Weeks v. Erie R.R. Co.

Full title: EMILY A. WEEKS, Appellant, v . ERIE RAILROAD COMPANY, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 1, 1901

57 App. Div. 192 (N.Y. App. Div. 1901)

68 N.Y.S. 182

Opinion

January Term, 1901.

Charles G. Cronin, for the appellant.

Henry Bacon, for the respondent.

JENKS, J.:

This is an action brought to recover damages for the negligence of the defendant in kindling fires on the plaintiff's lands by casting sparks thereon. I think that the learned trial justice rightly dismissed the complaint at the close of the plaintiff's evidence for the reason that no negligence on the part of the defendant was shown. One witness testified that he "heard the engine going up the track; heard the cars going up the track; they were throwing sparks * * * the sparks were flying up in the air from the engine and flying over — on the farm." On cross-examination he testified: "I did see the engine. * * * It was a freight engine. * * * There is a little bit of a curve at that point where these cars go around. And engines pull hard up there. Labor and make a good deal of noise. I have seen other engines throwing sparks there. Freight engines particularly, when going westward." This is all of the testimony bearing upon the alleged negligence of the defendant in casting the sparks. In Frace v. N.Y., L.E. W.R.R. Co. ( 143 N.Y. 182) the court held that it could take judicial notice of the fact that no system yet invented can wholly prevent the emission of live sparks from an engine under certain conditions. It did not appear in this case that the emission of the sparks in question was peculiar to that engine or that such emission was in unusual quantities, but, on the contrary, it was shown that other and similar engines, at the same place, "pull hard up there. Labor and make a good deal of noise," and throw sparks. This was plainly insufficient to make out a prima facie case against the defendant. ( Flinn v. N.Y.C. H.R.R.R. Co., 142 N.Y. 11, 19, 20; Rood v. New York Erie R.R. Co., 18 Barb. 80, 86, 87; Van Nostrand v. N.Y., L.E. W.R.R. Co., 78 Hun, 549; Dougherty v. King, 22 App. Div. 610.)

The judgment must be affirmed, with costs.

All concurred, except HIRSCHBERG, J., not sitting.

Judgment unanimously affirmed, with costs.