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Opinion of the Court.
Laws of 1796, p. 383; Gen. Stat. of 1875, p. 267, § 3; Rev. Stat. of 1888, § 3761; Russell v. Tomlinson, 2 Conn. 206; Woolf v. Chalker, 31 Conn. 121, 133; the other, making every person setting a fire on his own or any land, that runs upon the land of any other person, liable for all damage done by the fire. Conn. Col. Laws of 1750, p. 247; 2 Swift's System, 81; Gen. Stat. of 1875, p. 489, § 6; Rev. Stat. of 1888, § 1344; Grannis v. Cummings, 25 Conn. 165; Ayer v. Starkey, 30 Conn. 304. The court added: "We are not aware that the validity of any of these statutes has been called in question. The dangerous character of the thing used is always to be considered in determining the validity of statutory regulations fixing the liability of parties so using it. Fire has always been subject to arbitrary regulations, and the common law of England was more severe and arbitrary on the subject than any statute. In Rolle's Abridgment (Action on the Case, B, tit. Fire) it is said: 'If my fire by misfortune burns the goods of another man, he shall have his action on the case against me. If a fire breaks out suddenly in my house, I not knowing it, and it burns my goods and also my neighbor's house, he shall have his action on the case against me. So, if the fire is caused by a servant or a guest, or any person who entered the house with my consent. But otherwise, if it is caused by a stranger who entered the house against my will."" "There is no force in the suggestion that the statute under consideration unjustly selects only railroad corporations to bear the burden of an extraordinary risk. It is confined to them, because they alone have the privilege of taking a narrow strip of land from each owner, without his consent, along the route selected for the track, and of traversing the same at all hours of the day and night, and at all seasons whether wet or dry, with locomotive engines that scatter fire along the margin of the land not taken, thereby subjecting all combustible property to extraordinary hazard of loss, and that too for the sole profit of the corporation." 54 Conn. 461, 462.
In Iowa, before the passage of any statute making railroad corporations responsible for damage done by sparks from their locomotive engines, it was held that no action could be main
Opinion of the Court.
tained for such damage, without proof of negligence on their part. Gandy v. Chicago & Northwestern Railroad, 30 Iowa, 420. The legislature then passed a statute providing that "any corporation operating a railway shall be liable for all damages by fire that is set out or caused by the operating of any such railway." Iowa Code of 1873, § 1289. The Supreme Court of the State, assuming this statute to impose a liability independent of negligence, held it to be constitutional, and applicable to companies incorporated under general laws before its passage; and said: "The statute simply recognizes the doctrine that the use of the locomotive engine is the employment of a dangerous force; that sometimes, notwithstanding the exercise of the highest care and diligence, it will emit sparks and cause destructive conflagrations; that when this occurs loss must fall upon one of two innocent parties; that heretofore that loss has been borne by the owner of the property injured; hereafter it shall be borne by the owner of the property causing the injury.” "What the policy of this legislation may be, experience alone can show. It may be that it will prove to be unreasonably severe, and to stand in the way of material progress and the best interests of the country at large. It may, upon the other hand, promote a high degree of skill and care, and stimulate the invention and use of improved appliances, lessening the danger of fires, and greatly increasing the safety of property, without any detriment to public interests. With these questions we have nothing to do. For us it is enough to know that the statute contravenes no constitutional provision, state or national; and that it does not do so we entertain no doubt." Rodemacher v. Milwaukee & St. Paul Railroad, 41 Iowa, 297, 309. The subsequent decision, by a majority of the same court, cited by the plaintiff in error, that this statute only made the fact of an injury so occurring prima facie evidence of negligence, was based wholly upon a peculiar construction of this section in connection with other provisions of the code, and in no degree upon any suggestion that, regarded as imposing an absolute liability, it would be unconstitutional. Small v. Chicago, Rock Island & Pacific Railroad, 50 Iowa, 338.
Opinion of the Court.
In a recent case in the Circuit Court of the United States for the Northern District of Iowa, Judge Shiras said: "The right to use the agencies of fire and steam in the movement of railway trains in Iowa is derived from the legislation of the State; and it certainly cannot be denied that it is for the State to determine what safeguards must be used to prevent the escape of fire, and to define the extent of the liability for fires resulting from the operation of trains by means of steam locomotives. This is a matter within state control. The legislation of the State determines the width of the right of way used by the companies. the companies. The State may require the companies to keep the right of way free from combustible material. It may require the depot and other buildings used by the company to be of stone, brick or other like material, when built in cities or in close proximity to other buildings. The State, by legislation, may establish the extent of the liability of railway companies for damages resulting from fires caused in the operation of the roads." Hartford Ins. Co. v. Chicago, Milwaukee & St. Paul Railway Co., 62 Fed. Rep. 904, 907.
In Missouri, a statute was enacted in 1853, requiring railroad corporations, whether already existing or thereafter formed under the laws of the State, to erect and maintain fences on the sides of their railroads, where they passed through enclosed fields, with openings or gates or bars at farm crossings, and also cattle-guards at all road crossings, suitable and sufficient to prevent cattle, horses or other animals from getting upon the railroads; and, until such fences and cattle-guards were duly made, making the corporation liable for all damages done by its agents or engines to animals on the railroad. Missouri Stat. February 24, 1853, §§ 51, 56, Laws of 1853, pp. 143, 144. The Supreme Court of the State, following the opinion of Chief Justice Redfield in the leading case of Thorpe v. Rutland & Burlington Railroad, 27 Vermont, 140, and referring to Lyman v. Boston & Worcester Railroad, 4 Cush. 288, above stated, held the statute constitutional as applied to companies incorporated under general laws before its passage; and Mr. Justice Scott, in delivering
Opinion of the Court.
judgment, said: "Where such dangerous and powerful agents as steam engines are brought into use, there should be a power in the legislature to prescribe such reasonable regulations as will prevent injuries resulting from their employment. The foresight of man is not competent to the task of prescribing in a charter all the regulations which time may show to be necessary for the security of the interests of the people of the State against injuries caused by the introduction of new, powerful and dangerous agents for carrying on her intercourse and commerce. The charter must be taken subject to the understanding that, in its operation affecting the interests of society, it will be, like individuals, liable to be controlled by such reasonable enactments as may be dictated by a sense of what is required for the preservation of the persons, lives and property of the people, such enactments not contravening the expressed or plainly implied provisions of the charter." Gorman v. Pacific Railroad, 26 Missouri, 441, 450, 451. That statute was afterwards reënacted, modified by including unenclosed lands as well as enclosed or cultivated fields, and by making the corporation liable in double the amount of damages to cattle, horses or other animals, occasioned by failure to construct or maintain such fences or cattle-guards. Missouri Gen. Stat. of 1865, c. 63, § 43; 1 Wagner's Stat. c. 37, art. 2, § 43; Stat. February 18, 1875, Laws of 1875, p. 131; Rev. Stat. of 1889, § 2611. And the statute, as so modified, and as applied to existing railroad corporations, was held to be valid by a decision of that court, affirmed by this court. Humes v. Missouri Pacific Railway, 82 Missouri, 221, and 115 U. S. 512.
In Missouri, before the passage of any statute concerning the liability of railroad corporations for fire communicated from their engines, they were held not to be liable, unless negligent; but the fact of fire escaping from a passing engine and burning property of another was held to be prima facie evidence of negligence, and to throw upon the defendant the burden of proving that it supplied the best mechanical contrivances to prevent the fire from escaping, and that there was no negligence on the part of its servants. Fitch v. Pa
Opinion of the Court.
cific Railroad, 45 Missouri, 322; Miller v. St. Louis, Iron Mountain & Southern Railroad, 90 Missouri, 389. The statute of March 31, 1887, now in question, (reënacted in section 2615 of the Revised Statutes of 1889,) changed the rule, by making the railroad corporation absolutely responsible in damages to the owners of property "injured or destroyed by fire communicated, directly or indirectly, by locomotive engines" in use upon its railroad; and providing that it should have an insurable interest in property along its route, and might procure insurance thereon in its own behalf, for its protection against such damages. The constitutionality of this statute was upheld by the Supreme Court of the State in full and able opinions in the case at bar, and in a similar case decided at the same time, and now argued with it in this court. Mathews v. St. Louis & San Francisco Railway, 121 Missouri, 298; Campbell v. Missouri Pacific Railway, 121 Missouri, 340. In discussing the subject, the court said: “If the State is powerless to protect its citizens from the ravages of fires set out by agencies created by itself, then it fails to meet one of the essentials of a good government. Certainly, it fails in the protection of property. The argument of the defendant, reduced to its last analysis, is this: 'The State authorized the railroad companies to propel cars by steam. To generate steam, they are compelled to use fire. Therefore, they can lawfully use fire, and as they are pursuing a lawful business, they are only liable for negligence in its operation; and when, in a given case, they can demonstrate they are guilty of no negligence, then they cannot be made liable.' To this the citizen answers: 'I also own my land lawfully. I have the right to grow my crops and erect buildings on it, at any place I choose. I did not set in motion any dangerous machinery. You say you are guiltless of negligence. It results, then, that the State, which owes me protection to my property from others, has chartered an agency which, be it ever so careful and cautious and prudent, inevitably destroys my property, and yet denies me all redress. The State has no right to take or damage my property without just compensation.' But what the State cannot do directly, it attempts