Earl, J.
The plaintiff’s intestate, Fred Bennett, was killed on the 15th day of October, 1889, by the explosion of a powder mill, and the claim of the plaintiff is that the explosion was caused by sparks which escaped from the smoke stack of one of the defendant’s locomotives because it had not adopted suitable appliances to prevent the escape of the sparks.-
The mill was nearly two hundred feet from the railroad track, and the locomotive was drawing a heavy train of cars
upon an ascending grade, emitting large volumes of smoke, which was carried by the wind then blowing towards the mill, and as the smoke settled down over the mill the explosion occurred, wrecking the mill, into which the intestate had just entered.
The mill had been in the. same location for many years, and the railroad had been operated since the year 1876 with the same kind of locomotives, without causing any injury to the mill.
The mill was a wooden building twenty feet ■ square, one story high, covered wfith tin and painted with fire-proóf paint. There were no openings in the building on the side towards the railroad, and all the openings therein were kept closed except when the person working in the mill opened them. The mill was in operation only about six months each year at intervals as there was business for it.
The first question for the determination of the jury was whether the sparks from the locomotive caused the explosion. The sole evidence bearing upon this question is that Bennett was seen to enter the building a few moments before the explosion, and that the locomotive was approaching emitting the smoke which was carried to and over the building, and as it settled down over the same the explosion occurred. Bennett was the only person in the building, and it does not appear what he was doing at the time. There is no evidence that any of the windows or doors of the building were open, or that there was then any occasion for having them open, or that there was any crevice or opening through which sparks could enter the building. Persons looking on from a distance saw the smoke, but no witness saw any sparks or cinders. It seems that powder mills are liable to explosion from defects in machinery or the carelessness of men, as mills near this place had exploded twelve or fifteen times in previous years, averaging a death of a human being at each explosion. Under such circumstances, how could the jury find the cause of this explosion
%
The smoke settled down upon the building at the time, and Bennett entered the building a few moments before.
There was the-coincidence of the smoke settling down and the explosion, and also the coincidence of Bennett’s entry into the building and the explosion. What caused the explosion, the sparks, in the smoke or some act of Bennett ? The jury might guess it was one .or the other, and one guess might be more probable than the other, and still it would be a mere guess. There may be moral evidence quite convincing and sufficient .to influence the conduct of men in some of the ordinary affairs of daily life which yet does not rise to the standard of legal evidence for the consideration of a legal tribunal, and sufficient to form the basis of judicial action. (McLogh
lin
v.
National Mohawk Valley Bank,
139 N. Y. 514.)
If there had been evidence that the- explosion could have been caused only by fire passing or brought into the building from the outside, then there would have been some basis for the verdict. But. there was no such evidence, and we know there could be none. If the natural tendency of the operation of the defendant’s railroad was to endanger this mill by the sparks emitted from its locomotives, the case would be different. But the locomotives con this road had been operated for thirteen years, under all conditions, in all kinds of weather, carrying long and short trains, and yet the powder mill had never been destroyed.
The plaintiff was bound to show that the explosion was not caused by the carelessness of Bennett, and that it was caused solely by the fault of the defendant. It cannot be presumed that he was free from carelessness; and the burden was upon the plaintiff in some way to prove it.
(Weston
v.
City of Troy,
139 N. Y. 281.)
Verdicts must stand upon evidence and not upon mere conjecture, however plausible, and if the situation be such that the plaintiff cannot furnish the requisite evidence the misfortune is his. We think the plaintiff failed in this branch of her case. But she failed still more signally in another branch of it.
The engine which is charged with this explosion was a diamond stack, and it was such as had been prior to about the
year 1879, in universal use upon railroads in this country. About that time extension front engines began to come into use, and in 1889, at the time of this accident, there is evidence tending to show that they were coming into general use. In a diamond stack engine the cinders pass through the flues into the smoke box and then are carried by the exhaust steam up the smoke stack against an inverted cone which acts as a deflector; and as they are deflected they are thrown up again and again until they are rendered quite small, when most of them are thrown through the wire netting across the smoke stack above the inverted cone. This netting has four meshes to the square inch. By the operation of the deflector the tendency is to throw the sparks out of the smoke stack to the sides of the road. In an extension front engine there is a large, smoke box extending in front of the smoke stack into which the largest share of the sparks are thrown. There they are agitated by the steam and some of them are thrown out of the smoke stack through a wire netting which has from two to two and a half meshes to the square inch. The sparks which pass into the smoke box accumulate there in large quantities and are from time to time when the engine stops removed. Fewer sparks are emitted from the extension front engines, but they are larger, and from such engines the sparks are thrown directly upwards. FTo witness testified that the extension front engines were safer or less liable to set fires than the diamond stack. The only fact from which any inference can be drawn as to the comparative safety of the two engines is that in the diamond stack engines more sparks are emitted, but they are smaller. The plaintiff seeks to charge the defendant with negligence solely upon the ground that it continued to use the diamond stack engines, and had not converted them into extension fronts, the proof showing that the engine in question was in perfect condition, and that all the appliances of the diamond stack were in perfect order. To maintain her action she was bound at least to show that the extension front engines were safer and less liable td cause fires along the railroad than the diamond stack. This, we think, she failed to do. She could
have proved, if her claim be well founded, by firemen, engineers, railroad superintendents and mechanics that in the operation of railroads the extension front engines are less liable to cause fires than the diamond stack engines.
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Earl, J.
The plaintiff’s intestate, Fred Bennett, was killed on the 15th day of October, 1889, by the explosion of a powder mill, and the claim of the plaintiff is that the explosion was caused by sparks which escaped from the smoke stack of one of the defendant’s locomotives because it had not adopted suitable appliances to prevent the escape of the sparks.-
The mill was nearly two hundred feet from the railroad track, and the locomotive was drawing a heavy train of cars
upon an ascending grade, emitting large volumes of smoke, which was carried by the wind then blowing towards the mill, and as the smoke settled down over the mill the explosion occurred, wrecking the mill, into which the intestate had just entered.
The mill had been in the. same location for many years, and the railroad had been operated since the year 1876 with the same kind of locomotives, without causing any injury to the mill.
The mill was a wooden building twenty feet ■ square, one story high, covered wfith tin and painted with fire-proóf paint. There were no openings in the building on the side towards the railroad, and all the openings therein were kept closed except when the person working in the mill opened them. The mill was in operation only about six months each year at intervals as there was business for it.
The first question for the determination of the jury was whether the sparks from the locomotive caused the explosion. The sole evidence bearing upon this question is that Bennett was seen to enter the building a few moments before the explosion, and that the locomotive was approaching emitting the smoke which was carried to and over the building, and as it settled down over the same the explosion occurred. Bennett was the only person in the building, and it does not appear what he was doing at the time. There is no evidence that any of the windows or doors of the building were open, or that there was then any occasion for having them open, or that there was any crevice or opening through which sparks could enter the building. Persons looking on from a distance saw the smoke, but no witness saw any sparks or cinders. It seems that powder mills are liable to explosion from defects in machinery or the carelessness of men, as mills near this place had exploded twelve or fifteen times in previous years, averaging a death of a human being at each explosion. Under such circumstances, how could the jury find the cause of this explosion
%
The smoke settled down upon the building at the time, and Bennett entered the building a few moments before.
There was the-coincidence of the smoke settling down and the explosion, and also the coincidence of Bennett’s entry into the building and the explosion. What caused the explosion, the sparks, in the smoke or some act of Bennett ? The jury might guess it was one .or the other, and one guess might be more probable than the other, and still it would be a mere guess. There may be moral evidence quite convincing and sufficient .to influence the conduct of men in some of the ordinary affairs of daily life which yet does not rise to the standard of legal evidence for the consideration of a legal tribunal, and sufficient to form the basis of judicial action. (McLogh
lin
v.
National Mohawk Valley Bank,
139 N. Y. 514.)
If there had been evidence that the- explosion could have been caused only by fire passing or brought into the building from the outside, then there would have been some basis for the verdict. But. there was no such evidence, and we know there could be none. If the natural tendency of the operation of the defendant’s railroad was to endanger this mill by the sparks emitted from its locomotives, the case would be different. But the locomotives con this road had been operated for thirteen years, under all conditions, in all kinds of weather, carrying long and short trains, and yet the powder mill had never been destroyed.
The plaintiff was bound to show that the explosion was not caused by the carelessness of Bennett, and that it was caused solely by the fault of the defendant. It cannot be presumed that he was free from carelessness; and the burden was upon the plaintiff in some way to prove it.
(Weston
v.
City of Troy,
139 N. Y. 281.)
Verdicts must stand upon evidence and not upon mere conjecture, however plausible, and if the situation be such that the plaintiff cannot furnish the requisite evidence the misfortune is his. We think the plaintiff failed in this branch of her case. But she failed still more signally in another branch of it.
The engine which is charged with this explosion was a diamond stack, and it was such as had been prior to about the
year 1879, in universal use upon railroads in this country. About that time extension front engines began to come into use, and in 1889, at the time of this accident, there is evidence tending to show that they were coming into general use. In a diamond stack engine the cinders pass through the flues into the smoke box and then are carried by the exhaust steam up the smoke stack against an inverted cone which acts as a deflector; and as they are deflected they are thrown up again and again until they are rendered quite small, when most of them are thrown through the wire netting across the smoke stack above the inverted cone. This netting has four meshes to the square inch. By the operation of the deflector the tendency is to throw the sparks out of the smoke stack to the sides of the road. In an extension front engine there is a large, smoke box extending in front of the smoke stack into which the largest share of the sparks are thrown. There they are agitated by the steam and some of them are thrown out of the smoke stack through a wire netting which has from two to two and a half meshes to the square inch. The sparks which pass into the smoke box accumulate there in large quantities and are from time to time when the engine stops removed. Fewer sparks are emitted from the extension front engines, but they are larger, and from such engines the sparks are thrown directly upwards. FTo witness testified that the extension front engines were safer or less liable to set fires than the diamond stack. The only fact from which any inference can be drawn as to the comparative safety of the two engines is that in the diamond stack engines more sparks are emitted, but they are smaller. The plaintiff seeks to charge the defendant with negligence solely upon the ground that it continued to use the diamond stack engines, and had not converted them into extension fronts, the proof showing that the engine in question was in perfect condition, and that all the appliances of the diamond stack were in perfect order. To maintain her action she was bound at least to show that the extension front engines were safer and less liable td cause fires along the railroad than the diamond stack. This, we think, she failed to do. She could
have proved, if her claim be well founded, by firemen, engineers, railroad superintendents and mechanics that in the operation of railroads the extension front engines are less liable to cause fires than the diamond stack engines. Upon this point there must be much experience and observation among railroad men, and there should be some proof upon the subject from which a jury could find the facts in reference to the comparative safety of the two kinds of engines.
But still further; there is no proof in this case that the extension front engine was invented or brought into use because it is safer or less liable to set fires than the diamond stack. All the witnesses who spoke upon the subject testified that the purpose of the extension front was to make the engine more efficient by giving more draft, and for economy in the use of coal.
We will briefly call attention to some of the evidence. One of the plaintiff’s witnesses testified that he had noticed
“
the coming out of sparks of the extension front engines and diamond stack engines many times.” Another witness testified that
“
railroad managers are altering some of the old style engines into the extension smoke box for the very object of obtaining more area of netting. The purpose of this is to get a better draft through the flues ; ” that
“
the purpose of this greater area of netting in the extension front is to produce a better draft; ” that
“
an extension front, by breaking up the coals and cinders, reduces their size so as to force them through the netting, depending upon the mesh of the netting altogether; ” that
“
there is no difference between the throwing of sparks by the diamond stack engines and the throwing of sparks by the extension front engines, if the netting is intact and sound. There is no difference as to the quantity that will be thrown; ” that
“
there is no reservoir1 in the extension front to hold the sparks for any length of time. There is considerable more space in an extension front to hold the sparks than in an ordinary smoke box, probably double the quantity it will hold. As soon as it gets filled up to a certain extent it empties itself. It has got to thresh it through the
netting to get out; ” that “ it breaks them iip as it goes through the netting.” Another witness of the plaintiff testifies that the difference between the two kinds of engines is that “the sparks do not go out so much from the extension front as they do from- the old style diamond stack.- I have seen good-sized ones come out of an extension front the same as I have from a diamond stack, but not so many. * * * Some of these sparks in the extension front engine that do not remain in the engine go out. All go- out that can get through the netting. The spark that goes out depends upon the size of the netting.” Another witness for the plaintiff testified that “ in the extension front the sparks and cinders that are not deposited in the machines go out of -the stack, and the size of the spark depends upon the size of the mesh in the netting.” A witness for the defendant testified that “ the extension front is simply an elongation of the ordinary smoke box, partially designed for more draft. That is partly done to secure more draft. It is done for economy of repairs and economy of fuel; ” that “ the economy I speak of was through a saving of fuel. We. don’t burn as much fuel in an extension front engine as we do in the other. I think that is a well-accepted theory, and has been known to be such for some years; ” that “ most of the cinders, coal and ashes that pass into this extension front is not worked up directly by that exhaust, but drawn up by induction through the netting after working out and churning around in this front. Then they are caught by the exhaust and thrown up pretty straight and high; ” that “ I have seen more cinders taken from the diamond stack engines than extension front engines. The ordinary smoke box in the diamond stack holds dead cinders.” Another witness for the defendant testified: “ I understand the purpose of the extension front to be to save coal, for one thing ; it is lighter on the fire. It saves coal by not being so hard on the fire. It is lighter on the fire. There is a longer pull for a fire to get around, and isn’t so direct.”
We, therefore, are unable to perceive how.it was possible for the jury, upon the evidence, to find that the extension
front engine is safer than the diamond stack, or that this accident would probably not have occurred if the extension front engine had been used rather than the diamond stack.
Our conclusion, therefore, is that the judgment should be reversed and a new trial granted, costs to abide the event.