Hovell v. Evergreens , 242 N.Y. 216 ( 1926 )

The action was brought to recover damages for the destruction of a building and contents owned by plaintiff adjoining the hay fields in defendant's cemetery, by means of a grass fire alleged to have been started in the cemetery grounds on January 6, 1920, and negligently permitted to escape to the premises of plaintiff.

The question of negligence was tried out before a jury which found for plaintiff. The evidence was sufficient to sustain a verdict for the plaintiff although the defendant denied that the fire started on its land. The question of damages was then tried out before a referee who reported the damages at $29,718. Final judgment was thereupon entered. The Appellate Division affirmed by a divided court.

The court received over objection and exception evidence, not of prior negligent fires on defendant's property which would have been inadmissible as tending to show a custom of negligence (Zucker v. Whitridge, 205 N.Y. 50, 60), but of prior fires, not negligent, sometimes very late in the fall and in the early spring, which tended to establish nothing relative to the fire of January 6, 1920. This was error. At the same time it might be urged that the reception of the evidence was unsubstantial and not reversible error as the whole matter of the earlier fires was gone into and it was fairly well established that the burning over of the grass lot in January had no relation to the customary operations of the defendant. The trial justice might have so instructed the jury. On the contrary, the following appears on the record (fol. 691-2):

"Mr. Van Thun: The jury cannot consider, in arriving at a determination of the claim of the plaintiff in this action, that other fires at other times had occurred in the cemetery ground, that any such testimony in the case would have no bearing on the question in issue here, namely, whether on January 6th, 1920, a fire was negligently started by the defendant in the part of the cemetery immediately adjoining the plaintiff's property and communicated thereto, or that the defendant negligently omitted to watch, tend and control a fire and thereby prevent its spreading to the plaintiff's property.

"The Court: The question whether this fire was negligently started, or whether it was allowed to spread through negligence of the defendant, that is the sole question for you to determine in this case. Other than that I refuse to charge.

"Mr. Van Thun: Your Honor refuses to charge?

"The Court: In your words, yes. In your words I refuse to charge it, other than as amended by my statement."

The jury was thus permitted to consider the fact that other fires at other times had occurred on the cemetery grounds as bearing on the question whether on January 6, 1920, defendant negligently started a fire on its property or negligently permitted the fire to spread to plaintiff's property. As there was no direct evidence as to the manner in which the fire of January 6 was started the error was vital. That because there had been periodically grass fires on the cemetery grounds there must have been a grass fire on January 6 which spread from defendant's premises to those of plaintiff is a non sequitur.

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

HISCOCK, Ch. J., McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur; CARDOZO, J., absent.

Judgments reversed, etc.