57 N.H. 132 (N.H. 1876), Rowell v. Railroad

Citation:57 N.H. 132
Party Name:Rowell v. Railroad.
Attorney:Marston (with whom was Locke), for the plaintiff
Judge Panel:[*] LADD, J
Case Date:August 10, 1876
Court:Supreme Court of New Hampshire

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57 N.H. 132 (N.H. 1876)




Supreme Court of New Hampshire

August 10, 1876

Liability of railroads for fire from their engines---Contributory negligence.

A statute made the proprietors of every railroad liable "for all damages which shall accrue to any person or property by fire or steam from any locomotive or other engine on such road," and gave them an insurable interest in property exposed along the line. In an action against a railroad under this statute---Held, that the liability thereby imposed is that of insurers, and that the doctrine of contributory negligence by the plaintiff does not apply


This was an action founded upon the provisions of the statute, making railroad corporations liable for damages occasioned by fire communicated by their locomotives. Tried before FOSTER, C. J., C. C., and a jury.

The plaintiff's saw-mill, machinery, and lumber were consumed by fire, August 8, 1873. The mill was situated about eighty feet easterly from the tracks of the railroad. Several trains had passed over the line shortly before the fire was discovered, which was about a quarter past nine o'clock in the morning. The evidence tended to show that the wind was blowing fresh from a north-westerly direction, though this question was controverted. On the side of the mill next the tracks there was a large door leading to and from the basement of the mill. In the basement a large quantity of shavings, saw-dust, and other debris had accumulated.

The plaintiff testified: "This large door was open that morning. It had been opened a day or two before for the purpose of cleaning out the shavings, &c., and this work had not been completed. We usually kept the door closed. When the great doors were open, and the wind was that way, there was a strong draught of air under and through the mill. I was well aware of this. The pile of shavings under the planer extended very near to this door. Some windows were broken on the back side of the mill." This was the side nearest the railroad. This door was eighty-five feet distant from the nearest reailroad track, and one hundred and ten and a half feet from the main track.

Upon the subject of contributory negligence, the court charged the jury as follows: "If the defendants' engine communicated the spark, the defendants are liable at all events, unless the spark was communicated through the plaintiff's own negligence, unless his own negligence, or that of his servants, contributed to the result. Negligence is the absence of care, in all the circumstances of a given case. I have said that the plaintiff, Mr. Rowell, had the right to locate and use his mill where he did locate it and use it, but he was bound to use ordinary and reasonable care and diligence in the protection and preservation of his own

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property; and he is not entitled to recover if his own negligence contributed to its destruction. And one who is exposed to the risk of injury from another's fire is bound to take customary and reasonable precautions (in view of the circumstances of exposure) to protect himself, but he is under no obligations to do anything more than this. Considering all the circumstances, he is not required to use unusual precautions. He is bound to take such care and make such use of his mill, under the circumstances of its location, as people ordinarily take with regard to property so situated. He is not guilty of contributory negligence, by reason of making any legitimate and proper use of his mill.

"You have heard the evidence with regard to the condition of the doors and windows of the mill. You will consider whether it is reasonable that a person should keep his doors constantly shut about such premises; and, when you consider that matter, you will consider whether or not he conducted, with reference to the doors and the windows of his mill, in such a manner as people of ordinary care and prudence would conduct with reference to such property and the uses to which it is subjected. If the fire on this occasion lodged outside of the plaintiff's mill, and worked its way underneath and inside of it, the railroad is liable, unless the plaintiff, by the careless use of his mill and its surroundings, contributed the means of communication. If the wind blew lighted sparks under, into, or against the mill, though it may not have been the fault of the railroad, still, it is not the plaintiff's fault, if he was guilty of no want of ordinary care."

The jury found a verdict for the defendants, which the plaintiff moved to set aside for alleged error in the foregoing instructions, and "because there was no evidence of the want of ordinary care on the part of the plaintiff or his servants in the occupation and use of the mill."

The stenographer's notes of the evidence are made a part of the case. The questions of law thus raised were transferred to this court for determination.

Marston (with whom was Locke), for the plaintiff

1. The court charged the jury that "Negligence is the absence of care, in all the circumstances of a given case;" that "the plaintiff was bound to use ordinary and reasonable care and diligence in the protection and preservation of his own property"; that is, the greater the danger of destruction by fire from the acts of the defendants, the greater must be the care and diligence of the plaintiff to prevent such destruction. In other words, the court charged in effect that the plaintiff's care and diligence to preserve his property must be in proportion to the danger caused by the acts of the defendants, and he must use such ordinary care and diligence as would ordinarily prevent any injury at all. This we submit is erroneous, and that the doctrine of contributory negligence is wholly inapplicable to a case like this.

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The burden of the increased risk from fire occasioned by the use of locomotives is not placed by law upon the owners of exposed property, but upon the corporation authorized by law to use such dangerous apparatus, and to insure such exposed property. Gen. Stats., ch. 148, secs. 8, 9; Hooksett v. Concord R. R., 38 N.H. 242; Hart v. W. R. R., 13 Met. 99; Kellogg v. C. & N.W. R. R., 26 Wis. 223 (7 Am. R. 69); Cook v. Champlain T. Co., 1 Denio 91; Vaughan v. Taff Vale R. R., 3 Hurl. & Norm. 743 and 679.

2. There was no competent and sufficient evidence from which the jury could find negligence on the part of the plaintiff that would prevent his recovery. The facts sworn to by the plaintiff, and stated in the case, are all that were relied upon to prove negligence. State v. Railroad, 52 N.H. 528. In Piggot v. Eastern Company Railroad, 54 E. C. L. R. 228, fire was communicated to a thatched roof forty-five feet distant, and the defendants were held liable;---see, also, Aldridge v. Gr. Western R. R., 3 M. & G., 515, which was an action for firing a stack of beans. In neither case was contributory negligence suggested. Hatch, for the defendants

I. The charge of the court was sufficiently favorable to the plaintiff.

1. The liability of the defendants depends upon Gen. Stats., ch. 148, sec. 8. This statute is similar to that which makes towns liable for damages by reason of the insufficiency of highways---Gen. Stats., ch. 69, sec. 1---and must receive the same reasonable construction. See Farnum v. Concord, 2 N.H. 392; Norris v. Litchfield, 35 N.H. 276, etc.

2. Such a construction is necessary, otherwise the defendants are chargeable with the consequences of the plaintiff's own acts. At law, and in equity, parties are liable for damages caused by their negligence, just as much as if caused by trespass, or other acts positively wrong. It would be absurd to contend that the defendants could be holden liable for a fire caused by a locomotive, which the plaintiff had actively and intentionally aided in kindling. If the fire was kindled by his own negligence, his responsibility is the same, for the reason is the same. In either case, the plaintiff has done a wrong to the defendants, and he shall not take advantage thereof. A different construction would lead to very absurd results. For example, shall a man establish a powder-mill near a railroad, or store or dry his gunpowder, or other more violent explosive, within the reach of the sparks of the locomotives? We apprehend that in such a case he would even be liable to the railroad for damages caused by the explosion he had invited. The erection of stacks of hay, or the negligent use or storage of shavings and the like, so near a railroad as to make combustion probable, are acts differing in degree, but not in principle, from the case of the manufacture or storage of gunpowder or other explosives. Such acts amount to a positive wrong to the railroad; as much so as if the property of

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the road be burned by the negligence of the plaintiff. It may be said that this doctrine abridges the right of the owner of land to occupy it as he pleases. But we apprehend that at common law a person has no right to use his own land in such way as, either by his positive act or his neglect, carelessly to endanger either himself or others. Moreover, it is to be presumed that, if the right of the plaintiff to use his own land is in any way affected or limited by the existence of the...

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