22 N.Y. 209, Fero v. Buffalo & S.L.R. Co.

Citation:22 N.Y. 209
Case Date:September 01, 1860
Court:New York Court of Appeals

Page 209

22 N.Y. 209




New York Court of Appeal

September 1, 1860

Page 210


Chauncey Tucker, for the appellant.

Dyer Tillinghast, for the respondent.


The two questions which are presented by this case, arise upon the exceptions taken to the charge of the judge upon the trial and his refusals to charge as requested by the defendants' counsel: and these questions pertain, firstly, to the degree of negligence imputed to and chargeable upon the defendants; and, secondly, whether there was negligence on the part of the plaintiff, which concurred in producing the result. The jury have found upon both points submitted to them in favor of the plaintiff, and the inquiry now is whether there was any error of law in the manner in which these questions were left to the jury.

The substantial facts of the case, without entering into much detail, showed very clearly that the fire by which the premises of the original plaintiff were consumed, was communicated by sparks from the defendants' locomotive standing still upon the side track of the defendants at a point nearly opposite the house of the plaintiff, and distant only about thirty feet from it, and with a strong wind blowing directly from the engine toward the house. During the time the engine thus stood

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upon the track, coals and sparks were emitted in large quantities, and were driven by the wind in the direction of the house, and no watch appears to have been kept over them, nor in fact any attention whatever on the part of any one in the defendants' employment paid to the matter. The nearness of the plaintiff's property to the engine, the constant emission of combustible matter, and the direction and force of the wind, were all circumstances calculated to admonish those having charge of the locomotive, of the imminent danger of remaining in that position without exercising a prudent circumspection of the surroundings.

On the subject of the care which under the circumstances, the defendants were called upon to exercise, the judge instructed the jury that less care is required of a railroad company while running their trains in the country, where there is no property near their track exposed to fire, than in a village (as was the case in this instance) where buildings constructed of wood are situated so near to their road as to be exposed to fire from the locomotive, and at a time when the wind is blowing in a direction from the engine toward the buildings. Under such circumstances they are bound to use the utmost care; and if for the want of such care, fire is communicated to such buildings, and they are consumed, the defendants are liable for the damages sustained thereby, unless the negligence of the owners of the buildings in guarding and protecting their property concurred in producing the result. To this charge the defendants' counsel excepted, and asked the court to charge that if the engine was in good order, and of proper construction, and used with ordinary care, the plaintiff could not recover. This instruction was refused by the judge, and the defendants' counsel excepted.

Taken as a whole, I think this charge, and refusal to charge as requested, were right. Some of the English cases have gone the length of holding that the very fact that buildings in proximity to a railroad...

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