Read v. Nicholas

Decision Date14 January 1890
PartiesREAD v. NICHOLAS et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, fourth department.

Action by Riley Read against Moses H. Nicholas and others for damage to his property in the village of Hancock, caused by a fire which started from sparks from defendants' smoke-stack. Defendants obtained judgment, which was affirmed by the general term. Plaintiff appeals.

A. Taylor, for appellant.

W. J. Welsh, for respondents.

PARKER, J.

The court submitted to the jury five written propositions, with instructions that each be answered as they should determine the fact to be. Plaintiff's counsel excepted to such submission. It is unnecessary to determine whether the question sought to be presented by such exception merits consideration, for it was subsequently waived. The consent of counsel for both plaintiff and defendants that the written questions be withdrawn, upon which consent the court withdrew them, constituted a waiver of the exception taken to their submission. The first of the five propositions submitted appears to have had the word ‘Yes' written underneath it, while the others do not purport to have been passed upon in any way. The plaintiff in this court insists that it should be regarded and treated as a fact found by the jury. This cannot be done, for it is not before us in such a way as to render it effectual for such purpose. The jury stated to the court, through their foreman, that they had agreed upon a general verdict. Thereupon the court suggested the withdrawal of the special questions. Both counsel consented. The court announced that the special questions were withdrawn from the jury, and then a general verdict in favor of the defendants was rendered. The special questions having been withdrawn from the jury, by consent, before the general verdict was rendered, it is apparent that no basis exists upon which to predicate a holding that the special questions constituted a part of the finding and verdict of the jury. The jury rendered a verdict in favor of the defendants, and, the general term having affirmed, we have but to consider the exceptions taken by the plaintiff.

Our attention is directed by the appellant to but three exceptions, aside from those already considered. The first relates to the granting of a nonsuit as to the defendant Moses H. Nicholas. The general term held that the evidence was not sufficient to warrant a verdict against him. Such holding is in accord with our view, after carefully considering the evidence adduced for the purpose of charging him with liability.

The second was in reference to the exclusion of testimony offered by the plaintiff for the purpose of proving the amount of damages sustained by the destruction of the buildings situated on Main street. The evidence was excluded upon the ground that defendants' alleged negligence was not the proximate cause of such burning. In view of the verdict of the jury in favor of the defendants upon the issue submitted, and involving the liability of defendants to the plaintiff for the negligent burning of other buildings on the same occasion, it is not apparent how the rejection of such evidence can be deemed to have resulted prejudicially to the plaintiff. The plaintiff sought to prove all the damages done to his real estate. The court excluded some evidence because considered too remote; and, the jury having found in favor of the defendants, it is not conceivable that the exclusion of certain elements of damage to plaintiff's real estate could have affected the result. If, then, it be conceded that the learned court erred in his ruling in that regard, the error is not of such a character as to justify a reversal of the judgment. But we are of the opinion that the ruling of the court was abundantly supported by authority. May 29, 1882, a strong wind from the north-west carried sparks from a smoke-stack belonging to the defendants to the roof of an old, threestory wooden building, the property of one E. D. Read, a distance of 280 feet, south 22 1/2 deg., from the smoke-stack. The sparks were carried across Main street, and nearly diagonally across Read street, at its junction with Main, and past, but not over, the buildings in question to the E. D. Read house. The fire on the roof was seen as soon as it commenced to burn, but the village of Hancock, in which these buildings were located, did not possess any fire apparatus, and there were no ladders in the vicinity of sufficient length to enable the persons present to either go upon the roof, or throw water upon it. From the E. D. Read building the fire communicated to the blacksmith's shop on the north; thence in a westerly direction, across Read street, to a barn of the plaintiff, which was destroyed. The next building to burn, situated northerly from the E.D. Read house, was Mallory's saloon. From that building the fire spread to and destroyed the building in question. After the E. D. Read house commenced to burn, and before either of the buildings of plaintiff on Main street took fire, the wind died down, and changed to a slight...

To continue reading

Request your trial
22 cases
  • Lewis v. Rio Grande Western Ry. Co.
    • United States
    • Supreme Court of Utah
    • March 20, 1912
    ......1023; Railway Co. v. Trich, 2 Am. St. Rep. 672; Stone v. Boston, etc., R. Co., 171 Mass. 536, 51 N.E. 1, 41 L. R. A. 794; Read. v. Nichols, 118 N.Y. 224; Cuff v. R. R. Co., 35. N. J. L. 17; Behling v. Pipe Lines, 160 Pa. 359, 28. A. 777, 40 Am. St. Rep. 724; Mill Co. v. ......
  • Silver Falls Timber Co. v. Eastern & Western Lumber Co.
    • United States
    • Supreme Court of Oregon
    • January 8, 1935
    ......644, 99 S.E. 228;. White Automobile Co. v. Dorsey, 119 Md. 251, 86 A. 617. The first two cited decisions we have again read, and. the others we have studied carefully. We believe, however,. that there is no occasion for discussing the matter at length. ......
  • Cole v. German Savings & Loan Soc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 23, 1903
    ...... Tousey v. Roberts, 114 N.Y. 312, 21 N.E. 399, 11. Am.St.Rep. 655; and Lane v. Atlantic Works, 111. Mass. 136. These opinions have been read with the deference. and consideration to which the judgments of learned and. conscientious jurists are always entitled, but they are not. ......
  • Williams v. Springfield Gas & Electric Company
    • United States
    • United States State Supreme Court of Missouri
    • March 29, 1918
    ...... Clifford v. Cotton Mills, 146 Mass. 47; Ins. Co. v. Tweed, 7 Wall. 44; Railroad v. Kellogg, 94. U.S. 469; Railroad v. Hickey, 166 U.S. 521; Read. v. Nichols, 118 N.Y. 224; Cuff v. Railroad, 35. N. J. L. 17; Curtin v. Somerset, 140 Pa. St. 70. (4). On all the evidence and the law, the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT