The plaintiff has recovered damages against the defendant for causing the death of her son and intestate on the 15th of October, 1889. The deceased was at work in one of the mills of the Schaghticoke Powder Company, which was blown up, as is claimed, by a spark from one of the defendant's engines, thus causing his death. The mill in which the deceased was at work was situated on the northerly bank of the Hoosick river and about one hundred and ninety-five feet from the track of the defendant's road. The testimony tended to show that a freight train, composed of some twenty-two cars, was approaching in the direction of the mill, laboring hard upon an ascending grade, the stack of the engine emitting volumes of black smoke, which was carried by the wind towards the mill, over and around which it settled in what is described as a dense mass. When the train reached a point opposite the mill an explosion took place which utterly destroyed the building and plaintiff's intestate was instantly killed. The fact that the fire was communicated from the defendant's engine to the mill rests wholly upon circumstantial evidence, but it was of such a character as to warrant the jury in finding that the explosion was produced by sparks from the defendant's engine. It was shown that the train was laboring against an ascending grade of about thirty feet to the mile, requiring the frequent use of fresh coal, which was applied by the fireman, in order to furnish the necessary steam, the emission of thick smoke from the stack in unusual quantities was described, the direction of the wind was favorable, and when the smoke was seen to settle over the mill the explosion took place, and no other cause for the accident was discernible or even suggested. The screen *Page 316 of the smoke stack was so constructed as to emit sparks and burning coals of considerable size which could have reached the building from the engine through the wind and smoke.
It is sufficient to say, without further reference to the testimony on this branch of the case, that the origin of the fire which produced the explosion presented a fair question of fact for the jury upon all the facts and circumstances of the case, and we are concluded by the finding and must assume, as the jury have found, that the explosion was caused by a spark from the defendant's engine. But the defendant was engaged in using fire to propel cars by steam, under the sanction and authority of law, and it is not liable for any damage resulting from its use unless it was guilty of negligence. It was the duty of the defendant to use every reasonable precaution to prevent the injury, and unless we can say, as matter of law, upon the evidence, that it has performed this duty, then the verdict must stand.
The defendant was intrusted by the legislature with an agent for propelling its trains of an extremely dangerous character, and the law imposes upon it the duty of observing due care which must always be measured by the degree of danger or the risk incident to the exercise of its powers. When it neglects or fails to adopt and use such precautions as may reasonably be expected, under all the circumstances, to prevent injury to the person or to the property of others, it becomes liable for the resulting damages.
It is urged in behalf of the plaintiff that the engine which the defendant used on the occasion, and which produced the accident, was so constructed as not to properly guard and control the sparks and cinders arising from the fires, and in this respect it omitted to perform the duty which the law imposed upon it of adopting every reasonable precaution against injury. The engine was what is known as the diamond stack engine, which is so constructed that the particles of burning coal, set free from the mass, are driven by the air and the power of the exhaust steam against the netting or screen, upon the top of the smoke stack, until eventually they are forced into the *Page 317 air, and in this way coals and sparks of sufficient size to communicate fire to combustible matter in the vicinity, are frequently emitted from the engine. At the time of this accident there had been another engine in general and common use upon railroads known as the extension front engine, which was so constructed that no particle of burning coal or other fire is driven in the first instance against the netting, but against a metallic diaphragm in front of the fire, and never comes within the sweep of the exhaust steam, but falls into a vault or box at the foot of the stack, from which it is removed as occasion may require. There can be no doubt upon the evidence that by the use of this class of engines upon railroads the danger of communicating fire to buildings or property in the vicinity is very materially diminished. The evidence tended to show that these engines had been in general use since 1879 at least, by the great railroads of the country, and that the diamond stack engines were turned into use in the yards as shifters. That the defendant had in use eight or ten of the former at the time of the accident, as against about twenty-five of the latter. The extension front not only greatly diminished the risk of fires, but it saved fuel, so that in the end it might be economy to adopt them. Assuming that the engine which the defendant had in use on the occasion of this accident was, when first adopted, suitable for the purpose or at least as safe as any then in use, the question arises with respect to its duty to the public to adopt safer and better appliances as they came into general use from time to time. The duty which the defendant owed to the public could not be discharged by adopting the new and safer appliances only when and as fast as the old and defective ones became worn out or otherwise useless. A railroad corporation, charged with such important duties to the public, does not exercise that degree of prudence and reasonable care which the law imposes upon it, for the protection of life and property, unless, in its appliances and mode of operation, it keeps pace with human progress, and brings to its aid in every proper and reasonable way the improvements which science *Page 318 and human invention have placed within its reach. When new methods of preventing or minimizing the danger have been introduced, and are in general use for a reasonable time, prudent management and reasonable care require the corporation to take notice of that fact, and its use thereafter of old, inferior or defective appliances may constitute evidence of negligence.
The measure of duty imposed by the law upon the defendant was thus stated by Judge FOLGER in Steinweg v. Erie Railway (43 N.Y. 123): "The rule of law is that the appellant was guilty of negligence if it adopted not the most approved modes of construction of machinery in known use in the business, and the best precautions in known practical use for securing safety. If there was known and in use any apparatus which, applied to an engine, would enable it to consume its own sparks, and thus prevent the emission of them to the consequent ignition of combustible property in the appellant's charge, it is negligent if it did not avail itself of such apparatus. But it was not bound to use every possible invention which the highest scientific skill might have suggested, nor to adopt an untried machine or mode of construction."
In that case, goods intrusted to the railroad, as a common carrier, were destroyed by fire communicated by a spark from the engine. The contract under which the corporation undertook to transport the property released it "from damage or loss to any article from or by fire or explosion of any kind." The court held, however, that this did not exempt the carrier from liability for loss by fire caused by its own negligence. The case turned, not upon any peculiar duty or obligation resting upon the railroad, or growing out of its contract, as a common carrier, but solely upon the question of negligence in omitting to adopt any known appliances in practical use which would enable an engine to consume its own sparks. The defendant in that case had been released from the special and peculiar obligations of a common carrier, and its liability for the destruction of the goods left to depend upon proof of its *Page 319 neglect to perform the general duty which it owed to the whole public of providing reasonably safe appliances for the conduct of its business. The principle, therefore, applies to the case at bar, and it has been applied in other cases where recoveries have been had against railroads for causing fires upon lands, or to buildings, fences and property of a like character upon the line of its operation by means of sparks or burning coals emitted from engines. (Freemantle v. London N.W.R., 10 C.B. [N.S.] 89;Crist v. Erie Railway Co., 58 N.Y. 638; Bedell v. L.I.R.R.Co., 44 id. 367; Webb v. R., W. O.R.R. Co., 49 id. 420;Searles v. Manhattan Railway Co., 101 id. 661; O'Neill v.N.Y., O. W.R. Co., 115 id. 579; Flinn v. N.Y.C. H.R.R.R.Co., 67 Hun, 631; Bevier v. D. H.C. Co., 13 id. 254.)
In Searles v. Manhattan Railway Co. (supra), the plaintiff recovered for an injury to his eye caused by a hot cinder which fell from one of the defendant's locomotives. The judgment was reversed in this court upon the opinion of Judge EARL, for the reason stated that "the undisputed evidence shows that all the appliances used upon the defendant's locomotives to prevent the escape of sparks and cinders were skillfully made and were the best known," thus recognizing the principle. InO'Neill v. N.Y., O. W. Railway Co. (supra), the plaintiff recovered damages caused by sparks communicated to woodlands from the defendant's engines. The judgment was affirmed in this court. One of the questions submitted to the jury was "whether the engine was supplied with the most approved method of arresting sparks in known use." The liability of the defendant in case it was not was conceded in the motion for a non-suit and in the disposition made of the case in this court. In all these cases the proof with respect to negligence was much weaker, in my opinion, than that presented by this record.
A railroad company, in the construction and equipment of its engines, is bound not only to employ all due care and skill for the prevention of injury to the person or property of *Page 320 others by the emission of sparks, burning cinders or other cause, but it must avail itself of all discoveries which science or invention has placed within its reach for that purpose, provided they are such as, under the circumstances, it is reasonable to require it to adopt. But when the dangers to be avoided are insignificant, or not very likely to occur, and the remedy suggested very costly and troublesome, or such as interferes materially with the efficient working of the engine, it becomes a question for the jury whether, under all the circumstances, the company could reasonably be expected to adopt it. (Am. Eng. Ency. of Law, vol. 8, p. 3, 4.)
In this case the learned trial judge submitted two questions to the jury. First, whether from the testimony the explosion was produced by sparks or burning cinders from defendant's engine entering the building through an open door or window and coming in contact with the powder, and, secondly, whether the defendant exercised due care and caution in running its trains with an engine so constructed as to emit sparks, when a better and safer one was attainable and in general use, not only upon its own road but others generally throughout the country. On the last question the jury were instructed that the defendant was not bound to use such appliances as the highest scientific skill can devise, yet it was bound to use such approved methods as had been adopted in the business, which were reasonably attainable by the company and in general use, as to afford proper security to the lives and property of others. The jury were fully informed by the proofs as to the comparative merits and safety of the two engines, the danger of communicating fire to combustible matter on the line of the road, the time that the extension front engine had been in general use, the saving in the use of fuel and the additional expense involved in the change. In this state of the case the question whether the defendant did or did not perform the duty imposed upon it was not a question of law but one of fact for the jury, and as it has been determined upon sufficient evidence in favor of the plaintiff this court cannot disturb the verdict. The other exceptions in the record have been *Page 321 examined, and as they do not disclose any legal error the judgment should be affirmed.
FINCH and GRAY, JJ., concur with EARL, J., for reversal. PECKHAM, J., concurs with EARL, J., on second ground, and dissents from first ground of opinion.
ANDREWS, Ch. J., and MAYNARD, J., concur with O'BRIEN, J., for affirmance.
Judgment reversed.