Cole v. Pennsylvania R. Co.

• Citation: 43 F.2d 953
• Decision Date: 04 August 1930
• Docket Number: No. 202.,202.
• Parties: COLE v. PENNSYLVANIA R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

43 F.2d 953 (1930)

COLE v. PENNSYLVANIA R. CO.

No. 202.

Circuit Court of Appeals, Second Circuit.

August 4, 1930.

Mortimer L. Sullivan, of Elmira, N. Y., for appellant.

Alexander S. Diven, of Elmira, N. Y., for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

This case was tried before Judge Hazel without a jury. The cause of action asserted was to recover damages for the destruction of the plaintiff's property by a fire caused through the negligent acts of the defendant railroad company in the operation of its engines and the maintenance of its right of way. The trial judge found that the railroad negligently "maintained dry grass, weeds and debris and other combustible material on its right of way. * * * That * * * a train of the defendant * * * negligently ignited the * * * dry grass, weeds, debris and other combustible material on the right of way. * * * That at the time that said fire was so ignited, the wind blew severely from the west. That the fire spread over the abutting land of one Bentley to the lands of one Gustin and then upon the premises of plaintiff, located about 2,000 feet from the railroad track of the defendant; * * * destroying buildings, farm tools, live stock and a timber lot owned by the plaintiff."

The court found that the plaintiff had suffered damages in the amount of $4,335.50, but directed judgment for the defendant on the ground: "That because the land of Harry J. Cole, the plaintiff herein, was not adjacent to and did not abut on the right of way of the railroad, defendant herein, the plaintiff being the third owner whose property was damaged by said fire that the origination of said fire in dry grass, weeds and debris on the right of way of the defendant was not the proximate cause of the damage to plaintiff's property."

The New York rule as to the right of injured persons to recover in cases like the present is set forth in Hoffman v. King, 160 N. Y. 618, 55 N. E. 401, 403, 46 L. R. A. 672, 73 Am. St. Rep. 715; Dougherty v. King, 165 N. Y. 657, 59 N. E. 1121; Davies v. D., L. & W. R. R. Co., 215 N. Y. 183, 109 N. E. 95; Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 120 N. E. 86, 13 A. L. R. 875; Rose v. Penn. R. R. Co., 236 N. Y. 568, 142 N. E. 287; Moore v. Van Beuren, 240 N. Y. 673, 148 N. E. 753; and Moch Co. v. Rensselaer Water Co., 247 N. Y. 160, 159 N. E. 896, 62 A. L. R. 1199. It is settled by these decisions that Hoffman v. King, supra, represents the law of the state of New York. In that case the New York Court of Appeals held that a railroad company which has negligently set a fire in inflammable material on its right of way is not liable to the owner of lands not abutting on its premises for damages caused by fire communicated through the abutting and intervening woodlands of a third person. Judge Haight, who wrote for the majority of the court, said:

"If a person lights a fire upon his own premises, upon which he has maintained inflammable material extending to his neighbor's lands and the fire, fed by this material, spreads upon abutting lands, the damage is the proximate result of the act, and a liability exists; and this, we think, is the limit. It is contended that liability ought not to be thus limited; that a fire once set may run across the lines of an abutting owner and upon lands of other proprietors, causing damage. It must be conceded that such a result often happens. It did in the case we have under consideration. But where is the line to be drawn? Shall it be 1 mile, 2 miles, or 10 miles distant from the place of the original starting of the fire? * * *

"While we appreciate the force of the argument in favor of extending the rule of liability, and recognize the fact that a limitation of the rule will deprive many persons of a right of action for damages, we are convinced that the old rule is wiser and more just, and that we ought not to depart from it. * * *"

It is said that the New York authorities should not control for two reasons. The first is that the Supreme Court has laid down the rule that the test of liability for fire damage to remote property is whether there was "an unbroken connection between the wrongful act and the injury." Milwaukee, etc. Railway Co. v. Kellogg, 94 U. S. at page 475, 24 L. Ed. 256. But in the foregoing decision the facts presented in the case at bar were not exactly paralleled, for there the damage sought to be recovered was by an owner of land abutting on the property of the defendant. In New York the same rule would be applied, and the defendant would have been held liable. Davies v. D., L. & W. R. R. Co., 215 N. Y. 181, 109 N. E. 95. While the New York doctrine, so far as it was set forth in the old case of Ryan v. New York Central R. R. Co., 35 N. Y. 210, 91 Am. Dec. 49, was criticised, the remarks of the court strictly related to the claim that the defendant was exempt from liability because the damage to plaintiff's property was not caused by sparks coming directly from the defendant's steamboat, but originating there and spreading to defendant's grain elevator and thence to plaintiff's lumber and mill. In other words, the fire did not, as here, pass across the property of intervening landowners, but went directly from defendant's grain elevator to plaintiffs mill. In ?tna Insurance Co. v. Boon, 95 U. S. 117, 24 L. Ed. 395, and Louisiana Mut. Insurance Co. v. Tweed, 74 U. S. 44, 19 L. Ed. 65, the construction of policies of insurance was involved. No question was raised in either case as to whether the damage was too remote because of intervening property owners.

The second contention is that the general rule both in this country and England imposes upon a person who negligently sets a fire liability for any consequences that naturally follow and might have been foreseen and expected even though the fire passes across the land of numerous intervening owners before causing damage to the plaintiff. Smith v. London & S. W. Ry. Co., L. R. 5 C. P. 14; Small v. C., R. I. & P. R. Co., 55 Iowa, 582, 8 N. W. 437; Atch., T. & S. F. R. Co. v. Stanford, 12 Kan. 354, 15 Am. Dec. 362; Atch., T. & S. F. R. Co. v. Bales, 16 Kan. 252; P., W. & B. R. R. Co. v. Constable, 39 Md. 149; Fent v. T., P. & W. Ry. Co., 59 Ill. 349, 14 Am. Rep. 13; Hart v. Western R. R. Co., 54 Mass. (13 Metc.) 99, 46 Am. Dec. 719; Perley v. Eastern R. R. Co., 98 Mass. 418, 96 Am. Dec. 645; Poeppers v. M., K. & T. Ry. Co., 67 Mo. 715, 29 Am. Rep. 518; D., L. & W. R. R. Co. v. Salmon, 39 N. J. Law, 299, 23 Am. Rep. 214; P. R. R. Co. v. Hope, 80 Pa. 373, 21 Am. Rep. 100.

The second contention seems to be borne out by the above decisions and also by much of the reasoning and language of Justice Strong in Milwaukee, etc., Railway Co. v. Kellogg, supra, though this last case, as we have already said, involved different facts from those before us.

Both the logic of the situation and the overwhelming weight of authority without doubt support the plaintiff's position. But the settled rule of the New York state courts is against him.

The question, therefore, arises whether or not we are bound to apply the law of the New York courts rather than the rule generally obtaining in common-law jurisdictions. The only cases almost identical in principle with the present, where the question whether to follow the state law has arisen, are the turntable and the so-called attractive nuisance cases. Prof. Hudson, in an article in the Harvard Law Review, vol. 36, at page 827, has said that "the federal courts do not seem to feel it necessary to follow the State Courts in applying the turn table doctrine."

In New York, N. H. & H. R. Co. v. Fruchter (C. C. A.) 271 F. 419, 421, a small boy climbed on top of a railroad bridge to reach a pigeon's nest, and was injured by an unguarded electric wire. It was contended that under the New York decisions there could be no liability but Judge Hough, speaking for this court, said that the decision of the Supreme Court in Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, was controlling and added:

"But if we wished to depart from the doctrine in question we could not, for the matter is one of general law, and we are bound (in the absence of any statutory change by competent authority) by the decisions of the Supreme Court as reviewed at some length in Baltimore & Ohio R. R. Co. v. Baugh, 149 U. S. 368, 13 S. Ct. 914, 37 L. Ed. 772, and very recently restated by Justice Pitney, dissenting, in Southern Pacific v. Jensen, 244 U. S. 249, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, the dissent not dealing with this proposition."

It is true that New York, N. H. & H. R. Co. v. Fruchter, supra, was reversed in the Supreme Court (260 U. S. 141, 43 S. Ct. 38, 67 L. Ed. 173) but not because the New York law applied, but on the same ground taken in United Zinc Co. v. Britt, 258 U. S. 268, 42 S. Ct. 299, 66 L. Ed. 615, 36 A. L. R. 28, that the doctrine laid down in Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, and Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, 14 S. Ct. 619, 38 L. Ed. 434, did not cover the facts presented.

In National Metal Edge Box Co. v. Agostini, 258 F. 109, 110, this court again followed the Stout Case in an appeal coming up from the District of Vermont, saying, per Manton, J.:

"This doctrine has found approval in the federal courts and, since this action was tried in the federal court, the rule prevailing there, rather than the rule prevailing in the Vermont state court, will be adopted. The Vermont courts have refused to follow the doctrine of the `turntable' cases."

See, also, Snare & Triest v. Friedman (C. C. A.) 169 F. 1, 40 L. R. A. (N. S.) 367; Escanaba Mfg. Co. v. O'Donnell (C. C. A.) 212 F. 648; Cheske v. Delaware & Hudson Co. (C. C. A.) 218 F. 804; Public Service Ry. Co. v. Wursthorn (C. C. A.) 278 F. 408.

But there have been other decisions, where the rights of owners of real property have...