14 N.Y. 218, Sheldon v. Hudson River R. Co.

Citation:14 N.Y. 218
Case Date:June 01, 1856
Court:New York Court of Appeals

Page 218

14 N.Y. 218




New York Court of Appeal

June 1, 1856

Page 219


S. E. Lyon, for the appellant.

J. Thompson, for the respondents.


The plaintiff owned and possessed a building, used as a storehouse, in Greenburgh, Westchester county, standing on the easterly side of the defendants' railroad, and about sixty-seven and one-half feet from the track. It was in the charge of two of the plaintiff's servants. The outer doors were kept locked, and no fire was used in it. On the 7th February, 1852, it took fire and was consumed. It was proved that, about twenty-five minutes before the fire was discovered, a train of cars of the defendants, drawn by a locomotive engine called the Oneida, passed the place. On the first floor of the building there was a parcel of shavings and a quantity of lumber, and some of the glass in the windows of that story had been broken. As I understand the testimony, the place where the fire was first seen was on this floor, and not far from one of the windows. Having proved these facts, and that the day on which the fire took place was windy, the direction of the wind being towards the building, and the persons in charge having sworn that no person, to their knowledge had been in it during that day, the plaintiff proposed to prove, by a witness who lived close to the railroad and about one-fourth of a mile from the building, that shortly before it was burned he had seen sparks and

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fire thrown, from the engines used by the defendants in running their trains, through the witness' premises, a greater distance than this building stood from the track of the railroad, and that he had picked up from the track, after the passage of the trains, lighted coals more than two inches in length. The evidence was objected to by the defendants' counsel and excluded by the court. The plaintiff's counsel excepted. The plaintiff also gave evidence which, as his counsel insists, tended to show that the engines used by the defendants lacked some apparatus which was in use upon some other locomotive engines, and which rendered the latter less liable to communicate fire to substances at the side of the road than those which were without that apparatus. The judge, in the first instance, denied a motion made by the defendants for a nonsuit; but after the defendants had proceeded at some length in the examination of witnesses in their behalf, he stopped the further examination of a witness and nonsuited the plaintiff.

It is argued by the defendants' counsel that the evidence offered and rejected was too remote and indefinite to have a just influence upon the particular question in issue in the case; that it did not refer to any particular engine, and that it may be that the one which ran past the plaintiff's premises, just before the discovery of the fire, was quite a different one from those which scattered fire on the occasion to which the evidence offered would apply. This argument is not without force; but at the same time I think it is met by the peculiar circumstances of this case. These engines run night and day, and with such speed that no particular note can be taken of them as they pass. Moreover, there is such a general resemblance among them, that a stranger to the business cannot readily distinguish one from another. It will, therefore, generally happen that when the property of a person is set on fire by an engine, the owner, though he may be perfectly satisfied that it was caused by an engine, and may be able to show

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facts sufficient legitimately to establish it, yet he may be utterly ignorant what particular engine, or even what particular train did the mischief. It would be, practically, quite impossible by any inquiries to find out the offending engine, for a large proportion of those owned by the company are constantly in rapid motion. The business of running the trains on a railroad supposes a unity of management and a general similarity in the fashion of the engines and the character of the operation. I think, therefore, it is competent prima facie evidence, for a person seeking to establish the responsibility of the company for a burning upon the track of the road, after refuting every other probable cause of the fire, to show that, about the time when it happened, the trains which the company was running past the location of the fire were so managed in respect to the furnaces as to be likely to set on fire objects not more remote than the property burned. It is presumed to be in the power of the company, which has...

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