E. T. & H. K. Ide v. Boston & M. R. R.

• Decision Date: 12 November 1909
• Citation: 83 Vt. 66,74 A. 401
• Court: Vermont Supreme Court
• Parties: E. T. & H. K. IDE v. BOSTON & M. R. R.

74 A. 401

83 Vt. 66

E. T. & H. K. IDE

v. BOSTON & M. R. R.

Supreme Court of Vermont. Caledonia.

Nov. 12, 1909.

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Exceptions from Caledonia County Court; Alfred A. Hall, Judge.

Action by E. T. & H. K. Ide against the Boston & Maine Railroad. There was a verdict for plaintiff, and defendant excepts. Reversed and remanded.

Argued before MUNSON, WATSON, HASELTON, and POWERS, JJ.

Dunuett & Slack, for plaintiff.

Young & Young, for defendant.

HASELTON, J. This was an action brought by the plaintiff, a corporation, to recover damages for the destruction by fire of a gristmill and outbuildings and of grain stored therein. Trial by jury was had. Verdict and judgment were for the plaintiff. The fire in question, which occurred May 12, 1905, was alleged to have been communicated by a locomotive engine on the Connecticut & Passumpsic Rivers Railroad, which on the date named was operated by the defendant as lessee. The statute which governs is now P. S. 4510, which reads as follows: "A person or corporation owning or operating a railroad shall be responsible in damages for a building or other property injured by fire communicated by a locomotive engine on such road, unless due caution and diligence are used and suitable expedients employed to prevent such injury. Said person or corporation shall have an insurable interest in the property along its route, and may procure insurance thereon." Under the statute, the burden was on the plaintiff to show by a fair balance of proof that the fire was "communicated" by one of the defendant's engines, and, if that fact was established, the plaintiff was entitled to recover unless the defendant showed affirmatively by the same measure of proof that it used "due caution and diligence" and employed "suitable expedients" to prevent the injury. Cleaveland v. Grand Trunk Ry. Co., 42 Vt. 449; Farrington v. Rutland R. Co., 72 Vt. 24, 47 Atl. 171.

The first exception presented by the bill of exceptions, as drawn, was taken to the action of the court in overruling a motion for a directed verdict made by the defendant at the close of the evidence. This motion was based on eight grounds. The fire was first seen on the roof of an old blacksmith shop owned by the plaintiff standing on the easterly side of the railroad track and, to about one-third of its extent, on the right of way of the railroad. Under the motion for a verdict, the claim, or claims, dependent upon the location of the blacksmith shop, will first be considered. The third ground of the motion was as follows: "Because the plaintiff maintained the blacksmith shop partly upon the defendant's right of way, or roadbed, as a trespasser, and the fire started on the part of said shop which was upon the said right of way without right." The fourth ground of the motion was this: "Because the plaintiff was negligent in maintaining the blacksmith shop upon the defendant's right of way without right, in the condition in which the shop then was, and such negligence contributed to the destruction sued for." It appeared that the blacksmith shop stood to about one-third of its extent on the easterly side of the defendant's right of way, and, as to the rest, on land of the plaintiff; that it had not been in use as a blacksmith shop for about 15 years; that during that time it had not been repaired; and that it was covered with old and short shingles. From the printed case we quote as follows: "There was no evidence in the case tending to show any contract or lease from either the Connecticut & Passumpsic Rivers Railroad Company or the defendant authorizing this building to be located where and as it was located, unless the fact of its actual existence and location as herein stated is such evidence; but the evidence tended to show that it had stood upon the same location for more than 30 years." There was no evidence that the defendant, or its lessor, ever objected to the location and maintenance of the shop. This evidence tended to show that the blacksmith shop was maintained where it was by permission, or under an implied license, and that so it was rightfully there, since the granting of such license is not ultra vires. Grand Trunk Co. v. Richardson, 91 U. S. 454, 23 L. Ed. 356; Kansas City, etc., v. Chamberlain, 61 Kan. 859, 60 Pac. 15; Sherman v. Maine Central, etc., R. Co., 86 Me. 422, 30 Atl. 69; Ingersoll v. Stockbridge, etc., R. Co., 8 Allen (Mass.) 438; Laird v. Railroad Co., 62 N. H. 254, 13 Am. St. Rep. 564; Kansas, etc., R. Co. v. Blaker, 68 Kan. 244, 75 Pac. 71, 64 L. R. A. 81, 1 Am. & Eng. Ann. Cas. 883; Osgood v. Central Vermont Ry. Co., 77 Vt. 334, 60 Atl. 137, 70 L. R. A. 930. If, as the jury were warranted in finding, the blacksmith shop was rightfully where it was, the liability of the company was not affected by its location, since the company did not contract against liability because of it, though it might have done so. Osgood v. Central Vermont Ry. Co., 77 Vt. 334, 60 Atl. 137, 70 L. R. A. 930; Hartford Ins. Co. v. Chicago, etc., Ry. Co., 175 U. S. 91, 20 Sup. Ct. 33, 44 L. Ed. 84; Greenwich Ins. Co. v. Louisville, etc., R. Co., 112 Ky. 598, 66 S. W. 411, 67 S. W. 10, 23 Ky. Law Rep. 477. 56 L. R. A. 477, 99 Am. St. Rep. 313. The fourth ground of the motion for a verdict asserts the claim that the plaintiff was negligent in maintaining the blacksmith shop in the condition in which it was, and that such negligence was contributory, and prevents recovery. There was evidence tending to show that fire was communicated to the shop from one of the defendant's locomotives, and the state of the evidence was such that it was for the jury to say whether or not the defendant had sustained the burden of showing the use of due caution and diligence and the employment of suitable expedients; and, under our statute, the question of whether the plaintiff was guilty of contributory negligence in maintaining the shop in the condition in which it was does not arise. We do not say whether or not a property owner may be guilty of such proximate contributory negligence in respect to the very communication of the initial fire as to prevent his recovery. Very clearly he cannot recover if he can be taken to have exposed his property for the purpose of having it burned. Exposure of property for the purpose of having it burned and of getting compensation for it from a railroad is something different from negligence. It is an attempt at fraud, which no court will allow to succeed.

In respect to liability for property destroyed by fire communicated by railroad engines, the bearing of negligence, both on the part of a railroad company and on the part of the owner of property adjoining its right of way, depends largely, though not wholly, upon statutory provisions. In some states the situation of the property owner is better, and in others worse, than in this state. Our statute fairly interpreted in the light of common-law principles lays down a reasonable rule of liability intermediate between the extreme doctrines. A railroad company is not liable if it is not in fault. If it is in fault, the right of one whose property is burned to recover does not depend upon whether in respect to guarding his property from fire he has exercised the care and prudence of a prudent man. One man rakes his meadows clean, and another, not careful in raking after, leaves wisps of hay, which become dry and combustible. One keeps his roofs newly and tightly shingled, and another lets his roofs get into the condition in which the roof of this old blacksmith shop was. One locates his buildings close to the right of way of the railroad company, and another, more prudent, avoids such location. The lawful maintenance and use of property, though injudicious or imprudent, does not in itself constitute in legal sense proximate contributory negligence. The property owner is not bound to anticipate negligence on the part of a railroad company and guard against it, and he may use and exercise his property in any lawful way, taking upon himself the risk of loss without fault on the part of the railroad company. This holding does not preclude the idea that a property owner may be guilty of immediate and proximate negligence in respect to the very communication of the initial fire, and that such negligence may defeat recovery. As to that proposition, our holding determines nothing. For their bearing upon the ruling here made cases are referred to, though they are not all in accord on other points: Patton v. St. Louis, etc., R. Co., 87 Mo. 117, 56 Am. Rep. 446; Salmon v. Railway Co., 38 N. J. Law, 5, 20 Am. Rep. 356; Philadelphia, etc., Ry. Co. v. Hendrickson, 80 Pa. 182, 21 Am. Rep. 97; Kendrick v. Towle, 60 Mich. 363, 27 N. W. 567, 1 Am. St. Rep. 526; Railway Co. v. Jones, 86 Ind. 496, 44 Am. Rep. 334; Louisville, etc., R. Co. v. Marbury Lumber Co., 125 Ala. 239, 28 South. 438, 50 L. R. A. 620 Southern Ry. Co. v. Darwin, 156 Ala. 311, 47 South. 317; Louisville, etc., R. Co. v. Beelor, 126 Ky. 328, 103 S. W. 300, 31 Ky. Law Rep. 750, 11 L. R. A. (N. S.) 935.

Thus far in considering the defendant's motion for a verdict we have taken notice only of questions relating to the starting of the fire on the blacksmith shop. For the burning of that the plaintiff claims no damages, and introduced no evidence tending to show that it was damaged thereby. It was conceded by the plaintiff that, if it had not been burned up, it would have been torn down. With regard to that the court charged: "I do not understand that the plaintiff claims damages for the loss of the blacksmith shop. The evidence would not warrant you in finding any value so far as the shop was concerned, and the court charges you not to consider that, if you arrive at the question of damages." No exception was taken to this part of the charge, and the record shows clearly enough that it was in accord with the theory upon which the case was tried.

In view of...