The plaintiff's buildings, standing on the land of the railroad with the right of removal, were personal property (Aldrich v. Parsons, 6 N.H. 555, Dame v. Dame, 38 N.H. 429); and the nature of the property was not changed by the fact that the plaintiff may have had such an interest in the land as would enable him to maintain an action of trespass qu. cl. for an injury to the possession. This action is for the recovery of damages for the destruction of the buildings and their contents; and the property destroyed being personal, the action is transitory, and the plaintiff's right, whether common law or statutory, may be enforced in the courts of this state. Henry v. Sargeant, 13 N.H. 321; Cady v. Sanford, 53 Vt. 632, 639,640. "Wherever, by either the common law or the statute law of a state, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties." Miller, J., in Dennick v. Railroad Co., 103 U.S. 11, *Page 262 18. As the cause of action arose in Vermont, whatever would be a defence to the action, if brought there, must be a defence everywhere. Cool. Torts 471.
The defendants contended that their liability was fixed by the common law, but the court ruled that it was determined by the law of Vermont, and the defendants excepted; and this presents the principal question in the case. It involves a construction of the Vermont statute relating to the liability of railroad corporations for injuries by fire communicated from locomotive engines which is as follows: "Where any injury is done to a building or other property by fire communicated by a locomotive engine of any railroad corporation, the said corporation shall be responsible in damages for such injury, unless they shall show that they have used all due caution and diligence, and employed suitable expedients to prevent such injury." Gen. St. Vt., c. 28, s. 78. The statute also provides that a railroad corporation shall have an insurable interest in such property along their route, and may procure insurance thereon in their own name and behalf. If the courts of Vermont had given a construction to this statute, it would be for lowed, upon the principle, generally if not universally recognized, that the judicial department of every government is the appropriate organ for construing the legislative acts of that government. Elmendorf v. Taylor, 10 Wheat. 157, 159. But we have been unable, by our own research or by the aid of counsel, to find any case where the courts of Vermont have been called upon or have undertaken to give a legal construction of the statute upon the question whether it was intended to change the common-law liability of railroad corporations in cases of injury by fire from locomotive engines, or whether it was designed to affect the remedy merely, by enacting that proof of the fact that the fire was communicated by a locomotive should be prima facie evidence of negligence of the company. If the statute changes the common-law liability of the defendants, the ruling of the court was right. If it relates merely to the mode of trial and the remedy, the common-law rule should have governed the trial.
In Cleavelands v. G. T. R. Co., 42 Vt. 460, which is the only case in the courts of Vermont under this statute to which our attention has been directed, the question was not raised or considered. The court say, — "The plaintiffs claimed, and the evidence tended to prove, that the fire by which their property was destroyed originated by fire communicated by an engine of the defendants. The plaintiffs were not bound to prove anything further in the first instance. The burden then, under Gen. Sts., c. 28, s. 78, was cast on the defendants, in order to exonerate themselves from liability for the plaintiff's loss, of showing "that they had used all due caution and diligence, and employed suitable expedients to prevent such injury." The question whether the plaintiffs, under the statute, were required to prove negligence *Page 263 of the defendants by a preponderance of evidence upon the whole case, or whether the defendants were required to prove affirmatively by a preponderance of evidence that the fire was not caused by their negligence, was not discussed, and the language of the court is consistent with either view. There being no preponderance of evidence either way upon the question of negligence, in the one case the defendants would be entitled to a verdict, and in. the other the plaintiffs would be entitled to the verdict. And this is the point of difference upon this branch of the case. The defendants contend that the reasonable construction of the statute leaves the burden of proof upon the whole case upon the plaintiff, as at common law, to show by a preponderance of evidence that the injury was caused by the defendants' negligence. On the other hand, the plaintiff claims that the effect of the statute is to shift the burden of proof, upon the question of negligence, from the plaintiff to the defendants, and to require the defendants to show by a preponderance of all the evidence in the case that the injury was not caused by the defendants' negligence; and so the statute has changed the common law, and increased the liability of railroad corporations by imposing upon them the burden of showing affirmatively "that they have used all due caution and diligence and employed suitable expedients to prevent such injury "
Richardson v. Grand Trunk Railway Co. was an action under this statute, brought in the circuit court of the United States for the district of Vermont. The court charged the jury "that the burden of proof was upon the plaintiffs, in the first instance, to show that the fire in question was communicated from some of the defendant's locomotive engines to the bridge; and that if the jury were satisfied of that fact by a fair balance of evidence, then the plaintiffs were entitled to recover, unless, the defendant had established, by a fair balance of evidence, that it had used all due caution and diligence, and had employed all suitable expedients to prevent the fire; that the burden of proof was on the defendant as to the latter branch of the case." This was excepted to. On error to the supreme court of the United States, upon this point the court say, — "We see no just ground of complaint of the affirmative instruction given to the jury. It was in accordance with the rule prescribed by the statute; and there seems to have been no controversy in the circuit court respecting the question, whether, if the fire was communicated to the bridge by a locomotive, it caused the injury to the plaintiffs." Grand Trunk Railway Co. v. Richardson, 91 U.S. 454, 459, 474. So far as this case may be regarded as a precedent upon the construction of the statute, it would seem to be an authority in favor of the plaintiff.
In some jurisdictions the rule is adopted by the courts that the destruction of property by fire from a locomotive raises a presumption of negligence, meaning thereby that proof of the escape of fire from a locomotive is prima facie evidence of negligence. Shear. *Page 264 Red. Neg., s. 333; Clemens v. Railroad, 53 Mo. 366; Burke v. Railroad, 7 Heisk. 451; A. T. S. Fe Railroad v. Stanford, 12 Kan. 354; Spaulding v. Railroad, 30 Wis. 110. This rule is based upon the fact that locomotives properly constructed, in suitable condition and properly managed, do not ordinarily scatter fire; and also upon the fact that the information as to the condition, construction, and management of their engines, as well as the means of rebutting the charge of negligence, are peculiarly in the possession of the company. A similar rule has been recognized in this state in cases of injury to animals rightfully upon a railroad track. White v. Railroad, 30 N.H. 188; Smith v. Railroad, 35 N.H. 856. In these cases, however, negligence is the gist of the liability; and the burden of proving negligence by a preponderance of evidence is on the plaintiff.
The defendants contend that the Vermont statute is merely a legislative enactment of the rule adopted by the courts in the foregoing cases, designed to affect the order of proof at the trial, and not intended to impose any additional burden upon the defendants; and that under the statute the defendants are required only to counteract the evidence of negligence arising from proof that the fire was communicated by a locomotive, and that they are not required to prove by a preponderance of evidence that they were not negligent; that the burden still remains as at common law upon the plaintiff to prove negligence, and not upon the defendants to disprove it. The fact that the statute recognizes negligence as the gist of liability favors this view. On the other hand, it is argued that the statute is not a mere rule prescribing the order of trial; that it was the intention of the legislature to enlarge the common-law liability of railroad corporations, on account of the increased hazard to contiguous buildings and property by reason of the use of locomotive engines, and to secure greater care in their operation and management by enacting a more rigorous rule than that imposed by the common law; that the statute was designed in general terms to make such corporations responsible in damages for all injuries caused by fire from locomotives, allowing this liability to be avoided only by showing affirmatively that they were free from fault.
We are inclined to this view. It seems to be the fair and reasonable interpretation of the language of the statute. If it had been the intention of the legislature simply to enact a rule of procedure, not affecting the question of liability, it is reasonable to assume that it would have been expressed in unambiguous language. If the purpose was to impose an absolute liability in all cases unless the company could exonerate themselves by showing affirmatively that they "had used all due caution and diligence, and employed suitable expedients to prevent such injury," it is not readily apparent how that purpose could be more clearly expressed.
This view of the construction of the statute is confirmed by the *Page 265 reasoning of the court in Wakefield v. Railroad, 37 Vt. 330, which was an action to recover damages for injuries caused by the neglect of an engineer to ring the bell or sound the whistle at a crossing, as required by the statutes of Vermont. In the opinion of the court, Barrett, J., says, — "By s. 55, c. 28, Gen. St., it is required that on every locomotive engine the bell shall be rung, or the steam whistle blown, at least eighty rods from the crossing. . . . In s. 55 the requirement is affirmative and unconditional; but in s. 55 it is enacted that if any railroad corporation shall unreasonably neglect or refuse to comply with the requisition of the preceding section, they shall forfeit for every such neglect or refusal a sum not exceeding two thousand dollars. The corporation could not be subjected to that penalty unless such neglect or refusal should be shown to be unreasonable. This clearly implies that in contemplation of the law there may be cases in which such neglect or refusal would be reasonable; and if reasonable, the penalty would not be incurred. In a prosecution for the penalty, the burden would be upon the prosecutor of showing the neglect or refusal to have been unreasonable; and, upon first impression, it might seem that the rule, as to the liability of the corporation, is the same civiliter as criminaliter. But, on very full consideration, the court are unable to adopt that view. At common law it would be the duty of the corporation to exercise all reasonable care in the running of engines, and in the general use of the railroad, and to adopt all proper precautions against accident; and the faulty neglect of the corporation in these respects would, when affirmatively shown, subject them to liability for injuries caused thereby. We think the provision of the 55th section was designed to operate more stringently in this respect than the common law; and while it was not designed to subject the corporation to civil liability, entirely regardless of the circumstances and occasion of the omission to ring the bell or blow the whistle, in all cases of injury by such omission, still it was designed to require, as the general rule, that the bell should be rung or the whistle blown in all cases; and, in case of injury by reason of an omission to do so, to impose the burden on the corporation of showing that such omission, in the exercise of a sound Judgment by the engineer, in view of the condition of things as they existed at the time, was reasonable and prudent. When, therefore, in a case like the present, the plaintiff would show that the alleged injury was caused by such omission, it would not be necessary to his right of recovery that he should take the burden of showing affirmatively that such omission was unreasonable and imprudent; but it would rest on the defendant, as matter of defence, to show that it was reasonable and prudent."
The reasoning of the court in Wakefield v. Railroad is applicable to the present case. It is a construction by the supreme court of Vermont of secs. 55 and 56 of chap. 28 of the General Statutes of Vermont, relating to railroads. We are considering section 78 *Page 266 of the same chapter. Sections 55 and 56 provide in substance that railroad corporations shall be responsible in damages for injuries caused by omission to ring the bell or blow the whistle, unless they shall show that such omission was reasonable and prudent under the circumstances of the case. Section 78 provides that railroad corporations shall be responsible in damages for injuries caused by fire, unless they shall show that they have used all due caution and diligence, and employed suitable expedients to prevent such injuries. Upon the point in question, the cases are analogous. and we think that the ruling of the court at the trial, upon this branch of the case, and the charge to the jury upon the burden of proof, were correct. The charge upon that point was, in substance, the same as was given in Richardson v. Grand Trunk Railway Co., supra.
The court ruled that the doctrine of contributory negligence was not applicable to this case. What constitutes contributory negligence, and how far it is a defence in cases of injury by fire from locomotive engines, has been a subject of discussion in the courts in many jurisdictions, and the decisions are conflicting. Under our New Hampshire statute relating to the liability of railroad corporations for damages by fire, the question of negligence does not arise (G. L., c. 162, ss. 8, 9, Hooksett v. Concord Railroad, 38 N.H. 242, Rowell v. Railroad, 57 N.H. 132); and we have found no case where the question has been considered or a construction given to the Vermont statute by the courts of Vermont. In the absence of any judicial interpretation of the statute by the courts of that state to guide us, we think the ruling was correct. It seems to be sustained by the rule of construction applied by the supreme court of Vermont in analogous cases. A preceding section of the same chapter (c. 28, s. 47, Gen. St. of Vermont) makes it the duty of a railroad corporation to erect and maintain a legal fence on the sides of their road, and cattle-guards suitable and sufficient to prevent cattle and animals from getting on to the railroad; and provides that "until such fences and cattle-guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by its agents or engines to cattle, horses, or other animals thereon, occasioned by want of such fences or cattle-guards." Under this statute, it is held that the duty of the railroad to erect and maintain fences along their road is absolute, and the question of contributory negligence on the part of the owner of animals injured through the want of such fences does not arise. Mead v. Railroad, 52 Vt. 278. A similar principle of interpretation excludes the defence of contributory negligence in cases of damage by fire. Such, we think, would be the construction of the statute by the Vermont courts, and it is immaterial what our construction would be if it were a New Hampshire statute.
In favor of this construction it may be argued that it is not only *Page 267 in harmony with the Vermont decisions in analogous cases, but it is the natural and reasonable interpretation of the language of the statute, "that the corporation shall be responsible in damages for such injury unless they shall show that they have used all due caution and diligence and employed suitable expedients to prevent such injury;" that the statute expressly declares in what cases the corporation shall be relieved from liability, and no other defence is recognized, except showing "that they have used all due caution and diligence, and employed suitable expedients to prevent the injury; "that unless these facts are shown, the liability of the corporation is absolute; and that, by the elementary rule of construction, expressio unius est exclusio alterius, the defence of contributory negligence is excluded in cases under this statute. The Vermont statute, like ours, gives railroad corporations an insurable interest, in their own name and behalf, in property exposed to danger along their route; and the suggestions of Cushing, C. J., in Rowell v. Railroad, 57 N.H. 132, 139, would seem to be applicable here: "Contributory negligence does not furnish any defence to any action by the insured on the policy of insurance. Negligence, either of the railroad or of the land-owner, would not, according to the authorities, be a defence to an action by the proprietors to recover on their policy the amount of the loss insured. It would be odd enough if the proprietors could recover on their policy, and then turn round and defeat the property-owner on the ground of contributory negligence." The jury were instructed that the defendants were not liable for fault unless such fault occasioned the plaintiff's loss; and that they had the right to act, on the presumption that owners would take reasonable care of their own property. The instructions were correct.
Judgment on the verdict.
SMITH and CARPENTER, JJ., did not sit: the others concurred.