The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
■ The action was brought to recover damages for the destruction by fire of a quantity of railroad ties, alleged to have been caused by the negligence of the defendant. The ties were piled upon the defendant’s right of way, near its tracks. There was a lot of rubbish about the ties and along the tracks. It was a dry time. Sparks or coals from a passing engine fell in the rubbish, kindled a fire and the ties were consumed. The defendant claims it was not liable to the respondent in damages, for two reasons: First. The plaintiff was a mere licensee as to the ties upon defendant’s right of way, and the defendant was not, therefore, liable for setting tlie fire resulting in their destruction. Second. The plaintiff was not free from contributory negligence. He assumed the risk.
The evidence shows that the plaintiff had been accustomed to pile ties at the place in question for many years while the New York, Lake Erie and Western Railroad Company was operating the railroad. Some were sold to that company and some were sold and shipped to other companies. That company went into the hands of receivers July 25, 1893, and sometime thereafter the railroad passed into the custody of the defendant, by whom it was being operated at the time the fire occurred, October 6, 1897. No ties were sold to the receivers or to the defendant after the railroad came under their control respectively. The ties in question had been where they were for at least two years. They were not there at the time of the fire for shipment over defendant’s road. The defendant had no interest in their being upon its right of way, but permitted them to be there solely for the accommodation of the plaintiff. As to the ties at the time of the fire, the plaintiff was merely a licensee. The defendant as to him had, therefore, no duty imposed upon it of active vigilance to protect the ties from destruction by fire kindled by its passing locomotives. It would only be liable in case the fire was kindled willfully or wantonly. (Larmore v. Crown Point Iron Company, 101 N. Y. 391; Splittorf v. State of New York, 108 id. 205; Walsh v. Fitchburg R. R. Co., 145 id. 301; Cusick v. Adams, 115 id. 55.) The fire was neither willful noy wanton. It was at most merely negligent. The specific ground
We do not think any duty was imposed upon the defendant, so far as the plaintiff was concerned, to remove the grass any more than the other old dry rubbish, so as .to protect the plaintiff’s property from danger of fire, or that the failure to so remove the grass constituted negligence rendering the defendant liable for damages for the destruction of the ties. Plaintiff assumed the risk of using the right of way as it was, or was guilty of contributory negligence in not removing the dry rubbish and grass or his ties, ■and could not, having failed to perform his duty in this respect, call upon the defendant to pay him for his ties.
The court submitted this question to the jury as one of assumed risk, and in the course of the charge said: “ The plaintiff owed himself a duty with respect to his property, and if the plaintiff delivered his property and piled it up upon the lands of the railroad company, with a knowledge of the situation, or if knowledge came to him of the situation and perilous condition of his property, then he had no legal right to allow it to remain subject to the danger of destruction. * * * The evidence upon' the part of the plaintiff is that he knew that this land where his ties were piled was low and swampy ; that grass had grown there from year to year and that sometimes it had been cut. He knew that bark was peeled from ties or from posts and that chips had been made by the railroad company in the building or
We cannot assent to the proposition that any right, of action was •established by the evidence in the case. The defendant raised the question fairly in its motions for a nonsuit and its motion for a new trial upon the minutes.
The judgment and order must, therefore, be reversed and new trial granted, with costs to the appellant to abide the event.
Adams, P. J., Speing and Hiscock, JJ., concurred ; McLennan, -J., dissented in an opinion.