52 Conn. 264 (Conn. 1884), Simmonds v. New York & N. E. R. Co.

Citation:52 Conn. 264
Opinion Judge:Loomis, J.
Party Name:Orra P. Simmonds v. The New York and New England Railroad Company.
Attorney:E. D. Robbins, for the appellant. J. P. Andrews, for the appellee.
Judge Panel:In this opinion the other judges concurred.
Court:Supreme Court of Connecticut

Page 264

52 Conn. 264 (Conn. 1884)

Orra P. Simmonds

v.

The New York and New England Railroad Company.

Supreme Court of Errors of Connecticut.

October, 1884

By the act of 1881 (Session Laws 1881, ch. 92,) railroad companies are made liable for damage done to property along their roads by fire communicated from their locomotives, where there is no contributory negligence on the part of the owner. A fire caught from the sparks of a locomotive on the land of D. The track-foreman and his men came upon the ground and were putting out the fire, which they could easily have done, when D requested them to let it burn, as he wished to burn up the bogs. They accordingly left it burning. The fire however penetrated to some peat beneath the surface and thus extended to the adjoining land of S and did damage there. Held that the railroad company was liable to S for this damage.

S could not be affected by any arrangement between the agent of the railroad company and D to which he did not give his assent.

The intervention of D in the matter was not the intervention of an independent power operating to produce the result. He merely requested the track-foreman to leave the fire burning, and the latter voluntarily left it so.

In making railroad corporations insurers against the consequences of fire thus communicated, the law implies the right and duty on their part to put it out when communicated. How they would be affected by a prohibition from the owner to enter upon the land for the purpose: Quœ re .

[Argued October 7th-decided November 9th, 1884.]

Action for damage to the plaintiff's land by fire communicated by the locomotive engine of the defendants, a railroad company; brought by appeal from the judgment of a justice of the peace, to the Court of Common Pleas of Hartford County, and tried to the court, before Calhoun, J .

The statute on which the action is founded is given in full in the opinion of the court. The following facts were found by the court:

On the 4th day of September, 1883, a locomotive engine of the defendant corporation communicated fire to the land of Frederick M. Davis, lying adjacent to the railroad of the defendant in the town of Enfield. The plaintiff owned land adjoining and easterly of the land of Davis. The fire thus communicated spread across the land of Davis by its own volition and by the operation of natural causes, and reached the land of the plaintiff, where it burned for several days, consuming some of the soil itself, which was peaty, standing wood, and fences. The plaintiff was guilty of no contributory negligence, and gave proper written notice of his claim to the defendant within twenty days after the fire.

On the trial of the case the only claim of law made by the defendant was that Davis and not the defendant was the direct cause of the fire on the plaintiff's land, and that the judgment should be for nominal damages only.

With respect to this claim the following are the facts:-While the fire was burning on the land of Davis only, Thomas Sexton, a track-foreman of the defendant, went with men and commenced to extinguish the fire, which at that time could have been easily accomplished, the fire burning on the surface of the land only. Some bogs were then on fire near the railroad fence. While Sexton and his men were thus at work, Davis came there and remarked to Sexton that he preferred that the bogs should burn, if the fire was subdued elsewhere so that it could not spread. Sexton then left with his men, leaving some of the bogs burning. The rest of the fire was apparently extinguished.

The court finds that Sexton and his men were not prevented by Davis from extinguishing the fire in the bogs, and that neither they nor Davis supposed the burning of the bogs would do injury. The land of Davis was also of a peaty nature and very dry, and in some way unknown and unseen the fire worked down into the peat, and thus becoming beyond control, spread through the land of Davis on to the plaintiff's land. The bogs were green and now remain unconsumed.

The court overruled the claim of the defendant, and rendered judgment for the plaintiff. The defendant appealed.

E. D. Robbins, for the appellant.

1. A fire was communicated by a locomotive engine of the defendant to the land of one Davis not a party to this cause. The track-foreman with his men arrived, as is specifically found, in time to " easily extinguish" the fire, were proceeding to do so, and had already extinguished it every where except near the railroad fence where some bogs were burning. At this moment Davis, the owner of the land, who was present, wishing to get rid of the bogs, interfered and told the men that he preferred that they should let these bogs burn, if they subdued the fire elsewhere so that it could not spread. Farmers often, and with the sanction of law, clear such land by burning, and the owner of this land plainly had a right to adopt this fire for that purpose, and might reasonably do so. 1 Thompson on Negligence, 149. The fire was burning only lightly on the surface of the ground, and wherever it was burning was therefore plainly to be seen. But the rest of the fire except in the bogs was apparently extinguished. If the section-men had thrashed out the fire in the bogs as they had elsewhere, and as they had been about to do...

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