Rose v. Pennsylvania R.R. Co.

• Decision Date: 29 May 1923
• Citation: 142 N.E. 287,236 N.Y. 568
• Parties: Norman J. ROSE, Appellant, v. PENNSYLVANIA RAILROAD COMPANY, Respondent.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 568

142 N.E. 287

Norman J. ROSE, Appellant,

v.PENNSYLVANIA RAILROAD COMPANY, Respondent.

Court of Appeals of New York.

May 29, 1923.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (199 App. Div. 949,191 N. Y. Supp. 950), entered November 16, 1921, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The action was commenced by the plaintiff to recover for the alleged negligent destruction of certain buildings, trees and personal property as a result of a fire set by the defendant. Plaintiff's farm is bounded on the west by the defendant's railroad, which runs in a substantially north and south direction at this point, and is upon a side hill or embankment some fifteen or twenty feet above the plaintiff's land. Between the right of way and plaintiff's lands is a stream about 12 feet in width. West of the defendant's right of way is a revine and pasture owned by one Edwards. West of this pasture are three fields of about 12, 6, and 7 acres, and beyond them about half a mile from the railroad there are woods. The fire originated on the right of way west of the track, and ran into the ravine on the Edwards farm, where there was heavy grass, and up to a pine stump fence on the Edwards place, which was at right angles to the railroad. There was a heavy wind blowing from the west at the time, which carried brands or sparks from the stump fence across the intervening lands of Edwards, the railroad right of way, and the stream to the east, igniting a straw stack on the land of the plaintiff, which was piled up against his barn, causing the destruction of the barn and contents and some fruit trees. The complaint was dismissed on the ground that defendant's negligence was not the proximate cause of the burning of plaintiff's property.

Mortimer L. Sullivan, of Elmira, for appellant.

Alexander S. Diven, of Elmira, for respondent.

PER CURIAM.

Judgment affirmed, with costs.

HISCOCK, C. J., and HOGAN, CARDOZO, POUND, McLAUGHLIN, and CRANE, JJ., concur.

ANDREWS, J., absent.