| N.Y. App. Div. | Jul 1, 1896
The plaintiffs, on July 23, 1893, were the owners of certain real estate with the buildings thereon at Holland’s Station, in the county of Queens, where they carried on business as dealers in ice, coal, wood, hay, etc. There was upon such premises, contained in one of the buildings, an ice machine and j>lant for the manufacture of ice, which, however, had not been in operation for a year prior to the date of destruction of said buildings. On the date aforesaid, about four o’clock in the afternoon, the buildings and machinery and other personal property thereon were destroyed by fire, and it was the plaintiffs’ claim at the trial that such fire was caused by sparks and cinders cast upon the buildings by one of the locomotives of the defendant railroad. The plaintiff recovered a verdict at Circuit for the sum of $29,825, and from the judgment entered thereon the defendant has appealed to this court.
The testimony permitted the conclusion that a locomotive, in charge of Engineer Clin, known as Ho. 11, which was drawing a train going to Rockaway Park, and which passed the plaintiff’s property about four o’clock, emitted the sparks which caused the fire. Clin himself testified that he first saw the fire about seven minutes after he passed the plaintiff’s premises and while his engine was upon the switch at Rockaway Park, and that soon thereafter he examined the spark arrester in the engine to ascertain whether it was his engine that had set the fire or another. The spark arrester in his engine consisted of a wire netting in the forward part of the smoke arch in which there was a door about eighteen inches wide and two and one-half feet long. This door was kept in position by
The questions asked by the plaintiffs’ counsel of some of his witnesses, whether there was any danger or possibility of the key which held the door in the spark arrester in position falling down during the operation of the engine, if once put in position, was proper, and the objection thereto was properly overruled. The means of fastening the door was a mechanical contrivance, the effect and operation of which were apparent to any one observing it. The witnesses of whom the question was asked were engineers familiar with the mechanism and having knowledge of the proper mode of its operation, and in answering the question they testified only to a fact' which was within their knowledge and experience. Likewise the objection to the question as to whether sparks would be thrown a, considerable distance if the locomotive had a properly constructed netting, in good order, was properly overruled. Similar questions, were held to be admissible in the case of Brush v. The Long Island Railroad Company (10 A.D. 535" court="N.Y. App. Div." date_filed="1896-12-15" href="https://app.midpage.ai/document/brush-v-long-island-railroad-5181333?utm_source=webapp" opinion_id="5181333">10 App. Div. 535), recently decided in this, court. But in view of the fact that it appeared that the door in the netting was down at the time of the fire, these questions do not appear to be very material, as the view is permitted that the locomotive known as No. 11 had had no adequate means to prevent the escape of cinders and sparks for some considerable period prior to the fire.
The point taken by the appellant’s counsel, that, in giving evidence of injury done to the realty, the plaintiffs were permitted to-go outside of their complaint and bill of particulars, does not appear to be well taken. The allegations of the complaint were that the
The competency of some of the witnesses, sworn as to the value of the property destroyed, was also objected to on the ground that in stating the value of the lands with the buildings thereon and the ice machine, they were permitted to include in their estimate what they had been told was the cost of the ice machine. We are of the opinion that the admission of this testimony was not such an error as to call for a reversal of the judgment. The ice machine was not an article which had a market value, and its cost was a matter of estimate and calculation. Mr. Murray, one of the witnesses called by the plaintiff, was not without some knowledge on that subject, as lie was in the business of manufacturing ice, and had received bids and estimates from contractors furnished to him to construct an ice machine on his own property, and had purchased and erected one thereon. But both the witnesses Murray and Holland were competent to testify as to the value of the land and buildings, and their including in the general estimate an amount which they had been informed had been paid for the ice machine was not misleading or prejudicial to the defendant. It appeared by other competent proof what the original cost of the machine was, and what had been expended thereon for repairs, additions and improvements. That is the best testimony that could be produced by the plaintiffs as to the
The appellant also objected to the proof of statement made by one Pearsall, who was a fireman upon engine No. 11 at the time of the fire, as to the door in the spark arrester being down. This proof was not introducedns evidence of the fact stated by the fireman, but to impeach his testimony. Pearsall had been called as a witness by the defendant, and had testified that the time when Olin, the engineer, found the door in the spark arrester down was before the fire, and not after, as Olin had testified. Upon cross-examination he was asked if he had not told Benjamin Ryder that the door was down and had been put up after the fire, and he denied making such statements. Ryder wás thereupon called as a witness by the plaintiffs in rebuttal, and was permitted to testify to a conversation with Pearsall in reference to the door being down. This evidence was admissible to impeach Pearsall, and the objection taken to its reception was properly overruled.
The court, however, instructed the jury that, when they had determined the value of the property destroyed, they should cast the interest thereon from the date of the fire to the date of the trial, and include such interest in their verdict. This instruction was excepted to and was clearly erroneous. The rule applicable to actions to recover in tort for unliquidated damages is that the jury may award interest, but are not compelled to. (Duryee v. Mayor, 96 N.Y. 477" court="NY" date_filed="1884-10-07" href="https://app.midpage.ai/document/duryee-v--mayor-etc-of-ny-3623244?utm_source=webapp" opinion_id="3623244">96 N. Y. 477; Mansfield v. N. Y. C. & H. R. R. R. Co., 114 id. 331; Brush v. L. I. R. R. Co., supra.)
The trial of the action was on April 24,1895, about one year and nine months after the fire.
The plaintiffs may, therefore, stipulate to modify the judgment by reducing the verdict to $26,750, and if such stipulation is filed within twenty days the judgment so modified will be affirmed, with
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event, unless the plaintiffs stipulate within twenty days to reduce the verdict to the sum of $26,750. If such stipulation is filed, the. judgment so modified is affirmed, without costs of appeal.