Flinn v. New York Cent. & H.R.R. Co.

• Decision Date: 10 April 1894
• Citation: 142 N.Y. 11,36 N.E. 1046
• Parties: FLINN v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

142 N.Y. 11

36 N.E. 1046

FLINN

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York.

April 10, 1894.

Appeal from supreme court, general term, third department.

Action by Peter J. Flinn against the New York Central & Hudson River Railroad Company. From a judgment of the general term (22 N. Y. Supp. 473) affirming a judgment for plaintiff, defendant appeals. Reversed.

Andrews, C. J., and O'Brien, J., dissenting.

Matthew Hale, for appellant.

E. Countryman, for respondent.

EARL, J.

This is an action commenced December 2, 1884, to recover damages for the injuries to, and destruction by fire of, the plaintiff's wooden dwelling house, situated upon his lot adjoining the defendant's railroad in the city of Albany, in the preceding August. About 1844 a railroad company, to whose rights and property the defendant succeeded, constructed, upon a strip of land belonging to it, a railroad with two tracks, and in 1874, some years after the defendant had become the owner of the railroad and strip of land, it constructed two more tracks, one upon each side of the other two, and the four tracks became a part of its general railroad system. The house destroyed was built, soon after the construction of the first railroad, upon the rear end of the lot, adjoining and facing the railroad, the front of the lot being upon Broadway. Prior to 1874 the northerly track of the railroad came within about 12 feet from the house, and thereafter it came within about 3 1/2 feet. The plaintiff purchased his lot in 1867, and at that time the house was tenantable, and was rented for $16 per month, and continued so rentable until some time after 1874. After that time the sparks from the engines of the defendant's road frequently set fire to the house, and were so annoying and troublesome that after about 1880 the plaintiff was unable to rent the house, and it remained vacant until it was destroyed by fire.

There can be no controversy about the principles of law applicable to this case. The defendant was operating its road under lawful authority, past the plaintiff's lot, upon its own land, and therefore it could not be made liable for the destruction of the house upon the adjoining lot except upon proof of negligence in the management or condition of its engines. The action in such a case is based upon negligence, and a railroad company cannot be made liable for the unavoidable or usual consequences of the proper operation of its road to adjacent property. The law is well stated in an extract found in the brief of the plaintiff's counsel from Pierce on Railroads (page 433), as follows: ‘The duty of the company to use reasonable care in order to avoid injury resulting to others from the exercise of its powers requires it to avail itself of the best mechanical contrivances and inventions in known practical use which are effective in preventing the burning of private property by the escape of sparks and coals from its engines, and it is liable for injuries caused by its omission to use them. Its duty in this respect is limited to such contrivances as have been already tested and put in use, and it is not required to use every possible contrivance, although already patented and recommended in scientific discussions.’

Now, what are the facts here bearing upon the defendant's negligence? There is no evidence and no claim that prior to 1880 the defendant did not use upon its engines the most approved spark arresters. It used the Diamond smokestack, which was in universal use on all railroads. There was no evidence that any engine was out of repair. On the contrary, the evidence shows that there was a regular system of daily inspection of the smokestacks and spark arresters upon the engines in use, and that they were at once repaired when any defects were discovered. Where the railroad passed this lot, there is a steep grade ascending to the westward, and engines drawing trains there were obliged to labor, and sometimes they made headway slowly and with difficulty, and, on account of the heavy grade and hard pull, they emitted a large amount of smoke and cinders. The only evidence (I am now speaking of the time prior to 1880) from which the plaintiff can claim to infer negligence is the great emission of sparks and the setting of the fires thereby. But the emission of the sparks was continuous, and from all engines, on account of drawing heavy trains, and thus there could be no claim that any particular engine was defective unless they were all defective, and that is not claimed. On this subject the plaintiff testified as follows: ‘The showers of sparks and smoke would be thrown into the windows, if they were open in warm weather, and set fire to the carpets. I am speaking of what they did. The effect was still greater if they did not pass readily,-if they were lodged there,-because it was up grade, and the trains would sometimes become stalled; impossible for the locomotives to do their work; and then, if the locomotives were lodged in front of that building, showers of sparks would be thrown all about, and, if it were dry weather, the building would take fire, and sometimes when it was not dry it would take fire. The entire roof and alley, and all about there, would be flooded with these live coals. This state of things continued about ten years. The final result was that the house was destroyed. These fires continued from 1874, the time the additional track was laid, until the destruction of the building by one of these fires, in August, 1884.’ Another witness testified: ‘When I have been on one of those pushers, and on No. 4 track, going from Albany to West Albany, I have seen plenty of sparks from that locomotive; plenty of it with a heavy load. You have got to work the engine heavier, and there are more sparks. I can't tell how far it would throw them; a good ways back. The sparks were all over, from the bottom of the grade to the top of the grade. They would fly all the while; worse when it slipped.’ Another witness testified: ‘These pushers, as they pushed up the heavy freight trains on No. 4 through Railroad avenue, always threw sparks, more or less. Of course, the larger the train, the more exertion, and the more sparks were thrown, and the wetter the track made it so much worse. But the pushers are not the only ones that throw the sparks. The engine ahead throws as many sparks as the other one. These engines used on No. 4-both the forward engines and the pushers and the others-had large, bulging smokestacks; all of them, as far as I remember.’ Another witness testified: ‘Of course, engines, when they are working hard and pushing and pulling heavy, throw more sparks than they do when they are working light. There is a harder exhaust on the fire, and consequently they throw more sparks. Have seen the sparks come out of the stack pretty thick sometimes. Sometimes they go straight up, according to the way the wind blows. I couldn't...