O'Reilley v. King

accumulate on their right of way, and that the fact that trains had passed immediately before the fires were discovered justifies the inference that they were caused by sparks from the engines falling upon and setting fire to the material thus negligently allowed to there accumulate and remain. On the trial, however, the plaintiffs did not rest in satisfied reliance upon this inference alone, but proved by one Tyler that he resided miles from the place where the fires caught, that he did not see what the engines did on the occasion in question, and, under objection and exception, that other engines passing his place “shortly before and shortly after the fire scattered fire.” There was no proof as to the actual condition of affairs along the right of way before the trains passed, and it was incumbent on the plaintiffs to satisfy the jury that the fires were caused by sparks from the passing locomotives. The manifest object of this evidence was, therefore, to strengthen the inference which the jury was asked to draw from the passing of the locomotives and the subsequent discovery of the fires. Without this evidence, the jury might have inferred from the two facts above mentioned that the fires were caused by sparks from the engines, or they might, in the absence of all proof as to whether fires originating from some other cause were in progress before the engines passed, have regarded the evidence too weak to justify such inference. It is probable, therefore, that this evidence was regarded as important. We think it was not competent to prove that other locomotives, at other times,, under other circumstances, and at a place distant from those at which the fires in question occurred, had scattered fire. Whether such locomotives were properly constructed or were in proper condition, whether the scattered fire came from the smokestack, or was caused by the fireman or engineer shaking out the ash pan, or what it was that caused it, does not appear. It is urged that this evidence was proper, because the court of appeals has said that all railroad engines, however well constructed and equipped, will, of necessity, emit some sparks. Hoffman v. King, 160 N. Y. 618 , 55 N. E. 401 , 46 L. R. A. 672 , 73 Am. St. Rep. 715 . Assuming the truth of that statement, it furnishes only another circumstance in aid of the two facts above mentioned,—the passing of the locomotives and subsequent discovery of the fires,—and does not at all justify the evidence under consideration. That one engine emits sparks from its smokestack, and another scatters fire, are, or at least may be, the result of widely different conditions, and produced by different causes. The fact that under certain circumstances all engines, of necessity, emit sparks, cannot justify evidence that some engines, other than the one in question, at a period remote in time and distant in place, scattered fire, in the absence of all proof both as to their construction, and the cause and manner of scattering their fire.- The necessary result of this evidence was to enable the jury to find from it that the fires in question were caused by fire scattered from the passing locomotives, without any proof that these engines in fact either emitted sparks or scattered fire, and without proof of the condition of the right of way before they passed.

The judgment and order must be reversed, and a new trial granted, with costs to the appellants to abide the event. All concur.