Grissell v. Housatonio R. Co.

• Decision Date: 23 December 1886
• Citation: 9 A. 137,54 Conn. 447
• Court: Connecticut Supreme Court
• Parties: GRISSELL v. HOUSATONIO R. CO.

9 A. 137

54 Conn. 447

GRISSELL

v. HOUSATONIO R. CO.

Supreme Court of Errors of Connecticut.

December 23, 1886.

Appeal from common pleas, Litchfield county.

Action by Grissell, appellee, against the Housatonic Railroad Company, appellant, to recover damages for injuries to property resulting from fire communicated by one of its locomotives.

M. W. Seymour and H. H. Knapp, for appellant.

J. S. Turrill, for appellee.

LOOMIS, J. This action is founded on the statute of 1881, (Sess. Laws 1881, c. 92,) the first section of which is as follows: "Where an injury is done to a building or other property of any person or corporation by a fire communicated by a locomotive engine of any railroad corporation, without contributory negligence on the part of the person or corporation entitled to the care and possession of the property injured, the said railroad corporation shall be held responsible in damages, to the extent of such injury, to the person or corporation so injured; and any railroad corporation shall have an insurable interest in the property for which it may be so held responsible in damages along its route, and may procure insurance thereon in its own behalf."

The plaintiff was the owner and possessor of land adjoining the defendant's railroad track in the town of New Milford, and certain of his fences, growing trees, and herbage thereon were destroyed by fire communicated by the defendant's locomotive engine. There was no contributory negligence on the part of the plaintiff, and he brought this suit to recover damages for the injury received, and obtained a verdict in his favor in the court below. The defendant gives six distinct reasons for his appeal to this court, but none of them can avail to set aside the plaintiff's verdict if the statute is valid, and can be construed to cover the property injured. Our discussion, therefore, will be confined essentially to these two points:

1. Is the statute a valid one? The defendant's counsel in his argument presented a powerful arraignment of the statute as denying to railroad corporations the equal protection of the laws, in that it makes them liable for the consequences of a lawful act without any fault or negligence; and as taking away their property without due process of law, in that it deprives them of a legal defense; and as impairing the rights given them by their charters, which authorize the use of fire, steam, and locomotive engines, while requiring trains to be run for the benefit of the public, for the unavoidable consequences of which acts the statute makes them liable.

The several counts in this indictment seem to be based principally upon this one principle of the common law: that for a lawful, reasonable, and careful use of property the owner cannot be made liable. But this principle is not so wrought into the constitution, or into the very idea of property, that it cannot be departed from by the legislature where protection to persons or property may require it.

But the defendant also invokes another principle, which it is claimed the statute violates; namely, the equal protection of the law. But to give force to this objection it should appear that a burden is cast on railroad corporations from which all others are exempt under similar circumstances. There can of course be no such inequality if the circumstances are radically different. This consideration seems to have been ignored in the argument for the defendant, or else it was erroneously assumed that the circumstances were similar. Some of the cases cited in behalf of the defendant will illustrate the distinction to which we refer.

In Durkee v. City of Janesville, 28 Wis. 464, an act had been passed providing that the city of Janesville should be holden to pay no costs in any action brought against it to set aside any tax assessment or tax deed, or to prevent the collection of any tax. The act was held void, because it exempted one corporation by name from a burden from which no other was exempt under like circumstances, and it enabled the city to recover its own costs if it recovered judgment, but denied it to the other party to the same litigation in case judgment was recovered against the city. So, in Ohio & M. R. Co. v. Lackey, 78 Ill. 55, an Illinois statute was held unconstitutional and void which made the railroad company liable for all the burial expenses and coroners' fees incurred, where any one happened to die or be killed in any way in the cars of such railroad. This act attempted to make the company liable, though a person might die from a mortal sickness which was upon him when he entered the car, or by his own hand, or in other ways in regard to which the company would have no agency whatever. The distinction between such a case and the one at bar is too manifest to require further comment.

The only case cited which supports the defendant's position in the least is the case of Zeigler v. South Alabama K. Co., 58 Ala. 594, where a statute of that state was held unconstitutional which declared that railroad corporations should be liable and make compensation to the owner for all damage to livestock caused by their locomotives or trains, without any reference to the skill or diligence with which the train was operated, unless there was some contributory negligence on the part of the owner other than permitting the stock to run at large. There might be a difference of opinion in different jurisdictions as to the validity of such legislation. But assuming, for the sake of argument, that the decision was right, there is an important distinction between the two cases. There the animals injured were where they ought not to have been,—trespassers obstructing the defendant's railroad track, directly exposing the defendant's property to hazard and loss; here the property injured was where it ought to have been, on the plaintiff's own premises, occasioning no hazard to the railroad company. There, too, it was possible for the owner to have kept his stock on his own premises, where they would have been safe; but here it was not possible for the plaintiff to avoid the loss that he suffered by any act of his own.

It is a mistake to suppose that it necessarily transcends the limits of valid legislation, or violates the principle of a just equality before the law, if the one using extrahazardous materials or instrumentalities, which put in jeopardy a neighbor's property, is made to bear the risk and pay the loss thereby occasioned, if there is no fault on the part of the owner of the property, even though negligence in the other party cannot be proved. If the statute should make the owner of a vicious domestic animal liable for the damage it might occasion, without proof of scienter or knowledge of its vicious propensity, as-required by the common law, we do not think the act would be void. Such a statute would only be a new application of an ancient common-law principle, that, where one of two innocent persons must suffer loss from an act done, it is just that it should fall on the one who caused the loss, rather than upon the other who had no agency in producing it, and could not by any means have avoided it.

An ancient statute of this state, which has been very often enforced, makes the owner of dogs, or, if the owner is a minor or an apprentice, the parent, guardian, or master, liable for all the damage done by them, irrespective of any fault or negligence on the part of the owner. Gen. St. p. 267, § 5. Another statute (Gen. St. p. 489, § 6) makes one who kindles a fire on his own or any land liable for all damage it may do if it runs upon the land of another, and proof of negligence is not required. We are not aware that the validity of any of these statutes has been called in question. The dangerous character of the thing used is always to be considered in determining the validity of statutory regulations fixing the liability of parties so using it. Fire has always been subject to arbitrary regulations, and the common law of England was more severe and arbitrary on the subject than any statute. In Bolle's Abridgement ("Action on the Case," B, tit. "Fire") it is said: "If my fire, by misfortune, burns the goods of another man, he shall have his action on the case against me. If a fire breaks out suddenly in my house, I not knowing it, and it burns my goods and also my neighbor's house, he shall have his action on the case against me. So, if the fire is caused by a servant or a guest, or any person who entered the house with my consent; but otherwise if it is caused by a stranger who enters the house against my will."

It ought, perhaps, to be stated that this has not been adopted as the common-law rule in the United States. In most states, we presume, there are arbitrary police regulations concerning the transportation or deposit of gunpowder. Would the constitutionality of a statute be questioned that should make one who deposits large quantities of gunpowder or dynamite on his own premises, in dangerous proximity to the property of another, liable for any loss thereby occasioned to the latter without proof of negligence?

There is no force in the objection that the statute under consideration unjustly selects only railroad corporations to bear the burden of an extraordinary risk. It is confined to them because they alone have the privilege of taking a narrow strip of land from each owner, without his consent, along the route selected for the track, and of traversing the same at all hours of the day and night, and at all seasons, whether wet or dry, with locomotive engines that scatter fire along the margin of the land not taken, thereby subjecting all combustible property to extraordinary hazard of loss, and that, too, for the sole profit of the corporation. The argument for the defendant is fallacious in erroneously assuming that the statute denies to the defendant a good defense which at common law all others would have under similar circumstances.

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