Haskell v. Northern Adirondack Railroad — 49 N.Y. St. Rep. 483

Majority

p. 483

John H. Haskell, Resp’t, v. The Northern Adirondack Railroad Company, App’lt.

(Supreme Court, General Term, Third Department,

Filed December 8, 1892.)

Headnote

1. Negligence—Railroad—Ñire set by passing engines.

In an action to recover damages for injuries to plaintiff’s fruit trees by fire alleged to have been set by one of defendant’s passing locomotives, Held, that the question whether or not the defendant was guilty of negligence in permitting the fire to escape, or whether the ñre did originate from fire in its locomotive, and whether defendant negligently suffered dry and combustible matter to accumulate upon its road, were properly submitted to the jury. ,

2. Same—Evidence.

In such case the court properly allowed plaintiff to show the value of the trees destroyed, and this by the opinions of witnesses shown competent.

Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury after a trial at circuit, and from an order denying a motion for a new trial upon the minutes.

Action to recover damages for the loss of a quantity of apple trees, claimed to have been destroyed by fire by reason of the negligence of defendant’s servants.

S. A. Beman, for app’lt; J. C. Saunders, for resp’t.

This action was for the recovery of damages for injury to plaintiff’s fruit trees and shrubbery and bees, by fire alleged to have been negligently set, and permitted to escape from defendant’s land to that of the plaintiff.

Whether the defendant in this action was or was not guilty- of negligence in permitting this fire to escape, or whether it did originate from fire from defendant’s locomotive, was a question of fact winch was properly submitted to the jury by the trial judge, and the same is true of the question whether the defendant negligently suffered or permitted dry and combustible matter to accumulate upon its track or roadway.

Nor do we think the court erred in receiving evidence upon the

p. 484

question of damages. His ruling upon that question is fully sustained by the case of Argotsinger v. Vines, 82 N. Y., 813 -814.

The case was fairly and clearly submitted to the jury by the charge of the judge upon the disputed questions of fact, and we cannot say that the evidence did not sustain their verdict.

The motion, therefore, for a new trial upon the merits was properly denied, and we see no error committed by the trial judge for which this judgment should be reversed.

•Judgment affirmed, with costs.

Herrick, J., concurs; Putnam, J., not acting.