Adriance, Platt & Co. v. Lehigh Valley Railroad

93 N.Y.S. 473

Opinions

WILLIAMS, J.

The judgment should be reversed, and a new trial granted, with costs to the appellant to abide event.

The action was to recover damages for the destruction of personal property by fire alleged to have been set by the negligence of the defendant. There was no dispute but that the complaint sufficiently alleged that the plaintiff and defendant were corporations; the plaintiff’s ownership of the property and its value; that the property was stored in a building alongside the tracks of the defendant’s railroad, and that the building was set on fire, and the property wholly destroyed, by sparks, cinders, and coals thrown from a locomotive belonging to and operated by defendant, and run along the tracks by the side of the warehouse; and that this fire was so set by the negligence of the defendant in having a defectively constructed and equipped engine. It would seem that nothing more was necessary; that, if the .proofs showed these facts, the plaintiff would be entitled to recover. It was not necessary to allege what duty the law imposed upon the defendant as to the protection of the property of others against fire set by defectively constructed engines run over its road. It is said, if the building was on the defendant’s lands, and if the plaintiff was a gratuitous licensee of the building from the defendant, the plaintiff could not recover, and that the complaint should allege the relations between the parties, or that no such relation existed, in order to permit a recovery thereunder. We think the defendant was called upon to allege these facts by way of defense, if it sought to relieve itself from liability by reason thereof. The plaintiff was not bound to allege negatives—that the building was not on defend- ■ ant’s lands, and that it was not defendant’s gratuitous licensee. It alleged ownership of the property, occupancy of the building, and negligent destruction by defendant of the building and property. If these facts were proved, no presumption or inference could be indulged in that any conditions existed relieving the defendant from liability. If defendant desired the benefit of any such conditions, it was bound to allege and prove them.

The court should not have disposed of the case upon the pleading, but should have taken the evidence and allowed it to be determined upon the merits.' The decision was altogether too technical. It shortened the trial, but it was hardly fair to turn the plaintiff out of court so summarily.

The judgment should be reversed, as before suggested.

MCLENNAN, P. J., and STOVER, J-, concur.