Babcock v. Fitchburg R. Co.

• Decision Date: 05 December 1893
• Citation: 140 N.Y. 308,35 N.E. 596
• Parties: BABCOCK v. FITCHBURG R. CO.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 308

35 N.E. 596

BABCOCK

v.FITCHBURG R. CO.

Court of Appeals of New York.

Dec. 5, 1893.

Appeal from supreme court, general term, third department.

Action by Eliza Babcock, as administratrix of the estate of Fred Bennett, deceased, against the Fitchburg Railroad Company, for negligently causing death of deceased. From a judgment of the general term (22 N. Y. Supp. 449) affirming the circuit court's judgment for plaintiff, defendant appeals. Reversed.

T. F. Hamilton, for appellant.

Martin I. Townsend, for respondent.

EARL, J.

The plaintiff's intestate, Fred Bennett, was killed on the 15th day of October, 1889, by the explosion of a powdermill, and the claim of the plaintiff is that the explosion was caused by sparks which escaped from the smokestack of one of the defendant's locomotives, because it had not adopted suitable appliance to prevent the escape of the sparks. The mill was nearly 200 feet from the railroad track, and the locomotive was drawing a heavy train of cars upon an ascending grade, emitting large volumes of smoke, which was carried by the wind then blowing towards the mill, and as the smoke settled down over the mill the explosion occurred, wrecking the mill, into which the intestate had just entered. The mill had been in the same location for many years, and the railroad had been operated since the year 1876 with the same kind of locomotives, without causing any injury to the mill. The mill was a wooden building, twenty feet square, one story high, covered with tin, and painted with fireproof paint. There were no openings in the building on the side towards the railroad, and all the openings therein were kept closed except when the person working in the mill opened them. The mill was in operation only about six months eacy year, at intervals as there was business for it.

The first question for the determination of the jury was whether the sparks from the locomotive caused the explosion. The sole evidence bearing upon this question is that Bennett was seen to enter the building a few moments before the explosion, and that the locomotive was approaching, emitting the smoke which was carried to and over the building, and as it settled down over the same the explosion occurred. Bennett was the only person in the building, and it does not appear what he was doing at the time. There is no evidence that any of the windows or doors of the building were open, or that there was then any occasion for having them open, or that there was any crevice or opening through which sparks could enter the building. Persons looking on from a distance saw the smoke, but no witness saw any sparks or cinders. It weems that powdermills are liable to explosion from defects in machinery, or the carelessness of men, as mills near this place had exploded 12 or 15 times in previous years, averaging a death of a human being at each explosion. Under such circumstances, how could the jury find the cause of this explosion? The smoke settled down upon the building at the time, and Bennett entered the building a few moments before. There was the coincidence of the smoke settling down and the explosion, and also the coincidence of Bennett's entry into the building and the explosion. What caused the explosion, the sparks in the smoke or some act of Bennett? The jury might guess it was one or the other, and one guess might be more probable than the other, and still it would be a mere guess. There may be moral evidence quite convincing and sufficient to influence the conduct of men in some of the ordinary affairs of daily life which yet does not rise to the standard of legal evidence for the consideration of a legal tribunal, and sufficent to form the basis of judicial action. McLoghlin v. Bank, 139 N. Y. 514, 34 N. E. 1095. If there had been evidence that the explosion could have been caused only by fire passing or brought into the building from the outside, then there would have been some basis for the verdict. But there was no such evidence, and we know there could be none. If the natural tendency of the operation of the defendant's railroad was to endanger this mill by the sparks emitted from its locomotives, the case would be different. But the locomotives on this road had been operated for 13 years, under all conditions, in all kinds of weather, carrying long and short trains, and yet the powdermill had never been destroyed. The plaintiff was bound to show that the explosion was not caused by the carelessness of Bennett, and that it was caused solely by the fault of the defendant. It cannot be presumed that he was free from carelessness, and the burden was upon the plaintiff in some way to prove it. Weston v. City of Troy, 139 N. Y. 281, 34 N. E. 780.

Verdicts must stand upon evidence, and not upon mere conjecture, however plausible; and, if the situation be such that the plaintiff cannot furnish the requisite evidence, the misfortune is his. We think the plaintiff failed in this branch of her case. But she failed still more signally in another branch of it. The engine which is charged with this explosion is a diamond stack, and it was such as had been, prior to about the year 1879, in universal use upon railroads in this country. About that time estension front engines began to come into use, and in 1889, at the time of this accident, there is evidence tending to show that they were coming into general use. In a diamond stack engine the cinders pass through the flues into the smoke box, and then are carried by the exhaust steam up the smokestack against an inverted cone, which acts as a deflector; and as they are deflected they are thrown up again and again until they are rendered quite small, when most of them are thrown through the wire netting across the smokestack above the inverted cone. This netting has four meshes to the square inch. By the operation of the deflector the tendency is to throw the sparks out of the smokestack to the sides of the road. In an extension front engine there is a large smoke box extending in front of the smokestack into which the largest share of the sparks are thrown. There they are agitated by the steam, and some of them are thrown out of the smokestack through a wire netting which has from two to two and a half meshes to the square inch. The sparks which pass into the smoke box accumulate there in large quantities, and are, from time to time, when the engine stops, removed. Fewer sparks are emitted from the extension front engines, but they are larger, and from such engines the sparks are thrown directly upwards. No witness testified that the extension front engines were safer or less liable to set fires than the diamond stack. The only fact from which any inference can be drawn as to the comparative safety of the two engines is that in the diamond stack engines more sparks are emitted, but they are smaller. The plaintiff seeks to charge the defendant with negligence solely upon the ground that it continued to use the diamond stack engines, and had not converted them into extension fronts, the proof showing that the engine in question was in perfect condition, and that all the appliances of the diamond stack were in perfect order. To maintain her action she was bound at least to show that the extension front engines were safer and less liable to cause fires along the railroad than the diamond stack. This, we think, she failed to do. She could have proved, if her claim be well founded, by firemen, engineers, railroad superintendents, and mechanics, that in the operation of railroads the extension front engines are less liable to cause fires than the diamond stack engines. Upon this point there must be much experience and observation among railroad men, and there should be some proof upon the subject from which a jury could find the facts in reference to the comparative safety of the two kinds of engines.

But, still further, there is no proof in this case that the extension front engine was invented or brought into use because it is safer or less liable to set fires than the diamond stack. All the witnesses who spoke upon the subject testified that the purpose of the extension front was to make the engine more efficient by giving more draft, and for economy in the use of coal. We will briefly call attention to some of the evidence. One of the plaintiff's witnesses testified that he had noticed ‘the coming out of sparks of the extension front engines and diamond stack engines many times.’ Another witness testified that ‘railroad managers are altering some of the old style of engines into the extension smoke box for the very object of obtaining more area of netting. The purpose of this is to get a better draft through the flues;’ that ‘the purpose of this greater area of netting in the extension front is to produce a better draft;’ that ‘an extension front, by breaking up the coals and cinders, reduces their size so as to force them through the netting, depending upon the mesh of the netting altogether;’ that ‘there is no difference between the throwing of sparks by the diamond stack engines and the throwing of sparks by the extension front engines, if the netting is intact and sound. There is no difference as to the quantity that will be thrown;’ that ‘there is no reservoir in the extension front to hold the sparks for any length of time. There is considerable more space in an extension front to hold the sparks than in the ordinary smoke box, probably double the quantity it will hold. As soon as it gets filled up to a certain extent, it empties itself. It has got to thresh it through the netting to get out;’ that ‘it breaks them up as it goes through the netting.’ Another witness of the plaintiff testifies that the difference between the two kinds of engines is that ‘the sparks do not go out so much from the extension front as they do from the old-style diamond stack. I have seen good-sized ones come out of an extension front the same as I have from a diamond...