The most important question in these two cases involves an interpretation of the E. L. c. Ill, § 270, which creates an absolute liability, on the part of railroad corporations, for damages to property by fire communicated by their locomotive engines. The plaintiffs’ tract of woodland is alleged to have been injured by fire from an engine, used upon a track in the construction of a street railway for the defendant in the first action, by contractors who aré the defendants in the second action. We are called upon to determine the meaning of the statute in its application to cases of this kind.
The first enactment touching the subject was in the St. 1837, c. 226, §§ 6-10, which changed the common law by putting upon a railroad company the burden of showing that it had used “ all due caution and diligence,” if it would relieve itself from liability for damages from a fire communicated by one of its locomotive engines. By the" St. 1840, c. 85, § 1, this liability was made absolute. In the St. 1864, c. 229, § 34, the liability was extended to street railway companies. Except as *334there have been changes in the law relative to street railways, the provision has remained without material change since 1840.
It is contended by the defendants that the language of the statute, when construed in connection with the conditions to which it relates, applies only to locomotive engines used upon a completed railroad or railway, in the exercise of a franchise which subjects property along the railroad to peculiar dangers. The argument is that it was never intended to change the law relative to a liability for injuries done in the construction of railroads; that, ordinarily, the peculiar dangers on account of which the statute was enacted would not arise in any considerable degree, if at all, in the construction of a railroad, and that the statute was not directed to possible dangers so arising, for which the rule of the common law making parties liable for the consequences of their negligence is equitable and sufficient.
There is much to indicate that this contention is correct. The language of the original statute, which refers to a “.fire communicated by a locomotive engine of any railroad corporation,” seems to contemplate a corporation using engines upon a completed railroad, under its franchise. In the next section the corporation is given an insurable interest in property “ along its route,” which implies that it has a route, that is, a recognized course or way travelled over. The exercise of its franchise by the frequent passage of-ordinary locomotive engines over a railroad creates danger which justifies an unusual provision for the protection of property owners along its line. This is the danger which moved the Legislature to enact the law. It is a danger which does not exist until the road is completed and in use. The possibility that some kind of a steam engine may be used in the work of construction, and that a spark may be emitted from it, can hardly be considered a danger to which the statute was directed.
The opinions of this court, although not decisive of the precise question before us, tend strongly to support the contention of the defendants. In Hart v. Western Railroad, 13 Met. 99, 104, Chief Justice Shaw said: “Railroad companies acquire large profits by their business. But their business is of such a nature as necessarily to expose the property of others to danger. . . . The manifest intent and design of this statute, we *335think, and its legal effect, are, ... to afford some indemnity against this risk to those who are exposed to it, and to throw the responsibility upon those who are thus authorized to use a somewhat dangerous apparatus, and who realize a profit from it.” Chief Justice Bigelow expressed a similar conclusion in Ross v. Boston & Worcester Railroad, 6 Allen, 87, 90. In Ingersoll v. Stockbridge & Pittsfield Railroad, 8 Allen, 438, the court gave as a reason for holding the defendant liable, that the engine “ was running upon the defendant’s road, with their consent, in the transaction of the business for the accommodation of which their franchise was conferred.” In Eastern Railroad v. Relief Ins. Co. 98 Mass. 420, 423, the object of the statute is said to be to afford protection and indemnity to owners of property “ against the dangers to which it is necessarily exposed from the conduct of the business which the railroad corporation is authorized by law to carry on for the benefit of the public and its own profit.” Similar language is used in Wall v. Platt, 169 Mass. 398,401, where the court enforced the liability against receivers in possession of a railroad, and gave as a reason, that “ the mischief for which the statute is designed to provide a remedy is as incident to the operation of the road in their hands as in those of the corporation.” All of these cases recognize the fact that the statute was intended to give indemnity for risks resulting from the maintenance and operation of a completed railroad in actual use, rather than risks arising in the construction of a railroad. We are of opinion that the use of the engine in building the street railway did not create a liability under this statute.
It is also contended that, under the definition of a street railway in the St. 1898, c. 578, § 1, and in the R. L. c. Ill, § 1, as a railway “ operated by any motive power other than steam,” it is not to be assumed that the use of a locomotive engine upon a street railway is authorized by law or included within the provision of the R. L. c. Ill, § 270, unless it is averred that express authority was given by the selectmen of the town to use steam as a motive power under the R. L. c. 112, § 51. The declarations in these cases contain no such averment. In view of our conclusion upon the other branch of the case, and of the fact that, under the St. 1906, c. 463, Part III. § 35, street railways *336are no longer allowed to use steam as a motive power, we do not deem it necessary to consider the question presented by this contention.
The refusal to allow the amendments was within the discretion of the judge. Payson v. Macomber, 3 Allen, 69. Augur Steel Axle & Gearing Co. v. Whittier, 117 Mass. 451, 455. Barlow v. Nelson, 157 Mass. 395. The judge well might refuse to allow them on the ground that they were immaterial, and for other reasons.
The demurrer to the third count of the declaration in the second case is founded on facts averred in the demurrer which do not appear in the declaration or in the record of the case. This part of the demurrer is in substance a plea of res judicata. This count is good at common law, and the defence relied upon cannot be made by a demurrer, but should be stated in a plea or answer. The demurrer to this count was sustained erroneously.
The judgment in the first action is affirmed, and in the second action the order sustaining the demurrer is affirmed as to the first two counts, and reversed as to the third count.
So ordered.