
    FRACE v. NEW YORK, L. E. & W. R. CO.
    (Supreme Court, General Term, Fifth Department.
    April 13, 1893.)
    1. Fires Set by Locomotives—Negligence.
    In an action against a railroad company for burning plaintiff’s bam and hotel, it appeared that the bam was 67 feet from the track; that the sparks from an engine drawing a freight train up a grade while a strong wind blew towards the barn set it on fire. Before this the same engine had thrown out live coals, and had set fires along the track, including one on the roof of plaintiff’s hotel. The cinders were from one half to three quarters of an inch in diameter. The evidence showed that an engine on an up grade emits sparks in larger quantities than at other times, and that an engineer can so manage his engine as to materially lessen the flow and velocity of sparks by lessening the amount of steam used, and allowing the train to be partially propelled by its own momentum. Held, that the evidence established a prima facie case of negligence against the company.
    2. Same—Question por Jury,
    The company called a number of witnesses to show that the engine was equipped with approved spark arresters, and that the meshes were hardly
    ■ three sixteenths of an inch in size, and the company’s inspectors testified that immediately before and after the fire the netting of the engine in question was in perfect order. The mechanical engineer of the company testified that his conclusion from his experiments was that the sparks pass through the netting in a molten state, and, before they pass out of the smokestack, come in contact with each other and adhere together, forming large cinders. Held, that it was a question for the jury whether the fire was caused by the negligence of the company.
    3. Same—Proximate Cause.
    The bam and hotel were of wood, and only 39 feet apart. The bam burned first, and the flames from it set the hotel on fire. Held, that the jury was justified in finding that the burning of the bam was the proximate cause .of the burning of the hotel.
    
      4. Opinion Evidence.
    A witness who testified that he had worked on a locomotive engine for 12 years, and that lie was familiar -with all parts of an engine, including the spark arrester, was competent to give his opinion that if the engine in question had been equipped with a properly constructed spark arrester, properly placed in the engine, it could not have emitted sparks of the size which it did.
    Appeal from circuit court, Allegany county.
    Action by Charles R. Frace against the Few York, Lake Erie & Western Railroad Company to recover damages for the burning of plaintiff’s barn and hotel through the alleged negligence of defendant. From a judgment in favor of plaintiff, entered On a verdict, and from an order' denying its motion for a new trial, made on the minutes of the court, defendant appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    James H. Stevens, for appellant.
    Clarence A. Farnham, for respondent.
   LEWIS, J.

This action was to recover damages for the alleged negligence of the defendant in burning plaintiff’s barn and hotel, and their contents, situated at Scio Station, Allegany county. The barn was distant from the defendant’s railroad track, at one end, 77 feet, and 67 feet at the other. The hotel was 60 feet distant from the track, and 39 feet from the barn. On the afternoon of the 21st day of April, 1889, a spark from the smokestack of defendant’s engine No. 579 fell upon the roof of the plaintiff’s barn, set it on fire, and the barn and its contents were destroyed. The flames from the burning barn extended over to and upon the hotel, and it was burned, with its contents. There is an up grade to the defendant’s track, of eight feet to the mile, as it extends easterly through Scio. The engine was at the time going in an easterly direction drawing a freight train, and as it passed the hotel and barn it discharged a large quantity of sparks. A very strong wind was blowing at the time from the railroad track towards the barn. There was evidence tending to show that, on several occasions prior to the day of this fire, this same engine threw out of its smokestack, as it passed through the village, large quantities of live coals, and set fires along the sides of the railroad track, and that about three weeks before the day of the burning of the barn and hotel, as the engine passed easterly by plaintiff’s hotel, large live cinders were thrown out of the smokestack. Some of them fell upon the roof of plaintiff’s hotel, and set it on fire. The cinders thrown out from time to time were shown to have been from one half to three quarters of an inch in diameter,—as large as the end of a man’s thumb, or a hickory nut. The evidence tended to show that, when an engine is drawing a train up grade, its labor is very materially increased, and that it emits cinders .and sparks in larger quantities, and throws them a greater distance, than when it is running on a level or down grade. An engineer can so manage his engine as to materially lessen the flow .and velocity of the sparks from the smokestack by lessening the amount of steam used, and allowing the train to be partially propelled by its own momentum. It is the contention of the plaintiff that it was the duty of the engineer, on this occasion, knowing that the wind was blowing with great velocity across the railroad track towards the plaintiff’s buildings, to shut off or lessen the quantity of steam while passing, and that his fail"T,e •so to do was evidence of negligence. The plaintiff further contends that the fact that the engine scattered such a quantity of large sparks was evidence that it was improperly constructed, or was out of condition, or that it was negligently and improperly managed. Plaintiff’s evidence made, we think, a prima facie case of negligence against the defendant. Case v. Railroad Co., 59 Barb. 644; Field v. Railroad Co., 32 N. Y. 339; Collins v. Railroad Co., (Sup.) 11 N. Y. Supp. 308.

The defendant called a number of witnesses whose evidence tended to show that the engine was equipped with a well-known and approved appliance for regulating the flow and preventing the dis- • charge of sparks of improper dimensions. The meshes of the netting of the spark arrester were square, and scant three sixteenths of an inch in size. A number of defendant’s employes, whose duty "it was to inspect the spark arresters of its engines, testified that this engine was examined just before and immediately after the fire, and its netting was found to be in perfect condition. It was obviously impossible for cinders of the dimensions the plaintiff proved were thrown out of the smokestack of this engine, from time to time, to pass through the meshes of its spark arrester. Being confronted by evidence that the size of the sparks thrown out were much larger than the meshes of the spark arrester, the defendant attempted to explain it, and called as a witness its mechanical engineer, A. E._ Mitchell, who testified that he had made experiments with an engine with a view of ascertaining how it was possible for sparks of dimensions larger than the meshes of the spark arrester to be thrown out of the smokestack of an engine. His conclusion from his experiments was that the sparks pass through the netting in a molten state, and that, before they pass out of the smokestack, in some way they come in contact with each other, and adhere together, and thus form large cinders. ’ The theory was an ingenious one, but, in view of the terrific commotion to which the sparks are subjected while in the stack, the conditions would not seem, to the ordinary lay mind, to be favorable to such a union of the sparks. Notwithstanding the defendant’s very vigorous and able defense, it was, we think, still a question for the jury whether the fire was caused by the negligence of the defendant.

The barn and hotel were constructed of wood. The barn was a large one, and at the time of the fire full of combustible material. The distance between the two buildings was only 39 feet. The barn burned first, and the testimony tendéd to show that the flames from the burning barn extended to the hotel, and set it on fire. The jury was justified in finding that the burning of the bam was the proximate and natural cause of the burning of the hotel. “Proximate cause” is defined (16 Amer. & Eng. Enc. Law, p. 436) as “that cause which, in natural and continuous sequence, unbroken, by any efficient intervening cause, produced the result complained of, and without which that result would not have occurred.”

Elmer A. Chase, a witness called by the plaintiff, was allowed, against the objection of the defendant, to give his opinion that if this engine had been equipped with a properly constructed spark arrester, properly placed in the engine, it could not have emitted sparks of the size this engine did. He had testified that he had worked upon a locomotive engine for 12 years,—6 years as a fireman, and-6 years as an engineer; that he was familiar with all of the parts of - a locomotive engine, including the spark arrester. His experience must have made him very familiar with all the parts, and the operation, of engines. The jury, presumably, were not acquainted with the mechanism and operation of locomotive engines. It was, we think, proper to allow Chase to give his opinion as an expert. The question of the suitableness of the spark arrester, under the evidence, was properly left to the determination of the jury. The evidence shown. 5 that the engine was properly constructed consisted of the opinions of expert witnesses. They were the employes of the defendant. Such evidence cannot be held to be conclusive. Cornish v. Insurance Co., 74 N. Y. 295.

We have examined all of the exceptions of the defendant, and find nothing in them justifying a reversal of the judgment. The case was properly submitted to the jury, and their verdict must he held to he conclusive. The judgment and order appealed from should be affirmed. All concur. *  