59 Barb. 644 | N.Y. Sup. Ct. | 1871
The action was brought in a justice’s court, to recover the value of a quantity of corn stalks belonging to the plaintiff, and standing upon his land, adjoining the defendant’s railroad track, and which were destoyed by fire from sparks falling directly upon them from a passing locomotive engine of the defendant.
The defendant, upon the trial, admitted the cause of the injury to be as above stated, and the value of the property desrtoyed to have been of the amount found by the justice as damages. The judgment of the justice was affirmed by the county court.
The defendant’s counsel insists that the judgment, both of the county court and of the justice, is erroneous, and should be reversed, for the reason that it was not shown affirmatively, .upon the trial, by the plaintiff, that the defendant’s engine, from which the sparks came at the time of the injury, had not then the most suitable and approved spark arrester upon it, nor that it was out of repair.
But this was proof for the defendant to give. When it was made to appear that the injury was caused by sparks flying directly from the engine, and alighting on the property, the burden was upon the defendant, of showing that the engine was in perfect condition, with the most approved apparatus for arresting sparks, and that such apparatus was in good order at the time. (Field v. The New York Central Railroad, 32 N. Y. 339.) This proof the
Millin, P. J., and Johnson and Talcott, Justices.]