Davies v. Delaware, L.&WR. Co.

• Decision Date: 25 May 1915
• Citation: 215 N.Y. 181,109 N.E. 95
• Court: New York Court of Appeals Court of Appeals
• Parties: DAVIES et al., v. DELAWARE, L & W.R. CO.

215 N.Y. 181

109 N.E. 95

DAVIES et al.,

v.DELAWARE, L & W.R. CO.

Court of Appeals of New York.

May 25, 1915.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Suit by Charles L. Davies and W. Lincoln Davies, surviving partners of the firm of D.J. Davies & Sons, against the Delaware, Lackawanna & Western Railroad Company. From a judgment of the Appellate Division (155 App.Div. 943, 140 N.Y.Supp. 1116), affirming a judgment for defendant, plaintiffs appeal. Reversed, and new trial ordered.

William Townsend, of Utica, for appellants.

C.V. Byrne, of Syracuse, for respondent.

MILLER.

The action was brought to recover the value of two buildings and contents and a quantity of lumber and shingles alleged to have been set on fire either by sparks emitted from the smokestacks of the defendant's engines, or from coals dropped from the defendants engines onto its tracks. The property burned was on premises adjoining the defendant's railroad and but a few feet from its tracks. There were two buildings separated by a driveway about thirteen and one half feet wide, a quantity of rough hemlock piled near one of them, and a quantity of shingles on a car standing on a switch near them. There was evidence from which a jury could have found that the fire was due to the defendant's negligence either in allowing large cinders to be emitted from the smokestack of one of its engines or in dumping live coals upon the tracks. The important question arising on this appeal is presented by an exception, whose bearing sufficiently appears from the following colloquy between court and counsel at the close of the charge, viz.:

“Defendant's Counsel: I ask your honor to charge that if the jury do get to the question of damages, they cannot find for the lumber, to the amount of $4,320, or for the shingles on the car, amounting to $359, in view of the evidence of the plaintiffs' witness, Mr. Davies, that when he saw the fire those two elements were not on fire, but just the buildings.

“The Court: Well, I don't know as I will charge quite that. I will charge the jury that they must find that those lumber piles and those shingles took fire directly from the sparks of the locomotives, or from the fire which was scattered along the track.

“Defendant's Counsel: And not from the buildings?

“The Court: And not from the buildings. In other words, the courts in this state hold, that in order to be the proximate cause of a fire, it must be communicated directly from the negligent source to the property destroyed. That where there is an intervening property, there is no right to recover. That is, where it is communicated by means of the intervening property.

“Defendant's Counsel: And further, on that proposition, that if the jury find that either building-for instance, the further building, the larger building-caught fire from the first building, or the smaller building, there can be no recovery for the larger building and its contents.

“The Court: If it was communicated from the smaller building, I so charge.

“Plaintiff's Counsel: I except to your Honor's ruling made in reference to that.”

It...