#### Garrit S. Mott, plaintiff, *vs.*The Hudson River Railroad Company, defendants.

1. The mere appearance of a fire consuming buildings in the vicinity of, but at some distance from, a railroad track in a city, the display of a red light upon the track, and requests by firemen and others to those in charge of an approaching train, to stop it, without giving notice of any reason for stopping, do not make it the duty of the latter to stop, so as to render the company, to which such railroad belonged, liable in damages to the owner of the burning buildings, for the cutting of hose lying across the track, by the train in passing slowly on, whereby the supply of water to extinguish the fire is cut off.

2. The servants of a railroad company are not bound to stop a train when ordered to do so by strangers without giving a reason.

*5863. Damages caused by the spreading of a fire, in consequence of the defendant’s negligently injuring a hose actually in use in extinguishing it, whereby the only supply of water available for the purpose was stopped, are too remote to sustain an action. White, J. dissented as to each point.

(Before Robertson, White and Barbour, JJ.)

Heard June 9,1863;

decided December 30, 1863.

Exceptions taken on the trial of the cause, and directed by the court to be heard in the first instance at general term, judgment meanwhile to be suspended.

This action was tried, for the second time, on the 6th and 9th of February, 1863, before Justice Monell and a jury. A decision upon a former appeal, after the first trial, is reported 8 *Bosw.*345.

Some buildings belonging to the plaintiff, situated on the southerly side of Fifty-fifth street, and about 250 feet west of the 11th avenue, in the city of Hew York, caught fire early on the morning of the 15th of July, and the firemen of the city were engaged m putting out the fire ; water for extinguishing it being conveyed to the fire engines by a hose attached to a hydrant, several hundred feet distant from the fire, the hose being laid across the track of the Hudson Eiver Eailroad Company, near or just below the southerly line of 55th street. Water could be procured from no other source. The track of the railroad, at this point, was upon the 11th avenue. Between two and three o’clock, A. m., as the firemen were rapidly getting the fire under, an engine and freight train of the defendants’ came down the road from Albany, at its regular time,.and, passing over the fire hose on the track, cut it, and stopped the supply of water for the fire engines. From fifteen to thirty minutes elapsed before the hose could be replaced ; and in the meanwhile the fire had gained fresh head, and destroyed the plaintiff’s buildings. The hose was the property of the fire department of the city of Hew York.

The fire was visible for many miles to the north of it, and its location could be distinctly seen from about. 65th street.

A red signal lantern had been hung in front of a hose cart, standing close by the railroad track near 55th street, the red *587light, or eye of the lantern, being turned up the track towards the train, the track being straight, and the view unobstructed all the way down from between 60th and 59th streets. As the train approached the site of the fire, a fireman, standing on a ledge of rock, close by the track, waved his hat, and halloed to the engineer to “hold on.” The engineer instantly reversed the engine, and whistled to put on the brakes. The speed of the train, after that, was not more than four or five miles an hour. It stopped altogether between 55th and 54th streets. From about 59th or 58th street there were firemen on each side of the track, all the way down, halloing to the engineer to stop. The testimony as to the precise distance at which such warning was given, was conflicting. Much of it went to show that the warning, given by the fireman standing on the ledge of rocks, was given at 59th street. There was proof given that a train could be stopped within a distance of six or eight hundred feet. One witness testified that a freight train could be stopped on an ascending grade inside of three hundred feet. The grade of the railroad at 55th street, and approaching it from the north, ascended towards the south, at the rate of forty-four feet to the mile.

Deeds were introduced by the defendants, proving that the roadway in the 11th avenue, at the vicinity in question, had been conveyed to them by the plaintiff and others for the uses and purposes of a railroad, “subject to all the rights and privileges of the public way,” the 11th avenue not being, at that time, regulated and graded for use as a public street.

After the testimony was closed on both sides, the defendants moved to dismiss the complaint, upon the grounds: 1st. That the damages claimed were too remote. 2d. That the negligence of the fire department, and of the plaintiff, also, contributed to the injury ; and lastly, that there was no evidence of the defendants’ negligence.

The court directed the jury to render a verdict for the defendants; to which direction the plaintiff excepted. The court ordered this and the other exceptions in the case to be *588heard in the first instance at the general term; judgment to he in the meanwhile suspended.

*David Dudley Field,*for the plaintiff.

I. The court erred in excluding the corporation ordinance offered in evidence by the plaintiff, forbidding any vehicle to be driven through any of the streets of Hew York, at a greater speed than six miles an hour."

1. The defendants had shown that they were running at a speed greater than twenty miles an hour, upon the 11th avenue, within the- city of Hew York. Their very ground of. defense was that their speed was so great they could not stop the locomotive in time. If they were committing an unlawful act, they were certainly liable for its consequences, and it was to show that they were committing an unlawful act, that the ordinance was offered. That they were running through the streets of the city appears from the maps and from the corporation ordinance.

2. The evidence was also competent as bearing upon the question of negligence. The negligence of the defendants was directly alleged by the complaint, and denied by the answer, and was thus rendered a material issue in the case.

The ordinance offered by the plaintiff, in prescribing the lawful speed for. vehicles in the streets of the city, defines, in this respect, by a precise measure, the degree of care which the defendants were bound to exercise in running their trains. A violation of a rule thus prescribed by law would plainly be culpable negligence. *(Johnson*v. *Hudson River Railroad Co.*6 *Duer,*635. *S. C.*20 *N. Y. Rep.*75.)

II. The court erred in excluding the questions *“*What were the best brakes in 1857,” and “ How quickly, with ordinary brakes, could a train be stopped.” 1. The defendants were bound to employ all the best modern appliances, and it was, therefore, pertinent to inquire what were the best brakes in use at the time, of the occurrence. It afterwards appeared that the brakes used were only common brakes, and that Creamer’s attachment which was then in use, but which was not used on *589this train, would stop trains one third quicker, and that the company were then using them on passenger and other trains. *(Smith*v. *New York and Harlem Railroad,*19 *N. Y. Rep.*133. *Hegeman*v. *Western Railroad Corp.*3 *Kern.*9.)

III. The plaintiff’s objections to the admission of evidence should have been sustained, and the deed from the Mott heirs, and the deed from Harsen and others, should not have been admitted in evidence.

IV. The direction of the judge to the jury to give a verdict for the defendants, on the ground that there was no evidence of the defendants’ negligence, was wrong.

1. By a perusal of the previous exceptions, it will appear, that the court repeatedly excluded evidence tending to show negligence. After that, this ruling, based on the very idea that no such evidence was produced, was-making a rule work both ways against the plaintiff. But there was quite evidence enough to go to the jury upon the question of negligence, on the case as it stood. When there is a scintilla of evidence on a mooted point, it is the plaintiff’s right to have it passed upon by the jury, even though the court may be convinced that the jury would have decided against him.

2. Upon the whole testimony we have this state of facts : The precise locality of the fire could have been readily ascertained by the engines at Sixty-fifth street; the distance from there to Fifty-fifth street, as shown by the map, and as the court must judicially know, being ten blocks, exceeds 2,700 feet. No effort was made to stop the train, but near Sixtieth street, it was running so slow that a man could overtake it— not more than six miles an hour. A scientific witness says they ought to have stopped within 300 feet, and their own conductor says, that going at eight miles an hour they could have stopped in 600 to 800 feet. Yet they ran six blocks, or over 1600 feet, before they stopped, and they had but four brakemen for all this long train. If there is not sufficient evidence of negligence here to be considered by the jury, then it is hard to conceive of a case where negligence could be estab*590lished, unless it were expressly admitted by the defendant or his servant.

*Thomas M. North,*for the defendants.

I. The defendants did not commit any negligent act, or omit any duty which they owed the plaintiff.

1. They were running their train, as authorized by their charter, upon land purchased by them from the plaintiff for the purpose of a railroad. The land on which the hose was laid was at the time the defendants’ private property. Their title had not been divested, nor had the public acquired any title, nor was this part of the 11th avenue open or graded.

2. The train was passing at the usual time, and had been running at the usual speed till it approached this locality, when it was so reduced as that at 59th street it was only five or six miles an hour.

3. It had an ordinary engine, the ordinary number and kind of cars, and the usual number of brakemen and other employees, and the ordinary appliances for stopping the train; and it is quite uncontradicted that, as soon as the engineman knew of the locality of the fire, or of any necessity for stopping his train, he at once used every means in his power to stop, and brought his train to a stand still, as soon as it was possible for him to do so.

4. Ho principle of law required the defendants to foresee and provide against this casualty. As to their passengers and freight, the rule is of course *different;*but as to the plaintiff, they were not bound to know that the hose was upon the track, nor to give timely notice to their engineman, nor to provide a more powerful head-light, nor extra brakeman, nor patent brakes, nor other means beyond those usual for the management of that train.

II. This action can not be maintained unless the court are prepared to hold that the owner of any premises, through which hose are laid to extinguish fire in an adjoining house, is liable to pay for all losses in the conflagration traceable to his *591negligently interrupting the flow of water through the hose, while doing lawful acts on his own premises.

III. The damages sought to be recovered are too remote. They are neither certain in their nature, nor in the cause from which they proceed. They are not the legal or natural consequences of the acts imputed to the defendant.

1. In cases of *deliberate*or *malicious*wrong, the law affords liberal relief; and in case of mischievous acts injurious to others, the party in the wrong is often made answerable for consequences very remote from the original act.

2. But in cases of tort without aggravation, where the conduct of the defendant can not be considered so morally wrong or grossly negligent as to give a right to exemplary or vindictive damages, the extent of remuneration is restricted to the *immediate*consequence of the act. *(Sedgwick on Damages,*82.)

3. The party complaining in such a case must show that the particular damages in respect of which he proceeds are the *legal*and *natural*consequences of the wrongful act. *(Clark*v. *Brown,*18 *Wend.*213, 229. *Hutchins*v. *Hutchins,*7 *Hill,*104. *Academy of Music*v. *Hackett,*2 *Hilt.*217. *Terwilliger*v. *Wands,*17 *N. Y. Rep.*63. *And see Crain*v. *Petrie,*6 *Hill,*522; *Lamb*v. *Stone,*11 *Pick.*534; *Kennedy*v. *Ray,*22 *Barb.*514; 1 *Chitty Plead.*388; 8 *East,*3; 2 *Taunt.*314; 19 *John.*228 ; 21 *Wend.*342; 16 *N. Y. Rep.*489; *Donnell*v. *Jones,*13 *Ala. R.*490, *quoted in Sedg. on Dam. p.*83; *Anthony*v. *Slaid,*11 *Metc.*290.) See remarks in Sedg. on Dam. pp. 87, 88, on the case of *Dewint*v. *Wiltse,*(9 *Wend.*325.)

IY. After the hose was cut, a part of the property subsequently destroyed (the shingles) might have been removed and saved. It would be unjust to hold the defendants responsible for their being left there to burn up.

Y. The ordinance offered in evidence was properly rejected. *(Brown*v. *Buffalo and State Line Railroad Co.,*22 *N. Y. Rep.*191. *Altreuter*v. *Hudson River Railroad Co.,*2 *E. D. Smith,*151.) This locality was in no sense a street.

YI. Other exceptions to evidence áre also untenable.

*592Robertson, J.

The track where the hose of the fire department received, the injury,, which temporarily prevented the use of water to extinguish the flames in the plaintiff’s build-dings, was the ordinary railroad track of the defendants. The train which injured the.hose arrived at the usual time at which it habitually arrived at such locality; it came down with its ordinary speed; no means were provided beforehand to notify the defendants that their track was occupied in ■ an unusual manner. There is no evidence that such hose .could be seen by the defendants’ employees on such train, more than sixty feet in front of the engine, and the engineer testified he. did not see it. Ho data were furnished, on the trial, rendering it imperative on such employees to know, that such hose, was on the track, even if they knew the exact location of the fire, which was several hundred feet from such track, and they were not bound to infer the existence of the hose from the existence of the fire. The shouting of a fireman within several blocks of the fire, of the danger to the hose, could not have been heard amid the noise. The engineer reversed the engine as soon as he was notified of something wrong, which was within a few blocks of the hose, and all the brakes were immediately applied. The speed of the train had been diminished to that of four or five miles an hour, and it was in process of being stopped altogether when it cut the hose.

Ho effort was made to prevent the consequences of negligence on the part of the defendants, by removing the hose out of the way of the engine, or preventing its being cut by drawing it off into the ditch adjoining the track, by uncoupling the lengths or otherwise, or raising it so as to avoid going under the wheels. *(Chase*v. *N. Y. Central R. R. Co.,*24 *Barb.*273.) The only effort made was to stop the engine by shouting. The defendants’, train was furnished with the ordinary means of stopping it; which were promptly used. Patent brakes (Creamer’s) not then fully tested, were not used. Without notice to the defendants’ employees of the presence of the hose on that occasion, in sufficient time to have stopped the engine going at its ordinary speed before reaching it, they were not respon*593gible for the result. The mere existence of a fire within five or six hundred feet of their track, if its locality could be determined with certainty ten blocks off, was not notice to stop the train; The gradual slackening of speed on . this occasion seems to have been more intended to comply with' the shouting and prevent injury to the crowd, or avoid some unknown danger, than to protect the hose. How a hose carriage with a red lantern suspended behind becomes a signal of danger is not explained. The mere desultory orders of firemen or others to stop a train, did not call upon the engineer to do so, without notice of some danger ; and none was notified; If a *rail-j*road company were bound to stop its trains every time any| one ordered them to do so, without giving any reason, or every/ time there was a fire near its track, its business;, would be\ seriously interrupted.

Knowing -the time of the arrival *of*the train, there was time enough after the arrival of the fire engines,, to have placed sentinels far enough up the line of the road to notify the train of the difficulty in time to stop it. ■

Besides , this, the act of the ’defendants was not the immediate cause of the injury to the plaintiffs; it was only immediately the cause by destroying the instruments used to prevent injury. It is true, they were then actually in use, but the same principle must govern if they were just being prepared to be used or on their way, or even kept in readiness for use. If the hose cart was on its way to the fire and interrupted by illegal obstructions in the street, or injured. by a locomotive, the plaintiffs might have lost’the benefit of it; or if any one negligently lost the key of its house, so/ that it could not be got out in time, or if any one having contracted to repair the hose within a certain time, failed to do it; in all these cases the negligence of the delinquent party might more or less contribute to the result of destroying the plaintiffs’ property, yet as a result of the negligence, the consequences would be too remote to make him liable' for damages. Where there is neither willful mischief, contract or fraud, *(Clark*v. *Brown,*18*Wend. 223, 229 ; Anthony v. Slaid, 11 Metc. 290; Acad*
      *594
      *emy of Music*v. *Hackett,*2 *Hilt.*217;) and even in case of a contract, if there was no fraud, *(Blanchard*v. *Ely,*21 *Wend.*342,) only the immediate consequences are to he compensated for. Besides, the determination of the amount lost hy the defendants’ negligence, would he very vague and speculative. *(Butler*v. *Kent,*19 *John.*223.) A witness on this trial testified that many of the articles might have been saved if they had been carried away.

None of the exceptions to evidence were well taken. The exceptions must be overruled, the motion for a new trial denied with costs, and the defendants allowed to enter judgment.

Barbour, J. concurred in this opinion.

White, *J.*(dissenting.)

Abstractly considered, the act of cutting a fire hose is not tortious or negligent. It may become so when considered in connection with some other fact; such as that it was cut by a stranger and without or against the will of the owner; or, as is charged in this case, that the cutting of it deprived some person of a benefit or advantage, of a value appreciable in money, which he was then lawfully enjoying from its use.

Cutting or destroying fire hose, provided for use by a com- • munity, when no fire existed, and the hose was not in actual use at the time of the cutting, would not give a member of that community, whose house should afterwards be burned down, a right of action for damages caused by the destruction of his house, although it might be ever so probable or clear that if the hose had not been cut, its use would have enabled the owner of the house to extinguish the fire and save his property. The damages would in that case be too *remote;*that is, they would be so remote that other acts or negligences intervening might be chargeable, to some extent, with the disaster ; and courts will not speculate in such cases, in order to determine whether any, or how much, of the damage is due to a particular act complained of.

*595But in the present instance, the hose was actually conveying water upon the plaintiffs’ burning building, and rapidly extinguishing the fire, when it was cut. The plaintiff was instantly deprived by this act of the flow of water upon his house, and the flames that had been going out under the action of the hose, immediately rose and destroyed that and other property owned by him. It would be difficult to state a case of more direct or immediate damage resulting from a specific act: Injuries, for example, sustained by being thrown from a wagon in consequence of the wheel being knocked off by coming in contact with an obstruction negligently left in the carriage way, would seem to be a more remote damage than the one under consideration ; and yet such an injury has never been regarded as too remote to permit the maintenance of an action for damages caused by it.

That the hose was the property of the fire department can1' not affect the question. The plaintiff was in the enjoyment of the use of the hose by the will and authority of the depart-. ment; and the defendants had no more right to deprive him i of that use than if he were the absolute owner of the hose. But besides this, the fire department is a municipal organization to the'services of which every citizen is-entitled, notwithstanding that the members of the department give their services voluntarily. They are vested with many privileges in consideration of the labors and risks they undergo, and their services, so long as they continue members of the department, are matters of duty and obligation, and not naked gratuities. No fireman could destroy, or take up and carry away a hose while it was actually playing upon a burning building, without subjecting himself to civil and perhaps criminal proceedings, if it should appear that the building was destroyed in consequence of his act.

The learned judge, on the trial, disregarded the objection, that the damages alleged to' have been caused by the defendants were too remote, and I refer to the point thus particularly only because the case has been already twice before the *596court upon appeal, and upon each occasion the objection was, to some extent, discussed, but not decided. . .

On the question of negligence, I think the learned justice who tried the cause, erred" in- directing the jury to find a verdict for .the defendants. There was testimony that the engineer of the train could plainly see the location of the fire at or about Fifteenth street, a distance of half a mile ; that ah Fifty-ninth street, more than one thousand feet from the loca-* tion of the hóse, he was called to, and saw and heard a fireman shouting to him to stop ; that the train was then almost instantly, by - a reversal of the engine, brought down from a speed of-eighteen or twenty miles to a rate of about four or five miles an hour; that there was a crowd, or number of firemen all along the track in front of the' locomotive *;*but that, instead of stopping the train altogether, as some, if not all, of the testimony shows that he might have done before it had reached the hose, he ran' it along the residue of the way smoothly at that rate of four or five "miles an hour until he cut the hose. \

There is no -testimony in the case that does not show that the train could have been stopped on that up grade inside of eight hundred feet; there *is.*testimony that it could have been stopped within two hundred or three hundred *feet; •*and there is testimony, as I have already observed, that the engineer was'warned to stop, considerably more than eight hundred feet north' of the hose that was destroyed. The evidence in the case would justify the jury in believing, if so disposed,that the engineer did not, at the time, think it necessary to stop the train absolutely; but that .after reversing the engine, to use a railroad word, he only *slowed*the train, putting it at a low rate of speed, and expecting to stop if any obstruction appeared, before any damage could be done. In this he was mistaken; and if. the jury should conclude that he acted as is here supposed, the defendants should bear the consequences of his error. With respect to the proof that was given-of what the servants of the- defendants saw, or did not.see of the impending' danger, I will remark, that it is not the fact, *597that a "defendant or his servants -mistook, or misapprehended or failed altogether to see certain' appearances or objects, that can excuse him. The true inquiry is, was there any thing that he might have seen, or heard, that would have been sufficient to notify and put him upon his guard against a. near danger ? In cases of this character an engineer or conductor entrusted with so much dangerous power, should be held to the strictest rules in its use and management; and when warned of danger ahead, he should be required to stop his train altogether, and ascertain the nature of the' difficulty in his way.

The questions are fairly presented in- this case.

1st. Were the defendants’ servants notified that there was danger in proceeding further ? and

2d. Could they, after such notice, have stopped the train-before reaching the fire hose P

If the jury should find affirmatively upon these questions, and render a verdict for the plaintiff, I do hot believe it could be set aside as against evidence.

I think the corporation ordinance limiting the speed of travel on the streets of the city was properly excluded. The track of the railroad at that point was not at that time one of the streets of the city regulated and thrown open, for public use as a street.

So also there was no error in admitting the deed offered by the defendants. It might have been important for them to show that they were not trespassers in running their cars upon that track. But proof of the defendants’ ownership of the track or way where the hose crossed it, would not affect the plaintiff’s right to recover, if otherwise entitled. The right tot temporarily interrupt travel by running fire hose, when necessary for subduing a fire, across a street or public way - in the city of Kew York, is one that can not he questioned. To deny its existence would be often equivalent to giving over the city to a general conflagration ; and for a private road or street interposed between a hydrant, or other supply of water, and a fire, no greater exemption can be claimed.

*598In my opinion, upon the ground that there was sufficient testimony in the case to require that it should be submitted to, and passed upon by the jury, a new trial should he ordered, with costs to abide the event.

Hew trial denied.