CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES,

AT

OCTOBER TERM, 1896.

ST. LOUIS AND SAN FRANCISCO RAILWAY COMPANY v. MATHEWS.

ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.

No. 105. Argued and submitted November 4, 1896. Decided January 4, 1897.

A statute of a State, which enacts that every railroad corporation, owning or operating a railroad in the State, shall be responsible in damages to the owner of any property injured or destroyed by fire communicated, directly or indirectly, by locomotive engines in use upon its failroad; and which provides that it shall have an insurable interest in the property upon the route of its railroad, and may procure insurance thereon in its own behalf; does not violate the Constitution of the United States, as depriving the railroad company of its property without due process of law, or as denying to it the equal protection of the laws, or as impairing the obligation of the contract made between the State and the company by its incorporation under general laws imposing no such liability.

THIS was an action brought in an inferior court of the State of Missouri, by an owner of land in St. Louis county, against a railroad corporation organized under the laws of the State, and owning and operating with locomotive engines a line of railway adjoining the plaintiff's land, to recover damages for the destruction of the plaintiff's dwelling-house, barn, out

VOL. CLXV-1

1

Statement of the Case.

buildings, shrubbery and personal property upon that land, by fire communicated from one of those engines on August 9, 1887.

The petition contained two counts, the first of which alleged negligence on the part of the defendant; and the second did not, but was founded on the statute of Missouri of March 31, 1887, by which "each railroad corporation, owning or operating a railroad in this State, shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated, directly or indirectly, by locomotive engines in use upon the railroad owned or operated by such railroad corporation; and each such railroad corporation shall have an insurable interest in the property upon the route of the railroad owned or operated by it, and may procure insurance thereon in its own behalf, for its protection against such damages." Missouri Laws of 1887, p. 101; Rev. Stat. of 1889, § 2615.

The answer, among other defences, set up that the statute violated the Constitution of the United States, by depriving the defendant of its property without due process of law; and by denying to it the equal protection of the laws; and by impairing the obligation of the contract made between it and the State, "by the terms and provisions of which it was impliedly agreed that said defendant might and could use fire for the purpose of generating steam to propel said locomotive engines and cars attached thereto, and be responsible only for the negligent and careless use thereof."

The defendant was incorporated September 10, 1875, under the general laws of the State, which authorized railroad corporations to be formed by voluntary articles of association. filed in the office of the secretary of State; and to lay out and construct their railroad; to take lands for the purpose; and "to take and convey persons and property on their railroad by the power or force of steam, or of animals, or by any mechanical power, and to receive compensation therefor." Missouri Gen. Stat. of 1865, c. 63, §§ 1, 2; Rev. Stat. of 1889, SS 2542, 2543.

At the trial, the plaintiff introduced evidence tending to

Argument for Plaintiff in Error.

support the allegations of the petition; and the court, at his request, instructed the jury that "if they believe from the evidence that during the month of August, 1887, plaintiff was the owner of the land in the petition described, and defendant was the owner or operating a railroad adjoining said land, having locomotive engines in use upon said road, and that on August 9, 1887, fire was communicated from a locomotive engine, then in use upon the railroad owned or operated by defendant, to plaintiff's property on his said land, and thereby the buildings and other property in the petition mentioned, or any of it, were destroyed, then the jury will find for the plaintiff."

The court refused to give to the jury the following instruction requested by the defendant: "Though the jury may believe from the evidence that fire was communicated from a locomotive engine in use on defendant's railroad to plaintiff's property, as charged in the second count of plaintiff's petition, yet that fact is only prima facie evidence of negligence on the part of defendant, and unless the jury believe from the whole evidence in the case that said fire was either negligently set out by defendant, or was communicated to plaintiff's property by reason of defendant's negligence, the plaintiff cannot recover."

The defendant excepted to the instruction given, as well as to the refusal to instruct as requested; and, after verdict and judgment for the plaintiff, appealed to the Supreme Court of the State, which held the statute to be constitutional, and affirmed the judgment. 121 Missouri, 298. The defendant

sued out this writ of error.

Mr. David D. Duncan, (with whom were Mr. John F. Dillon and Mr. Winslow F. Pierce on his brief,) for plaintiff in error.

Mr. L. F. Parker filed a brief for plaintiff in error in which the following citations were made: Fletcher v. Peck, 6 Cranch, 87; Dartmouth College v. Woodward, 4 Wheat. 518; Von Hoffman v. Quincy, 4 Wall. 535; Green v. Biddle, 8

Argument for Plaintiff in Error.

Wheat. 1; Planters' Bank v. Sharp, 6 How. 301; Commonwealth v. Erie & Western Transp. Co., 107 Penn. St. 112; Pennsylvania Railroad v. Baltimore & Ohio Railroad, 60 Maryland, 263; Bank of the Republic v. Hamilton, 21 Illinois, 53; Payne v. Baldwin, 3 Sm. & Marsh. 661; Edwards v. Kearzey, 96 U. S. 595; Howard v. Bugbee, 24 How. 461; Meriwether v. Garrett, 102 U. S. 472; Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; Louisiana v. New Orleans, 102 U. S. 203; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; New Orleans Water Works v. Rivers, 115 U. S. 674; People v. Jackson & Michigan Plank Road Co., 9 Michigan, 285; Sloan v. Pacific Railroad, 61 Missouri, 24; Smith v. Hannibal & St. Joseph Railroad, 37 Missouri, 287; Burroughs v. Housatonic Railroad, 15 Connecticut, 124; Moshier v. Utica & Schenectady Railroad, 8 Barb. 477; Rood v. N. Y. & Erie Railroad, 18 Barb. 80; Knoop v. Piqua Branch, Bank of Ohio, 16 How. 369; Dodge v. Woolsey, 18 How. 331; Thomas v. Railroad Co., 101 U. S. 71; Ashbury Railway &c. Co. v. Riche, L. R. 7 H. L. Cas. 653; Bailey v. Phil., Wilmington &c. Railroad, 4 Harr. (Del.) 389; Lake View v. Rose Hill Cemetery, 70 Illinois, 191; Ohio & Mississippi Railroad v. Lackey, 78 Illinois, 55; Thorpe v. Rutland & Burlington Railroad, 27 Vermont, 140; Benson v. New York, 10 Barb. 223; Small v. Chicago, Rock Island &c. Railroad, 50 Iowa, 338; Vincennes University v. Indiana, 14 How. 268; Scotland County v. Missouri, Iowa &c. Railroad, 65 Missouri, 123; State v. Greer, 78 Missouri, 188; Pearson v. Portland, 69 Maine, 278; State v. Hayes, 81 Missouri, 574; Chicago, St. Louis &c. Railway v. Moss, 60 Mississippi, 641; Slaughter House cases, 16 Wall. 36; Railroad Tax cases, 13 Fed. Rep. 722; Santa Clara County v. Southern Pacific Railroad, 118 U. S. 394; Ohio & Mississippi Railroad v. Lackey, 78 Illinois, 55; Kahle v. Hobein, 30 Mo. App. 472; Zeigler v. South & North Alabama Railroad, 58 Alabama, 594; Miller v. Martin, 16 Missouri, 508; Catron v. Nichols, 81 Missouri, 80; Wally's Heirs v. Kennedy, 2 Yerg. 554; Chapman v. Atlantic & St. Lawrence Railroad, 37 Maine, 92; Ross v. Boston & Worcester Railroad, 6 Allen, 87.