
    Alice Babbitt, Respondent, v. Erie Railroad Company, Appellant.
    
      Fire caused by sparks emitted by a locomotive — when -the. company is not liable — proof necessary to sustain a recovery against the railroad company — expert testimony as to how far live sparks can be carried.
    
    Proof that property located adjacent to a railroad company’s fight of way was destroyed hy fire, caused by sparks emitted hy one of the railroadi company's-locomotives, is not alone sufficient to entitle the owner of the property to recover its value from the railroad company. It is necessary for the owner of the property,, in addition, to establish affirmatively negligence on .the part of the railroad company either in the condition or in the operation of the locomotive.
    It is not, however, necessary for the owner to prove either the specific defect in the locomotive or the particular act of misconduct in its management or operation constituting the alleged negligence. ■
    It is sufficient if he proves facts and circumstances from which the jpry may fairly infer that the locomotive was either defective in its condition or was negligently operated.
    Consequently .where, upon the trial of the action, there is no direct evidence that the locomotive, emitting the sparks which caused the fire which destroyed the plaintiff’s property, was carelessly or improperly managed, or was defective in any respect, or emitted sparks of unusual size or in unusual quantities, but there is proof that on the occasion in question sparks from the locomotive in question started ten or more distinct fires within a distance of from forty to ninety-six feet of the railroad track and within a distance of about two and one-half miles along said track, such evidence will warrant an inference of negligence on the part of the railroad company.
    Expert witnesses may properly testify as to the condition .of sparks or cinders • thrown a ¡¡specified distance by a locomotive, and whether, in their observation and experience, live sparks would have been, carried such a distance if the locomotive was in proper order.
    Appeal by the defendant, the Erie Railroad Company, from a judgment of the County Court of Wyoming comity in favor of the plaintiff, entered in the office of the clerk of the county of Wyoming on the 29th day of October, 1904, upon the report of a referee.
    
      E. A.. Robbins and Orcutt & Brown, for the appellant.
    
      Arthur E. Clark for the respondent.
   Chase, J.:

' The plaintiff was the owner of certain furniture in a house, which with the furniture was consumed by fire on the 23d day of April, 1902. She claims that the fire originated from sparks emitted from an engine drawing a train over the defendant’s road, and that her furniture was destroyed by reason of the negligence of the defendant in operating its said engine and in allowing said engine to be used in a defective condition. The referee found “ that the said fire was caused by sparks which issued from one of the defendant’s locomotives known as No. 891 and the said fire was due to the negligence of the defendant in the management or condition of the said locomotive.”

The house in which the furniture was burned had been built about twenty years and was situated forty or fifty feet easterly from the nearest track of the defendant’s road in the county of Wyoming. íhe defendant’s road at that point runs nearly north and south and consists of two tracks. From a point about one hundred rods southerly of said house there is an up grade extending northerly for two or three miles. From a point about two miles south of said house to a point about one-half mile north of said house there are about fourteen farms. Preceding the fire there had been several days of dry weather and on the day of the fire, there wás a strong wind. Soon after two o’clock on that day, defendant’s train 37, consisting of about sixty freight cars' drawn by engine No. 891, passed north by said farms at a speed of about thirty miles an hour. Plaintiff produced evidence to show that prior to said train 37 going north there were no fires along said track. Within a short time after said train passed northerly, ten or more distinct fires were discovered on the ground on said farms within forty to ninety-six feet of the tracks and within said distance of about two and one-half miles along said tracks. At about the same time fire was discovered in three distinct places at the rear of said house; one on and behind the slats of a closed, blind; one in the clapboards on said house a few feet from said blind, and one- in the straw and manure that had been used in banking the foundation of the house. The plaintiff did not give any direct evidence that the defendant’s engine was defective or that it was carelessly and improperly managed, and there is no direct evidence that the engine emitted sparks of unusual size or quantity. The defendant did not offer any evidence.

Many witnesses residing on said farms were sworn and the circumstances attending the fires at said housejand along said roadway were shown, and the testimony and circumstances tend to show,that ' said fires were not started by means other than the defendant’s engine. We think the evidence was sufficient to justify a finding that said ten or more fires - discovered on the farms adjoining the , defendant’s roadway and the fires which destroyed the house and furniture were set by sparks emitted from the defendant’s engine Ho. 891. (O'Reilly v. Erie R. R. Co., 72 App. Div. 228 ; O'Neill v. N. Y., O. & W. R. Co., 115 N. Y. 579; Webb v. R., W. & O. R. R. Co., 49 id. 420; Smith y. L. I. R. R. Co., 79 App. Div. 171; Bevier v. D. & H. C. Co., 13 Hun, 254; Billings v. Fitchburg R. Co., 34 N. Y. St. Repr. 382; S. C., 128 N. Y. 644.)

In this State, where an engine is operated under lawful authority, the fact that a fire is set -by sparks therefrom does not alone entitle a person to recover damages from the person or corporation operating the engine. The courts have taken judicial notice of the fact that the best-known system for arresting sparks does not wholly prevent the emission of live sparks from an engine under certain circumstances. (Frace v. N. Y., L. E. & W. R. R. Co., 143 N. Y. 182; Brown v. B., R. & P. R. R. Co., 4 App. Div. 465; Miller v. N. Y. C. & H. R. R. R. Co., 92 Hun, 282; Weeks v. Erie R. R. Co., 57 App. Div. 192.)

In Flinn v. N. Y. C. & H. R. R. R. Co. (142 N. Y. 11) the court, in referring to a case where a house upon a lot adjoining the defendant’s right of way was consumed by fire, and where the defendant was operating its road, under lawful authority, say: “ The action in such a case is based upon negligence, and a-railroad company cannot be made liable for the unavoidable or usual consequeñces of the proper operation of its road to adjacent property.”

While it is necessary for the plaintiff to establish affirmatively negligence on the part of-the defendant, eithej in the condition or in the operation of its' engine, for which the mere occurrence of the fire is not sufficient, it' is not necessary that he should prove either the specific defect in the engine or the particular act of miscondnct in its management or operation constituting the negligence causing the injury complained of. It is sufficient if the plaintiff proves facts and circumstances from' which the jury may fairly infer that the engine is, either defective in its condition or negligently operated. (Peck v. N. Y. C. & H. R. R. R. Co., 165 N. Y. 347; 13 Am. & Eng. Ency. of Law [2d ed.], 510.)

It is said in Thompson’s Commentaries on the Law of Negligence (2d ed. § 2291) that “ The negligence of the railroad company in communicating the fire may be proved wholly by circumstantial evidence, and there need not necessarily be direct proof of any particular act or omission upon which the law predicates negligence. Circumstantial evidence raising an inference of negligence is as good for the purpose of taking the question to the jury as is direct evidence. * * * The discovery of a fire on or near the company’s right of way shortly after a locomotive has passed warrants the inference that it was set by sparks thrown from the engine, it being a matter of cominon knowledge that locomotives do emit sparks.”

It is a matter of common knowledge that an engine will emit sparks even if it is properly equipped and managed, but it is also a ■matter of common knowledge that a locomotive engine properly equipped and managed will not so emit live sparks as. generally to cause a fire in all combustible substances adjoining the roadway. Common observation and experience teach that engines can be and are run through the country without such dangerous'consequences. (Bedell v. L. I. R. R. Co., 44 N. Y. 367, 369.)

An engine that scatters fire in such profusion as to be like a torch brandished along the leeward side of a right of way is so unusual and extraordinary and so different from what is known by common knowledge to be the result of the use of an engine in good repair and with proper management that it requires of the defendant some explanation in regard thereto.

That an engine emits a stream of sparks along its way, setting fire to many things, is evidence from which a jury may infer an imperfect spark catcher, and, from this fact, negligence. (Pennsylvania Co. v. Watson, 81½ Penn. St. 293.)

The fact that so many fires were started by sparks from said engine is a circumstance quite as strong from which to infer negligence as the fact that sparks of unusual size and numbers were seen emitted from the engine’s smokestack: The referee’s conclusion agaipst the defendant is not so against the evidence, or the weight thereof, as to require a reversal of the judgment.

' There remains the question as to whether' any error was committed in the admission of evidence. Evidence was given by the plaintiff’s experts Who testified in substance that under the conditions despfibed an engine in good repair and properly operated would not emit live sparks that could be carried -from forty to ninety-six feet from the engine, and that sparks emitted from an engine in good repair and properly operated would be so small that by the time they struck the ground they would be dead. Expert witnesses may properly testify as to the condition of sparks o'r cinders thrown a specified distance and whether in. their observation and experience 'live or burning sparks would have been carried siich ■ distance if the engine was in proper order. (Peck v. N. Y. C. & H. R. R. R. Co., supra.)

This, case has been twice Jried.' The amount involved is small. The defendant’s chief contention is that the plaintiff is not entitled to recover on the-merits and. that as one fire caused by sparks from an engine does' not raise a presumption of negligence against the defendant, negligence should not be presumed from a series of fire's arising from, sparks from the engine as found in this case.

. We do not pass upon the correctness-of the rulings of the referee except so far as to say that no error was committed, if at all, requiring a reversal of this judgment.

The judgment should be affirmed, with costs.

All concurred, except Smith, J., not voting: •

Judgment affirmed, with costs.  