Van Ostrand v. Walkill Valley Railroad — 46 N.Y. St. Rep. 456

Majority

p. 456

Mary Van Ostrand, Resp’t, v. The Walkill Valley Railroad Co., App’lt.

(Supreme Court, General Term, Third Department,

Filed July 2, 1892.)

Headnote

Railroad—Negligeucb—Fires.

Whether a railroad, in cutting and leaving by the roadside a quantity of grass and brush exposed to the danger of fire from its passing engines, is guilty of negligence, is properly a question for the jury.

p. 457

Appeal from judgment in favor of plaintiff, entered upon verdict.

Action for damages caused by two fires started on the lands within defendant’s lines by a passing train and which extending to plaintiff's land, burned grapevines and fruit trees. There was evidence to show that defendant had previously cut the grass along the track and also brush, which it permitted to remain in the vicinity of tire track; that the brush took fire from the sparks of a passing engine and communicated to plaintiff’s land.

The court charged the jury that if they found that such conduct, on defendant’s part was negligent, and that the fire was caused by reason of it and could not otherwise have occurred, and was communicated from this pile of brush to plaintiff’s lands and did this damage, plaintiff was entitled to recover.

Ashbel Green, (F. L. Westbrook, of counsel), for app’lt; J. E. Hardenbergh, for resp’t.

The issue in this case, as submitted to the jury, turned upon the question of the negligence of the defendant in cutting and leaving by the roadside a quantity of grass and brush exposed to the danger of fire from its passing engines. Whether that was negligence or not was a question for the jury

The only cause of action submitted to the jury was the fire of July 6th, caused by the dry grass and brush before referred to taking fire, and such fire spreading to the plaintiff’s premises. That cause of action was fairly presented to the jury. Many of the exceptions taken were in regard to evidence relating to the fire of July 16th, upon which the plaintiff was non-suited; the other evidence in the case to which exceptions were taken does not seem to me to have prejudiced the defendant.

The judgment should be affirmed.

Mayham, P. J., and Putnam, J., concur.