[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 621 This action was brought to recover damages alleged to have been occasioned by a fire negligently set by the defendants or their employees. The negligence complained of consisted in allowing to accumulate upon the corporation's right of way, inflammable material which was liable to become ignited from the sparks emitted from passing locomotives. The evidence tended to show that the fall before the defendants had caused sweet fern brush, huckleberry brush, weeds and stuff to be mowed, which they then permitted to lie upon the ground, and that it was in this material the fire started and spread upon adjoining lands and thence across the lands of several intervening owners for a distance of two miles upon the plaintiff's lands, causing the *Page 622 damage that is sought to be recovered in this action. The trial court submitted the question of negligence to the jury upon the theory that properly constructed locomotives, with the most approved spark arresters, will, of necessity, emit some sparks, and that, consequently, in periods of drought, the duty devolved upon the defendants of keeping their right of way free from combustible material which was liable to be ignited from sparks so emitted. We think the case is free from error in this respect.
The only question which requires consideration here is as to whether the damage to the plaintiff is the natural and proximate result of the negligence complained of, or is so remote that it would not be reasonably expected as a result of such negligence. At the conclusion of the plaintiff's evidence the defendants' counsel moved for a dismissal of the complaint, upon the grounds, among others, that the testimony showed that the fire had burned two days, and had crossed over more than two miles of country before it reached the plaintiff's lands; that the fire which started on the defendants' right of way was not the probable or proximate cause of the plaintiff's injury, and that such a result was not to be reasonably anticipated. This motion was denied and an exception was taken by the defendants. It was again renewed at the close of the evidence, in substantially the same form, and met with a similar ruling, to which an exception was also taken.
At common law every master of a house or chamber was bound to so keep his fire as to prevent it from occasioning injury to his neighbors. If a fire broke out in a house and burned an adjoining dwelling or did other damage, the master of the house in which the fire began was liable to make compensation. It was not necessary to prove negligence; the law presumed it. (Year Book, 2 H. 4, pl. 18; 1 Black. Com. 431.)
This law was first changed by statute 6 Anne, c. 31, which provided that: "No action shall be maintained against any person in whose house or chamber any fire shall accidentally begin, for their own loss is sufficient punishment for their own *Page 623 or their servants' carelessness." This statute was amended by 14 Geo. III, c. 78, which provided that: "No action shall be brought against any person in whose house, chamber or other building, orwhose estate any fire shall accidentally begin, any law, usage or custom to the contrary notwithstanding." The provisions of these statutes have been limited to accidental fires and not to those negligently set; under the statute, however, negligence will no longer be presumed, but must be shown by the party asserting it. (Filliter v. Phippard, 11 Adol. Ellis [N.S.], 347.)
We thus call attention to the law of England for the purpose of better understanding our own authorities upon the subject.
The first case to which we call attention is that of Ryan v.N.Y.C.R.R. Co. (35 N.Y. 210). In that case the defendant through careless management of, or defects in, one of its engines set fire to its woodshed in the city of Syracuse and the fire was communicated from such burning building to the plaintiff's house, which was consumed. An action was brought to recover from the railroad company the value of the building destroyed. A nonsuit was granted at Circuit and the judgment entered thereon was affirmed in the General Term and in this court, for the reason that the damages were too remote and were not the natural and expected result of the firing of the woodshed. HUNT, J., in delivering the opinion of the court, says: "If, however, the fire communicates from the house of A. to that of B., and that is destroyed, is the negligent party liable for his loss? And if it spreads thence to the house of C., and thence to the house of D., and thence consecutively through the other houses, until it reaches and consumes the house of Z., is the party liable to pay the damages sustained by these twenty-four sufferers? The counsel for the plaintiff does not distinctly claim this, and I think it would not be seriously insisted that the sufferers could recover in such case. Where, then, is the principle upon which A. recovers and Z. fails? * * * In the destruction of the building upon which the sparks were thrown by the negligent *Page 624 act of the party sought to be charged, the result was to have been anticipated the moment the fire was communicated to the building; that its destruction was the ordinary and natural result of its being fired. In the second, third or twenty-fourth case, as supposed, the destruction of the building was not a natural and expected result of the first firing. That a building upon which sparks and cinders fall should be destroyed or seriously injured must be expected, but that the fire should spread and other buildings be consumed, is not a necessary or an usual result. That it is possible, and that it is not unfrequent, cannot be denied. The result, however, depends, not upon any necessity of a further communication of the fire, but upon a concurrence of accidental circumstances, such as the degree of the heat, the state of the atmosphere, the condition and materials of the adjoining structures and the direction of the wind. These are accidental and varying circumstances. The party has no control over them, and is not responsible for their effects."
In Webb v. R., W. O.R.R. Co. (49 N.Y. 420) the defendant's engine dropped a live coal upon a tie and set it on fire. Weeds, grass and rubbish had been permitted to accumulate from that place to the fence of the defendant's right of way. The defendant's engine was defective and the coal was negligently dropped. At the time, a strong wind was blowing, and it was a season of extreme drought. The fire quickly ran through the grass and rubbish to the defendant's fence and then spread upon the plaintiff's next adjacent woodland, destroying his timber and causing damages for which the action was brought. It was held in that case that the accumulation of the weeds, grass and rubbish through which the fire was communicated to the plaintiff's premises was one of the elements of negligence with which the defendant was chargeable, and for that reason the defendant was liable; that it was in effect the same as if the defendant had thrown the coal which set the fire directly upon the plaintiff's lands and there started the fire. FOLGER, J., in delivering the opinion of the court, enters upon a consideration of the rule *Page 625 at common law and the Ryan case, and discusses the question of proximate cause and results necessarily and reasonably to be expected, and approves the rule that the liability of a person extends to his immediate neighbor only for the damages caused to him by the spread of the fire upon his next adjacent or contiguous property. In commenting upon the Ryan case, he says: "It announces no new principle. It recognizes the principle which it adopts as one before that established, and applying it to the facts therein existing, holds the damage sued for was not the necessary and natural result of the negligent act."
In Frace v. N.Y., L.E. W.R.R. Co. (143 N.Y. 182) the action was brought to recover damages for the destruction of a barn and hotel. The evidence showed that the barn first caught fire, and it was a controverted question of fact upon the trial as to whether the hotel building took fire from coals emitted from the engine or from fire communicated from the burning barn. The trial judge charged the jury that, "to justify a verdict covering or including the value of the hotel, you must find that the same was destroyed by reason of the fire being communicated thereto directly from the engine, or without the assistance of other agencies and arising from other causes. This is a question for you to determine from the evidence." PECKHAM, J., in delivering the opinion of the court, says with reference to this charge: "We think the charge of the learned judge upon this part of the case was as favorable to the defendant as it could properly ask. The question was left as one of fact, under all the circumstances, as to whether the burning of the hotel were not the natural and direct result of the sparks from the engine. In this case the court committed no error to the prejudice of the defendant."
In Reed v. Nichols (118 N.Y. 224) the action was for damages caused by a fire which destroyed two of the plaintiff's buildings. A strong wind carried sparks from a smokestack belonging to the defendants to the roof of a building 280 feet distant, setting it on fire. After the building commenced to burn the wind died down and changed its course; the fire *Page 626 communicated to another building north and thence across the street to a barn of the plaintiff, then a building north of the one first set on fire, and from it spread to and destroyed another building of the plaintiff. It was held that the burning of the plaintiff's buildings was not the proximate, but was the remote result of the negligent acts complained of, and that there could be no recovery.
In O'Neill v. N.Y., O. W. Ry. Co. (115 N.Y. 579) the action was brought to recover damages for injuries to woodlands belonging to the plaintiff, which, it was claimed, had been set on fire through the negligence of the defendant. It appeared that sparks from a locomotive passing on the defendant's road set fire to brushwood, rails and other combustible material which it had allowed to accumulate on its lands. The fire spread to the lands of C., and from thence to the lands of plaintiff. The plaintiff was permitted to recover. On review in this court it was claimed that the damages were too remote. It was held that this question could not be reviewed for the reason that the point was not raised nor presented to the trial court. DANFORTH, J., in his opinion, however, proceeds to comment upon the question, saying: "The fact that land of a third party intervened between the woodland of the plaintiff and the defendant's road, cannot be doubted, but that alone is not decisive. Other circumstances would control, and, if not already apparent in evidence, we cannot say that further testimony would not have shown that the result was to have been anticipated from the moment fire dropped upon the defendant's premises, and that the destruction which happened to the plaintiff's property was the natural and direct effect of the first firing. If so, it was not remote."
In Martin v. N.Y., O. W. Ry. Co. (62 Hun, 181) an action was brought to recover damages to woodlands by a fire started negligently, which had spread over the lands of other persons, which intervened, and thence to the plaintiff's lands nearly a mile distant from the point where the fire began; it was held that the plaintiff could recover.
We do not deem it important to refer to other cases, for *Page 627 those cited show the place at which the authorities diverge. If the comments in the opinion in the O'Neill case are to be adopted as the basis of liability in future cases, then a different rule must be recognized with reference to fires set upon woodlands from that existing in cities, towns and villages. In the O'Neill case the question now under consideration was not raised, and the learned judge writing the opinion says: "It, therefore, cannot be listened to." He, notwithstanding, did proceed to comment upon the question as we have shown, and it is doubtless true that since the publication of the opinion the courts of original jurisdiction and the legal profession have generally supposed that a new rule had been adopted. It is, however, clear that the comments were not essential to the decision then made, being merely dictum, and we consequently are at liberty to again consider the subject.
Is there any good reason for a different rule of liability with reference to fires on woodlands from that existing in cities and villages? It is said that inflammable material is common upon woodlands, and that a fire once ignited will continue to burn until checked by a change of wind, or quenched by the fall of rain. But this is also true with reference to our villages and many of our large cities where the buildings are chiefly constructed of wood. In these localities inflammable material abounds to feed a flame once started, and a fire in a burning building during a strong wind is liable to spread and produce damages a hundred fold greater than any probable injury resulting from such a fire on woodlands. Exceptions to the general rule are not favored in the law, unless a necessity therefor exists. No such necessity is apparent to our minds, and we think no good reason exists for establishing a different rule of liability with reference to woodlands from that existing in cities, villages and other localities. What then is the rule of liability for fires negligently set? We think this question is fully answered by the common law and the cases in our own court, to which we have referred. The damage must be the proximate result of the negligent act. It must be such as the ordinary mind would reasonably expect *Page 628 as a probable result of the act, otherwise no liability exists. If a person negligently throws a live coal of fire upon another's building, causing it to burn, the damages are the direct result of a negligent act, and the result is that which the ordinary mind would reasonably expect. If a person lights a fire upon his own premises, upon which he has maintained inflammable material extending to his neighbor's lands, and the fire, fed by this material, spreads upon abutting lands, the damage is the proximate result of the act and a liability exists, and this, we think, is the limit. It is contended that liability ought not to be thus limited; that a fire once set may run across the lines of an abutting owner and upon lands of other proprietors, causing damage. It must be conceded that such a result often happens. It did in the case we have under consideration. But where is the line to be drawn? Shall it be one mile, two miles or ten miles distant from the place of the original starting of the fire? Who is to specify the distance? It is suggested that it might be left to the jury; but a jury in one part of the state might answer one mile, and in another part it might determine the rule of liability to extend ten miles. The evidence upon this branch of the case is undisputed, and in such cases the question as to what is proximate cause is always for the court and not for the jury.
While we appreciate the force of the argument in favor of extending the rule of liability, and recognize the fact that a limitation of the rule will deprive many persons of a right of action for damages, we are convinced that the old rule is wiser and more just and that we ought not to depart from it. The limitation may be somewhat arbitrary, but it recognizes the principle that we should live and let live. Fires often occur from the trivial acts of most prudent persons. Great conflagrations are daily reported. Not long since one of our largest cities substantially disappeared within a single day. No person, however cautious, is exempt; misfortune may overtake him in a forgetful moment, or through fault in the members of his family or servants. No man is able to answer for all the remote consequences of his acts and those for whom *Page 629 he is responsible. Hence, the wisdom of the rule of proximate cause which, as defined by Webster, is that which immediately precedes and produces the effect. The fire set by the defendant did not immediately precede the fire upon the plaintiff's land; other lands intervened covered with inflammable material over which the defendant had no control, and without which the fire could not have extended upon plaintiff's premises. The drought, atmosphere and wind were the principal agents assisting the fire in its work of destruction, and were the intervening causes of the damage. It is unfortunate for the plaintiff, but we think her damage was the remote and not the proximate result of the defendant's fire.
The judgment should be reversed and a new trial ordered, costs to abide the event.