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Opinion of the Court.

Mr. Percy Werner and Mr. Garland Pollard, for defendant in error, submitted on their brief.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The only question presented by the record, of which this court has jurisdiction, is whether there is anything inconsistent with the Constitution of the United States in the statute of Missouri of March 31, 1887, by which every railroad corporation owning or operating a railroad in the State is made responsible in damages for property of any person injured or destroyed by fire communicated by its locomotive engines; and is declared to have an insurable interest in property along its route, and authorized to insure such property, for its protection against such damages.

It has been strenuously argued, in behalf of the plaintiff in error, that this statute is an arbitrary, unreasonable and unconstitutional exercise of legislative power, imposing an absolute and onerous liability for the consequences of doing a lawful act, and of conducting a lawful business in a lawful and careful manner; and that the statute violates the Constitution of the United States, by depriving the railroad company of its property without due process of law, by denying to it the equal protection of the laws, and by impairing the obligation of the contract previously made between it and the State by its incorporation under general laws authorizing it to convey passengers and freight over its railroad by the use of locomotive engines.

The argument that this statute is in excess of the power of the legislature may be the most satisfactorily met by first tracing the history of the law regarding the liability of persons for fire originating on their own premises and spreading to the property of others.

At common law, every man appears to have been obliged, by the custom of the realm, to keep his fire safe so that it should not injure his neighbor; and to have been liable to an action if a fire, lighted in his own house, or upon his land, by

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Opinion of the Court.

the act of himself, or of his servants or guests, burned the house or property of his neighbor, unless its spreading to his neighbor's property was caused by a violent tempest or other inevitable accident which he could not have foreseen. Thirning, C. J., and Markham, J., in Beaulieu v. Finglam, Yearbook 2 H. IV, 18; Anon., Cro. Eliz. 10; 1 Rol. Ab. 1, Action sur Case, B; 1 D'Anvers Ab., Actions, B; Turberville v. Stamp, (1698) Comyns, 32; S. C., 1 Salk. 13; Holt, 9; 1 Ld. Raym. 264; 12 Mod. 152; Com. Dig., Action upon the Case for Negligence, A, 6; 1 Vin. Ab. 215, 216; 1 Bac. Ab., Action on the Case, F, (Amer. ed. 1852) p. 122; Canterbury v. Attorney General, 1 Phil. Ch. 306, 316-319; Filliter v. Phippard, 11 Q. B. 347, 354; Furlong v. Carroll, 7 Ontario App. 145, 159.

The common law liability in case of ordinary accident, without proof of negligence, was impliedly recognized in the statute of Anne, passed within ten years after the decision in Turberville v. Stamp, above cited, and providing that "no action, suit or process whatsoever shall be had, maintained or prosecuted against any person in whose house or chamber any fire shall accidentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby; any law or usage or custom to the contrary notwithstanding." Stats. 6 Anne, (1707) c. 31 [58], 87; 8 Statutes of the Realm, 795; 10 Anne, (1711) c. 14 [24], § 1; 9 Statutes of the Realm, 684. By the statute of 14 Geo. III, (1774) c. 78, § 86, the statute of Anne was extended to "any person in whose house, chamber, stable, barn or other building, or on whose estate, any fire shall accidentally begin."

In modern times in England, the strict rule of the common law as to civil liability in damages for fire originating on one's own land, and spreading to property of another, has been recognized as still existing, except so far as clearly altered by

statute.

In The King v. Pease, (1832) 4 B. & Ad. 30; S. C., 1 Nev. & Man. 690, a corporation, expressly authorized by act of Parliament to establish a railway between certain points, and to use locomotive engines thereon, was held not to be liable to

Opinion of the Court.

an indictment for a nuisance by frightening horses travelling upon a highway parallel to the railroad.

In Aldridge v. Great Western Railway, (1841) 3 Man. & Gr. 515; S. C., 4 Scott N. R. 156, which was an action against a railway corporation created by similar acts of Parliament, to recover damages for property destroyed by fire kindled by sparks from a locomotive engine, it was argued for the plaintiff that by the common law a civil action for damages could be sustained by proof of injury, without evidence of negligence. See Broom's Legal Maxims, (5th ed.) 366, 367; Holmes on Common Law, 85-88. But the court held that the corporation could not be held liable, unless negligent. In Pigot v. Eastern Counties Railway, (1846) 3 C. B. 229, the same rule was recognized, although the fact of the property having been fired by sparks from the engine was held sufficient proof of negligence.

In the course of the argument in Blyth v. Birmingham Waterworks, (1856) 11 Exch. 781, 783, Baron Martin said: "I held, in a case tried at Liverpool in 1853, that, if locomotives are sent through the country emitting sparks, the persons doing so incur all the responsibilities of insurers; that they were liable for all the consequences."

In Vaughan v. Taff Vale Railway, (1858) 3 H. & N. 743, the Court of Exchequer held that a railway company, expressly authorized by its charter to use locomotive engines on its railway, was responsible for damages caused to property by fire communicated from such engines, although it had taken every precaution in its power to prevent the injury. But the judgment was reversed in the Exchequer Chamber; and Lord Chief Justice Cockburn said: "Although it may be true, that if a person keeps an animal of known dangerous propensities, or a dangerous instrument, he will be responsible to those who are thereby injured, independently of any negli gence in the mode of dealing with the animal, or using the instrument; yet when the legislature has sanctioned and authorized the use of a particular thing, and it is used for the purpose for which it was authorized, and every precaution has been used to prevent injury, the sanction of the legislature

Opinion of the Court.

carries with it this consequence, that if damage results from the use of such thing independently of negligence, the party using it is not responsible." 5 H. & N. (1860) 679, 685.

The final decision in that case has since been considered in England as establishing that a railway company which by act of Parliament has been expressly authorized to use locomotive engines upon its railway, without being declared to be responsible for fires communicated from those engines, is not, in the absence of negligence on its part, liable for damages caused by such fires. Fremantle v. Northwestern Railway, (1861) 10 C. B. (N. S.) 89; Hammersmith &c. Railway v. Brand, (1869) L. R. 4 H. L. 171; Smith v. London & Southwestern Railway, (1870) L. R. 6 C. P. 14, 21, 22; London, Brighton & Southcoast Railway v. Truman, (1885) 11 App. Cas. 45.

On the other hand, a railway company, chartered by act of Parliament in 1832 to make and maintain a "railway or tramroad for the passage of wagons, engines and other carriages" for the purpose of conveying coals and other minerals, and neither expressly authorized nor prohibited to use locomotive engines, was held liable for damages by sparks from such an engine, although proved to have taken all reasonable precautions to prevent the emission of sparks; Mr. Justice Blackburn saying that "the defendants were using a locomotive engine with no express parliamentary powers making lawful that use, and they are therefore at common law bound to keep the engines from doing injury, and if the sparks escape and cause damage, the defendants are liable for the consequences, though no actual negligence be shown on their part"; and that, in order to bring them within the decision in Vaughan v. Taff Vale Railway, above cited, "it is essential to show that their act authorized the use of locomotive engines, and it is not enough to show that it authorized the making and using of a railway, and that there are no words, either prohibiting the use of locomotives, or showing that the legislature meant to prohibit the use." Jones v. Festiniog Railway, (1868) L. R. 3 Q. B. 733, 736, 737.

So where acts of Parliament, authorizing and regulating

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Opinion of the Court.

the use of locomotive engines on turnpike and other roads, provided that nothing in the acts contained should be construed as authorizing any person to use upon the highway a locomotive engine so constructed or used as to cause a public or private nuisance; and that every person so using such an engine should be liable to an action for such use, when such an action could have been maintained before the passage of the acts; the Court of Appeal held that a man who used upon a public highway a locomotive engine constructed in conformity with the provisions of the acts, and managed and conducted with all reasonable care and without negligence, was liable for a destruction of property on land adjoining the highway by sparks proceeding from his engine; Lord Justice Bramwell saying: "The passing of the engine along the road is confessedly dangerous, inasmuch as sparks cannot be prevented from flying from it. It is conceded that at common law an action may be maintained for the injury suffered by the plaintiffs. The Locomotive Acts are relied upon as affording a defence; but, instead of helping the defendant, they show not only that an action would have been maintainable at common law, but also that the right to sue for an injury is carefully preserved. It is just and reasonable that if a person uses a dangerous machine, he should pay for the damage which it occasions; if the reward which he gains for the use of the machine will not pay for the damage, it is mischievous to the public and ought to be suppressed, for the loss ought not to be borne by the community or the injured person. If the use of the machine is profitable, the owner ought to pay compensation for the damage." Powell v. Fall, (1880) 5 Q. B. D. 597, 601.

In this country, the strict rule of the common law of England as to liability for accidental fires has not been generally adopted; but the matter has been regulated, in many States, by statute. Clark v. Foot, 8 Johns. 329; Bachelder v. Heagan, 18 Maine, 32; Tourtellot v. Rosebrook, 11 Met. 460; Finley v. Langston, 12 Missouri, 120; Miller v. Martin, 16 Missouri, 508; Catron v. Nichols, 81 Missouri, 80; Cooley on Torts, 14, 590-592; 1 Thompson on Negligence, 148–150.

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