The motion for a nonsuit was properly denied. It is conceded by the defendant, and it is within the knowledge of all intelligent and observing men, that a locomotive engine can now be so constructed and run at the usual and ordinary rate of spegd as not to scatter live coals and cinders of dangerous size or quantity. It is claimed, however, that the mere escape of burning coal from the fire-box, fire-pan, or smoke-stack is not sufficient evidence of negligence on the part of the defendant. This may be conceded. The plaintiff does not rely upon that fact alone. McCaig v. Railroad Co., 8 Hun, 599. The defendant’s negligence did not consist in that fact merely. The act of the negligence was made up of all the facts and circumstances existing when the coals escaped. The dryness of the atmosphere and of the earth, and of all the matter that was on the defendant’s premises at that place; the blowing of the wind, and the strength of it, and the direction from which it came; the accumulations of the weeds, grass, and rubbish by the side of the defendant’s track, between it and the plaintiff’s lauds,—were all the constituents of the act of the defendant, and went together to make it negligence. This case is controlled by Webb's Case, 49 N. Y. 420, (against this defendant,) in which the facts are stated, and on comparison are found to be strikingly similar in all material respects to the one at bar, where a judgment in the plaintiff’s favor was sustained. We may dismiss, without further consideration, the exception taken to the refusal to grant a nonsuit.
The other exceptions relate to the reception and rejection of evidence on the question of damages. The defendant offered to show that standing timber similar to standing timber of the plaintiff’s, which was burned, had been bought for $25 or $30 per acre, which was objected to by the plaintiff, and excluded. We see no error in this ruling, as it was an attempt to prove, by the plaintiff’s own witnesses, the price, which had been paid by other parties on a sale of other timber lands. The knowledge of the witness on this subject may have qualified him to speak of the market value of the property referred to; but, as evidence from which the jury were to determine the value of the property destroyed, the rules of evidence do not permit direct evidence to be given of the terms of a contract of sale of similar property between other parties. Such evidence might take the plaintiff by surprise, and is generally misleading. There is no pretense that woodland, in that locality or elsewhere, has a fixed and uniform market value per acre, the same as grain produced or other merchandise of a particular grade or standard have, sold by weight or measure on the markets. The other exceptions have been examined, and we fail to discover any errors of such importance as to require a reversal of the judgment. Judgment and order affirmed.
All concur.