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 *544of negligence alleged was not that rubbish had been allowed to ■accumulate and remain upon defendant’s right of way about the ties for thirty or forty years and long grass to grow up there each yéar ■and be ont down. All these things the plaintiff had knowledge of, ■and, being a mere licensee, he could not complain that these conditions existed.. If he did not desire to take the risk of fire from the presence of these things he should have removed the grass and rubbish himself or have taken away his ties. He could not, as a. mere licensee, require the defendant to improve the condition of the premises he was permitted to use without compensation. The -specific ground of negligence was that the defendant permitted the long grass, cut the year of and before the fire, to remain upon the ground and become dry, so that the sparks or coals from the engine kindled the fire in this as well as the other old dry rubbish that had laid upon the ground about the ties during all the time the ties had laid there.
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 *545construction of fences, and lie testified, upon cross-examination, how long lie had known of that situation ; he said thirty or forty years, as long as the road had been in operation, he had observed it, and he testified he passed there at least once a week right up to the time of the happening of the fire out of which this action arises, -x- * * The plaintiff knew that the defendant was running trains ■over its road as well as the defendant knew it. He knew of the •danger that might result from running and operating trains there as well as the defendant,” and although these things were true, the -court still left it as a question of fact for the jury, whether the plaintiff assumed the risk of destruction of his property by putting .it upon defendant’s right of way and leaving it there and making no effort himself to clear away the rubbish in which the fire •caught or to remove his ties,'and whether the defendant was guilty •of negligence in leaving the rubbish there which rendered it liable to the plaintiff for the damages sustained by him. The jury found in both questions in favor of the plaintiff, although the plaintiff was fully aware of the situation and the danger connected with allowing his property to remain in that situatiop, though he was but a mere licensee and paid the defendant nothing for delivering or storing his property on its right of way, and it had no interest whatever in his keeping it there.
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.