St. Louis & San Francisco Railroad Co. v. Shore

• Citation: 117 S.W. 515,89 Ark. 418
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. SHORE
• Decision Date: 01 March 1909
• Court: Arkansas Supreme Court

117 S.W. 515

89 Ark. 418

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. SHORE

Supreme Court of Arkansas

March 1, 1909

Appeal from Washington Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

W. F Evans and B. R. Davidson, for appellant.

1. The statute is void, because,

a. It deprives appellant of its property without due process of law, contrary to art. 2, § 8, Const. Ark. 1874. 39 Ark 167; 21 Ark. 431; 42 Ark. 529; 51 Ark. 330; 68 Ark. 600-604; 33 Ark. 816; 49 Ark. 190; 68 Ark. 333; 164 U.S. 403.

b. It takes from appellant a valuable privilege which it has bought and paid for, thereby depriving it of its property "without the judgment of its peers or the law of the land," contrary to art. 2, § 21, Const. Ark. And thereby takes private property without due compensation. Art 2, § 22, Const. Ark.; 15 Ark. 43; 68 Ark. 333; 69 Ark. 102; 94 U.S. 113; 186 U.S. 212-222; 105 U.S. 13.

c. It inflicts an injustice upon appellant, contrary to art. 12, § 6, Const. Ark. It is class legislation, making a railroad company responsible for fire set not only by the running of its trains but also by any employee of the company in the line of his employment while others under like circumstances, as, for example, a farmer burning off his meadow, would not be liable. Art. 2, § 18; art. 5, § 25, Const. Ark.; 24 Ark. 242; 73 Ark. 236; 75 Ark. 542; 165 U.S. 150; 127 Cal. 4; 65 Ala. 119; 44 A. 1051; 42 A. 973; 89 Tenn. 497-534; 81 Miss. 507.

2. Testimony of various witnesses, based upon the supposed revenue that the orchard ought to produce, and not upon the salable value of the land and orchard, was inadmissible, and ought to have been excluded. It was mere opinion evidence. 59 Ark. 105; 71 Ark. 302; 76 Ark. 542-49.

Walker & Walker, for appellee.

The act is valid. 3 Elliott on Railroads, § § 1222, 1223 and cases cited; 6 Allen [Mass.], 87; 105 Mass. 199; 13 Metc. [Mass.], 99; 16 Gray [Mass.], 71; 145 Mass. 129; 103 Mass. 583; 8 Allen [Mass.], 438; 98 Mass. 414; 41 Ia. 297; 12 Col. 294; 2 Col. App. 42; Id. 159; 19 Col. 331; 57 N.H. 132; 121 Mo. 340; 28 S.W. 496; 165 U.S. 1; 149 Mo. 173; art. 12, § 6, art. 6, § 11, Const. Ark.; 174 U.S. 96; 173 U.S. 404; 185 U.S. 308; 189 U.S. 301.

OPINION

MCCULLOCH, C. J.

Plaintiffs instituted this action to recover damages to their land and growing fruit orchard, caused by fire alleged to have been communicated from a locomotive operated by the defendant on its railroad. They recovered the sum of $ 2,500 in the trial below, and defendant appealed to this court.

It is neither alleged nor proved that the defendant was guilty of any negligence in allowing the fire to escape; and the principal question involved in this case is as to the constitutionality of the act approved April 18, 1907, making railroad companies responsible for damage caused by fire. The statute is as follows:

"Hereafter all corporations, companies or persons, engaged in operating any railroad wholly or partly in this State, shall be liable for the destruction of, or injury to, any property, real or personal, which may be caused by fire, or result from any locomotive, engine, machinery, train, car or other thing used upon said railroad, or in the operation thereof, or which may result from, or be caused by any employee, agent or servant of such corporation, company or person upon or in the operation of such railroad, and the owner of any such property, real or personal, which may be destroyed or injured, may recover all such damage to said property by suit in any court, in the county where the damage occurred, having jurisdiction of the amount of such damage it shall not be lawful for the defendant in such suit or action to plead or prove, as a defense thereto, that the fire which caused such injury was not the result of negligence or carelessness upon the part of such defendant, its employees, agents or servants; but in all such actions it shall only be necessary for the owner of such property so injured to prove that the fire which caused or resulted in the injury originated or was caused by the operation of such railroad, or resulted from the acts of the employees, agents or servants of such defendant, and if the plaintiff recover in such suit or action he shall also recover a reasonable attorney's fee to be ascertained from the evidence in the case by the court or jury trying the same. Provided, that the penalty prescribed by section one of this act shall apply only when such employee, agent or servant is in the discharge of his duty as such."

All of the objections made to the statute in question are fully answered by the Supreme Court of the United States in the case of St. Louis & S. F. Ry. Co. v. Mathews, 165 U.S. 1, 41 L.Ed. 611, 17 S.Ct. 243, upholding a similar statute in Missouri, and we need go no further than to cite that case as an expression of our views on the subject. Mr. Justice Gray, in delivering the opinion of the court in that case, after reviewing the authorities on the subject, said:

"This review of the authorities leads us to the following conclusions:

"1. The law of England, from the earliest times, held any one lighting a fire upon his own premises to the strictest accountability for damages caused by its spreading to the property of others.

"2. The earliest statute which declared railroad corporations to be absolutely responsible, independently of negligence, for damages by fire communicated from their locomotive engines to property of others, was passed in Massachusetts in 1840, soon after such engines had become common.

"3. In England, at the time of the passage of that statute, it was undetermined whether a railroad corporation, without negligence, was liable to a civil action, as at common law, for damages to property of others by fire from its locomotive engines; and the result that it was not so liable was subsequently reached after some conflict of judicial opinion, and only when the acts of Parliament had expressly authorized the corporation to use locomotive engines upon its railroad, and had not declared it to be responsible for such damages.

"4. From the time of the passage of the Massachusetts statute of 1840 to the present time, a period of more than half a century, the validity of that and similar statutes has been constantly upheld in the courts of every State of the Union in which the question has arisen."

The learned justice concludes the opinion with the following statement of the law: "The motives which have induced and the reasons which justify, the legislation now in question may be summed up thus: Fire, while necessary for many uses of civilized man, is a dangerous, volatile and destructive element, which often escapes in the form of sparks, capable of being wafted afar through the air, and of destroying any combustible property on which they fall; and which, when it has once gained headway, can hardly be arrested or controlled. Railroad corporations, in order the better to carry out the public object of this creation, the sure and prompt transportation of passengers and goods, have been authorized by statute to use locomotive engines propelled by steam generated by fires lighted upon those engines. It is within the authority of the Legislature to make adequate provision for protecting the property of others against loss or injury by sparks from such...