it, and have no just cause of complaint, treating the provision either as a law or a contract.9

12. And a provision in the charter of a railway company or other road company, that it may demand tolls upon any particular portion of its road as soon as completed and in operation, has been construed to create such portion a distinct public work, not liable to be affected by failure to complete the remainder of the work embraced in the same charter. But if the work is not done in a proper manner, that will be a cause of forfeiture not cured by the provision allowing tolls to be levied upon distinct portions of the entire line.10 But it is here left in doubt whether such defect in construction will operate to forfeit the entire road or only those sections where such defects occur.

13. We have discussed the question of railway companies making a discrimination between fares paid in the cars and at their stations.11 Under the New York statute, which allows of this discrimination only where the company keep their ticket office open, it was held the company could only make that discrimination in the cases specified in the statute, and not in other casės, even if the passenger took the cars after midnight, the company being required to keep the ticket office open only until 9 o'clock, P. M.12

13

14. This question is still further discussed in a later case; but the questions turned chiefly upon the construction of the statute in force there, requiring the company to keep all their ticket offices open one hour before the trains start, except between 9, P. M., and 5, A. M., when they are only required to do so at Utica and other principal offices, and which also enacts, that if any person shall, at any station where a ticket office is kept open, enter the cars as a passenger, without having first purchased a ticket, it shall be lawful for the company to require five cents. extra fare of such person; and it was decided that the extra fare

9

• Pennsylvania Railw. v. The Commonwealth, 3 Grants' Cas. 128. As to the right to tax shares in a corporation for county purposes, see Lycoming County v. Gamble, 47 Penn. St., 106.

10 The People v. J. & M. Plank-Road Co., 9 Mich. R. 285.

11 Ante, § 28.

12 Chase v. N. Y. Central R. Co., 26 N. Y. R. 523.

18 Nellis v. N. Y. Central R. Co., 30 N. Y. R. 505,

could only be demanded where the company kept a ticket office open. And it will make no difference that the passenger entered the cars at an hour when the ticket offices were required to be kept open, if such was not the fact. It was also held, that the company, by so demanding and receiving the five cents extra fare when not entitled to receive it, became liable to the penalty of $50, under the statute, for taking more fare than allowed by law.

placing buildings in an exposed situa- 14, 15. For what acts railway companies may

tion.

8. Where insurers pay damages on insured

become responsible without any actual negligence.

§ 125. 1. In the English courts it seems to have been settled, as early as the year 1846,1 upon great consideration, that the fact of premises being fired by sparks emitted from a passing engine, is primâ facie evidence of negligence on the part of the company, rendering it incumbent upon them to show that some precautions had been adopted by them reasonably calculated to prevent such accidents.

2. In an earlier case, where the facts were reported, by the judge, at Nisi Prius, for the opinion of the full court, that a stack of beans near the track of the railway was fired and consumed by sparks from the company's engine, of the ordinary construction, and used in the ordinary mode, the court said the facts reported did not show, necessarily, either negligence or no negligence. That was a question for the jury.2

3. But the court in the case of Piggott v. Eastern Co.'s Railway, went much further. Tindal, Ch. J., said: "The defendants are a company intrusted by the legislature with an agent of an extremely dangerous and unruly character, for their own private

1 Piggott v. Eastern Counties Railw. Co., 3 C. B. 229.

2 Aldridge v. Great Western Railw., 3 M. & G. 515; 2 Railw. C. 852.

*

and particular advantage; and the law requires of them, that they shall, in the exercise of the rights and powers so conferred upon them, adopt such precautions as may reasonably prevent damage to the property of third persons, through or near which their railway passes. The evidence in this case was abundantly sufficient to show, that the injury of which the plaintiff complains was caused by the emission of sparks or particles of ignited coke, coming from one of the defendants' engines; and there was no proof of any precaution adopted by the company to avoid such a mischance. I therefore think the jury came to a right conclusion, in finding that the company were guilty of negligence, and that the injury complained of was the result of such negligence. There are many old authorities to sustain this view; for instance, the case of Mitchil v. Alestree, 1 Vent. 295, for an injury resulting to the plaintiff from the defendant's riding an unruly horse in Lincoln's Inn Fields; that of Bayntine v. Sharp, 1 Lutw. 90, for permitting a mad bull to be at large; and that of Smith v. Pelah, 2 Stra. 1264, for allowing a dog, known to be accustomed to bite, to go about unmuzzled. The precautions suggested by the witnesses called for the plaintiff in this case, may be compared to the muzzle in the case last referred to. The case of Beaulien v. Finglam, in the Year-Books, P. 2, H. 4, fol. 18, pl. 5, comes near to this. There, the defendant was charged, in case, for so negligently keeping his fire as to occasion the destruction of the plaintiff's property adjoining. The duty there alleged was,- quare, cum secundum legem et consuetudinem regni nostri Angliæ hactenus obtentam, quod quilibet de eodem regno ignem suum salvò et securè custodiat, et custodire teneatur, ne per ignem suum damnum aliquod vicinis suis eveniat.'"

6

4. The principle of this case seems to have been acquiesced in by the railways in England, and such precautions used, as

3

3 Hammon v. Southeastern Railw. Co., Maidstone Spring Assizes, 1845, before Lord Denman, Ch. J., for the destruction of farm buildings, including a thatched barn, by sparks emitted from the defendants' engines in passing along the line of their railway. There was evidence of the fire being so caused, and that defendants' engines had no wire guard, or perforated plate, to prevent the escape of the sparks, although both were in use before that time. There was evidence in this case that it was principally where the engines were overtasked that they

*

to secure the engines against emitting sparks. In this last case it was held proper evidence to go to the jury that the company's engines had before, in passing along the line, emitted sparks, a sufficient distance to have done the injury in the present case, as a means of ascertaining the possibility of the building being fired in the manner alleged. The testimony in this case showed, that the danger of emitting sparks is very much increased by overtasking the engine, and that it may be altogether avoided by shutting off the steam in passing a place where there is danger from sparks, or that the danger may be guarded against by mechanical precautions.

The subject has been a great deal discussed in more recent English cases. In this case it was held by Bramwell B., at the jury trial, and his views seem to have been sustained by the court of exchequer, that the mere fact of the company using fire as a means of locomotion, from which occasional fires will be communicated, even with the utmost care to prevent it, made them responsible for damage caused thereby. But in the exchequer chamber the judges seem to have been agreed, that the legislature having legalized this mode of locomotion, it could not subject the company, while pursuing a legal business, in a legal mode, to damage thereby caused to others, unless through some degree of neglect. If the company resort to all known precautions against fire they are not liable.

5. But in this country it must be confessed the rule of the liability of railways for damage done by fire communicated by their engines, is more favorable to the companies than in England. It seems to have been assumed, in this country, that the

were liable to emit sparks. His Lordship directed the jury that it lay upon the plaintiff to establish negligence; they were to consider that the plaintiff might have saved all hazard by tiling his barn, and also whether the train was driven too fast. The plaintiff had a verdict, and the court subsequently refused a new trial. Taylor v. Same Co. was tried at same term, with similar proof and the same result. Walford on Railways, 183, 184, and notes.

* Vaughn v. Taff-Vale Railw., 3 H. & N. 743 ; s. c. in Exchequer Chamber, 6 Jur. N. S. 899. See also The King v. Pease, 4 B. & Ad. 30, upon which the last case is decided in Exchequer Chamber. In reference to the decision in the Court of Exchequer, we said in our last edition it was going further than any just principle would allow, unless the defendant's business is regarded as unlawful. Post, pl. 14, 15, and note.