the same conditions as those claimed to have set these fires, and, therefore, the. fact that the former “ scattered fire from their snioke stacks ” furnishes no legitimate reason for concluding that the latter also a scattered fire.”

It needs no authority to sustain the proposition that, unless the engines were substantially similar in construction and working under the same conditions, the comparison and conclusions claimed hy the plaintiffs should not be allowed. The marked difference in the construction of engines and their operation under different conditions are now too well established to permit the inference that because one engine scatters sparks another must necessarily do so.

The plaintiffs find authority for this evidence in Sheldon v. Hudson River R. R. Co. (14 N. Y. 218). That case was not one where comparison was sought to be made between an engine conceded to be in perfect repair and others shown to have thrown fire. It was •an offer to • show that some of the defendant’s engines did throw sparks as far as the building shown to have been burned, and that hence it might be inferred that its engines had fired the building in question. The judge writing seems to have placed the decision upon the peculiar circumstances ” of that case, and I do not consider that it goes to the length which the plaintiffs claim for it. The other cases to which he refers are also quite different from the one before us.

The plaintiffs further argue that such evidence, even if not strictly admissible, was altogether harmless, because it put into the case nothing more than the law would assume, viz., that all engines, though well constructed and in good order, will necessarily emit sparks when drawing trains. And they cite Frace v. N. Y., L. E. & W. R. R. Co. (143 N. Y. 187) as authority. But, neither that case, nor any. other that I have discovered, holds that the law presumes that such engines will scatter fire from their smokestacks when drawing a train under the conditions in which these were drawn. It is to be noticed that there is no direct proof that these engines did emit any sparks. As to the second fire, some fifteen or twenty minutes elapsed after the train passed before any fire was discovered. In this instance, at least, the evidence to exclude any other cause than that of the engine is very slight. A trackwalker with a pipe and a match might easily', during that interval, have been the source of all that fire. And it cannot be doubted but that the assumption on the part of the jury, that the engine which then passed might be deemed to have scattered fire from its smokestack, because those which the witness Tyler saw scattered fire from theirs, would have great weight in leading to their conclusion that it, and not any other source, set that fire. To scatter fire from their smokestacks, is a phrase which suggests decidedly more than Would be expected from an engine in good order and of approved construction. It might have been proper for the plaintiffs to have proven by those who knew, that even such an engine would emit some sparks, sufficiently dangerous tó require the defendant to keep its road clear from inflammable material, and to warrant a reasonable conclusion that the fires in question might have been set by them; but that such engines would pass over the road in a whirl of fire, because those which Tyler saw. did so, is a method of reasoning which, in my opinion, should not be tolerated.

It may be that, had the evidence not been put into the case, the jury would have reached the same conclusion, but it is not entirely clear that they would have done so. The evidence was squarely put before them as establishing a fact, from which they might infer that the engines in question scattered fire with a profusion equal to those to which Tyler referred, and was, therefore, well calculated to convince them that they were equally dangerous. Under such 'circumstances, it would be difficult to see how they could have passed without setting the fires, and, therefore, it cannot be disregarded as evidence which had no substantial effect.

For this reason I conclude that the judgment and order should be reversed.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  