
    Phoenix Insurance Company, Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January, 18, 1894.)
    
    Appeal—Chabse.
    Instruction, which assumes, contrary to the fact, that there was evidence upon an issue, is reversible error.
    Appeal from an order denying a motion for a new trial on the minutes of the court after a verdict in favor of plaintiff.
    
      K Harris, for app’lt; William N. Cogswell, for resp’t.
   Dwight, P. J.

The action was to recover damages for the destruction by fire of a malt house and its contents, at North Rose, in Wayne county, owned by the plaintiff York, and insured by the plaintiff the Phoenix Insurance Company and its assignors. It was alleged that the fire resulted from the negligent construction, repair, or operation of one or more of the defendant’s locomotive engines, employed by it on the line of the Rome, Watertown & Ogdensburg Railroad, whose tracks ran near the property destroyed. The case for the plaintiffs was made out, as is usual in such cases, by evidence to the effect that a locomotive engine which passed the malt house shortly before the fire was discovered emitted sparks or burning cinders so large that they could not have passed through the meshes of a properly constructed spark arrester in good repair. The engine to which all the testimony of this character related was the one known as “ No. 14,” a “ diamond stack ” engine, and was drawing a freight train to the east. There was also some attempt on the part of the plaintiffs to show that the diamond stack is not so effective and reliable as a spark arrester, as the “ extension front.” The latter proposition was controverted by the defendant, and evidence tending to show that the spark arrester of engine No. 14 was either of defective construction or out of repair was met by evidence to the effect that the smoke stack of engine 14 was inspected by several persons immediately (or soon) after the fire, and was- found to be of the most approved construction of its class, and in perfect repair. Here was the conflict of evidence —on the one hand, the testimony of several witnesses that they saw burning cinders in the air, from this engine, as large—variously—as cherries, as pigeon’s eggs, as' butternuts, “ as big as your thnmb; ” and, on the other hand, the testimony of as many witnesses, of equal credibility, so far as the record shows, to the effect that there was at the same time, in the smokestack'of the same engine, a screen, which must have absolutely prevented the escape of sparks or cinders of far less size than those described, and which was fully up to the requirements of care and diligence on the part of the defendant. It seems that the evidence of the first description above given impressed the jury as being the more probable and worthy of credit, and accordingly the plaintiffs had a verdict. We deem it unnecessary to review this verdict on the evidence because of what we regard as a manifest error in the submission of the case to the jury. As may appear from the statement already made, the plaintiff’s case depended, mainly, if not wholly, upon evidence of the size and quantity of the sparks or burning cinders emitted from the smokestack of the engine, by which fire was communicated to the building; and, as we have already intimated, evidence of that character was confined to the case of che diamond stack engine No. 14. The fire occurred on the evening of May 14, 1891, and was first discovered on the roof of the malt house between half past 8 and 9 o’clock. Three trains of the defendant passed the station at North Rose,, which was near the malt house, between 8 and 9 o’clock that evening. The first was a freight train, drawn by extension front engine No. 19, going east, at 5 minutes past 8. The next was the/ train drawn by engine No. 14, which arrived from the west at 3:25 and ran east, past the malt house, onto a side track, arid there waited for a passenger train, which went by at 8:39, immediately after which it backed up, again passed the malt house, onto the main track, and then pursued its journey to the east. There is no possibility of mistake in identifying engine No. 14 with the engine which is described as emitting sparks of extraordinary size and quantity. All the evidence on that subject concurs in doing so. There is no mention of any sparks or fire from the engine No. 19, and of the passenger engine it is only said by one witness that he noticed “ a little bit of fire from her," which, in the absence of further description, may be presumed to have been the minute incandescent particles which inay commonly be seen in the smoke of a locomotive engine at night. It was the engine of the freight train which ran onto the siding, and waited for the passenger train, which followed the passenger train to the east, which was the last engine to pass before the fire was discovered, which passed 15 or 20 minutes before the alarm was given. This was the engine, and the only one, concerning which any evidence was given which tends in any degree to charge the defendant with negligence in respect to its construction or repair on management; and this was beyond dispute engine No. 14. This was the engine which was described as “ laboring ” with its burden as it pushed and drew it back and forth on the siding and main track, and as emitting large sparks in doing so; and it was the engine which returned from Wolcott, on the telegraphic summons of the agent at North Rose, and brought the fire company from the former place, some of whom testified to sparks emitted by it on the return. Moreover, if anything was to be claimed for the plaintiffs’ case on the ground of the inferiority of the diamond stack to the extension front, No. 14 was the only engine against which that claim could be made. Indeed, so manifest was it that the plaintiffs’ case related solely to engine No. 14 that the defendant very properly gave no evidence at all in respect to the actual condition or management of either of the other engines mentioned.

Such being the state of the case, counsel for the defendant requested the court to charge the jury “that, if they find that the malt house was destroyed by fire from a locomotive, but are not able to decide that the fire was caused by engine No. 14, then, and in that case, the plaintiffs cannot recover!” This the court declined to do, but, on the contrary, instructed the jury as follows : “If you find that this malt house was burned by reason of sparks escaping from the defendant’s engines, or any one of them, providing, as I said before, it was done negligent^, then the plaintiffs are entitled to recover.” And the court was further requested to charge “that there is no evidence imputing negligence to any particular engine except No. 14.” This request was also refused, and the defendant duly excepted to the several ruliugs. These exceptions, we think, were taken, and were ground upon which the motion for a new trial should have been granted. The several refusals to charge, and the instruction actually given, whether taken together or separately, plainly imply, and, in effect, instruct the jury, that there was evidence in the case upon which the defendant might be charged with actionable negligence in connection with either or both of the engines above mentioned other than engine No. 14. A fair test of the correctness of such an instruction may be applied by supposing that engine No. 14. and all the evidence relating exclusively to it, were eliminated from the case. It will not be contended that any case against the defendant would remain. The instruction may well have have been to the prejudice of the defendant. It opened the door for conjecture on the part of the jury, and enabled any juror, who was not satisfied to discredit the direct evidence given by the defendant’s,witnesses as to the actual condition of engine No. 14, to argue: “But no such evidence is given in regard to either of the other two engines, and, if the fire was not communicated by No. 14, it must have been by one of them, and the defendant is still responsible.” The fault of such reasoning is that, if the fire was communicated by either of the other engines, it happened—so far as the evidence shows — without negligence of the defendant; and the fault of the iusiructi'on complained of was that it assumed, contrary to the fact, that there was evidence of negligence in connection with the engines other than No. 14. For the error thus pointed out, we are of the opinion that the order denying the defendant’s motion for a new trial should be reversed.

Order appealed from reversed, and a new trial granted, with costs to abide the event. All concur.  