
    Thomas Brown, App'lt, v. Buffalo, Rochester & Pittsburgh Railroad Company, Resp't.
    
      (Supreme Court, Appellate Division, Fourth Department,
    
    
      Filed April, 1896.)
    
    1. Railroads—Fibes—Negligence.
    In order to charge a railroad company with negligence in so operating its trains as to set fire to plaintiff’s adjacent premises, it is incumbent upon the plaintiff to point out specifically the negligence, or negligent act, of the company in operating its trains along its tracks, and-that such negligence caused the injuries of which the plaintiff complains.
    
      2. Same.
    In such case, it is not sufficient to produce evidence to indicate that sparks emitted from the smoke stack of the locomotives occasioned the fire, unless the emission of the sparks was unusual in degree or character, or the sparks were of extraordinary size and such as would not be emitted from perfectly constructed locomotives.
    8. Same—Question bob jury.
    The question whether the omission of the company to cut the grass and weeds and remove the debris from the railroad premises, and whether by reason of such omission and negligent acts of the company a fire started on its premises and communicated to the plaintiff’s premises and caused the damages, is one for the jury to determine,"
    Appeal from a judgment in favor of defendant, and from an order denying a motion for a new trial on the minutes.
    J. E. Robson, for app’lt; H. G. Danforth, for resp’t.
   HARDIN, P. J.

It was incumbent upon the plaintiff to point out specifically the negligence, or negligent act, of the defendant in operating its trains along its track, and that such negligence caused the injuries of which the plaintiff complained. It was not sufficient to produce evidence to indicate that sparks emitted from the smoke stack of defendant’s locomotives occasioned the fire, unless the emission of the sparks was unusual in degree or character, or the sparks were of extraordinary size, and such as would not be emitted from perfectly constructed locomotives. McCaig v. Railway Co., 8 Hun, 599. The evidence was not definite and certain to indicate any particular engine from which the fire escaped. The grade was ascending adjacent to the plaintiff’s lands, and it was to be expected that some sparks, in the reasonable use of the defendant’s engines, would escape. Frier v. Canal Co., 86 Hun, 464; 67 St. Rep. 541. In Miller v. Railroad Co. 71 St. Rep, 729, it was said:

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 must assume here, the engine was perfect, that would not of itself establish negligence.”

In Flinn v. Railroad Co., 142 N. Y. 11; 48 St. Rep. 431, it was said that a railroad company may not be made liable “for the unavoidable or usual consequences to adjacent property of the proper operation of its road.” And in that case it was further held that tl the defendant could not be charged with negligence in not fully introducing a new system of arresting sparks upon all of its engines previous to the fire, in the absence of evidence that it was reasonably practicable and possible so to do.”

2. It is claimed there was some evidence of the defendant’s negligence in its omission to cut the grass and weeds and remove the debris from the railroad premises, and that by reason of such omission and negligent acts of the defendant a fire started on the premises of the defendant, and communicated to the premises of the plaintiff and caused damages; and that, whether such was the fact ,or not, was a question for the jury to determine. In support of such contention the appellant calls our attention to the evidence of Edward S. Brown, at folio 93. He said that he remembered the summer of 1893, the months of June, July, and August of that year, and that it was a dry season. “ The defendant’s track adjoining our premises was very dry. There was grass on it. The grass was dry. I don’t know whether it had been cut or not. I think it had, but I would not be positive. Fires occurred there in July.” The witness continues:

“ On July 22d we had two fires. The first occurred about ten o’clock. I saw it start.» It started on the railroad side of the fence, in whatever was there to ignite the grass or weeds. It burned east away from the track. The wind was blowing west quite hard that morning. It burned ten acres of hay stubble, two tons of hay, and two shade trees, and extended over about a quarter of a mile. We had fourteen of our men there that morning, and the railraad section men were there.”

The witness Carver testifies that he saw fires on the plaintiff’s promises in 1893, in the month of July. And he adds :

“ I saw the fire of July 22d in the morning. The condition of the railroad bed along the Brown farm at that time was very dry. The weeds and grass were very dry. The weeds had been cut by the track men, and they lay along the side of the railroad track between that and the fence, and in places where there wasn’t as much they left the grass ctanding, and cut close like, and they mowed that where the grass was, and where there was some weeds they would clip them. I observed this in July of 1893. This fire started up near the top of the hill. My men came there, and tried to get it under control, and just managed to keep it from the buildings, and it burned through to the highway. It had burned on the railroad side of the fence, between the track and the fence, and of course it had run out and through the lot.”

This witness further testified:

“ There was some grass and weeds on the railroad bed, and occasionally some willows above the crossing, and by Mr. Brown’s. * * * The roadway on each side of the track, between the track and the fence, is covered with sod. * * * This railroad runs by the Brown farm, on an embankment from three to five feet high. The Brown farm runs up from the hill. I think the men had been through that year, cutting the weeds and grass, about July 1st. It was pretty dry in June and July of that year, and the grass and rubbish was very dry; just as dry on the railroad as on the Brown farm. Some of this grass on the railroad at the time of these fires was probably a foot to a foot and a-half high. It would be that, some of it, at any time. In the winter or spring, in places, some of it wouldn’t be more than three inches high. I mean at this time of year — at the the time the ground was burned—there was something there besides old dry grass. It would stand up in some places a foot and a-half high. In some places it would be quite thick and in some places quite thin. Along there where these fires started, in some places it was heavier and in some places lighter. * * * The grass that had been cut was left lying where they cut it. I saw three of the fires; two occurring in the forenoon and one in the afternoon.”

On his recross-examination he said that some one had cut the grass and weeds in July.

“ I couldn’t make an estimate of how much grass you could have collected along the easterly side of the roadway along the Brown farm, if you had gone over it with a rake; I don’t know bow much there would be; it would make a good ordinary load if it was all raked up; there was some of the weeds and hay lying in swaths as the counsel had called it; it lay there some of it burned.”

And further on in his testimony he says :

“ I thought there was a load or more of grass I saw cut along the Brown premises.”

The witness McGuire says that he was present at the fire of July 22d, and that he observed the condition of the roadbed between the tracks and the fence, and he adds:

“ Along the track, a foot or two beyond the ties, it was grassy. More or less of the grass and weeds had been cut. It had not been removed after cutting. Along the length of the Brown premises there would be probably a load of it. There were places where it varied in thickness; places where there was a handful, and places where there was a forkful. It had been cut with a grass scythe. * * * I know there was a freight train passed there between ten and noon ordinarily. I have seen it set fires in July, 1893.”

We are inclined to think, according to the doctrine laid down in O’Neill v. Railway Company, 115 N. Y. 579; 26 St. Rep. 269, and the comments made in that case by Danforth, J., that the evidence we have quoted required the question as to the defendant’s negligence to be submitted to the jury. In that case it was said :

“That, conceding the escape of fire from an engine is inevitable, a railroad company is bound to remove combustible material from its path, or to prevent such an accumulation thereof by the side •of its tracks as will, in consequence of fire falling upon it, endanger the property of others.”

Danforth, J., after stating the rule we have just mentioned, says:

“The fire on the track was its fire as much as if confined in the engine, and it owed a like duty to see that it did no harm.”

And he further observes:

“There was, moreover, in the plaintiff’s case, abundant evidence of conduct on the defendant’s part in so storing its useless material and retaining upon its premises brush and other refuse matter as to make it quite right and proper for the jury to declare it negligent.”

That case seems to have been placed upon the general doctrine of ‘negligence, and does not refer to section 25 of chapter 283 of the Laws of 1885, which reads as follows:

“ Every railroad company whose road passes through waste or forest lands liable to be overrun by fires within this state, shall twice in each year cut and burn off or remove from its right of way, all grass, brash or other inflammable material, but under proper care, and at times when the fires thus set are not liable to spread beyond control.”

Following the O'Neill Case Is the case of Van Ostrand v. Railroad Co., 46 St. Rep. 456, decided in July, 1892, by the Third department, where it was held:

“ Whether a railroad, in cutting and leaving by the roadside a quantity of grass and brush exposed to the danger of fire from its passing engines is guilty of negligence, is properly a question for the jury.”

In that case there was evidence to show that the defendant had previously cut the grass along the track, and also brush, which it permitted to remain in the vicinity of the track; that the brash took fire from the sparks of a passing engine, and communicated to the plaintiff’s land, and during the trial the court charged the jury:

“ That if they found that such conduct on defendants part was negligent, and that the fire was caused by reason of it, and could not otherwise have occurred, and was communicated from this pile of brush to plaintiff’s lands, and did this damage, plaintiff was entitled to recover.”

The court approved of the language thus used in the charge.

We are of the opinion that the trial court erred in refusing to submit the question to the jury whether the fire which was occasioned by the sparks falling upon the premises of the defendant, and communicated to the premises of the plaintiff, was caused by the negligence of the defendant, and in granting the defendant’s motion for a nonsuit. The foregoing views lead us to the conclusion that a new trial should be ordered.

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

All concur.  