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Case v. Northern Central Railway Co.

59 Barb. 644 Court N.Y. Sup. Ct. Decision date 1871-06-05 English

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p. 644
Case vs. The Northern Central Railway Company.

Headnote

When, in an action against a railroad company, to recover the value of property claimed to have been destroyed by fire, in consequence of the defendant’s negligence, it is made to appear that the injury was caused by sparks flying directly from a passing locomotive engine of the company, and alighting on the property, the burden is upon the defendant, of showing that the engine was in perfect condition, with the most approved apparatus for arresting sparks, and that such apparatus was in good order, at the time.
APPEAL by the defendant from a judgment of the county court of Ontario county, affirming a judgment rendered by a justice of the peace. The facts are sufficiently set forth in the opinion of the court.
Geo. M. Diven, for the appellant.
I. The evidence in thé case did not warrant the finding of the justice. 1. The plaintiff could not recover unless it was shown that the defendant’s negligence caused the injury complained of. The defendant was 'not guilty of negligence if it used the best precautions in known practical use for securing safety. (Rood v. N. Y. and E. R. R. Co., 18 Barb. 80 . Steinway v. Erie Railway Co., in Court of Appeals, Albany Law Journal for Jan. 7th, 1871, p. 15,
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not yet reported.)[1] 2. The undisputed evidence in the case shows that the defendant took all the precautions it could take, within, the rule laid down in the cases above cited. The most approved spark arrester was used upon all the engines running on the .road, and all engines were thoroughly examined every trip. 3. The defendant’s witness testified that it was almost impossible for fire to
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ignite from sparks, if the netting was in good order, but he also testified that it was not possible for a locomotive engine to run and work successfully without emitting sparks. The plaintiff’s own evidence shows a condition of weather at that time that would render possible what at any ordinary time would be not. only almost, but quite impossible.
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II. The county judge appears to have based his affirmance of the judgment upon the decision in Meld v. N.. Y. Cent. B. B. Qo., ( 32 N. Y 339 .) In that case it appeared that the defendant’s engine habitually scattered fire about the time, and near the place where the fire complained of occurred, and that four or five of the engines were unprovided with the appliances to prevent the spread of fire. In the case at bar, precisely the contrary state of facts was
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shown to exist. There was no evidence on the part of the plaintiff tending “ to show want of care or dilligence in the management of the engines, or of skill in their construction.” (See op. of Davis, J., p. 350 of case last cited.)
Spencer Gooding, for the respondent.
I. The judgment of the justice was correct, and is fully sustained and upheld by the evidence. 1. The defendant’s counsel 'admitted, upon the trial, that by its agents it did the damage complained of, so that there can be no question upon that point, as in most cases that have been brought before the courts of a similar character. 2. The same may be said of the question of the value of the property destroyed. 3. The fact that sparks of a sufficient size and strength to ignite a fire in a field adjoining the track, escaped from the engine, raised a question of fact as to negligence on the part of the defendant, in running an engine of that character, which the justice was called upon to decide; and he decided that there was negligence, and that the defendant was therefore liable. 4. This court will not reverse a judgment, unless there is an entire want of evidence to uphold it, which is not the case here. (Bennett v Scutt, 18 Barb. 347 . Wily v. Slater, 22 id. 506. Rogers v. Ackerman, Id. 134. Dunckle v. Kocker, 11 id. 387.)
II. Although it may be conceded to be true, that the plaintiff had not made out a cause of action when he rested, still, as there was no motion for a non-suit, it was proper for the justice to take into consideration the whole evidence in the case, and if he found in the evidence introduced on the defense, sufficient to establish negligence on the part of the defendant, his judgment will be upheld. (The Mayor, &c., of N. Y. v. Mason, 1 Abb. 344 . S. C., 4 E. D. Smith, 142.) 1. This ease was decided upon all the evidence introduced, and it makes no difference who introduced it, so long as enough was furnished, without objee
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tion by one party or the other, to sustain the judgment. 2. The judgment will not be reversed when there is some evidence to sustain it. (O’Hara v. Brophy, 24 How. 379 . Bennett v. Scutt, 18 Barb. 347 , and eases cited in previous point.) 3. Neither does it matter what the pleadings were, so long as the evidence was admitted without any reference to them, and without objection, and established a cause of action, whether the identical one set forth in the complaint or not. (Johnson v. Hathorn, 2 Keyes, 476. Casler v. Shipman, 35 N. Y. 533 .)
III. The whole evidence, taken together, clearly establishes the fact that the fire was occasioned by reason of some defect in the spark arrester, used on the defendant’s engine, and the defendant’s liability is thereby fixed. 1. The defendant called the witness Strode, a master mechanic having charge of their engines at Elmira, and an expert, who testified that all the defendant’s engines were furnished with the most approved spark arresters; still he could not tell what engine set this fire. Nor could he testify whether the spark arrester on this particular engine was in good order or not. 2. He also- testified that engines frequently came in with their spark arresters'out of order, and that engines frequently ran through from Williamsport to Canandaigua that he did not see. 3. He further testified, “ if the netting was in good order, it would. be almost impossible for fire to ignite from sparks.” And further, had “ never known sparks to ignite when I was running, when the protector was in good repair ; never saw fire blow outside. the track.”
IV". The fact of the setting of the fire being admitted, as before staged, the case is completely covered by the decision of the Court of Appeals, in Field v. The N. Y. Cent. R. R. Co., ( 32 N. Y. 339 ,) 1. The fire having originated from such. a source, and under such circumstances, the burden of proof was on the defendant, to show that this particular engine was in good order, or the presumption
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of negligence must follow. 2. This the defendant did not do, or attempt to do, and the only fair and reasonable conclusion that could follow from such evidence was that found by the justice, to wit: That the defendants were guilty of negligence in setting the fire and destroying the plaintiff’s property, and was therefore liable to pay for the same. The judgments of the justice and of the county court were correct, and should be affirmed

The action was brought in a justice’s court, to recover the value of a quantity of corn stalks belonging to the plaintiff, and standing upon his land, adjoining the defendant’s railroad track, and which were destoyed by fire from sparks falling directly upon them from a passing locomotive engine of the defendant.

The defendant, upon the trial, admitted the cause of the injury to be as above stated, and the value of the property desrtoyed to have been of the amount found by the justice as damages. The judgment of the justice was affirmed by the county court.

The defendant’s counsel insists that the judgment, both of the county court and of the justice, is erroneous, and should be reversed, for the reason that it was not shown affirmatively, .upon the trial, by the plaintiff, that the defendant’s engine, from which the sparks came at the time of the injury, had not then the most suitable and approved spark arrester upon it, nor that it was out of repair.

But this was proof for the defendant to give. When it was made to appear that the injury was caused by sparks flying directly from the engine, and alighting on the property, the burden was upon the defendant, of showing that the engine was in perfect condition, with the most approved apparatus for arresting sparks, and that such apparatus was in good order at the time. (Field v. The New York Central Railroad, 32 N. Y. 339 .) This proof the

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defendant undertook to make, but failed to make entirely. It was unable to show which of its numerous engines caused the injury, and of course could not prove affirmatively what the condition of that particular engine was, on that occasion. Nor was it able to show, satisfactorily, that all its engines were, at all times, in perfect condition in these respects, though it undertook to make such proof. The case stood before the justice, therefore, upon the legal presumption that the engine which caused the injury was not in the proper condition ; and the judgment was right. The judgment must, therefore, be affirmed.

[Fourth Department, General Term, at Buffalo,

June 5, 1871.

Millin, P. J., and Johnson and Talcott, Justices.]

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