Davey v. Erie Railroad

[51] The opinion of the court was delivered by Fort, J. This is a demurrer to a'declaration. The declaration contains two counts. The counts are inartistically drawn and each is .confused by unnecessary amplification, but neither count is sufficiently faulty to sustain a general demurrer. The first count is based upon the alleged careless management of a locomotive engine by the servants of the defendant, such negligence resulting in hot ashes, burning coals, &c., falling upon the combustible material upon the right of way of the defendant company and setting fire to such combustible materials thereon and then spreading to the standing timber, &e., on the plaintiff’s land. The second count is founded upon the allegation of negligence in the defendant in the way it kept its roadbed and its adjacent land on the right of way, the averment being that the defendant failed “to keep its said strip, parcel or tract of land * * * free from combustible materials, so that fire should not be occasioned by reason of hot ashes, burning coals * * * falling and settling thereon from oiit of said locomotive engines and to take reasonable care to guard against the escape of fire which might be occasioned thereby.” These counts each sufficiently charge a duty, and the neglect thereof upon the part of the defendant company. Salmon v. Delaware, Lackawanna and Western Railroad Co., 10 Vroom 299. It is insisted upon, in the brief of the demurrant, that the declaration does not describe or locate the lands of the plaintiff with sufficient certainty. This may be true, but as no such ground for demurrer is found in the causes of demurrer in the record it is not decided. The demurrers are overruled,, with costs.