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49 Vroom.

Goodman v. Lehigh Valley R. R. Co.

attention to No. 2454 (which, indeed, according to the contention of defendant's counsel, is the only engine that could have started the fire), the testimony on behalf of the defendant was to the effect that the screen was installed new on February 10th, 1905, and was examined and inspected three different times, at three different places and by three different inspectors, all within thirty hours before the fire occurred at Goodman's place on July 19th; that within twenty-four hours after the fire the same three inspectors, at three different times and places, again inspected the same engine, and that at each and all of these six examinations the condition of the screen in the smokestack was found to be good and perfect.

We may assume-indeed, it is in effect conceded by counsel for plaintiff in error—that if this evidence must be fully credited, and constituted the only evidence that bore upon the care exercised by the defendant, it demonstrated that the defendant had used "all practicable means to prevent the communication of fire," and had fulfilled its statutory duty.

But, in our judgment, the testimony introduced by the plaintiff to the effect that engine No. 2454 actually threw a spark that retained its vitality for a distance of more than one hundred and fifteen feet, so as to set fire to the hay in Goodman's mow, together with the testimony of Cordes and McDonald about the throwing of sparks by the same engine on the same trip, had a legitimate tendency to prove not only that this engine started the Goodman fire, but that its screen was not in good order at the time. Moreover, one of defendant's own witnesses--an expert-testified that in his judgment a spark that had passed through the meshes of such a screen as No. 2154 carried (the screen being intact) would not retain sufficient vitality or fire to ignite combustible material at a distance of one hundred and sixteen feet from the railroad track. Indeed, it may easily be inferred, from what we all know, that a piece of live coal so small that it will pass through a quarter-inch mesh, and which, of course, continues to burn and thereby to consume itself while driven into the air by the exhaust steam and while carried along

Goodman v. Lehigh Valley R. R. Co.

78 N. J. L.

through the air by the prevailing wind, cannot retain sufficient heat to ignite other combustible materials at an unlimited distance. Whether it can carry its heat for fifty, or one hundred, or one hundred and fifty feet, or more or less, cannot be solved by the application of any rule of law, and is left unsolved by the evidence.

It is clear enough that the evidence introduced by the defendant tending to show that it had properly maintained the screens so as to prevent the communication of fire, at the same time tended to show that in fact the fire was not communicated to plaintiff's property from defendant's locomotives. And for the same reason the evidence introduced on the part of the plaintiff that tended to show that the fire was communicated from the locomotives, also tended to show that the locomotive screens were not in good order at the time, and thus to contradict the evidence of defendant's witnesses who testified that they were in good order. In short, if the testimony of plaintiff's witnesses as to the origin of the fire was believed, and if the jury inferred therefrom (as they reasonably might infer) that the fire was caused by a spark from a locomotive engine, and also concluded that the spark could not travel so far and retain its fire unless when it left the engine it was too large to have passed through a quarter-inch mesh, it results that the jury might fairly conclude that defendant's witnesses who testified to the effect that the engines in question were fitted with screens of quarter-inch mesh, that the screens had been inspected with proper care and were in good order and perfect condition at the time, and that there was no way in which sparks could come out of the smokestack without first passing through the screen, must have been in some way mistaken. The evidence upon the disputed points being thus in conflict, the question could be legitimately solved. only by the intervention of the jury. It is unnecessary to lay stress upon the circumstance that some or all of defendant's witnesses who spoke upon these topics were still in the company's employ; that the screen inspectors were further interested, because if the screens were out of order they themselves were responsible; that they testified

49 Vroom.

Goodman v. Lehigh Valley R. R. Co.

without any special recollection of the particular engine on the particular occasion, and relied wholly upon records said to have been made by them, shortly after the several inspections, in books kept for the purpose, in which numerous other inspections of other engines were kept. These circumstances affect merely the reliability of the witnesses, and were for the jury's consideration.

It seems to us, therefore, that the question whether defendant was legally responsible for the fire of July 19th ought to have been submitted to the jury.

We think there was further error in excluding the following series of questions asked of the plaintiff, Goodman, when called in rebuttal:

Q. At the time that this fire occurred that destroyed your place, had you ever noticed any fires occasioned on your property from the engines of the railroad?

"Q. Have you ever noticed the quantity of sparks thrown from the engines of the Lehigh Valley Railroad Company at or about the time of the fire that occurred to your place during the night time?

“Q. Have you ever picked up any live coals thrown from the engines of the Lehigh Valley railroad?

"Q. How large sparks have you seen coming out of the stack of the engines at night time on the Lehigh Valley railroad about the time of the fire ?”

The third question is in form indefinite as to time, but, read in connection with the others, it no doubt was intended to relate to a time pertinent to the general inquiry. We think that the evidence that these questions would have elicited (if answered in a manner favorable to the plaintiff) would have legitimately tended to rebut the defendant's evidence as to the inspection of the spark screens upon the locomotive engines. For that evidence not only tended to show inspection of the two engines in question immediately before and immediately after the fire, but also tended to show a regular system of frequent inspections of all the engines that were operated upon the railroad, and upon the faithfulness with which that system was carried out, the reliability of the evidence as to

Goodman v. Lehigh Valley R. R. Co.

78 N. J.L.

the inspection of engines 1458 and 245+ materially depended. In fact, as already pointed out, the inspectors (whose duties required them, day after day and month after month, to inspect numerous engines distinguished only by numbers) did not, and in the nature of things could not, have any dependable recollection of what they did about inspecting these two particular engines, and what they ascertained about their condition, upon a particular date in the past; and it was a fair construction of their testimony that what they meant to swear to was substantially this: that they knew, for instance, that engine No. 2454 was inspected thus and so at Jersey City on the morning of July 19th, 1905, that such and such steps were taken to render the inspection efficient, and that the screen was either found in good order, or if not, was immediately repaired, because it was their invariable practice to make inspections and repairs in that fashion and to make a short minute in the record, including the entry "screen good,” or the like, and because such an entry is in the record respecting inspection of engine 2454 at the time and place in question.

Evidence that would have shown that sparks in great numbers and of large size in fact came out of the engines of the company during the very period of the alleged invariable practice of frequent and careful inspection, and sparks such as to occasion other fires to property adjacent to the railroad, would have tended to show that the system, however perfect in theory, was not carefully adhered to in practice, and thus to discredit the defendant's testimony respecting the efficiency of the inspection of the two engines under inquiry at the particular times in question.

For these reasons the judgment under review should be reversed and a venire de novo awarded..

For affirmance-THE CHIEF JUSTICE, REED, J. 2.

For reversal_THE CHANCELLOR, GARRISON, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGH, VROOM, DILL, CONGDON, JJ. 12.

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EDWARD A. CAMPBELL, PLAINTIFF IN ERROR, V. FRED

ERICK GILKYSON, ACTING ADJUTANT-GENERAL. DE-
FENDANT IN ERROR.

Argued June 21. 1909-Decided January 6, 1910.

The supplement of March 20, 1909, to the “Act concerning the militia

of the state" (Pamph. L. 1909, p. 13), which provides that when any commissioned officer shall reach the age of sixty-four years he shall be retired from active service, so far as it applies to the incumbents of offices created by the constitution, and who were commissioned before the passage of the supplement, is in contravention of the constitutional provision contained in article 7, section 1. placitum 6, that “No commissioned officer shall be removed from office but by the sentence of a court-martial.”

On error to the Supreme Court.

For the plaintiff in error, Robert II. McCarter.

For the defendant in error, Edmund Wilson, attorney-general, and Velson B. Gaskill, assistant attorney-general.

The opinion of the court was delivered by

GUM MERE, CHIEF JUSTICE. Edward A. Campbell, the plaintiff in error, was, on the 17th day of May, 1902, elected by the field officers of the First brigade of the militia of the state to the office of brigadier-general of that brigade, and, two days afterwards, was duly commissioned as such officer by the governor.

On March 20, 1909, the legislature of the state enacted a supplement to the act of May 16th, 1906, entitled "An act concerning the militia of the state,” which provided, among other things, that “When any commissioned officer of the National Guard or Naval Reserve of this state shall reach the age of sixty-four years, he shall be retired from active service and placed on the retired list.”

On the 16th of March, 1909, an executive order was made and published, pursuant to the provisions of the statute re

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