Railroad Co. v. Yeiser
| Decision Date | 26 June 1848 |
| Citation | 8 Pa. 366 |
| Parties | RAILROAD CO. <I>v.</I> YEISER. |
| Court | Pennsylvania Supreme Court |
N. D. Strong and W. Strong, for plaintiff in error.—Charter of company, Act of 4th April, 1832 and 1833, Pamph. Laws, 151. Locomotives, under the charter, to be used on this road. Damages assessed in 1835, for damages to the premises of the plaintiff, and paid to him. No negligence proved here. The court were wrong in instructing the jury that the fires on the plaintiff's property, if caused by sparks from the locomotives of the defendant, were in themselves proof of negligence. He cited Clark v. Foot, 8 Johns. Rep. 421; Panton v. Holland, 17 Johns. 92; Thurston v. Hancock, 12 Mass. Rep. 220; Runnels v. Bullen, 2 N. H. Rep. 534; Callendar v. Marsh, 1 Pick. 418; Green v. Bor. Reading, 9 Watts, 382; Livingston v. Adams, 8 Cow. 175; Vincent v. Steinham, 7 Vermont Rep. 62; Aldridge v. Great Western Railroad Co. 42 Eng. C. L. Rep. 272; Germantown Railroad v. Wilt, 4 Wh. 147. The fire was caused by the plaintiff's own negligence, inasmuch as he placed his fence on the ground of the company.
Smith and Banks, contrà.—The track of the railroad, where there are embankments, is about thirty feet in width, and this is the case through part of Yeiser's property. The record of the assessment of damages in 1835, was offered to show that the company, in that case, paid damages for two hundred feet. The engines used at the time of the firing in this case, scattered sparks to a distance of thirty or forty yards. The question then is, in this case, Is the company liable for an injury by fire, caused by the sparks emitted by such engines? The authority of this company to carry passengers or merchandise is nowhere given, except in the proviso of the 2d section of the charter: Act of 4th April, 1832 and 1833, Pamph. Laws, 146; 42 Eng. C. L. Rep. 272; 24 Eng. C. L. Rep. 18; King v. Pease, 1 Swift's Dig. 553; Story on Bail, 472; New York v. Bailey, 2 Denio, 433. Negligence is the absence of ordinary care. If engines are driven so fast that sparks fly out to the length of three or four cars, as was proved in this case, and without spark-catchers on the smoke-pipe, and without fire-screens, it is negligence. If the company use and carry fire on this road, it must use that degree of care in doing so that a prudent man would use in carrying fire on a road and through the property of another.
June 26. ROGERS, J.
It is a principle well settled by many adjudicated cases, that an action does not lie for a reasonable use of one's right, though it be to the injury of another. For the lawful use of his own property, a party is not answerable in damages, unless on proof of negligence: as if a man builds a house and makes a cellar on his own soil, whereby a house nearly built on an adjoining soil falls down: 2 Roll. Abr. 505; 1 Sid. 167. So, should a man's house get on fire without his neglect or default, and burn his neighbour's, no action lies against him, notwithstanding the fire originated in his house, because it is lawful for him to keep fire. If A. sets fire to his own fallow ground, as he may lawfully do, which communicates to and fires the woodland of his neighbour, no action lies against him, unless there was some negligence or misconduct in him or his servants: Clark v. Foot, 8 Johns. 421. So where one builds a mill-dam upon a proper model, and the work is well and substantially done, he is not liable to an action, though it break away, in consequence of which his neighbour's dam and mill below are destroyed. There must be proof of negligence to make him liable: Livingston v. Adams & Reader, 8 Cow. 175. A person building a house contiguous and adjoining the house of another, may lawfully sink the foundation of his house below the foundation of his neighbour's, and is not liable for any consequential damages, provided he has used due care and diligence to prevent injury to the house of the other: Panton v. Holland, 17 Johns. 92. So when one builds a house on his own land, within two feet of the boundary line of his land, ten years after the owner of the land adjoining dig so deep into his own land as to endanger the house, and the owner of the house on that account left it, and took it down, it was held that no action lay by the owner of the land for damages: Thurston v. Hancock et al. 12 Mass. Rep. 220. The court considered this as a very hard case, and evinced great anxiety to sustain the action, but after a minute and careful examination of the authorities, they were compelled to come to the conclusion, and so ruled, that the suit could not be maintained. That negligence in such cases is the gist of the action is also ruled in Runnell v. Bullen, 2 N. H. Rep. 539; in Cook v. The Champlain Transportation Company, 1 Denio, 22; The Mayor of the City of New York v. Barley, 2 Ib. 433; 3 Hill, 531, S. C.; and in Greene v. The Borough of Reading, 9 W. 383. The principle directly applicable to this case, being supported by an unbroken current of authority, it remains to inquire whether the Philadelphia and Reading Railroad is an exception to the rule. And that it is not, is very clear. The 12th sec. of the act of 4th April, 1833, which charters the company, gives the president and managers authority to enter in and upon and to occupy all land on which the railroad or its depots and warehouses may be located, or which may be necessary for the erection of its engine and water stations, weigh-scales, or any other purpose necessary or useful in the construction and repair of the road. The section also points out the mode of ascertaining the damages by a jury, whose duty it is to ascertain and report to the court what damages, if any, have been sustained by the owner of the ground, by reason of the construction of the road. The jury are directed, after being sworn or affirmed, to...
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