The action was brought in a justice’s court, to recover the value of a quantity of corn stalks belonging to the plaintiff, and standing upon his land, adjoining the defendant’s railroad track, and which were destoyed by fire from sparks falling directly upon them from a passing locomotive engine of the defendant.
The defendant, upon the trial, admitted the cause of the injury to be as above stated, and the value of the property desrtoyed to have been of the amount found by the justice as damages. The judgment of the justice was affirmed by the county court.
The defendant’s counsel insists that the judgment, both of the county court and of the justice, is erroneous, and should be reversed, for the reason that it was not shown affirmatively, .upon the trial, by the plaintiff, that the defendant’s engine, from which the sparks came at the time of the injury, had not then the most suitable and approved spark arrester upon it, nor that it was out of repair.
But this was proof for the defendant to give. When it was made to appear that the injury was caused by sparks flying directly from the engine, and alighting on the property, the burden was upon the defendant, of showing that the engine was in perfect condition, with the most approved apparatus for arresting sparks, and that such apparatus was in good order at the time. (Field v. The New York Central Railroad, 32 N. Y. 339.) This proof the *651defendant undertook to make, but failed to make entirely. It was unable to show which of its numerous engines caused the injury, and of course could not prove affirmatively what the condition of that particular engine was, on that occasion. Nor was it able to show, satisfactorily, that all its engines were, at all times, in perfect condition in these respects, though it undertook to make such proof. The case stood before the justice, therefore, upon the legal presumption that the engine which caused the injury was not in the proper condition ; and the judgment was right. The judgment must, therefore, be affirmed.
[Fourth Department, General Term, at Buffalo, June 5, 1871.Millin, P. J., and Johnson and Talcott, Justices.]