1 Rob. 585 | The Superior Court of New York City | 1863
Lead Opinion
The track where the hose of the fire department received, the injury,, which temporarily prevented the use of water to extinguish the flames in the plaintiff’s build-dings, was the ordinary railroad track of the defendants. The train which injured the.hose arrived at the usual time at which it habitually arrived at such locality; it came down with its ordinary speed; no means were provided beforehand to notify the defendants that their track was occupied in ■ an unusual manner. There is no evidence that such hose .could be seen by the defendants’ employees on such train, more than sixty feet in front of the engine, and the engineer testified he. did not see it. Ho data were furnished, on the trial, rendering it imperative on such employees to know, that such hose, was on the track, even if they knew the exact location of the fire, which was several hundred feet from such track, and they were not bound to infer the existence of the hose from the existence of the fire. The shouting of a fireman within several blocks of the fire, of the danger to the hose, could not have been heard amid the noise. The engineer reversed the engine as soon as he was notified of something wrong, which was within a few blocks of the hose, and all the brakes were immediately applied. The speed of the train had been diminished to that of four or five miles an hour, and it was in process of being stopped altogether when it cut the hose.
Ho effort was made to prevent the consequences of negligence on the part of the defendants, by removing the hose out of the way of the engine, or preventing its being cut by drawing it off into the ditch adjoining the track, by uncoupling the lengths or otherwise, or raising it so as to avoid going under the wheels. (Chase v. N. Y. Central R. R. Co., 24 Barb. 273.) The only effort made was to stop the engine by shouting. The defendants’, train was furnished with the ordinary means of stopping it; which were promptly used. Patent brakes (Creamer’s) not then fully tested, were not used. Without notice to the defendants’ employees of the presence of the hose on that occasion, in sufficient time to have stopped the engine going at its ordinary speed before reaching it, they were not respon
Knowing -the time of the arrival of the train, there was time enough after the arrival of the fire engines,, to have placed sentinels far enough up the line of the road to notify the train of the difficulty in time to stop it. ■
Besides , this, the act of the ’defendants was not the immediate cause of the injury to the plaintiffs; it was only immediately the cause by destroying the instruments used to prevent injury. It is true, they were then actually in use, but the same principle must govern if they were just being prepared to be used or on their way, or even kept in readiness for use. If the hose cart was on its way to the fire and interrupted by illegal obstructions in the street, or injured. by a locomotive, the plaintiffs might have lost’the benefit of it; or if any one negligently lost the key of its house, so/ that it could not be got out in time, or if any one having contracted to repair the hose within a certain time, failed to do it; in all these cases the negligence of the delinquent party might more or less contribute to the result of destroying the plaintiffs’ property, yet as a result of the negligence, the consequences would be too remote to make him liable' for damages. Where there is neither willful mischief, contract or fraud, (Clark v. Brown, 18 Wend. 223, 229 ; Anthony v. Slaid, 11 Metc. 290; Acad
None of the exceptions to evidence were well taken. The exceptions must be overruled, the motion for a new trial denied with costs, and the defendants allowed to enter judgment.
Barbour, J. concurred in this opinion.
Dissenting Opinion
Abstractly considered, the act of cutting a fire hose is not tortious or negligent. It may become so when considered in connection with some other fact; such as that it was cut by a stranger and without or against the will of the owner; or, as is charged in this case, that the cutting of it deprived some person of a benefit or advantage, of a value appreciable in money, which he was then lawfully enjoying from its use.
Cutting or destroying fire hose, provided for use by a com- • munity, when no fire existed, and the hose was not in actual use at the time of the cutting, would not give a member of that community, whose house should afterwards be burned down, a right of action for damages caused by the destruction of his house, although it might be ever so probable or clear that if the hose had not been cut, its use would have enabled the owner of the house to extinguish the fire and save his property. The damages would in that case be too remote; that is, they would be so remote that other acts or negligences intervening might be chargeable, to some extent, with the disaster ; and courts will not speculate in such cases, in order to determine whether any, or how much, of the damage is due to a particular act complained of.
That the hose was the property of the fire department can1' not affect the question. The plaintiff was in the enjoyment of the use of the hose by the will and authority of the depart-. ment; and the defendants had no more right to deprive him i of that use than if he were the absolute owner of the hose. But besides this, the fire department is a municipal organization to the'services of which every citizen is-entitled, notwithstanding that the members of the department give their services voluntarily. They are vested with many privileges in consideration of the labors and risks they undergo, and their services, so long as they continue members of the department, are matters of duty and obligation, and not naked gratuities. No fireman could destroy, or take up and carry away a hose while it was actually playing upon a burning building, without subjecting himself to civil and perhaps criminal proceedings, if it should appear that the building was destroyed in consequence of his act.
The learned judge, on the trial, disregarded the objection, that the damages alleged to' have been caused by the defendants were too remote, and I refer to the point thus particularly only because the case has been already twice before the
On the question of negligence, I think the learned justice who tried the cause, erred" in- directing the jury to find a verdict for .the defendants. There was testimony that the engineer of the train could plainly see the location of the fire at or about Fifteenth street, a distance of half a mile ; that ah Fifty-ninth street, more than one thousand feet from the loca-* tion of the hóse, he was called to, and saw and heard a fireman shouting to him to stop ; that the train was then almost instantly, by - a reversal of the engine, brought down from a speed of-eighteen or twenty miles to a rate of about four or five miles an hour; that there was a crowd, or number of firemen all along the track in front of the' locomotive ; but that, instead of stopping the train altogether, as some, if not all, of the testimony shows that he might have done before it had reached the hose, he ran' it along the residue of the way smoothly at that rate of four or five "miles an hour until he cut the hose. \
There is no -testimony in the case that does not show that the train could have been stopped on that up grade inside of eight hundred feet; there is. testimony that it could have been stopped within two hundred or three hundred feet; • and there is testimony, as I have already observed, that the engineer was'warned to stop, considerably more than eight hundred feet north' of the hose that was destroyed. The evidence in the case would justify the jury in believing, if so disposed,that the engineer did not, at the time, think it necessary to stop the train absolutely; but that .after reversing the engine, to use a railroad word, he only slowed the train, putting it at a low rate of speed, and expecting to stop if any obstruction appeared, before any damage could be done. In this he was mistaken; and if. the jury should conclude that he acted as is here supposed, the defendants should bear the consequences of his error. With respect to the proof that was given-of what the servants of the- defendants saw, or did not.see of the impending' danger, I will remark, that it is not the fact,
The questions are fairly presented in- this case.
1st. Were the defendants’ servants notified that there was danger in proceeding further ? and
2d. Could they, after such notice, have stopped the train-before reaching the fire hose P
If the jury should find affirmatively upon these questions, and render a verdict for the plaintiff, I do hot believe it could be set aside as against evidence.
I think the corporation ordinance limiting the speed of travel on the streets of the city was properly excluded. The track of the railroad at that point was not at that time one of the streets of the city regulated and thrown open, for public use as a street.
So also there was no error in admitting the deed offered by the defendants. It might have been important for them to show that they were not trespassers in running their cars upon that track. But proof of the defendants’ ownership of the track or way where the hose crossed it, would not affect the plaintiff’s right to recover, if otherwise entitled. The right tot temporarily interrupt travel by running fire hose, when necessary for subduing a fire, across a street or public way - in the city of Kew York, is one that can not he questioned. To deny its existence would be often equivalent to giving over the city to a general conflagration ; and for a private road or street interposed between a hydrant, or other supply of water, and a fire, no greater exemption can be claimed.
Hew trial denied.