TABLE OF TITLES AND DEFINITIONS. See Index for numerous sub-titles and definitions contained in the notes. FIRES CAUSED BY THE OPERATION FOREIGN WILLS, see WILLS. OF RAILWAYS, I Fire-works, 20 Firing, 20 Firm. 20 THE AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW. FIRES CAUSED BY THE OPERATION OF RAILWAYS.-(See also EMINENT DOMAIN; FIRE INSURANCE.) I. Liability, I. II. What Care Required, 2. III. Construction of Engines, 3. V. Proof of Origin of Fires, 7. VII. Where Fire Spreads, II. IX. Rubbish on Right of Way, 14. I Liability. The doctrine is now well settled, both in England and the United States, that when the legislature has authorized the use of fire for the purpose of propelling cars by steam, and every reasonable precaution is observed to prevent injury, the legislative sanction has this effect: that in case damage results from the use of such fire, the company will not be liable unless guilty of negligence.1 1. Piggot v. Eastern, etc., Ry. Co., 3 C. B. 229; Aldridge v. Great Western R. Co., 3 Man. & G. 517; Burlington, etc., R. Co. v. Westover, 4 Neb. 268; Leavenworth, etc., R. Co. v. Cook, 18 Kan. 261; Kansas, etc., R. Co. v. Butts, 7 Kan. 308; Atchison, etc., R. Co. v. Riggs, 31 Kan. 622; s. c., 15 Am. & Eng. R. R. Cas. 531; Jackson v. Chicago, etc., R. Co., 31 Iowa, 176; McHugh v. Chicago, etc., R. Co., 41 Wis. 78; Woodson v. Milwaukee, etc., R. Co., 21 Minn. 60; Illinois, etc., R. Co. v. Mills, 42 Ill. 407; Frankford, etc., Turnpike Co. v. Phila., etc., R. Co., 54 Pa. St. 345; Phila., etc., R. Co. v. Yerger, 73 Pa. St. 121; s. c., 2 Am. & Eng. R. R. Cas. 271: Indianapolis, etc., R. Co. v. Paramore, 31 Ind. 143; Morris, etc., R. Co. v. State, 36 N. J. 553; Borroughs v. Housatonic R. Co., 15 Conn. 124; Home Ins. Co. v. Penna. R. Co., 11 Hun (N. Y.), 182; Brand v. Hammersmith R. Co., L. R. 4 H. L. 171; Rood v. N. Y. & E. 8 C. of L.-I 1 R. Co., 18 Barb. (N. Y.) 80; Vaughan v. Taffvale R. Co., 5 H. & N. 679. Reading R. Co. v. Yeiser, 8 Penn. St. 366; Sheldon v. Hudson River R. Co., 14 N. Y. 218; Balt., etc., R. Co. v. Woodruff, 4 Md. 242; McCready v. Railroad Co., 2 Strobh. Law, 356; Flynn v. Railroad Co., 40 Cal. 14; Jefferis v. Phila., etc., R. Co., 3 Houst. (Del.) 447; Cracknell v. Mayor and Corporation of Thetford, L. R. 4 C. P., 629; Smith v. L. & S. W. R. Co., L. R. 5 C. P. 98, L. R. 6 C. P. 14. By the ancient common law as stated in Rolle's Abridgment, "If any fire, by misfortune, burns the goods of another man, he shall have his action on the case against me. If a fire breaks out suddenly in my house, I not knowing it, and it burns my goods, and also my neighbor's house, he shall have his action on the case against me. So if the fire is caused by a servant or a guest, or any person II. What Care Required.-As a railway company is intrusted by the legislature with an agent of an extremely dangerous character for the purpose of propelling its engines and cars, the law requires of such company that it shall exercise the rights and powers so conferred upon it with care, and adopt such precautions as may reasonably be expected to prevent damage to the property of third persons through or near which its railway passes.1 The measure who enters the house with my consent. But otherwise if caused by a stranger who enters the house against my will." Action on the case B. Tit. Fire This harsh rule of the common law was modified by the statute 6 Ann. c. 3 I, substantially re-enacted in 14 Geo. III. c. 78. The common-law rule has not been recognized in this country, Bachelder v. Heagan, 18 Me. 32, as it seems to have been founded on a presumption of negligence not susceptible of proof. In Vaughan v. Taff Vale R. Co., 5 Hurl. & N. 679, Cockburn, C.J., said: "Although it may be true that if a person keep an animal of known dangerous propensities, or a dangerous instrument, he will be responsible to those who are thereby injured, independently of any negligence in the mode of dealing with the animal or using the instrument; yet when the legislature has sanctioned and authorized the use of a particular thing, and it is used for the purpose for which it was authorized, and every precaution has been observed to prevent injury, the sanction of the legislature carries with it this consequence: that if damage results irom the use of such thing, independently of negligence, the party using it is not responsible. The decision in the case cited was rendered in the year 1860. It was substantially concurred in by the other members of the court, and is now regarded both in England and the United States as a correct statement of the law. Statutes imposing Liability.-Some States have enacted statutes imposing a liability on railroad companies for any damage caused by fire communicated from their locomotives. Such statutes are constitutional, even as applicable to pre-existing railways. Rodemacher v Milwaukee & St. P. R. Co., 41 Iowa, 297; Grissel. Housatonic R. Co. (Connecticut, 1887), 32 Am. & Eng. R. R. Cas. 349; Lyman v. Boston, etc., R. Co., 4 Cush. (Mass.) 288; Pierce v. Worcester, etc., R. Co., 105 Mass. 199. A railroad corporation is liable, under the New Hampshire, statue for the destruction by fire from a locomotive of wood, coal, etc., deposited on land adjoining their line, and there used by a dealer as his stock in trade. Haseltine v. Concord R. Co. (N. H.), 6 N. Eng. Rep. 897. 1. Piggot v. Eastern, etc., Ry. Co., 3 C. B. 229; Lackawanna, etc., R. Co. v. Doak, 52 Pa. St. 379. Willis J., in Vaughan v. Taff Vale R. Co., 5 Hurl. & N. 679, said: Looking at the report of this case in 3 Hurl. & N. 743, I feel that we are obliged to reverse the judgment of the court below, although we do not, in point of law, differ in opinion from that court. There was evidence that the defendants had taken every precaution, and adopted every means in their power, and which science could suggest, to prevent injury. It would have been a question for the jury whether they believed that evidence; but the question submitted to them was not upon the whole evidence, but, taking it as a fact that the defendants had used every precaution which they could consistently with the working of the line, whether the jury did not think that they were guilty of negligence. Now, the definition of negligence is the absence of care, according to circumstances. But it is found as a fact that the defendants took all the care which they could under the circumstances. Therefore, upon that taken as a fact and not merely as evidence of the fact, there is a finding that the defendants only did that which the act of Parliament allowed them to do, and took all possible care to prevent injury." A railway company is required to exercise care, diligence, and skill to prevent fires from being communicated by its locomotives, and it is liable in case of damage through its negligence. Burroughs v. Housatonic R. Co., 15 Conn. 124; Huyett v. Phila., etc., R. Co., 23 Pa. St. 373. That is, the company must use ordinary or reasonable care, which is that degree of care which prudent men, skilled in the business, would probably exercise under the circumstances. This care must be in proportion to the danger. The company is required to use greater care to prevent fires in a very dry time than when the ground is covered with snow or in rainy weather; so where property is very much exposed to fire greater precaution must of prudence required on the part of a railroad company of course differs with the character of the country traversed, and the consequent increase or decrease of risk incident to the use of its engines.1 ---- III. Construction of Engines. In the construction of its engines a railway company is bound not only to employ all due care and skill for the prevention of injury to the property of others by the emission of sparks or from any other cause, but it must avail itself of all discoveries which science has put within its reach for be taken when there is danger of communicating fire to such structure than when there is not such danger. In Milwaukee, etc., R. Co. v. Kellogg, 94 U. S. 469, the court say: "Yet it is obvious the immediate and inseparable consequences of negligently firing the elevator would have been very different if the wind had been less, if the elevator had been a low building constructed of stone, if the season had been wet, or if the lumber and the mill had been less combustible. And the defendants might well have anticipated or regarded the probable consequences of their negligence as much more farreaching than would have been natural or probable in other circumstances." In Diamond v. Northern Pac. R. Co., 6 Mont. 580; s. c., 29 Am. & Eng. R. R. Cas. 117, it was held that it is misleading to charge the jury simply that the railroad company was bound to use the reasonable care and diligence of an ordinarily prudent man in preventing the escape of fire, and in keeping its right of way clear of combustible material, unless accompanied by an explanation that the care required is the ordinary care of an expert engineer or railroad servant. But see Texas, etc., R. Co. v. Medaris, 64 Tex. 92; s. c., 29 Am. & Eng. R. R. Cos. 159. Failure of Company's Employees to Watch for and Extinguish Fires.-Where through no neglect of the company the fire started on its own right of way by reason of sparks emitted from the locomotive, and the employees of the company saw it in time to extinguish it be. fore it had travelled further, but they permitted it to burn, whereby it spread to and consumed the premises of the plaintiff, the company was held liable. Kenney v. Hannibal, etc., R. Co., 62 Mo. 476. So likewise where the hands of a construction company with notice of a like fire failed to stop the train and extinguish the fire. Rolke v. Chicago, etc., R. Co., 26 Wis. 537. And it is no defence that the hands of the company had no license or authority to enter upon the plaintiff's premises to extinguish the fire. Bass v. Chicago, etc., R. Co., 28 Ill. 9. The plaintiff may prove that after the fire the company employed more men to walk and watch the track than were employed when the damages occurred. Westfall v. Erie R. Co., 5 Hun (N. Y.), 75. But the company is not bound to keep a patrol along its track for that purpose. Baltimore, etc., R. Co. v. Shipley, 39 Ind. 251; Indianapolis, etc., R. Co. v. Paramore, 31 Ind. 143. 1. Fero v. Buffalo R. Co., 22 N. Y. 209; Great Western R. Co. v. Haworth, 39 Ill. 346; Pierce v. Worcester, etc., R. Co., 105 Mass. 199; Smith v. Old Colony R. Co., 10 R. I. 22; Michigan, etc., R. Co. v. Anderson, 20 Mich. 244; Webb v. Rome, etc., R. Co., 49 N. Y. 420; Frankford, etc., Turnpike Co. v. Philadelphia, etc., R. Co., 54 Pa. St. 345; Chicago, etc., R. Co. v. Quaintance, 58 Ill. 389; Phila. & Reading R. Co. v. Schultz, 2 Am. & Eng. R. R. Cas. 271. It is well established that the degree of care must be proportionate to the danger. What is ordinary care in a case of extraordinary danger, would be extraordinary care in a case of ordinary danger, and what would be ordindary care in a case of little danger would fall much below this in a case of great danger. F. & B. Turnpike Co. v. Phil., etc., R.Co., 54 Pa. St. 345; Smith v. Old Colony R. Co., 10 R. I. 22; Fero v. Buffalo, etc., R. Co., 22 N. Y. 209; Chicago, etc., R. Co. v. Quaintenance, 58 Ill. 289; Pierce V. Worcester, etc., R. Co., 105 Mass. 199. If a high wind is blowing from the locomotive toward the combustible material, greater caution must be used. Kellogg v. Milwaukee, etc., R. Co., I Cent. L. J. 278; s. c. on appeal, 94 U. S. 469. But see Michigan Cent. R. Co. v. Anderson, 20 Mich. 244. If a certain season is unusually dry, a railroad company is bound to take extra precautions against fire. Pittsburg, etc., R. Co. v. Noel, 77 Ind. IIO; s. c., 7 Am. & Eng. R. R. Cas. 24. |