Page images
PDF
EPUB

IX. Rubbish on Right of Way.-The general rule is that a railway company must keep its track and right of way clear of all such substances as are liable to be ignited by sparks or cinders from its engines. This is a duty clearly implied in the grant or charter which confers the right to use steam-engines. As fire is a dangerous agent, it is but reasonable to presume that the legislature in making the grant annexed the implied condition that the track and right of way shall be kept in such a condition as to avoid danger from fire spreading therefrom.1

tinue to be proximate as to everything which the fire consumes in its direct cause. This is so, whether we regard the fire as a combination of the burning substance with the oxygen of the air, or look merely at the visible action and effect. As a matter of fact, the injury to the plaintiff was as immediate and direct as an injury would have been which was caused by a bullet fired from the train passing over the intermediate lots, and wounding the plaintiff as he stood upon his own lot. It is as much so as pain and disability are proximate effects of an injury, though they occur at intervals through successive years after the injury was received. Yet these are called proximate effects, though the actual effects of the injury may be greatly modified, in every case, by bodily constitution, habits of life, and accidental circumstances."

In Hoyt v. Jeffers, 30 Mich. 181, where the plaintiff's house caught fire from sparks from the chimney of the defendant's mill, by means of a woodshed which was contiguous to the house and but a short distance from a barn of the plaintiff, which caught fire from the woodshed, it was claimed that there could be no recovery for the barn. The court, however, held otherwise. It is said: "If such other buildings are satisfactorily shown to have been actually burned by the fire of the Sherman House, caused by the negligence of the defendant, and especially if this was, under the circumstances, the natural and probable as well as the actual result of the fire so caused, I can see no sound principle which can make the defendant's liability turn upon the question whether the building thus burned by the fire of the first were five, six, or fifty feet or the one-hundredth part of an inch from it."

In Smith v. London & S. W. Ry. Co., L. R. 5 C. P. 98, certain combustible material left in heaps on the right of way was set on fire by sparks emitted by passing engines. The fire was carried by a high wind across a stubble field and a public road and burned the

plaintiff's cottage, situated about two hundred yards from the track. The chief justice says: "I think it was impossible to say there was not evidence from which a jury might be justified in concluding that there was negligence as regards the plaintiff, and that the destruction of the cottage, in which the goods were, was the natural consequence of this negligence. What the defendant's servants ought, as reasonable men, to have contemplated as the result of leaving the accumulation there, and as they did, must depend on all the circumstances.'

[ocr errors]

In Milwaukee, etc., R. Co. v. Kellogg, 94 U. S. 469, the defendant from its steamboat, Jennie Brown, negligently set fire to the defendant's elevator, from which fire was communicated to the plaintiff's lumber mill, 538 feet distant. The nearest pile of lumber belonging to the plaintiff in a direct line from the elevator to the mill was 388 feet from the elevator. At the time the elevator caught fire there was a high wind blowing in the direction of the saw-mill. The court held that the proximate cause depended on the question whether or not the burning of the saw-mill might have been foreseen as a natural and probable consequence of setting fire to the elevator, and that that question was one for a jury to decide.

A contrary doctrine to that above stated was held in Ryan v. New York Cent. R. Co., 35 N. Y. 210, and in Pennsylvania Co. v. Kerr, 62 Pa. St. 353, and in Pennsylvania R. Co. v. Whitlock, 99 Ind. 16; s. c., 22 Am. & Eng. R. R. Cas. 629

1. Smith v. London, etc., Ry., L. R. 5 C. P. 98; Kellogg v. Chicago, etc., R. Co., 26 Wis. 223; Jones v. Michigan Cent. R. Co.,59 Mich. 437; s. c.,25 Am. & Eng. R. R. Cas. 482.

In Richmond, etc., R. Co. v. Medley, 7 Am & Eng. R. R. Cas., 495; s. c., 75 Va. 499, the supreme court of Virginia use the following language: "A railway company may be supplied with the best engines and most approved apparatus for preventing the mission of sparks, operated by the most skilful

engineers. It may do all that skill and science can suggest in the management of its locomotives, and still it may be guilty of gross negligence in allowing the accumulation of dangerous combustible matter along its track, easily to be ignited by its furnaces, and thence communicated to the property of adjacent proprietors. Conceding that a railroad company is relieved of all responsibility for fires unavoidably caused by its locomotives, it does not follow it is exempt from liability for such as are the result of its negligence or mismanagement. The removal of inflammable matter from the line of the railroad track is quite as much a means of preventing fires to adjoining lands as the employment of the most improved and best constructed machinery. Many of the authorities hold that to allow the accumulation of such matter is per se negligence, which will render the company responsible if loss ensues. Others hold, and perhaps with better reason, that it is a question for the jury to determine upon all the circumstances of the case. And this was the view taken by this court in Brighthope R. Co. v. Rogers (8 Am. & Eng. R. R. Cas. 710), decided at the present term of this court. All the authorities, with a few exceptions, go to that extent, and the liabilities of the railroad company for this species of negligence is generally conceded."

In Indiana, etc., R. Co. v. Oberman, Io Ind. 538; s. c., 29 Am. & Eng. R. R. Cas. 161, it is held that where a railroad company sets fire to the dry grass and other combustible materials which it has negligently suffered to accumulate on its track and right of way, and, without fault of the adjoining land-owner, permits such fire to escape to his lands, and burn and destroy his property, the railroad company will be liable for the damages, whether such fire was started negligently or otherwise.

In Gibbon v. Wisconsin V. R. Co., 66 Wis. 161; s. c., 25 Am. & Eng. R. R. Cas. 479, the supreme court of Wisconsin say: It was an indisputable fact that the depot grounds and right of way, in the immediate vicinity where the fire was claimed to have originated, were encumbered with a great quantity of combustible material and dry débris, which would readily ignite if a spark or live coal lighted upon it; and the circuit court fairly and rightly submitted the question whether, under the circumstances, it was negligence for the defendant to permit its right of way and grounds to remain in that condition. The jury were clearly and distinctly instructed that in order for

the plaintiff to recover they must be satisfied by a fair preponderance of the evidence that the defendant was not only guilty of negligence in allowing its grounds and right of way to be in that condition, but that this negligence was the proximate cause of the destruction of plaintiff's lumber, and that the plaintiff himself was without fault. This ruling was in accord with the doctrine of this court as announced in this case on the first appeal, and in other decisions." See also Bass v. Chicago, etc., R. Co., 28 Ill. 9; Ohio, etc., R. Co. v. Shanefelt, 47 Ill. 497; Ohio, etc., R. Co. v. Porter, 92 Ill. 437; Illinois, etc., R. Co. v. Mills, 42 Ill. 407; Illinois, etc., R. Co. v. Frazier, 47 Ill. 505: Ill. Cent. R. Co. v. Munn, 51 Ill. 78; Rockford, etc., R. Co. v. Rogers, 62 Ill. 346; Delaware, etc., R. Co. v. Salmon, 39 N. J. 299; Toledo, etc., R. Co. v. Ward, 48 Ind. 476; Pittsburgh, etc., R. Co. v. Nelson, 51 Ind. 150; Burlington, etc., R. Co. v. Westover, 4 Neb. 268; Perry v. Southern Pac. R. Co., 50 Cal. 578; Henry v. Southern, etc., R. Co., 50 Cal. 176; Flynn v. San Francisco, etc., R. Co.,40 Cal. 14; Pittsburgh, etc., R. Co. v. Nelson, 51 Ind. 150; Kesee v. Chicago, etc., R. Co., 30 Iowa, 78; Kansas, etc., R. Co. v. Butts, 7 Kan. 308; Troxler v. Richmond, etc., R. Co., 74 N. Car. 377; Kellogg v. Chicago, etc., R. Co., 26 Wis. 223; Snyder v. Pittsburgh, etc., R. Co., II W. Va. 14; Brighthope R. Co. v. Rogers, 76 Va. 443; s. c., 8 Am. & Eng. R. R. Cas. 710.

From the fact that a railroad runs through a prairie country, with wild grass growing upon its right of way and adjacent thereto, it cannot be said, as a matter of law, that it is not incumbent upon the railroad company to cut or destroy the wild grass upon its right of way and outside its road-bed. Sibelrud v. Minneapolis, etc., R. Co., 29 Minn. 58; s. c., 7 Am. & Eng. R. R. Cas. 99.

Where the company's servants clipped the hedges bordering its line and permitted the clippings to remain fourteen days in August, a passing engine set these on fire, which fire spread to a house 200 yards distant. It was held that there was evidence to go to the jury of negligence. Smith v. London, etc., Ry. Co., L. R. 5 C. P. 98. So where the company permitted dry combustible sills to remain near its track, which, being ignited by one of the defendant's engines, communicated the fire to the plaintiff's fence, the company was held liable. Troxler v. Richmond, etc., R. Co., 74 N. Car. 377.

Where it is shown by sufficient uncontradicted evidence that the railroad com

X. Contributory Negligence.-Where the plaintiff uses his land
in a natural and proper way for the purposes for which it is suit-
able, he is not chargeable with contributory negligence from a
failure to take precautions against the negligence of a railway
company.1

pany negligently permitted dry grass and
other combustible materials to accumu-
late on its road and right of way, and that
fire was communicated thereto from its
locomotives in some manner, evidence
offered by the railroad to show the kind
of stack, fire-box, and ash-pan in use on
its locomotives was properly excluded.
Indiana, etc., R. Co. v. Overman, 110
Ind. 538; s. c., 29 Am. & Eng. R. R.
Cas. 161.

It is a question of fact for the jury

whether, in any particular place, it is

negligence for a railroad company to

leave combustible material near the

track, on the ground of the company,

liable to be ignited by sparks emitted by

engines. Gibbons v. Wisconsin V. R.

Co., 58 Wis. 335; s. c., 13 Am. & Eng. R.

R. Cas. 469; 25 Am. & Eng. R. R. Cas.

479; White v. Missouri Pac. R. Co., 31

Kan. 280; s. c., 13 Am. & Eng. R. R.

Cas. 473; Bass v. Chicago, etc., R. Co.,

28 Ill. 9; Gulf, etc., R. Co. v. Benson

(Tex.), 5 S. W. Rep. 822; Jones v. Michi-
gan Cent. R. Co., 59 Mich. 437; S. C.,
25 Am. & Eng. R. R. Cas. 482: As,
etc., R. Co. v. Medaris, 64 Tex. 92; s.c.,
29 Am. & Eng. R. R. Cas. 159; Illinois,
etc., R. Co. v. Mills, 42 Ill. 407; Ohio,
etc., R. Co. v. Shanefelt, 47 Ill. 497;
Illinois, etc., R. Co. v. Frazier, 47 Ill.
505; Rockford, etc., R. Co. v. Rogers,
62 Ill. 346.

1. Vaughan v. Taff, etc., R. Co., 3 H.
& N. 427.

The case above cited has generally

been adopted and approved by the courts

of this country, but there is some diver-

sity in the decisions. In Kessee v. Chi-

cago, etc., R. Co., 30 Iowa, 178, it is held

that the failure to provide suitable fire-

breaks around certain stacks was such

an act of negligence as to preclude a re-

covery for their destruction by fire.

This rule has since been changed by stat-

ute. West v. Chicago, etc. R. Co., 32

Am. & Eng. R. R. Cas. 339; s. c., 35 N.

W. Rep.479). And in Kansas City, etc.,

R. Co. v. Owen, 25 Kan. 419, where the

charge and instructions omit all mention

of contributory negligence on the part of

the plaintiff, and the defendant asks

the court to instruct the jury-"It is a

circumstance the jury may consider, as

going to prove contributory negligence,

that the plaintiff stacked his hay near the
railroad track, without guarding it in any
way from fire. Persons who live near
railroads are bound to take notice
of the increased danger to their property
from fire, and to exercise a proportionate
amount of care to protect it,"-held, ma.
terial error to refuse the instruction.

In some States, also, the owners of
cultivated land contiguous to a railroad
are held to be bound to keep it free from
dry grass and weeds, on pain in case of

fire of being held guilty of contributory

negligence. Ohio & M. R. Co. v. Shane-

felt, 47 Ill. 497; Ill. Cent. R. Co. v.

Frazier, 47 Ill. 505; Ill. Cent. R. Co. v.

Munn, 51 Ill. 78; Toledo, etc., R. Co. v.

Maxfield, 72 Ill. 95; Kansas R. Co. v.

Brady, 17 Kan. 380; Coates v. Mo., etc.,

R. Co., 63 Mo. 18; Fitch v. Railroad Co.,

45 Mo. 322; Murphy v. Railroad Co.,

45 Wis. 222. Compare Smith v. Hanni-

bal, etc., R. Co., 37 Mo. 287; Fitch v. Pa-

cific R. Co., 45 Mo. 322; Patton v. St.

Louis, etc., R. Co., 87 Mo. 117: s. c., 23
Am. & Eng. R. R. Cas. 364; Delaware,
etc., R.Co. v. Salmon, 38 N. J. L. 5; Same
v. Same, 39 N. J. 299; Kellogg v. Chi-
cago, etc., R. Co., 26 Wis. 223; Erd v.
Chicago, etc., R. Co., 41 Wis. 65; Mc-
Cready v. Railroad Co., 2 Strobh, (S. Car.)
356; Snyder v. Pittsburgh, etc., R. Co., II
W.Va. 141; Pittsburgh, etc., R.Co. v. Hix-
on, 79 Ind. 111; s. c.,8 Am. & Eng. R. R.
Cas. 717. But this rule will not apply to
woodland. Chicago, etc., R. Co. v. Sim-
onson, 54 Ill. 504; Kansas, etc., R. Co.

v. Butts, 7 Kan. 308; Spaulding v. Chi-

cago R. Co., 30 Wis. 110; Kessee v. Rail-

road Co., 30 Iowa, 33. Nor to buildings

erected near the line of the road in dan-

gerous contiguity to it. Phila., etc., R.

Co. v. Hendrickson, 80 Pa. St. 182;

Railroad Co. v. Chase, II Kan, 47:

Grand Trunk R. Co. v. Richardson, 91

U. S. 454; Burke v. Railroad Co., 7

Heisk, (Tenn.) 451.

An owner of land adjoining the right

of way of a railroad company is not

guilty of contributory negligence in fail-

ing to remove dry grass from the right

of way of which he owns the fee. Pitts-

burgh, etc., R. Co. v. Jones, 86 Ind. 496;

s. c., 11 Am. & Eng. R. R. Cas. 76.

In Burlington, etc., R. Co. v. Westover,

4 Neb. 268, however, it is said: "It is

a

contended that the defendant in error
was guilty of contributory negligence in
not having firebreaks ploughed around his
hedge and straw ricks. The maxim of
the law is Sic utere tuo ut alienum non
lædas”—' Enjoy your property in such
a manner as not to injure that of another
person.' A railroad company has
perfect right to the full and free use of
its own property and franchises, but upon
what grounds can it impose conditions
upon those owning property along its
line in order to shield itself from the
negligent use of fire by the company
or its employees? All take the risk of
injuries unavoidably produced by the
use of fire for the purpose of generating
steam, but upon what authority is any one
to be deprived of the free and ordinary
use of his property, in order to prevent
its destruction by the negligent use his
neighbor may make of his? We know
of no such authority.' Kellogg v. Chi-
cago,etc.. R. Co., 26 Wis. 223; Clemens v.
Hannibal, etc., R. Co., 53 Mo. 366; Patton
St. Louis, etc., R. Co., 87 Mo. 117; s. c.,
23 Am. & Eng. R. R. Cas. 364; Cook
v. Champlain, I Denio (N. Y.) 91; Fero
v. Buffalo, etc., R. Co., 22 N. Y. 209;
Kalbfleisch v. Long Island R. Co., 102
N. Y. 520; s. c., 29 Am. & Eng. R.
Cas. 179; Lindsay v. Winona & St.
R. Co., 29 Minn. 411; s. c., 7 Am.
Eng. R. R. Cas. 488. And in Karson v.
Milwaukee, etc., R. Co., 29 Minn. 12;
s. c., 7 Am. & Eng. R.R. Cas. 501, it was
held that the fact that plaintiff had not
ploughed around stacks so as to prevent
fire from reaching them was not negli
gence per se. Whether it amounted to
negligence was a question of fact to be
determined by the circumstances of the

case.

R.

P.

&

In Phila., etc., R. Co. v. Hendrickson, 80 Pa. St. '182, the court say: "The conclusion from the cases is very clear that a plaintiff is not responsible for the mere condition of his premises lying along a railroad, but in order to be held for contributory negligence must have done some act or omitted some duty which is the proximate cause, of his injury, concurring with the negligence of the company. Farmers may cultivate, use, and possess their farms and improvements in the manner customary among farmers, and are not bound to use unusual means to guard against the negligence of the railroad company, indeed are not bound to expect that the company will be guilty of negligence." And in Philadelphia, etc., R. Co. v. Schultz, 93 Pa. 341; s. c.. 2 Am. & Eng. R. R. Cas. 271, it was held that it is not contributory 8 C. of L.-2

negligence on the part of an owner of land' along a railway to allow the accumulation of rubbish and brushwood on his property. A land-owner along a railway assumes the risk of fires necessarily following the proper and lawful use of locomotives, but there is no liability on his part to guard against their improper and unlawful use.

In Richmond & D. R. Co. v. Medley, 75 Va. 499; s. c., 7 Am. & Eng. R. R. Cas. 493, it was held that no obligation rests upon the owners of property along the line of a railway to keep it in a condition to be always safe from the fires thrown from passing engines. They are not bound to remove combustible material on their own land in order to obviate the consequences of possible or even probable negligence of the company. And in such cases there cannot be contributory negligence on the part of the owner of the property destroyed.

Sowing wheat upon right-of-way land, and failing to remove the stubble therefrom after harvesting, is not negligence per se. Slosson v. Burlington, etc., R. Co., 60 Iowa, 215; s. c.,7 Am. & Eng. R. R. Cas. 509.

The piling of wood with the consent of the railroad company along the line of the railroad, where it was more liable to and did take fire, does not constitute contributory gligence. Pittsburgh, etc., R. Co. v. Noei, 77 Ind. 110; s. c. 7 Am. & Eng. R. R. Cas. 524.

For the owner of a warehouse adjoining a railroad track to permit the windows of a room to remain open, in which are stored cobs, husks, etc., it would seem amounts to contributory negligence, and the plaintiff cannot recover. Great Western R. Co. v. Haworth, 39 Ill. 347. But it would seem the contrary in Fero v. Buffalo, etc., R. Co., 22 N. Y. 209.

Permitting a roof to be in such a condition that it is liable to take fire easier than if it had a good roof, is not contributory negligence. Phil. & Read. R. Co. v. Hendrickson, 80 Pa. St. 183. Nor building a house within thirty yards of the track. Burke v. Louisville, etc., R. Co., 7 Heisk. (Tenn.) 451. Nor to stack new-mown hay within thirty rods of the track. St. Joseph, etc., R. Co. v. Chase, II Kan. 47. Nor suffering a barn roof

near the track to become old and decayed, and thereby being very susceptible of taking fire on a windy day. Jefferies 7. Philadelphia, etc., R. Co., 3 Houst. (Del.) 447. But in Coates v. Missouri, etc., R. Co., 61 Mo. 38, to allow shavings to accumulate in a house one hundred feet away, where the doors and 17

windows are open, it was held would preclude a recovery. See also Macon, etc., R. Co. v. McConnell, 27 Ga. 481, to the same effect.

Permitting a pane of glass to be out of the window, whereby a spark from the engine blew through and started a fire which consumed a lot of goods, is not contributory negligence. Martin v. Western Union R. Co., 23 Wis. 437. And see Rowell v. Railroad Co., 57 N. H. 132.

But where plaintiff's barn stood within two feet of the line fence, and he threw out straw and manure that became very dry and took fire from a spark thrown out by the locomotive, it was held that he could not recover. Collins New York Cent. R. Co., 5 Hun (N. Y.), 499.

V.

Where the plaintiff had obtained damages for the occupation by the company of a certain width of his land, and then ran his fence outside of that space, it was held that evidence of that fact should be received as bearing on the question of negligence. Railroad Co. v. Yeiser, 8 Pa. St. 366; Small v. Chicago, etc., R. Co., 50 Iowa, 338.

or

In an action brought against a railway company by the owner of an orchard to recover damages from fire alleged to have been communicated from the engines of the company to his premises, thereby injuring, burning, and destroying his apple-trees, evidence was presented upon the trial tending to establish that the orchard was situate adjoining the right of way of the railroad company; that the trees were heavily mulched with manure, were wrapped with dry grass, straw, and stalks; that the orchard was covered with old grass and cornstalks; that there was a heavy coating of old vegetation between the trees; that the fire started from red-hot coals or cinders thrown dropped from the engines of the company upon its right of way; that it ran through the grass and weeds on the right of way to the orchard, and through the orchard into the mulching, dry grass, straw, and stalks around the trees. Held, that sufficient evidence was offered in the case to require the court, upon the request of the railway company, to submit to the jury whether the owner of the premises was guilty of contributory negligence, and whether he was guilty of such negligence or not was a question for the jury to decide. Missouri Pac. R. Co. v. Cornell, 30 Kan. 35; s. c., 11 Am. & Eng. R. R. Cas. 56.

Where a land owner has notice or knowledge that his property has been

set on fire by sparks from a passing train, he must use all reasonable exertions to extinguish the fire. He cannot remain a supine spectator and hold the company liable. Illinois, etc., R. Co. v. McClelland, 42 Ill. 355: Kellogg Chicago, etc., R. Co., 26 Wis. 223; McNana v. Chicago, etc., R. Co., 41 Wis. 69; Toledo, etc., R. Co. v. Pindar, 53 Ill. 447: St. Louis, etc, R. Co. v. Hecht, 9 Am. & Eng. R. R. Cas. 222; s. c., 38 Ark. 357; Stebbins v. Central Vt. R. Co., 11 Am. & Eng. R. R. Cas. 79; s. c., 54 Vt. 464. But an instruction that if plaintiff had notice that his property had been set on fire, and made no attempt to put it out, he could not recover for any damage subsequently resulting, is erroneous in that it makes no reference to plaintiff's ability to cope with the fire. Tilley v. St. Louis, etc., R. Co. (Ark.), 32 Am. & Eng. R. R. Cas. 324.

Damage caused by fire through the negligence of one party, but increased through the negligence of the party suf fering the loss, may be recovered up to the time when the contributory negli gence began to affect the result; hence, a charge to the jury is erroneous when it would be understood by them that if the plaintiff neglected to do what a prudent man would have done when he learned of the fire, it defeated his right of recovery for the previous as well as subsequent damages. Stebbins v. Central Vermont R. Co., 54 Vt. 464; s. c., II Am. & Eng. R. R. Cas. 79.

In Fero v. Buffalo, etc., R. Co., 22 N. Y. 209, it is said: "It is difficult to maintain the proposition that one can be guilty of negligence while in the lawful use of his own property, upon his own premises. The principle contended for by the defendant's counsel, if carried to its logical conclusion, would forbid the erection of any buildings whatever upon premises in such proximity to a railroad track as would expose them to the possibility of danger from that quarter. The rights of persons to the use and enjoyment of their property are held by no such tenure as this. On the contrary, where one in the lawful use of his property exposes it to accident or injury from the acts of others, he does not thereby lose his remedy for an injury occasioned by the culpable negligence of such other parties."

In a number of cases it is held that the question whether the property owner is negligent is one of fact to be determined by the circumstances of the case. Karsen V. Milwaukee, etc., R. Co.,

« PreviousContinue »