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Opinion of the Court, per FOLGER, J.

us. It is argued that the negligent act of the defendant here was only the suffering of coals to drop from its engine. It cannot be so circumscribed. The negligence consisted not merely in that. It was an act of negligence made up of all the facts and circumstances in which the coals were let fall. The insufficient or deranged condition of the preventive apparatus of the engine, the continued and extreme dryness of the atmosphere, and of the earth and its herbage, and of all matter that was upon the earth at that place; the blowing of the wind with the strength it did, and in the direction it did; the accumulation of weeds, grass and rubbish by the side of the defendant's track, between it and the plaintiff's land; were all constituents of the act of the defendant, and went together to make it negligent. It would not be negligent to throw aside a lighted match upon the margin of a stream, or into grass that is lush. It would be negligent to fast hold it in one's hand unlighted, in a powder-mill. “ Now the definition of negligence,” says WILLES, J., “is the absence of care according to the circumstances.” (Vaughan v. Taf Vale Railway Co., 5 H. and N., 679-687.) And this meets the further position taken in the argument, that as the negligent act of the defendant was the dropping of the coals, it cannot be said that this was the cause of the burning of the plaintiff's woods; for the coals, it is said, set fire only to the tie within the track of the defendant, and thus it was not the live coal from off the engine which fired the plaintiff's timber. The coal fired the tie; fire or heat from that touched the old tie lying beside and extending at a right angle from the track; fire from that ignited the dry herbage, the gathered weeds and grass, and the rubbish down the side of the bank; fire from that caught in the fence of defendant; and that burning communicated with material on the plaintiff's land; and so not by the first cause, but by the last cause, so many removes from the first, which was the negligent act, was his property consumed. Such is the reasoning used to show that this damage is too remote from the defendant's negligent act, for a liability therefor to be incurred thereby. Here too, the act of

Opinion of the Court, per FOLGER, J.

negligence is limited to the dropping of the coal; and so limited it is plausible to call the results which followed consequential steps, each farther removed from the prime act of negligence, and hence the last too remote therefrom to be a necessary and expected result. .

But if in a time of extreme drouth and high wind, there be laid or suffered to gather a train of readily combustible matter up to the bounds of another's property; it is not to be denied but that it is an act of negligence to drop fire at the hither end of that train ; nor but that it is an ordinary, a usual, a necessary result, reasonably to be expected, that the fire will run from particle to particle through it, and catch in whatever will burn which is adjacent at the thither end.

Such was substantially the state of matters in the case before us.

And the learned judge, THOMPSON, Ch. J., who delivered the opinion in Kerr's Case (in 62 Penn. St.), foresaw the possibility of such a case; “there might possibly be cases," he says, “in which the causes of disaster, although seemingly removed from the original cause, are still incapable of separation from it, and the rule suggested might be inapplicable.” And in Vaughan v. Taff Railway Co. (supra), COCKBURN, Ch. J., says, that if the jury had found that the fire was cast by the defendant upon the herbage and other combustible matter upon the bank of the railway, which caught fire therefrom, and thence extended to the plaintiff's wood, the defendant would be liable. In Smith v. L. & S. W. Railway Co. (supra), counsel for the plaintiff in argument claimed that the negligence of the defendant in leaving the trimmings of the hedges on the sides of the line for fourteen days in unusually dry weather, was the immediate cause of the damage to the plaintiff. The counsel for the defendant, on the other hand, insisted that there was a combination of circumstances for which the defendant was not responsible, and that the result was what no reasonable person could have anticipated. Bovill, Ch. J., in giving his opinion as one of the majority of the court, thinks “it impossible to say that there was not evidence from which a jury might be justified

Opinion of the Court, per FOLGER, J.

in concluding that there was negligence as regards the plaintiff, and that the destruction

was the natural consequence of their (the defendants') negligence.” (And see Scott v. Hunter, 46 Penn. St., 192; McGraw v. Stone, 53 id., 441.)

The question in the case in hand arises upon a motion made by the defendant to nonsuit the plaintiff, which was denied and exception taken, and upon an exception to a refusal by the court to charge the jury that if the fire originated by the negligence of the defendant in permitting coals to drop from its engines and kindling a fire upon its own premises, from which it spread and burned the timber of the plaintiff in an adjacent lot, the defendant was not responsible.

I am of the opinion that there was evidence to be submitted to the jury, whether the defendant was not negligent in the use of its property, and whether the injury complained of was not a probable consequence of the negligent acts and omissions of the defendant.

The defendant asks in effect that this court hold that it is pot liable for the damage to the plaintiff, unless it appears that the coals which escaped from the engine were cast from the engine directly upon the property of the plaintiff which was injured. If the air had been the medium through which was conveyed the same fire which left the engine, it seems to be conceded that the damage was the immediate and natural result of the negligence. I am unable to perceive a reasonable distinction between the air as the medium of conveying the fire, and the denser matter which had accumulated upon the ground there. Nor am I able to confine the act of negligence to the dropping of the coal from the engine, and thus separating it from all the other concurring acts and omissions of the defendant, make that the solitary prime cause of a series of causes. If this were so, it might as well be said that of a hundred growing trees burned by a fire kindled among them by a cinder thrown from a locomotive, the sufferer could recover for only the one upon which the cinder fell, and that

Statement of case.

as the others took fire from the flame of that, it was not the negligent act which caused their destruction.

I am, therefore, of the opinion that there was no error committed at the trial, and that the judgment appealed from should be affirmed, with costs.

All concur.
Judgment affirmed.


et al., Appellants.

Proof of an advance of money to a mortgagee, coupled with proof that the

one making the advance has possession of the mortgage, does not establish the fact of a purchase of the mortgage, or of a pledge thereof as security for the advance. In the absence of written evidence the presumption is against any transfer.

(Submitted May 3, 1872; decided May 21, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff entered upon the decision of the court at Special Term.

The action was brought to foreclose two mortgages by defendant Johnson to Richard F. Blydenburgh, upon certain real estate in the city of Brooklyn. The mortgages were assigned by Blydenburgh to Josiah Bowers, the original plaintiff. He having died, the said bonds and mortgages were assigned by his executor to the present plaintiff, who was thereupon substituted as plaintiff.

The facts pertinent to the questions discussed appear sufficiently in the opinion.

Josiah William Kronberg for the appellants. Bowers took assignment chargeable with notice of Bingham's interest therein, he having possession. (22 N. Y., 550 ; Kellogg v. Smith, 26 id., 18; Brown v. Blydenburgh, 3 Seld., 142; Pick

Opinion of the Court, per GROVER, J.

ett v. Barron, 29 Barb., 507; Dickerson v. Tillinghast, 4 Paige, 215; Evertson v. Evertson, 5 id., 644.)

George Miller for the respondent.

GROVER, J. The respondent's assignor took the assignment of the mortgages in the present case as collateral security for the payment of a pre-existing note. He stands in no better position, as to any of the defendants, than would the assignor, Blydenburg, if living, or his representatives since his decease. Whether he would, as to any or which of the parties, had he been a bona fide purchaser, is a question not necessary to consider, as it does not arise in the case.

The rights of the parties depend wholly upon questions of fact. As to the defendant, Johnson, the questions are whether the mortgages were paid by him to Blydenburg by the sale, or payment of other mortgages to the amount of $200,000, given by the former to the latter upon the purchase of the entire premises, with interest, as provided in the agreement, that being the amount of the purchase-money; or whether the amount of such mortgages, together with the claims of Johnson, arising out of the failure of title to parcels of the land, amounted to that sum. The judge found in favor of the plaintiff upon these questions. This finding, after the affirmance of the judgment by the General Term, is conclusive upon

this court, unless the contrary is proved by uncontroverted evidence. The only question raised by the exception to this finding of the judge, which can be considered in this court, is whether it was proved that the mortgage had been paid or counter-claimed in the manner above stated. An examination of the evidence shows that it was not. A discussion of the testimony and documentary proof is unnecessary. This disposes of this part of the case.

The defendant, Bingham, in his answer and upon the trial, insisted that he had title to and was the owner of the mortgages at the time they were assigned by Blydenburg to the party under whom the plaintiff claims title. The judge has found that he



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