Clark v. Boston & M. R. R.

• Decision Date: 05 June 1917
• Citation: 78 N.H. 428,101 A. 795
• Parties: CLARK v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

101 A. 795

78 N.H. 428

CLARK

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

June 5, 1917.

Transferred from Superior Court, Merrimack County; Sawyer, Judge.

Action by Clarence L. Clark against the Boston & Maine Railroad. On transfer from the superior court on defendant's demurrer. Demurrer sustained.

Case for injuries alleged to have been caused to the plaintiff by a fire set by the defendant's locomotive. There is a general count for negligence and one setting out that the plaintiff was a member of the Concord fire department and received his injuries while acting in that capacity attempting to extinguish the fire. A specification filed later shows that the first count is for the same alleged wrong. There is also a count alleging a right of recovery under the statute imposing liability upon railroads for damages caused by fires set by locomotives.

Robert W. Upton, of Concord, for plaintiff. Streeter, Demond, Woodworth & Sulloway, and Jonathan Piper, all of Concord, for defendant.

PEASLEE, J. The declaration, and the specification of facts applicable to the first count, show that the plaintiff's claim rests upon the theory that a fireman employed by a municipality to extinguish fires may recover from the party whose act caused the fire. It is not neoessary to consider whether a recovery might be had if the fire had been designedly set, with the intent to injure the plaintiff, for his claim is based upon the statutory liability of railroads, or upon negligence.

The statute making a railroad liable for damage to person or property from fires set by its locomotives (P. s. c. 159, § 29) has no application to the present case. That act applies only to those so situated that as to them the operation of the railroad constitutes an extra fire hazard. If the act is broad enough in its terms so that it could have been construed to include all damage that could in any sense be deemed to be "caused" by the defendant, it is settled that such was not the legislative intent. Welch v. Railroad, 68 N. H. 206, 44 Atl. 304, is conclusive on this issue. If the statute covered the present case the plaintiff in that case would have recovered. The loss there was caused by a fire set by the defendant; but because the plaintiff's property was in the custody of the defendant as a bailee, it was held not to be within the class contemplated by the Legislature. While this conclusion rests in part upon the language of the act giving the railroad "an insurable interest in all property situate on the line of such road, exposed to such damage" (G. L. c. 162, § 9; P. S. c. 159, § 30), the reasoning is not inapplicable in determining the meaning of the related provision as to "damages to any person." The declaration of liability is in no way differentiated. There was occasion to express the understood limitation as to one class, and it is not to be presumed that the unexpressed intent was different as to the other class. The statute applies to persons and property exposed to damage along the line of the road. It does not apply to firemen or fire engines whose' exposure results from an attempt to extinguish the fire. As the statute has no application, the rights of the parties are determined by the common-law rules governing actions to recover for negligence.

Authorities holding that a volunteer rescuer of persons or property may recover from a third person whose negligence caused the situation inducing the volunteer to act are relied upon by the plaintiff. It is also contended that his contract of employment as a city fireman gives him a standing more favorable to him than that of the volunteer.

The case has been largely argued upon the issue of proximate cause, in furtherance of the first of these claims. But that question does not arise unless the defendant's act bore some legal relation to such a volunteer. The question here is not one of proximate or remote cause, but whether the defendant owed any duty at all to the plaintiff—whether, apart from his contract of employment, it stood in any legal relationship to him, however remote. It seems to us that it did not. Neither the plaintiff nor his property was in a position to be injured by a fire set by the defendant. His connection with the fire arose solely from his own act in coming into contact with it after it was set

It is the law of this state that as to such interveners the defendant who created the situation owed no anticipatory duty. McGill v. Granite Co., 70 N. H. 125, 46 Atl. 684, 85 Am. St. Rep. 618. The situation is much like that of the land owner and a licensee. So long as no intentional injury is done, and no negligent act after the licensee is present, there is no liability. Hobbs v. Company, 75 N. H. 73, 70 Atl. 1082, 18 L. R. A. (N. S.) 939. The cases from other jurisdictions holding that there is a legal liability in such a case rest upon the ground that the intervener had a moral right, if not a moral duty, to make the attempt to save life or property; and because it may be assumed that men will do their moral duty, it is argued that the defendant is bound to consider the probabilities as to their subsequent and morally induced conduct. The defect in this reasoning is that it substitutes moral rights and duties for those recognized and regulated by law.

As to the intervener the defendant's previous conduct is wrong only in the sense that it is a wrong to society at large. It may be a moral wrong and may be punishable on behalf of the public; but it is not a private legal wrong to individual members of the public, who of their own motion undertake to lessen the evil effects of the defendant's dereliction from duty. The Good Samaritan could not recover from the thieves the value of the oil and wine which ...