63 N.H. 25 (N.H. 1884), Smith v. Boston & Maine R.R.

Citation:63 N.H. 25
Party Name:Smith v. Boston & Maine Railroad.
Attorney:Copeland & Edgerly, for the defendants. Every obstacle to the transportation of merchandise from one state to another, and every burden laid upon it by legislative authority, is regulation of commerce within the meaning of the United States constitution. Railroad Co. v. Husen, 95 U.S. 470. That t...
Judge Panel:DOE, C. J.
Court:Supreme Court of New Hampshire

Page 25

63 N.H. 25 (N.H. 1884)

Smith

v.

Boston & Maine Railroad.

Supreme Court of New Hampshire

June 01, 1884

Railroads engaged in interstate commerce are not exempt by their federal constitutional rights from the operation of s. 8, c. 162, Gen. Laws, which makes the proprietors of every railroad liable as insurers for damage done by fire from a locomotive on their road.

Evidence that certain fires were set by the defendants' locomotives may tend to show that another fire could have been and probably was set in the same manner.

In an action upon Gen. Laws, c. 162, s. 8, for the destruction of property by fire from a locomotive, the defendants are entitled to no reduction on account of the plaintiff's insurance, if the insurer has paid nothing.

CASE, for burning the plaintiff's barn and other buildings and their contents by fire from the defendants' locomotive. Plea, the general issue; also, that "the defendant was engaged at the time and place alleged by the plaintiff in his said writ, with the said locomotive, in commerce between different states, to wit, in the transportation of freight from the state of Maine, through and across the state of New Hampshire into the commonwealth of Massachusetts, and that the said defendant, by its officers, agents, or servants, was then and there guilty of no negligence in the management of said locomotive and the conduct of said business." To the special plea the plaintiff demurred. The demurrer was sustained, and the defendants excepted.

Subject to exception, evidence was admitted of other fires near the line of the railroad at other times, occurring in dried grass and other combustible material, soon after the passing of locomotives. It appeared that the locomotives used on those occasions were of the same construction, were used for burning coal, and had the same kind of spark-arresters as those used at the time of the fire in question.

The plaintiff held insurance upon part of the property destroyed, and whether the amount of the loss had been adjusted by arbitration between the plaintiff and the insurers was in dispute at the trial. The insurance has not been paid. Verdict for the plaintiff, with general assessment of damages, which the defendants move to set aside.

Copeland & Edgerly, for the defendants. Every obstacle to the transportation of merchandise from one state to another, and every burden laid upon it by legislative authority, is regulation of commerce within the meaning of the United States constitution. Railroad Co. v. Husen, 95 U.S. 470. That the statute making railroads insurers of property along their lines imposes a burden upon transportation,

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there can be no doubt. The plaintiff does not deny that it is an additional and a heavy burden upon transportation, but seeks to justify it on the ground that it is only a police regulation. The boundaries of this police power are very uncertain. There is no definite line separating the cases which are and those which are not to be sustained on that ground. Strong, J., 95 U.S. 465,472; Waite, C. J., 95 U.S. 485, 488.

While, as the plaintiff says, "the police power of a state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property in the state," still, in the language of Judge Strong, in the case cited by the plaintiff in support of this point,---"Whatever may be the nature and reach of the police power of a state, it cannot be exercised over a subject confided exclusively to congress by the federal constitution. It cannot invade the domain of the national government." The best description of this police power which we have been able to find is the following: "If the act contributed to the comfort and welfare of the public, and did not deprive the company of any essential right conferred by its charter, its passage was a proper exercise of the police power." Chicago, &c., R. R. v. People, 105 Ill. 657, and 13 Am. & Eng. R. R. Cases 45.

Applying this test to our statute, we claim that it does not contribute to the comfort and welfare of the public, because it adds nothing to the protection which the common law gives to property-owners against damages caused by the fault of the railroad. For loss arising in any other way, the company ought not to be compelled to answer. And it certainly deprives the company of a very essential right which they possessed when their charter was granted, and that is the right to interpose the plea that the loss arose from the fault and neglect of the owner, and not from any misconduct of themselves or their agents. Though the defendants may have "no vested interest in the common law," it has been held by high authority that a "state statute which abrogates all common-law remedies for the wrongful exclusion of a passenger from the cars of a railroad company is unconstitutional, so far as it relates to railroads running between two or more states, it being a regulation of interstate commerce that the state has no power to make." Brown v. Memphis & C. R. R. Co., 5 F. 499.

If the abrogation...

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