Christy v. N.Y. Cent. & H. R. R. Co.

• Decision Date: 18 June 1917
• Docket Number: No. 91.,91.
• Citation: 90 N.J.Law 640,101 A. 372
• Parties: CHRISTY et al. v. NEW YORK CENT. & H. R. R. CO.
• Court: New Jersey Supreme Court

101 A. 372

90 N.J.Law 640

CHRISTY et al.

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

No. 91.

Court of Errors and Appeals of New Jersey.

June 18, 1917.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Charles R. Christy and others against the New York Central & Hudson River Railroad Company. From a judgment of the Supreme Court for plaintiffs entered upon the verdict of a jury at the Hudson circuit, defendant appeals. Affirmed.

See, also, 92 Atl. 395.

Vredenburgh, Wall & Carey, of Jersey City, for appellant. Edmund W. Wakelee, of Englewood, and Wendell J. Wright and Edward V. Thornall, both of New York City, for appellees.

TRENCHARD, J. This appeal brings up for review a judgment in favor of the plaintiffs below, entered upon the verdict of a jury, at the Hudson circuit. We are of the opinion that the judgment must be affirmed.

The action was brought by the plaintiffs, residents of New Jersey, against the defendant railroad, to recover the value of certain cut and piled timber at Long Lake West, Hamilton county, N. Y., which was destroyed by fire on September 27, 1908.

The only questions raised on this appeal are those points reserved in the rule to show cause why a new trial should not be granted, which was discharged.

The first challenges the admission in evidence at the trial of a communication by A. H. Smith, vice president and general manager of the defendant company, dated January 6, 1909, addressed to the Public Service Commission, Second district, state of New York.

The situation was this: At the trial of the present case the main issue was whether or not the defendant company was negligent in the maintenance and care of its right of way in violation of its common duty to exercise reasonable care to keep it clear of combustible matter, by reason of which negligence the plaintiffs sustained the damages suea for. The plaintiffs introduced evidence tending to show that the right of way of the defendant at and near where the plaintiffs' lumber was piled was filled with combustible materials. The plaintiffs also put in evidence section 72 of the Forest, Fish, and Game Law of the state of New York (Consol. Laws, c. 19), which enacts, among other things, that:

"Every railroad company shall, on such part of its road as passes through forest lands or lands subject to fires from any cause, cut and remove from its right of way along such lands, at least twice a year, all grass, brush or other inflammable materials."

And it also provides that:

"The Public Service Commission must upon the request of the forest, fish and game commissioner, and on notice to the railroad company or companies affected, require any railroad company having a railroad running through forest lands in counties containing parts of the forest preserve, to adopt such devices and precautions against setting fire upon its line in such forest lands as the public interest requires."

It was also proven and admitted: (1) That part of the forest preserve was in Hamilton county; (2) that after the fire in question the Public Service Commission of the Second district of the state of New York, upon the request of the forest, fish, and game commissioner, began an investigation into such fire to ascertain what the causes were, and to what extent railroad operations were responsible; (3) that the commission made an order directing the defendant company and others to show cause what precautions were being used by them against setting fires upon their respective lines in forest lands, etc,; (4) that at such hearing the defendant company was represented both by its general attorney and its local attorney, and submitted to the commission a communication in writing made by Mr. Smith, the vice president and general manager of the defendant company. It was evidence of this communication which the defendant contends was error requiring reversal. We think not.

The communication contained a statement from which the inference might properly be drawn that the defendant company, at the time of the fire in question, had not cleared its right of way of combustible materials, and the communication, having been made by its general manager, who, it appeared, was charged with the duty of maintenance and care of such right of way, was admissible in evidence against the defendant company. Halsey v. Lehigh Valley R. R. Co., 45 N. J. Law, 26; Agricultural Ins. Co. v. Potts, 55 N. J. Law, 158, 26 Atl. 27, 537, 39 Am. St. Rep. 637; Carey v. Wolff, 72 N. J. Law, 510, 63 Atl. 270; Jones v. Mount Holly Water Co., 87 N. J. Law, 106, 93 Atl. 860.

It is next argued that there should be a reversal because of evidence given of an oral statement made by Martin E. McClary, the local attorney of the defendant, before the Public Service Commission, at the hearing above referred to. We think there is no merit in this contention.

It satisfactorily appeared at the trial, apart from Mr. MeClary's statement, that he was the defendant's local attorney, and was instructed by the...