Doggett v. The Richmond & Danville R.R. Co.

• Decision Date: 31 January 1878
• Citation: 78 N.C. 305
• Parties: JOHN DOGGETT v. THE RICHMOND & DANVILLE RAILROAD COMPANY.
• Court: North Carolina Supreme Court

78 N.C. 305

JOHN DOGGETT

v.THE RICHMOND & DANVILLE RAILROAD COMPANY.

Supreme Court of North Carolina.

January Term, 1878.

CIVIL

ACTION, for Damages tried at December Special Term, 1876, of GUILFORD Superior Court, before Kerr, J.

It was alleged that by reason of sparks of fire emitted from an engine of defendant company, a lot of cross-ties on the side of the track were ignited; that the wind blew the fire to a fence of one Troxler, which was consumed; that in its course and before it could be controlled, it burned about 256 pannels of the plaintiff's fence; and that the defendant had neglected to provide proper safeguards and appliances to prevent injury from sparks, as aforesaid. To recover damages for the injury resulting from this alleged negligence, the plaintiff brought this action, and the defendant denied the allegations of the complaint. The facts set out in the opinion are deemed sufficient to an understanding of the points decided. The jury found that the injury was caused by the negligence of the defendant. Judgment for plaintiff. Appeal by defendant.

Messrs. Dillard & Gilmer, for plaintiff .

Mr. J. T. Morehead, for defendant .

BYNUM, J.

1. The plaintiff was not in the first instance guilty of contributory negligence. The rule is that when the negligence of the defendant is proximate and that of the plaintiff remote, the action can be sustained, although the plaintiff is not entirely without fault; but if the injury is the product of mutual or concurring negligence, no action for damages will lie. Apply these principles to this case.

The plaintiff's fence was three-fourths of a mile from the origin of the fire, but was connected with the fence first ignited by a continuous line of fence joined together by the intermediate land owners.

Chilcutt's fence which first caught fire was located on the defendant's right of way, and in close contiguity with the defendant's road bed. It was incumbent on Chilcutt to keep the fence in repair, and his negligence in failing therein disabled him from recovering for his injuries, because he was contributory thereto. But Chilcutt's negligence does not affect the right of the plaintiff to maintain this action, although he negligently and voluntarily connected his fence with that of Chilcutt who was in default. The reason is that the plaintiff's negligence was remote, while Chilcutt's was proximate. The plaintiff's fence was distant and only connected with Chilcutt's by the intermediate fences of two other persons, and we know of no rule of law which required that the plaintiff should follow up and examine all the fences which he joined, and before he joined them to see if any of the proprietors by any contributive negligence had disabled themselves from recovering damages for injuries sustained by the negligence of the defendant.

If the plaintiff's negligence contributed directly to the injury, it is well settled that he cannot recover, but it is equally well settled that when he is only remotely and unconsciously negligent he is entitled to redress for all injuries inflicted by another, when by the latter the injuries could have been avoided by reasonable diligence. Whart. on Neg. ch. 9; Stule v. Burkhardt, 104 Mass. 59; Hubbard v. Thompson, 109 Mass; Kellog v. Chicago & N. W. R. W. Co 26 Wis. 224.

2. The damage, was it proximate or remote? To render the defendant liable, the injury must be the natural and probable consequence of the negligence,--such a consequence as under the surrounding circumstances of the case, might or ought to have been foreseen by the wrong-doer as likely to result from his act. But where a fire is negligently kindled and by reason of some other intervening cause it is carried or driven to objects which it would not otherwise have reached, the destruction of such objects is a remote consequence of the negligence.

“A man's responsibility for his negligence,” it has been well said, “must end somewhere. There is a possibility of carrying an admittedly correct principle too far. It may be extended so as to reach the reductio ad absurdum so far as it applies to the practical business of life.” Hoag v. Lake Shore & Mich. South R. R. Co. Penn. St. Rep. (Nov. 9th, 1877); 80 Penn. 182; Penn. R. R. Co. v. Hope, 80 Penn. 373.

Now what was the probable consequence of the fire here such as the defendant would have a right to expect? There were four fences owned by four separate proprietors, and the fourth proprietor is he who brings this action, and whose fence was distant three-fourths of a mile from the point of negligence. Instead of these fences being disconnected each surrounding the land of its own proprietor as the defendant had a right to expect, they were linked together in a continuous chain up to the source of danger, forming as it were a fuse leading from the fire to the magazine, the plaintiff's fence. The fire first ignited Chilcutt's fence, and was thence communicated to the next, and the next, and finally the plaintiff's. The defendant had the right to expect the destruction of Chilcutt's fence, because that was the natural and probable result of the fire; but the defendant had no right to expect the destruction of the other fences, nor is there any evidence that they would have been destroyed had each been disconnected and surrounding the premises of its owner. The fire only followed the continuous line of fence. The defendant could no more anticipate that the fire would reach the premises of the plaintiff, than the latter could anticipate that his voluntary act in joining his fence to Chilcutt's would be the means of drawing the fire upon himself. But the decision is not put upon that ground, but another.

The fire caught between ten and eleven o'clock a. m. At three p. m. it had not reached the fence of the plaintiff, but on the contrary, the evidence is that the persons who had been contending with the fire along the line of fence supposed they had extinguished it before it reached the plaintiff's property, and had retired from the scene of action.

How long it was after 3...