Confer v. New York etc. R. Co.

While this is perhaps a close case upon its facts, we are of opinion that the judgment must be affirmed. It could not have been withdrawn from the jury, nor are we able to see any error in the manner of its submission. The learned judge could not have ruled, as a question of law, that the plaintiff was guilty of contributory negligence in erecting his oil tank where he did. The sparks from the locomotive were not likely to set fire to the oil in the tank, nor did they do so in this case. The accident would not probably have occurred, had not the defendant company permitted a car, used for carrying tar, to stand on the track opposite to and near plaintiff’s oil tank. This car caught fire from the sparks of the engine, and was wholly or partly consumed. It was the fire from this car which ignited the oil, and caused the destruction of plaintiff’s works. The accident could have been -avoided by running the car a short distance away after it had taken fire. This was eminently a jury case.

Judgment affirmed.

On February 8, 1892, a motion for a re-argument was refused.