29 N.Y.S. 625 | N.Y. Sup. Ct. | 1894
The action was to recover damages for the burning of a sawmill and appurtenant buildings of the plain (iff, caused, as alleged, by fire communicated by sparks from a locomotive engine of the defendant. There was but one engine in question, which
This is the case, pro and con, upon the question of the defendant’s negligence, viz. in respect to the repairs of the spark arrester of the engine of the defendant which passed the plaintiff’s buildings a little time before they were discovered to be on fire. We are of opinion that it fails to present a preponderance of evidence in support of the allegation of the plaintiff in this respect. The fact that the fire was discovered shortly after the passing of the plaintiff’s buildings by the engine in question would bear only remotely upon the question of the defendant’s negligence, for, even if the fact was established that the fire was set by sparks from the engine, it must be further shown that those sparks were such as could not pass through the meshes of a spark arrester of approved construction and in perfect repair. In Searles v. Railway Co., 101 N. Y. 661, 5 N. E. 66, the court, by Earl, J., remarks that “the mere proof of the escape of cinders was not sufficient” to show that the spark arrester was defective, “as the evidence showed that their escape could not be avoided, and was inevitable.” In this case, the court was requested to instruct the jury, in substance, that, even if the fire was caused by sparks which passed through the netting when in good repair, then it was an accident for which the defendant was not liable; to which the court responded: “I think I will charge that.” The defendant was unquestionably entitled to the instruction, and it was no doubt the intention of the court to give the defendant the benefit of such instruction, although from what subsequently occurred there is some reason to suppose that the court was not fully understood to that effect, because, after the jury had been out all night, they came in for further instructions, and propounded to the court the following question: “In case we find that the mill was burned by sparks from the railroad company’s engine, and further find that the spark arrester was in good and sufficient working order, can we give a judgment?” It is plain that this question was fully answered by the instruction above asked for by the defendant, and which the court evidently intended to give to the jury; also, that a categorical answer to the question as now propounded required the court to say that, in the case supposed,