209 A.D. 211 | N.Y. App. Div. | 1924
The plaintiffs had a verdict on the trial of the issue as to whether defendant was negligent in permitting a fire to be communicated from its right of way to the house of the plaintiff Warner. That verdict the learned trial justice has set aside because he was of the opinion “ that the evidence that the fire was caused by defendant’s negligence was insufficient to warrant the submission of that question to the jury.”
Warner was the owner of farm lands adjacent to the defendant’s railroad. The principal buildings were a house and barn, the
There is little dispute in the evidence. A passing locomotive set fire to the grass and weeds on defendant’s right of way at about six-thirty p. m. on December thirteenth. This spread to the lands of Warner. Defendant’s trackmen came about nine o’clock at night to investigate. The fire then appeared to be out. They remained about thirty minutes. The wind was blowing from the direction of the railroad toward the house.
The house had been undergoing repair. Old shingles and other material had been cast into two piles referred to as “ rubbish heaps,” the larger one about six feet southeast and the smaller one from four to six feet directly south of the house. Under a platform at the east end of the house were loose boards and other material. There was a driveway six to eight feet wide about twenty-five feet south of the house.
The trackmen did not observe the rubbish heaps. When they left it had begun to sprinkle. About seven o’clock on the morning of the fourteenth it began to snow. The wind continued to blow hard from the southeast all that day. About nine o’clock that evening a fire was seen on the premises. The first persons there found the large rubbish heap southeast of the house burning. The wind was blowing directly from this rubbish pile toward the house, and the southeast corner was on fire.
Shortly subsequent to the fire the snow on the ground cleared away, and it was discovered that the fire spreading in the dried grass had evidently leaped over intervening spaces, for in different places patches were burned. The small rubbish pile, partly covered with snow at the time of the fire, was charred, indicating that it had been burning at one time, although there was no fire in it the night the house burned. The grass had burned to a point near the driveway, distant about ten to fifteen feet from the small rubbish heap, and fifteen to twenty-five feet from the large one.
On the night of the fire there was a blanket of snow covering the ground. The first persons to arrive at the fire circled the house and found no tracks leading to or going from it. The plaintiff and his family had not been there for about ten days, and matches in the house were kept in an earthen jar. There had been no fire in the house since the preceding August when Warner and his family moved away.
The learned trial justice in his charge submitted the question to the jury as to whether, as plaintiffs claimed, the fire was communicated from the railroad right of way to the grass in Warner’s
The only question here is whether in the absence of direct evidence it was possible for the jury by reasonable inference to reach the conclusion that the proximate cause of the loss was defendant’s negligence in permitting a fire to start along its right of way and spread to Warner’s property.
We are mindful of the rule that inference cannot be based upon inference (Lamb v. Union R. Co., 195 N. Y. 260), and that in order to prove a fact by circumstances there should be positive proof of the facts from which the inference or conclusion is drawn and the circumstances must not be left to rest in conjecture. (Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90.) It would not be enough to show that the destruction of the house might have been caused by the fire originating on defendant’s right of way (Scharff v. Jackson, 216 N. Y. 598); and if there were two possible causes to which the fire might be attributed by fair inference, each equally reasonable, for only one of which defendant is responsible, the defendant may not be held liable. (Searles v. Manhattan R. Co., 101 N. Y. 661; White v. Lehigh Valley R. R. Co., 220 id. 131; Ford v. McAdoo, 231 id. 155.) Where the question is one as to whether or not a person was negligent, it is not always necessary to establish the negligent acts by positive and direct evidence. It is sufficient if certain facts are established and circumstances clearly shown, so that through reasonable inference a logical conclusion. may be reached that injury resulted from negligent acts. (Hart v. Hudson River Bridge Co., 80 N. Y. 622; Chisholm v. State, 141 id. 246.) When one reasonable mind can infer from all the evidence that a controlling fact was proved, while another reasonable mind can infer that it was not proved, a question of fact is presented. (Gordon v. Ashley, 191 N. Y. 186, 193; Conway v. Naylor, 222 id. 437.) It is the province of the jury, not only to pass upon conflicting evidence, but where different inferences may be drawn from the evidence, to draw the inferences. (Powell v. Powell, 71 N. Y. 71; Hudson & M. R. Co. v. Iorio, 239 Fed. Rep. 855; Swiss Bankverein v. Zimmermann, 240 id. 87;
It is only upon rare occasions that any direct proof may be made of the negligence of a railroad company in causing a fire on adjacent property. In the leading reported cases involving such issues, almost invariably the evidence connecting the loss with the railroad company’s negligence is circumstantial. It was left for the jury to draw the inferences of negligence from such facts and circumstances. (Sheldon v. Hudson River R. R. Co., 14 N. Y. 218; Field v. New York Central R. R., 32 id. 339; Peck v. New York Central & H. R. R. R. Co., 165 id. 347; Jacobs v. New York Central & H. R. R. R. Co., 107 App. Div. 134; affd., 186 N. Y. 586; Westfall v. Erie R. Co., 5 Hun, 75; Home Insurance Co. v. Pennsylvania R. R. Co., 11 id. 182.)
The jury had before them evidence that a fire was started and swept toward the house. Sparks had been carried by the wind starting other fires. All apparently died out. Twenty-four hours later in a strong wind blowing toward the house, a fire is again discovered in a rubbish heap a short distance from where the fire was last seen. The house is in flames at the part nearest the burning heap six feet distant. These premises were at the end of a highway so there was no passing traffic. The proof that the house had not been recently occupied and that no one had been there to set a fire, eliminated other possible causes. (Sheldon v. Hudson River R. R. Co., supra, 221.) The jury evidently reached the conclusion that pieces of burning grass or weeds were carried by the wind to the rubbish heaps and there smoldered, eventually to break out again fanned by the strong wind; and that sparks from the larger heap were carried to the house igniting the loose material under the platform. Is this pure conjecture, or may it be fair inference?
That such results would probably occur is established not only by common experience and inferences fairly to be drawn from the evidence, but also by the history of adjudicated cases. (See Martin v. New York, O. & W. R. R. Co., 62 Hun, 181; McDonough v. New York, etc., Co., 124 App. Div. 38; Babbitt v. Erie R. R. Co., 108 id. 74; Smith v. New York Central, etc., Co., 164 id. 421, 423; Union Pacific Ry. Co. v. McCollum, 2 Kan. App. 319; Chicago, St. Louis & Pittsburgh R. Co. v. Williams, 131 Ind. 30; Missouri Pacific Ry. Co. v. Cullers, 81 Tex. 382.)
All concur.
Order reversed on the law, verdict reinstated, and judgment ordered for plaintiffs thereon, with costs.
