#### MILLER v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

Railroad Companies—Fires—Proof of Negligence.

Where the complaint in an action against a railroad company tor fire set by its engines contained two counts, each charging a separate fire, and there was no evidence that the engines were not properly constructed, and, on the occasion of the fire charged in the second count, there was no wind and no fire on defendant’s land, it was error to submit to the jury the question of whether, on both occasions, defendant was negligent in cleaning its fire pan, it not appearing that, at the time of the second fire, defendant’s fireman did anything not necessary for the proper running of the engine.

Appeal from circuit court, Onondaga county.

Action by William Miller against the New York Central & Hudson River Railroad Company for damages from fire set by defendant’s engine. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

Reversed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

George Doheny, for appellant.

William Kennedy, for respondent.

MERWIN, J.

The plaintiff owned lands adjoining the track of defendant in the town of Manlius. Upon two occasions—one on or about June 11, 1891, and the other on or about July 24, 1893—his premises were injured by fire. There is evidence tending to show that the fire was in some way communicated to the land from the engine or train of defendant as it passed along on either occasion. The defendant claims that no negligence on its part was shown, causing the injury. Concededly it was incumbent upon the plaintiff to show such negligence. The negligence charged in each count of the complaint is that the engine was sp improperly constructed that sparks and coals of an unusual and extraordinary size and character were emitted therefrom, which communicated fire to plaintiff’s premises and caused the injury. The court, at the request of the defendant, charged the jury that there was no evidence in the case that the engine was not perfect in all its parts. The court, however, left it to the jury to say whether the defendant was negligent in cleaning its fire pan at the times in question, and whether or not that negligence caused the fire. There was no fire on the railroad land, and upon the second occasion, as the court charged, there was no wind. Upon the first occasion there was a strong wind, and it might be argued that, as the fireman (as the plaintiff testifies) poked or raked the fire, it was blown to some extent on the plaintiff’s premises. But on the second occasion, there being no wind, and no evidence that anything the fireman did was not necessary to the proper running of the train, and no fire being left on the railroad land, and the engine being in perfect order, it is difficult to see on what basis negligence can be predicated.

Upon the theory the case was sent to the jury, the verdict must stand, if it stands at all, on the proposition that the fireman was *720negligent in his management of the fire, thereby throwing, in some-unexplained way, coals from the fire pan to the plaintiff’s land. The evidence does not authorize the conclusion that the fire was caused in this way, at least so far as the second and main cause of action is-concerned. It may be, as alleged in' the complaint, that sparks emitted from the engine were thrown upon the plaintiff’s premises and caused the fire. But if, as we must assume here, the engine was perfect, that would not of itself establish negligence. McCaig v. Railway Co., 8 Hun, 600; Frier v. President, etc., 86 Hun, 464, 33 N. Y. Supp. 886. We are referred by the plaintiff to cases where it is said that sparks or coals may be thrown of such unusual size as to indicate, prima facie, some defect in the engine. They do not apply here, as this case was sent to the jury on the theory that the engine was perfect. As the case stands, there should, we think, be a new trial.

Judgment and order reversed, and a new trial ordered; costs to abide the event. All concur.