
    Emily A. Weeks, Appellant, v. Erie Railroad Company, Respondent.
    
      Fire from spa/rlcs from, a locomotive —■ what proof thereof does not establish negligence.
    
    In an action brought to recover damages sustained by the plaintiff, in consequence of a fire caused by sparks emitted from one of the defendant’s locomotives, a ' prima facie case against the defendant is not established where it does not appear that the emission of sparks was peculiar to the locomotive in question, or that such emission was in unusual quantities, but, on the contrary, it appears that other and similar locomotives labored and threw out' sparks at the same place.
    Appeal by the plaintiff, Emily A. Weeks, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 28th day of November, 1899, upon the dismissal of the complaint by direction of the court after a trial at the Orange County. Trial Term.
    
      G.liarles G. Cronin, for the appellant.
    
      Henry Bacon, for the respondent.
   Jenks, J.:

This is an action brought to recover damages for the negligence of the defendant in kindling fires on the plaintiff’s lands by casting sparks thereon. I think that the learned trial justice rightly dismissed the complaint at the close óf the plaintiff’s evidence for the reason that no negligence on the part of the defendant was shown. One witness testified that he “ heard the engine going up the track ;• heard the cars going up the track; they were, throwing sparks * * * the sparks were flying up in the air from the engine and flying over -^on the farm.” On cross-examination he testified: .“1 did see the engine. * * * It was a freight engine. * * * There is a little bit of a. curve at that point where these cars go around. And engines pull hard up there. Labor and make a good deal of noise. I have seen other engines throwing sparks there. Ereight engines particularly, when going westward.” This is' all of the testimony bearing upon the alleged negligence of the defendant in casting the sparks. In Frace v. N. Y., L. E. & W. R. R. Co. (143 N. Y. 182) the court held that it could take judicial notice of the fact that no. system yet invented can wholly prevent the emission of live sparks from an engine under certain conditions. It did not appear in this case that the emission of the sparks in question was peculiar to that engine or that such emission was in unusual quantities, hut, on the contrary, it was shown that other and similar engines, at the same place, pull hard up there. Labor and make a good deal of noise,” and throw sparks. This was plainly insufficient to make out a prima facie case against the defendant. (Flinn v. N. Y. C. & H. R. R. R. Co., 142 N. Y. 11, 19, 20; Rood v. New York & Erie R. R. Co., 18 Barb. 80, 86, 87; Van Nostrand v. N. Y., L. E. & W. R. R. Co., 78 Hun, 549 ; Dougherty v. King, 22 App. Div. 610.)

The judgment must be affirmed, with costs.'

All concurred, except Hirschberg,' J., not sitting.

J udgment unanimously affirmed, with costs.  