Frace v. New York, L.E.&W.R. Co.

• Citation: 38 N.E. 102,143 N.Y. 182
• Court: New York Court of Appeals
• Decision Date: 09 October 1894
• Parties: FRACE v. NEW YORK, L. E. & W. R. CO.

143 N.Y. 182

38 N.E. 102

FRACE

v.NEW YORK, L. E. & W. R. CO.

Court of Appeals of New York.

Oct. 9, 1894.

Appeal from supreme court, general term, fifth department.

Action by Charles R. Frace against the New York, Lake Erie & Western Railroad Company to recover damages for the burning of plaintiff's barn and hotel by the alleged negligence of defendant. From a judgment of the general term (22 N. Y. Supp. 958) affirming a judgment for plaintiff, defendant appeals. Reversed.

James H. Stevens, for appellant.

Clarence A. Farnum, for respondent.

PECKHAM, J.

Among other questions of fact submitted to the jury, on which, if found in favor of the plaintiff, a verdict for him might be based, was the question whether the system of spark arresters used by defendant was suitable, and whether defendant was guilty of any negligence in using that system. The jury were permitted by the charge of the learned judge to say that the system of spark arresters was not a proper one, and that it was not one of the most approved devices known for the prevention of the escape of sparks or cinders from the engine. The evidence was entirely uncontradicted, and tended solely to one result, viz. that the straight stack spark arrester was at least as good as any system that was known. Some of the witnesses said that it was ‘the’ improved spark arrester, as good as any spark arresters that were known to railroad men. It began to come into use about 1880, and was much used for freight trains. There was the straight stack without the extension. There were also some with an extension, and there were diamond stack engines; but the latter were, perhaps, not quite so good as others. The straight stack without the extension was the kind of spark arrester that was used on the engine in question. The fact was testified to by witnesses for the defendant who were among its employés, but they were men who were not responsible for the system of spark arresters that was adopted or in general use upon defendant's road, and they were testifying upon a subject well known among all men familiar with railroad engines and the system of spark arresters in existence or adopted by different railroads; and, if there had been in fact the least doubt upon the question regarding which they testified, evidence contradicting or explaining their testimony could have been easily adduced.

In the plaintiff's complaint there was an allegation that the defendant had not equipped or provided the engine with a kind of spark arrester that was reasonably safe, and such as was in common use by the railroads of the state, and had been for a long time, to the knowledge of defendant, and which it was its duty to put upon and provide its locomotives with for the protection of property along the line of its road. Upon the trial the plaintiff gave no evidence to sustain this particular allegation, and the only evidence in the case came, so far as this issue is concerned, from the defendant, and that was to the effect already stated. The real issue made by the plaintiff, and to which his evidence was directed, was that of negligence in regard to the condition of this particular spark arrester, and its being out of repair, and its meshes too large, so that sparks of an unnecessarily large size escaped therefrom, and in fact set the fire in question. The engine had just been equipped with this new spark arrester, the change having been made from the diamond stack kind. In the case of Flinn v. Railroad Co., 142 N. Y. 11, 36 N. E. 1046, the diamond stack spark arrester was used, and the claim was made by the plaintiff in that case that the defendant should be held liable because it had not adopted the straight stack spark arrester, such as was used upon this engine. Here the claim seems to be just the opposite, and the jury was permitted, upon the evidence in the case, to find that the straight stack system was not a good one, and the diamond stack should have been used. Thus, whichever kind may be used by a railroad company, it is open to the plaintiff to claim that it was the other that...