Babcock v. Fitchburg Railroad , 67 Hun 469 ( 1893 )

MAYHAM, P. J.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff. The action was for the alleged negligence of the defendant in the use of a locomotive engine upon its railroad, from which sparks were emitted, which it is alleged ignited powder in a powder mill, in which plaintiff’s intestate was employed, thereby causing his death. This case was before this court at a former term on an appeal from a judgment entered upon an order of the trial judge dismissing the plaintiff’s complaint. 19 N. Y. Supp. 774. The evidence on that appeal is, so far as we can discover, in all respects like that contained' in the record on this appeal, and this court then reversed the judgment, and ordered a new trial, on the ground that there were two questions of fact which should have been submitted to the jury; one whether the spark arrester on the smokestack of the defendant’s locomotive-employed in drawing the train of cars up the grade past the powder mill where plaintiff’s intestate was employed was reasonably safe and suitable for the use to which it was applied, and whether there was not another and more safe smokestack and spark arrester, disclosed by the evidence to be in use by railroad companies, and which the defendant, in the exercise of reasonable care, could and should have used, and thus minimize the danger to combustible material along its railroad. The other question for the jury was whether the spark from defendant’s locomotive ignited the powder and thus produced the explosion, which caused the death of plaintiff’s intestate. This court then adopted and applied to this case the rule laid down by the court of appeals in the case of Steinweg v. Railway Co., 43 N. Y. 123. It is now urged by the appellant that this court misconceived the effect of that decision, and that,, as in that case, contractual relations existed between the plaintiff and defendant. The defendant owed a higher duty to the plaintiff1 to adopt, the best and safest machinery and appliances reasonably attainable than was required of the defendant in this case towards the plaintiff’s intestate. No authority is cited by the learned counsel for the appellant to-sustain that proposition. While it is true that the case of Steinweg v. Railway Co. was one between consignor and carrier, yet the cases referred to by Folger, J., in delivering the opinion were those arising between railroad companies and strangers whose property was damaged by fire dropped from a locomotive. Field v. Railroad Co., 32 N. Y. 346. Nor do we see how the contractual relation between a bailor and carrier increases the obligation of the carriers beyond that which they owe to the general public to guard against damage by fire. A carrier is liable for loss by negligence; not by virtue of any contract against negligence. Insurance Co. v. McLoon, 48 Barb. 27. In the absence of authority to the contrary, we see no reason for holding a railroad company to a greater degree of care in furnishing safeguards against the escape of fire to the injury of its patrons, than they should exercise towards the public, whose lives and property are equally exposed to injury from its negligent escape. On the question as to the origin of the fire which produced the explosion the jury found with the plaintiff, and we think their finding cannot be disturbed as unsupported by evidence. The question of negligence of the defendant in the case under consideration was one clearly raised by the evidence, and fairly submitted by the learned trial judge to the jury, and we see no error committed by him either in the reception or rejection of evidence, or in his charge or refusals to charge. Nor ■was his refusal to set aside the verdict on the motion of the defendant error. The judgment and order must therefore be affirmed, with costs.

PUTNAM, J., concurs in result. HERRICK, J., concurs.