Shepp v. New York Central & Hudson River Railroad — 21 N.Y. St. Rep. 568

Majority

p. 568

Mark Shepp, Resp’t, v. The New York Central and Hudson River Railroad Company, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed January 19, 1889.)

Headnote

Negligence—When question for jury — Determination is conclusive.

. In an action to recover damages sustained in the burning of a quantity of wheat belonging to plaintiff by fire set by defendant, there was evidence tending to show that the fire started shortly after one of defendant’strains passed; that defendant had cut grass and weeds along the tracks and left them lying there, and that at a place where the fire had started, a piece of burning coal was found. The defendant gave evidence to the effect that its engines were inspected daily and particular attention given to its spark-catching apparatus which was of the most approved kind and in good condition. Si Id, that it was for the jury to say upon all the evidence whether the negligence charged was caused by coal escaping from defendant’s engine, and that their determination was conclusive.

Appeal from a judgment entered upon the verdict of a jury, and from an order denying motion for a new trial.

G. W. Wisner, for resp’t; Aslibel Green, for app’lt.

The action is to recover damages claimed by the plaintiff to have been sustained in the burning of a quantity of wheat growing upon his farm, by fire negligently set by the defendant.

. The plaintiff is the owner of a farm situate in the town of Manlius, which on the 12th day of July, 1887, he conducted and carried on. The West Shore Railroad, then run and operated by the defendant, ran through the same, dividing it. On said twelfth day of July the plaintiff had growing upon his land, along the side of said railroad track, several acres of wheat. About one o’clock p. M., a. train of cars propelled by steam passed west over the defendant’s road. Immediately thereafter, and within two or

p. 569

three minutes, it was discovered, that a fire had been set and was burning on the defendant’s land in close proximity to the railroad track. A strong wind was blowing which carried the fire across the defendant’s lands onto those of the plaintiff, and into his wheat field, and about three and one-half acres of wheat was burned, for the value of which the recovery was had.

Evidence was given tending to show that the fire started very soon after the tram had passed. There was no one near the place where it was set, at the time, who could have caused it. The defendant had several days before cut grass and weeds along its track, and left the same lying as it had fallen. It was a very dry time and had been for many days previous. The fire caught in the grass and weeds which had been cut by the defendant. At the place where it started there was found a piece of soft coal (the •same kind that the defendant used upon its engines) about one inch and one-half in size, which, when picked up, was hot; so much so that it burned the hand. Other fires had been set along the line of the defendant’s road, and in this-immediate vicinity, frequently during the month of July, and before the one in question. It was also shown that fire was emitted from the smoke-slacks of its engines passing over this part of its road, in considerable quantities, about the time and before the fire in question was set.

The defendant gave evidence tending to show that its engines were inspected daily; that in making the same, particular attention was given to the spark-catching apparatus, and that those used were of the most approved kind and in good condition. It does not appear that the particular engine which, it is claimed, caused the fire had been inspected for some days before that. Upon all the evidence, it was for the jury to say whether the fire was set from a coal escaping from the defendant’s engine, and, if so, whether negligence was imputable to it. The jury ha,s found both questions in favor of the plaintiff. There is abundant evidence to support this finding, and this court is concluded by the verdict. Webb v. R. W. and O. Railroad Co., 49 N. Y., 420 ; Home Insurance Co. v. Pennsylvania R. R. Co., 11 Hun, 182 ; McCoun v. N. Y. C. and H. R. R. R. Co., 66 Barb., 338 ; Addison on Torts, vol. 1, page 305.

We have examined the several rulings upon the trial adverse to the defendant, .but find none which justifies a new trial. None of the exceptions to the charge demand particular examination.

Judgment and order affirmed, with costs.

All concur.