Teall v. Barton

40 Barb. 137 | N.Y. Sup. Ct. | 1863

By the Court, Johnson, J.

The evidence in the case seems to be abundantly sufficient to warrant the finding, by the referee, of the fact that the fire was communicated to the plaintiff’s buildings, from the steam dredge of the defendants, and that the defendants, upon the occasion and under the circumstances, were guilty of negligence in the use of the fire upon the dredge, as respects such buildings.

There is no ground furnished by the evidence for claiming that either the plaintiff or his servants, by any act or omission on their part, contributed in any degree to the setting the buildings on fire. They had nothing to do with the production of the fire, or the wind by which it was carried to the buildings, and had no control over either. Notice was given on behalf of the plaintiff, by his agent or servant, to the persons in charge of the fire, of the' danger to the buildings. This was all the plaintiff could do under the circumstances. He had no right to go and extinguish the fire. Certainly, after the notice, if not before, the continuance of the fire, by the defendants, under the circumstances was negligent and wrongful; and it does not lie with them to say that the plaintiff might by constant watchfulness and vigilance have avoided the injurious consequences of their wrongful acts. If he had contributed in any way to setting the buildings on fire, such act, on his part, would have been a complete answer to the action. But nothing of this kind can be pretended. The most that can be said is, that the plaintiff did not exercise the necessary watchfulness and skill to ward off the unlawful blow. And this is no answer, either in bar or in mitigation. It follows that the defendants are liable for all the damages occasioned by the fire, and that the judgment must be affirmed, unless there was "some erroneous ruling on the trial, against the defendants, to which exception was duly taken.

The question to the witness Wright, as to whether he considered it dangerous to use the dredge’ without a spark-catcher, was properly overruled. It was the very issue to be tried and determined by the referee upon all the evidence. This, had it been allowed, would have put the witness in the place of the referee in respect to the very matter to be passed upon. Most clearly it was no question of science, or unusual skill, and did not fall within the rule relating to evidence by experts.

The question to the same witness, whether he had ever known any accident to happen from sparks from a dredge, at the same distance from the dredge, was properly overruled. The evidence proposed by it was wholly irrelevant and immaterial, as it did not embrace all the circumstances and conditions involved in the present case. At, best it would have been the merest negative testimony; and beside, there was no exception to the ruling.

[Monroe General Term, September 7, 1863.

The question to the witness Boundy, whether he knew what boys the plaintiff referred to, was, I think, properly overruled. What persons the plaintiff referred to in his conversation could only be known from what he said. The witness had just stated that in the first conversation the plaintiff “ did not say what boys” he had spoken of. It was in reference to this statement of the witness, that the question was asked whether he knew what boys the plaintiff referred to. It is difficult to see any materiality or pertinency in this inquiry. But if there was, it was manifestly calling for the mere conjecture of the witness, or for an inference which it was the province of the referee alone to draw.

These are the only exceptions now noticed or insisted upon, by the defendants, to the rulings upon the trial, and I think neither of them is well taken.

The judgment must therefore be affirmed.

E. Darwin Smith, J. C. Smith and Johnson, Justices.]