FROM ROCKINGHAM CIRCUIT COURT. "The proprietors of every railroad shall be liable for all damages which shall accrue to any person or property by fire or steam from any locomotive or other engine on such road. Such proprietors shall have an insurable interest in all property situate on the line of *Page 136 such road exposed to such damage, and may effect insurance thereon for their own benefit." Gen. Stats., ch. 148, secs. 8, 9. This appears to be a reestablishment, as to railroads, of the ancient doctrine of the common law, requiring them to keep the fire from their engines on their own premises at their peril. Com. Dig., Action upon the Case for Negligence (6 A).
But the learned judge who tried the case was of opinion that the usual rule, as to contributory negligence on the part of the plaintiff, should nevertheless be applied, and charged the jury, in broad terms, that the plaintiff was bound to take customary and reasonable precautions (in view of the circumstances of exposure) to protect himself; that he was bound to take such care and make such use of his mill, under the circumstances of its location, as people ordinarily take with regard to property so situated.
Now it is not difficult to suppose a case where the application of this rule would impose such restrictions upon the use which the owner of real property, situated near the line of a railway, may make of that property, as will entirely ruin a legitimate business established and carried on by him there, either before or after the construction of the railroad (and it probably makes no difference whether before or after), and so, to all practical intents, destroy the value of his land. Certainly, it must often impose upon the owner of land thus situated, obligations and restrictions in the use of it of an exceedingly onerous and annoying kind. On the other hand, it is easy to suppose cases where the exercise of reasonable care to guard against the danger thus brought to one's door by a railroad would be a very slight burden to the owner, when the omission of such care would leave the property exposed in such way that to guard it against the danger would be an exceedingly great burden to the railroad.
Suppose a land-owner has been accustomed to store hay or cotton, or some even more inflammable and dangerous goods, in an open shed standing upon the margin of land taken for a railroad, and very near the track: common prudence, nay, any, the least prudence, would require that when the road is opened for use, and locomotive steam engines begin to pass daily and hourly along the line, the owner of such property should take suitable precautions to secure it against the danger thus brought upon it, and the expense and trouble of so doing might be comparatively slight. Suppose another land-owner has a mill, or other manufacturing establishment, so situated that the business carried on in it cannot be continued without exposing the property to imminent peril of destruction by fire from the engines: it may be that the exercise of no more than reasonable and ordinary care (in view of the circumstances of exposure) will require an outlay so great as to absorb the entire profits of his business, and so render his property practically valueless. Now the question is, whether a line can be drawn in such cases, and if so, where it is to be located and how described.
The liability of the railroad is made absolute by the statute. *Page 137 No question of care or negligence on their part is left open. If they throw sparks or fire upon the land of an adjoining owner, or allow their fire — that is, fire from their engines — to escape upon the land of such owner, they are made responsible in the same way as the owner of cattle, whose nature it is to rove, is liable for the damage they do in case they escape upon the land of another; and in the same way one is liable for damage caused by filth or noxious odors originating or accumulated upon his land, and passing therefrom to that of another. There is no rule of law that requires the plaintiff to so use his land that it shall not be exposed to injury from the act of another, especially when that act is impliedly forbidden by the law. And even without the statute, the throwing of a spark or coal of fire upon a pile of shavings, which I have negligently suffered to accumulate near a house I am building, is as much a trespass as would be the throwing of a spark or coal upon shavings which I have packed away, using ordinary care to ensure their safety. I do not see what restriction the court can place upon the use one may make of his own, inside the maxim sic utere, c., without a sheer invasion of his right of property. It seems to me the observations of BEARDSLEY, J., in Cook v. The Champlain Transportation Company, 1 Den. 91, are sound, and that they apply directly in the present case. He says (p. 101), — "We may run through every imaginable variety of position, some of more and some of less exposure and hazard, and we must at last, I think, come to the conclusion, that, while a person confines himself to a lawful employment on his own premises, his position, however injudicious and imprudent it may be, is not therefore wrongful; and that his want of due care or judgment in its selection can never amount to negligence, so as thereby to deprive him of redress for wrongs done to him by others."
So in Fero v. The Buffalo State Line R. R. Co., 22 N.Y., 215, BACON, J., says, — "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 defendants' 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."
In Vaughan v. Taff Vale Railway Co., 3 H. N. 750, MARTIN, B., says (arguendo), — "It would require a strong authority to convince me that, because a railway runs along my land, I am bound to keep it in a particular state." And BRAMWELL, B., in delivering the opinion of the court in the same case (p. 752) says, — "It remains to consider another point made by the defendants. It was said that the plaintiff's land was covered with very combustible vegetation, and that he contributed to his own loss. We are of opinion this objection fails. The plaintiff used his land in a natural and proper way for the purposes for which it was fit. The defendants come to it, he being passive, and do it a mischief." In Blyth v. Birmingham Waterworks Co., 11 *Page 138 Exch. 783, MARTIN, B., said, — "I held, in a case tried at Liverpool, in 1853, that, if locomotives are sent through the country emitting sparks, the persons doing so incur all the responsibilities of insurers; that they were liable for all the consequences. I invited counsel to tender a bill of exceptions to that ruling."
In Kellogg v. The Chicago N.W. Railway Co., 26 Wis. 223, DIXON, C. J., says, — "Now the case of a railroad company is like the case of an individual. Both stand on the same footing with respect to their rights and liabilities. Both are engaged in the pursuit of a lawful business, and are alike liable for damage or injury caused by their negligence in the prosecution of it. Fire is an agent of an exceedingly dangerous and unruly kind, and, though applied to a lawful purpose, the law requires the utmost care in the use of all reasonable and proper means to prevent damage to the property of third persons. This obligation of care, the want of which constitutes negligence according to the circumstances, is imposed upon the party who uses the fire, and not upon those persons whose property is exposed to danger by reason of the negligence of such party. Third persons are merely passive, and have the right to remain so, using and enjoying their own property as they will, so far as responsibility for the negligence of the party setting the unruly and destructive agent in motion is concerned. If he is negligent and damage ensues, it is his fault, and cannot be theirs unless they contribute to it by some unlawful or improper act. But the use of their property as best suits their own convenience and purposes, or as other people use theirs, not unlawful or improper. It is perfectly lawful and proper, and no blame can attach to them. He cannot by his negligence deprive them of such use, or say to them `do this or that with your property or I will destroy it by the negligent and improper use of my fire.'"
Bearing in mind that the absolute liability cast upon the defendants by our statute has the effect to relieve the plaintiff from showing negligence on their part, all these observations are entirely applicable to the case before us.
Ross v. Boston Worcester R. R., 6 Allen 87, is not an authority the other way, except that the court did not go out of their way to disapprove the ruling of the judge at nisi prius, — because, the verdict being for the plaintiff, the question was not before the court at all. But it seems to me a fair construction of the statute must give it an effect beyond that already assumed, — that is to say, the effect of relieving the plaintiff from proving negligence on the part of the defendants. I think the manifest intention of the legislature was to cast upon the proprietors of railroads the substantial liability of insurers against fire with respect to the property specified; and that being so, the same rule, as to contributory negligence by the plaintiff, that obtains between the parties to a fire policy in case of loss should be applied. In Shaw v. Robbards, 6 A. E. 83, Lord DENMAN, C. J., says — "One argument more remains to be noticed, viz., that the loss here arose from the plaintiff's own negligent act in allowing the kiln to be used for a purpose *Page 139 to which it was not adapted. There is no doubt that one of the objects of insurance against fire is to guard against the negligence of servants and others; and therefore the simple fact of negligence has never been held to constitute a defence. But it is argued that there is a distinction between the negligence of servants or strangers and that of the assured himself. We do not see any ground for such a distinction, and are of opinion that, in the absence of all fraud, the proximate cause of the loss only is to be looked to." And it is said that this doctrine is now well settled law in this country; — see cases collected in 2 Par. on Con. (5th ed.) 449, n. v.
Of course any fraud, any intentional exposure of property, in short, any act by the property-owner which would have the effect to avoid a fire policy, should have the same effect in cases of this description; that is, to discharge the railroad from the liability of insurers imposed upon them by the statute. For these reasons I am of opinion the verdict should be set aside.