O'Neill v. New York, O.&W. Ry. Co.

• Decision Date: 08 October 1889
• Citation: 115 N.Y. 579,22 N.E. 217
• Parties: O'NEILL v. NEW YORK, O. & W. RY. CO.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 579

22 N.E. 217

O'NEILL

v.NEW YORK, O. & W. RY. CO.¹

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from supreme court, general term, third department.

Action by Amanda O'Neill against the New York, Ontario & Western Railway Company, for damages resulting from defendant's alleged negligence in setting fire to the woods on plaintiff's land. Verdict and judgment for plaintiff, which was affirmed on appeal. Defendant appeals.

Geo. H. Carpenter, for appellant.

W. F. O'Neill, for respondent.

DANFORTH, J.

The questions in this case are brought before us by the defendant's appeal from a judgment of the general term of the third judicial department, affirming a judgment in favor of the plaintiff upon the verdict of the jury, and affirming an order made by the trial court denying the defendant's motion for a new trial. No question is made upon the pleadings. The complaint, among other things, stated the incorporation of the defendant, and that its road ran through the town of Fallsburgh. So much the defendant, by its answer, admitted. The complaint also stated that the plaintiff at the time in question was the owner of certain woodlands lying near the railroad; that these were set on fire through the negligence of the defendant in the use and construction of its locomotive, and by means of sparks and coals thrown from it; and that the defendant was otherwise negligent in placing or permitting to accumulate upon its premises, ‘brush, old ties, cut grass, and other dry and combustible materials,’ easily ignited, and through which fire communicated to the plaintiff's woods to her injury. These allegations were denied, and the issues so formed raised the questions between the parties.

The plaintiff went into evidence, and when she rested the defendant's counsel claimed it to be insufficient for want of showing that the engine from which the fire was said to have originated ‘was out of repair, or improperly constructed, or that the spark-arrester attached thereto was not as good, safe, and effective as any contrivance for that purpose in known use,’ and also claimed that negligence ‘cannot be found from combustibles along the track.’ The motion was denied, and the defendant called and examined witnesses, whose testimony, with that of the plaintiff, was submitted to the jury as bearing upon three questions: First. Whether the engine was out of order or repair as to its apparatus for arresting sparks. Second. Whether the engine was supplied with the most approved method of arresting sparks in known use. Assuming that these questions were answered in favor of the defendant, then, third, was the company negligent in placing combustible materials so near the track that they would be likely to take fire from sparks of the engine necessarily emitted, and thence, as a natural and probable result, firing the plaintiff's woods?

On this appeal it is not denied that the plaintiff suffered loss of property by fire. The defendant's claim is that there was not sufficient evidence for the jury to consider upon the question whether the defendant negligently caused the fire. The burning occurred in the day-time. Immediately after the passage of the ‘express freight’ through a tunnel, about 12 o'clock, or a little after, smoke was seen rising from the places on the land of the company, close to the track, and along its side. The fire at once began to run, and spread rapidly ‘onto the land of one Carley,’ and from there to the lands of the plaintiff. By the side of the defendant's land were cut brush, and leaves, and old ties piled up. Before the train came along there was no smoke or other appearance of fire. Sparks were seen coming from the engine; one witness says, ‘Probably, and as I Judge, as large as a pea.’ Another says, ‘I saw the train when it came out of the tunnel,’ and ‘she set fire right at the approach of the tunnel.’ The engine was throwing large volumes of smoke and sparks. They seemed unusually large,-‘as large as walnuts.’ ‘She set fire three or four times to this old brush, old bark, and stuff that falls off the train, and brush they cut down and left there. They rolled the brush up near the mouth of the tunnel on the east side, and the fire caught on there, and went north-east. That was towards the plaintiff's land.’ The witness watched the progress of the fire a few minutes, and then ‘went for a pail.’ If this evidence is true, the plaintiff's case was good until contradicted. If contradicted, the question was for the jury, and not the judge. It was not wrong for him to say whether the inference of negligence could be drawn from it. It was for the jury to say whether it should be drawn. No doubt the eyes of some witnesses are livelier than those of others, and the sense of sight may be quickened or...