Hogle v. New York Central & Hudson River Railroad

By the Court :

The court was requested by the defendant to charge that when the paintiff discovered the fire, if he neglected to use reasonably practicable means to suppress it, he could not recover for subsequent damages. The court refused, holding that as the plaintiff was not at fault in the origin of the fire, he was not bound to make any effort to suppress it. We think that this was erroneous. Let us suppose that the plaintiff has seen a little spark of fire beginning to spread among dry leaves; that he could have put it out with a stamp of his foot; but that he knowingly neglected to do this, and thus permitted the fire to extend until it destroyed several acres of his woods. Would it be just that he should make the defendant pay all tbe damages lie had suffered ? Clearly not. It may be that he would not be bound to use every possible effort to suppress the fire. But the language of the request was well chosen. He should do what was reasonably practicable. To say that he need not do what he reasonably could to suppress the fire is not very far from saying that he might do what he could to increase it. The wrong done by the defendant was not intentional. And if it were in the plaintiff’s power, by reasonable efforts, to prevent the increase of the wrong, he should use that power. (Bevier v. D. cmd H. C. Co., 13 Hun, 254; Milton v. Hudson R. Steamboat Co., 37 N. Y., 214)

This is analogous to the rule which requires the innocent party to a broken contract of , hire of services to earn what he can in other ways, and thus dimmish the damages.to be paid by the other party.

The judgment must be reversed and a new trial granted, costs to abide the event.

Present — Learned, P. J., Bockes and Boardman, JJ.

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