#### Charles M. Higgins, Respondent, *v.*The Long Island Railroad Company, Appellant.

Second Department,

December 30, 1908.

Evidence — destruction of woodlands by sparks from locomotives — proof that locomotives habitually emitted sparks — failure to remove inflammable material from right of way — res inter alios acta.

In an action to recover damages for injuries to-woodlands caused by fire alleged to have been started by the defendant’s locomotives, evidence that the locomotives generally emitted live cinders at the locality large enough to cause such fire,, is admissible. The proof should not be confined to the emission of sparks by the particular engine which passed shortly before the discovery of the fire.

So, too, the plaintiff may prove that inflammable vegetation was standing uncut or lying cut along the defendant’s right of way, and the length of time it had been there.

But it is error to admit evidence that previous fires had occurred on the lands of other owners in the vicinity, in the absence of evidence excluding other causes for the fires-.

Although section 228 of the Forest, Fish and Game Law requires railroads passing through “ forest lands, or lands subject to fires from any cause ” to remove inflammable material from,their right'of way twice a year, the statute is not admissible to show that the plaintiff’s lands were “subject to fires,” and that, therefore, the defendant had violated the statute in not clearing its right of way every six months.

*416Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 1st day of February, 1908, upon the verdict of a jury for $2,400, and also from an order entered in said clerk’s office on the 8th day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes.

The action was to recover damages for injuries to the plaintiff’s woodland by fire caused by the engines of the defendant.

*William C. Beecher [Joseph F. Feany*with him on the brief], for the appellant.

*Charles M. Stafford,*for the respondent.

Per Curiam:

The fire started in the dry standing grass, brush and weeds in the defendant’s right of way, and spread to adjoining lands, including the plaintiff’s. It was discovered in the forenoon shortly after the 11 o’clock passenger train went by, but it may have caught from an earlier train. This might be inferred from its considerable extent and headway when discovered. A large number of trains passed daily. The evidence that the locomotives of the defendant generally, habitually emitted live cinders at this place large enough to cause such a fire was properly admitted. Cohpled with the facts showing that there was no other present cause for the fire, it was inferable that such cinders caused the fire. They were cast out there regularly, were apt to cause the fire, and in the absence of any other cause, could be found to be the cause. The contention that the evidence should have been confined to the engine of the 11 o’clock train is without basis. It was also proper to prove not only that inflammable grass, weeds and brush were standing uncut, or lying cut, along the defendant’s right of way, but also the length of time they had been there, for the longer the more negligent and the worse for the defendant. It should not leave material in its right of way which is apt to take fire from its engines. But the learned trial Judge erred in finally yielding to the persistent efforts of the plaintiff’s counsel to prove previous fires on lands of different persons along the defendants right of way in the neighborhood of *417the plaintiff. A considerable number of such fires earlier in the. year and during several previous years was proved by the plaintiff. This evidence was harmful to the defendant, for it suggested the inference that the defendant caused the said fires, although there was no evidence to exclude other causes, and it may be that some of them were not caused by the defendant. The Forest, Fish and Game Law requires that every railroad company shall twice a year cut and remove from its right of way passing through “ forest lands or lands subject to fires from any cause ”, *“*all grass, brush and other inflammable materials ”, under a prescribed penalty (§ 228). This evidence was pressed upon and admitted by the court as showing that the lands were “ subject to fires ”, and that therefore the defendant violated the statute in not clearing its right of way every six months. The land of the plaintiff which was burned over was, like that in the neighborhood, partly woodland, but not a forest. That word has a large and significant, not an insignificant, meaning. It is not necessary to show that there have been fires on land to show that it is *“*subject to fires ”. The kind of growth and material on it determines that. Although it was indisputable that the land of the plaintiff and that in his neighborhood was liable to take fire, and counsel for the defendant admitted that to be so, this evidence was nevertheless pressed in ostensibly to prove that fact. We cannot regard it as harmless. It would naturally affect any mind unfavorably to the defendant, and may well have affected the minds of intelligent and fit jurymen in that way, however unconsciously. The cases cited by the plaintiff’s counsel have nothing to do with the admission of such evidence, but only with the admission of evidence of the general flying of five coals and cinders from the defendant’s engines, as showing that a proper spark arrester was not used, and to show that such coáls and cinders flew far enough to reach the plaintiff’s premises *(Sheldon*v. *H. R. R. R. Co.,*14 N. Y. 218; *Crist*v. *Erie R. Co.,*58 id. 638; *Jacobs*v. *N. Y. C. & H. R. R. R. Co.,*107 App. Div. 134).

The judgment and order should be reversed.

Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.