Dissenting opinion by
Mr. Chief Justice Breese:I do not concur in the reasoning, or conclusions, in the above opinion. I adhere to the views I expressed in the case of Bass v. C. B. & Q. R. R., 28 Ill. 9, and in the separate opinion filed by me in the case of the Ill. Central R. R. Co. v. Mills, cited sufra.
I hold there is but slight, if any, analogy between a railroad company and individuals, in theqmrsuit of their ordinary avocations. A much higher degree of care and diligence is, and should be, required of the former than of the latter, as the former are in the exercise of a most hazardous calling, demanding the highest possible degree of care. To define the exact limits of responsibility, in which a railroad company should be included, and the precise measure of care and diligence which the law imposes upon them, to prevent damage, from their engines, of the kind in question, may not be entirely practicable. Carriers of passengers by railroads, all the cases agree, are bound to the utmost diligence which human skill and foresight can effect, and if injury occurs, by the slightest omission in regard to the highest perfection of all the appliances of transportation, or the mode of management, at the time the damage occurs, the conrpany is responsible.
Such, in my judgment, should be the rule in cases like the one before us. The majority of the court go but part of the way in their requirements, that is, that the company shall only provide the best known and approved mechanical contrivances to arrest the sparks from the engine. I go further, and hold they should be required to keep their roadway free and clear of combustible matter. This can easily be done, and with light expense, and which the early prairie settlers of this State did, each recurring autumn, by firing around their fields and buildings, in anticipation of the annual firing of the prairies. Had the roadway been clear of weeds and grass, and other dry herbage, easily ignited, this injury would not have occurred. To say the plaintiff was equally negligent, by allowing his fields to go to fallow, and, to protect himself against a railroad, he must change his system of husbandry, is going further than the law, in my opinion, requires.
Holding that railway companies must keep their way free of combustible matter, it is negligence per- se to permit it to remain, subject to be fired in a second of time, by any passing engine, even though the engine is provided with the best spark arresters. Such contrivances are liable to injury, and not perceived, perhaps, until the engine has performed its trip.
How, if the law be, as it certainly is, that railroad companies, in carrying passengers, are bound to the utmost care and diligence which human skill and foresight can effect, so, for the safety of the property of the citizen, should they be held to the same degree of care and diligence, and while they neglect to do any thing which can be readily and cheaply done to lessen the hazard of danger and loss in this direction, they should be required to do it. Whilst they suffer their roadways to become foul and combustible, so long will j.uries find them guilty of negligence, even though they may have the most approved spark arresters. The juries will say, and properly, you could have done more toward lessening the danger of the citizen; you could have kept your roadway free and clear of combustible matter — from that the fire was communicated to the property, and you ought to respond in damages. It is not just to say, the citizens, had fallow lands adjoining the railway, and kept them fallow, and by so keeping them contributed to the accident; that such a system of farming was negligence, and he ought to suffer all the losses consequent thereon.
I hold that railway companies shall not only use the most approved spark arresters, and other proper mechanical contrivances, but in addition, shall keep their roadway free of combustible matter, and do every thing else which ordinary human ingenuity can suggest for the safety of the property of the citizen. Whilst they leave undone any thing they might reasonably do, to prevent accidents and losses, they should be held responsible for all damages resulting therefrom. This seems to me common sense, and a just foundation on which to place this and like cases.
I am of opinion the verdict and judgment are right.