Newton v. New York & N. E. R. Co.

• Decision Date: 04 February 1888
• Citation: 12 A. 644,56 Conn. 21
• Court: Connecticut Supreme Court
• Parties: NEWTON v. NEW YORK & N. E. R. Co.

12 A. 644

56 Conn. 21

NEWTON

v. NEW YORK & N. E. R. Co.

Supreme Court of Errors of Connecticut.

February 4, 1888.

Appeal from superior court, Windham county.

Edgar H. Newton sued the New York & New England Railroad Company to recover for damages caused by a fire set by defendant's locomotive Plaintiff demurs to defendant's answer, which is sustained, and defendant appeals.

Simeon E. Baldwin and George A. Conant, for appellant. Mr. Sumner, for appellee.

BEARDSLEY, J. This is an action by complaint, dated September 18, 1886, to recover damages for injury to property of the plaintiff by fire alleged to have been communicated to it by the defendant's locomotive on the 2d day of June, 1883. The action is brought under the following statute: "Whenever any injury is done to a building or other property of any person * * * by fire communicated by a locomotive engine of any railroad corporation, without contributory negligence on the part of the person, * * * the said corporation shall be held responsible in damages to the extent of such injury," etc. Sess. Laws 1881, p. 48. There is no allegation in the complaint that fire was caused by the negligence of the defendant. The defendant alleges, in its answer, (1) that the right of action for the cause stated in the complaint did not accrue within one year next before the commencement of the action; and (2) that such right of action did not accrue within three years next before the commencement of the action. The plaintiff demurs to these allegations in the answer, and the question presented is whether the plaintiff's right of action is barred by the statute of limitations. The defendant claims that it is so barred, first, upon the ground that the statute is a penal one, and a suit to recover the penalty imposed by it must therefore be brought within a year after the right of action accrues. Gen. St. p. 494, § 10.

We see no reason for holding that the statute is a penal one. In the case of Burroughs v. Railroad Co. 15 Conn. 124, this court held that a railroad company, free from negligence, was not liable for damage from fires kindled by sparks from their locomotives. The statute was passed to remedy what was regarded as a defect in the common-law rule of liability thus established, by providing that railroad companies should be liable for such damage, though their own negligence did not contribute to it. The companies are not subjected by it to a penalty, as for doing an unlawful act, but are made responsible for a consequence of the lawful use of their property and exercise of their rights.

But the defendant claims that, if the statute is not a penal one, the proper remedy to enforce the liability created by it is an action of trespass, which is barred by the statute of limitations; the provisions of that statute being that actions of trespass shall be brought within three years, and actions on the case within six years, next after the right of...