
    Christian F. Buhrmaster and Fidelity Phenix Fire Insurance Company of New York, Appellants, v. The New York Central and Hudson River Railroad Company, Respondent.
    Third Department,
    May 3, 1916.
    Negligence — burning of barn by sparks from locomotive — ruling as to admission of testimony as to other engines throwing sparks — refusal to permit reading of original complaint.
    Where an action to recover damages to plaintiff’s bam, alleged to have been set afire by sparks from a locomotive owned and operated by defendant, was tried upon the theory that a freight train passing at about the time the fire was discovered threw a spark over 200 feet and that it landed through a window into the straw in the barn, and defendant’s tower operator, from his record of trains, testified that no freight train passed within a considerable time of the hour of the fire, a ruling of the court postponing the reception of testimony as to other engines of defendant throwing sparks an equal or greater distance than that required to reach plaintiff’s barn, until there was evidence in the case which would show some connection, did not raise the point as to the correctness of the ruling, there being no direct testimony that the fire was caused by a spark from the defendant’s engine.
    
      Assuming, however, that the point as to the admissibility of the testimony offered was fairly presented, the ruling of the trial court was not erroneous.
    Where the complaint, containing allegations made on information and belief deliberately controverted by the answer, had been withdrawn by an amendment, the refusal of the court to permit plaintiff’s attorney to read from the original complaint which defendant’s counsel at the close of plaintiff’s case had asked to have considered in evidence, was not erroneous.
    Appeal by the plaintiffs, Christian F. Buhrmaster and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 5th day of October, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of October, 1915, denying plaintiffs’motion for a new trial made upon the minutes.
    
      Borst & Smith [Homer J. Borst of counsel], for the appellants.
    
      Visscher, Whalen & Austin [H. Le Boy Austin of counsel], for the respondent.
   Woodward, J.:

The plaintiff brings this action to recover damages alleged to have been sustained through the negligence of the defendant in setting fire to plaintiff’s barn by means of sparks alleged to have been thrown off by a locomotive owned and operated by the defendant. The case was submitted to the jury upon a charge to which no exception was taken, and the verdict of no cause of action is now challenged upon exceptions taken upon the trial.

The appellant urges that the court erred in refusing to permit the plaintiff’s witnesses to testify as to other engines of the defendant throwing sparks an equal or greater distance than that required to reach the plaintiff’s barn. There was no direct evidence that the fire was caused by a spark from the defendant’s engine. The plaintiff’s theory was that a freight train passing at about the time the fire was discovered threw a spark a distance of over two hundred feet, and that this spark landed in the straw in the barn through a window some thirty-five feet above the ground, causing the fire. The defendant produced its tower operator with his record of trains upon that day, and he showed that no freight train passed within a considerable time of the hour of the fire, and the alleged error of the court consisted in temporarily excluding testimony that other engines had thrown sparks an equal or greater distance. We think the ruling of the court, postponing the receipt of this line of evidence until there was evidence in the case which would show some connection, does not raise the issue attempted to be asserted at this time. But if it does we are persuaded that the authority relied upon (Sheldon v. Hudson River Railroad Co., 14 N. Y. 218) is not controlling at this time. That determination was made in the primitive days of railroading, in 1856, when the engines were known by name, and when there was only one type in common use, and all were equipped substantially alike, and evidence of what these engines usually did under ordinary conditions was a very different thing from taking the testimony to-day, with the great variety of engines in use, and particularly when it is not shown that the conditions were the same when the alleged sparks were thrown a greater distance. Obviously, with the wind blowing a gale, a defective engine might have thrown sparks which would be carried alive a distance of several hundred feet, while another engine, in good condition, and in a comparatively light wind, would not throw off sparks of any danger whatever; and so the mere fact that some witness had found large sparks a considerable distance from the line of the railroad would prove nothing of value in determining whether the fire in question was lighted by a spark from an engine in passing, and the case of Chandler v. Rutland Railroad Company (140 App. Div. 68) seems to us controlling upon the point now under consideration, if it be assumed to have been fairly presented by the ruling of the court.

The only other error alleged is that the learned trial court erred in refusing to permit plaintiff’s attorney to read from the original complaint, which defendant’s counsel had, at the close of plaintiff’s case, asked to have considered as in evidence. The plaintiff seems to think that by this suggestion the defendant is bound by the allegations of the complaint made on information and belief by the plaintiff, which would be rather a remarkable construction to put upon the transaction as it appears in the record. Of course, matters deliberately put in evidence by either party without objection constitute a part of the record to he considered in reaching a determination, but here the matter appears to have been wholly incidental, and it would be a strange practice if a complaint, which had been withdrawn by an amendment and which contained allegations on information and belief, deliberately controverted by the answer, could become proof of the facts by the mere incidental suggestion that it he considered in evidence for the purpose, no doubt, of taking advantage of any omissions which the plaintiff might have made. We do not think the court erred in its conduct of the trial to the prejudice of the plaintiff, and the jury having refused to find a cause of action, it is not for this court to interfere with that determination.

The judgment and order appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  