Peck v. New York Cent. & H. R. R. Co.

• Decision Date: 22 January 1901
• Citation: 59 N.E. 206,165 N.Y. 347
• Parties: PECK v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

165 N.Y. 347

59 N.E. 206

PECK

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

Court of Appeals of New York.

Jan. 22, 1901.

Appeal from supreme court, appellate division, Fourth department.

Action by James Pearl Peck against the New York Central & Hudson River Railroad Company. From a judgment of the appellate division (55 N. Y. Supp. 1121) affirming a judgment entered on a dismissal of the complaint at trial term, plaintiff appeals. Reversed.

Charles F. Mathewson, for appellant.

Edward Harris, for respondent.

CULLEN, J.

This action was brought to recover the value of a warehouse and its contents, which, on May 2, 1895, were destroyed by fire caused by sparks emitted by a locomotive of the defendant. The plaintiff's building stood about 20 feet from the defendant's track. Within a very few minutes after the passage of the train a fire was observed on the roof of the warehouse, and at the same time another fire was discovered burning on the bank adjacent to the track of the defendant further south. There had been no fire in or about the warehouse on that day, and when the fire was first observed it had not burned through the roof to the interior of the building. Evidence was given showing that the defendant's engines frequently emitted large quantities of sparks setting fire to grass and fences at a distance of 60 or 70 feet. It was proved that on the 23d of March previous to the fire the same locomotive which caused the fire in the plaintiff's building had thrown out sparks or cinders, some of them as large as pea beans, which started fires at a distance of four or five rods from the railroad track. An expert connected with the Baldwin Locomotive Works testified as to the appliances used as spark arresters, their operation and effect. He stated that with the appliances now in use the sparks emitted are not of sufficient size nor sufficiently heated to ignite anything along the road. Two locomotive engineers were examined on the same subject. The following questions were put to them, to which the defendant's objections were sustained, and the plaintiff excepted: ‘Q. What do you say as to the possibility of a spark or cinder the size of a pea bean being thrown through the netting or spark arrester such as you have described? Q. What do you say as to the possibility of a spark or cinder being thrown out through a spark arrester such as you have described, in good condition, capable of setting a fire at a distance of fifty or seventy-five feet from the railroad track?’ At the conclusion of the plaintiff's case the complaint was dismissed.

It is conceded, both by the learned appellate division and by the counsel for the respondent, that the evidence was sufficient to justify the jury in finding that the fire in plaintiff's warehouse was caused by sparks from the defendant's locomotive. This, however, was not sufficient to authorize a recovery against the defendant, and the latter ‘could not be made liable for the destruction of the house upon the adjoining lot, except upon proof of negligence in the management or condition of its engines. The action in such a case is based upon negligence, and a railroad company cannot be made liable for the unavoidable or usual consequences of the proper operation of its road to adjacent property.’ Flinn v. Railroad Co., 142 N. Y. 11, 36 N. E. 1046. But while it was necessary for the plaintiff to affirmatively establish negligence on the part of the defendant either in the condition or in the operation of its engines for which the mere occurrence of the fire was not sufficient, it was not necessary the he should prove either the specific defect in the engine or the particular act of misconduct in its management or operation constituting the negligence causing the injury complained of. It was sufficient if the plaintiff proved facts and...