The Louisville, New Albany & Chicago Railway Co. v. Nitsche

• Decision Date: 09 December 1890
• Docket Number: 14,550
• Citation: 26 N.E. 51,126 Ind. 229
• Parties: The Louisville, New Albany and Chicago Railway Company v. Nitsche
• Court: Indiana Supreme Court

26 N.E. 51

126 Ind. 229

The Louisville, New Albany and Chicago Railway Company v. Nitsche

No. 14,550

Supreme Court of Indiana

December 9, 1890

From the Lake Circuit Court.

Judgment affirmed.

G. W Friedley and E. C. Field, for appellant.

J Kopelke, for appellee.

OPINION

Elliott, J.

Gathered and grouped in a form sufficiently full and clear to exhibit the questions of law which arise in this case, the facts, as they appear in the special finding, may be thus stated: The appellee is the owner of lands used for ordinary farming and grazing purposes adjoining the appellant's railroad. On the 19th day of July, 1887, the section hands of the appellant, by order of its road-master, set fire to grass, weeds and other combustible materials on the appellant's right of way, a short distance from the appellee's land, and burned off a great part of the space occupied by the track. The object of the section men was to remove from the right of way all combustible materials. At the time the fire was set out it was very dry, no rain having fallen for more than four weeks. The section men extinguished all the blaze and flame caused by the fire set out by them, but fire remained in some pieces of turf which had been ignited, and although there was no flame, the fire was still alive and smoldering. These pieces of burning turf were cast back upon the space which had been burned over. The appellant's right of way extended over beds of turf or peat, and the same material formed the surface of the body of adjoining lands, and also of the appellee's land, which was adjacent to the right of way of the appellant. Turf, or peat, when dry, will ignite and burn to the depth at which it ceases to be dry. On the 22d day of July, 1887, the wind shifted to the northeast, and blew fresh, but not unusually strong for the locality. The fire smoldering in the pieces of turf cast back upon the track was kindled into a flame, and, passing from the right of way, communicated fire to the land owned by Hawkinson, burned there for a time, but finally all the fire that was visible was fought out and extinguished by persons residing in the neighborhood. The fire had, however, communicated with the turf on Hawkinson's farm, where it remained dormant until the morning of the 23d day of the month named; on that day it broke out and spread over the land of Schaffer. For the second time neighbors extinguished such flame as was visible, but the turf still held fire, and burned slowly. On the 24th day of the same month the wind shifted to the south, and the fire from Schaffer's land was communicated to the turf, or peat, on the appellee's farm. For the third time such fire as could be seen or reached was extinguished by persons residing in the neighborhood, assisted by the employees of the appellant, but still the fire remained in the turf, smoldering but not extinguished. On the 2d day of August the wind increased, but it did not blow stronger than is usual in the locality, and again the fire smoldering in the turf on appellee's farm broke out. It ran over ten acres, and caused the appellee serious loss. "By reason of the dryness of the season and the character of the soil," says the trial court in its finding, "it was negligence on the part of the defendant to set fire to and burn off the right of way at the place and time where the same was so burned."

An essential and ruling element of this case is, that it was a tortious act to set out the fire which caused the plaintiff's injury. It was something more than culpable negligence to start a fire on a bed of turf, or peat, in a season of great drouth, when for weeks no rain had fallen and the ground was parched and dry. The act of the defendant in setting out a fire at such a place and under such conditions was a positive wrong, for the law forbids that one person should put the property of another in jeopardy by such an act. In degree, only, is there a difference between such a case as this and one in which a person kindles a fire near a train of gunpowder leading to a magazine filled with explosive substances. In essence the case is the same as that of one who builds a fire upon materials that will ignite and continue burning in a place where all surrounding materials are of the same combustible character. If a person should kindle a fire in a great heap of inflammable paper, surrounded on every side by other like heaps, with the line of communication between them direct and unbroken, no one, we venture to say, would hesitate to declare that he by whom the fire was kindled was guilty of a positive tort, and not of mere passive negligence.

A railroad company has a right to remove combustible material from its right of way, and ordinarily it may not be negligence to employ fire for that purpose; but where the conditions are such as to put in great peril adjacent property fire can not be rightfully used for such a purpose. Fire is a necessary agent, in common use in life, and from its employment, under ordinary conditions, negligence or wrong is not necessarily inferable; but it may be so used as to make the person using it guilty of a tortious act. The doctrine we assert was declared in the early years of the common law. Smith v. Frampton, 2 Salk. 644; Tubervil v. Stamp, 1 Salk. 13; Anonymous, Cro. Eliz., 10.

The rule has continued in unbroken force through all the ages of the jurisprudence of the English speaking nations. Catron v. Nichols, 81 Mo. 80; Miller v. Martin, 16 Mo. 508; Clark v. Foot, 8 Johns. 421; Barnard v. Poor, 21 Pick. 378; Hanlon v. Ingram, 3 Iowa 108; Fahn v. Reichart, 8 Wis. 255; Filliter v. Phippard, 11 Q. B. 347; McKenzie v. McLeod, 10 Bing. 385; Cleland v. Thornton, 43 Cal. 437; Collins v. Groseclose, 40 Ind. 414. A lawful act may be done in such a mode, or under such circumstances, as to make it wrongful, and where fire is used in an improper manner, or under circumstances such as inexcusably imperil surrounding, or adjacent property, the person so using it is a wrongdoer. Gagg v. Vetter, 41 Ind. 228; Freemantle v. London, etc., R. W. Co., 2 F. & F. 337; Aldridge v. Great Western, etc., R. W. Co., 3 Man. & G. 515; Vaughan v. Menlove, 3 Bing. (N. C.) 468; Crogate v. Morris, Brownlow & G. 197; Higgins v. Dewey, 107 Mass. 494. In a series of cases our court has held that railroad companies are not liable for setting out fire on their own right of way, but are liable for negligently suffering it to escape and injure adjacent property. Pittsburgh, etc., R. W. Co. v. Hixon, 79 Ind. 111, and cases cited; Pittsburgh, etc., R. W. Co. Jones, 86 Ind. 496; Brinkman v. Bender, 92 Ind. 234; Louisville, etc., R. W. Co. v. Ehlert, 87 Ind. 339; Indiana, etc., R. W. Co. v. Adamson, 90 Ind. 60; Indiana, etc., R. W. Co. v. McBroom, 91 Ind. 111; Wabash, etc., R. W. Co. v. Johnson, 96 Ind. 40; Pittsburgh, etc., R. W. Co. v. Hixon, 110 Ind. 225, 11 N.E. 285. Within the principles established by these authorities the person whose land was first reached by the fire would undoubtedly be entitled to recover, for the use of fire under the circumstances existing at the time the first was set out by the appellant was wrongful, and the conditions were such as to make it reasonably certain that it would leave the appellant's right of way and follow the continuous beds of peat, or turf, upon which the track was laid, and which extended on every side of it, covering many acres. That the fire would escape from the right of way was so probable that the appellant must be held responsible for what did actually occur, for all persons are required to foresee and provide against the probable consequences of their acts. Unusual and improbable results are not to be anticipated, but usual, or probable, ones must be. Billman v. Indianapolis, etc., R. R. Co., 76 Ind. 166; Dunlap v. Wagner, 85 Ind. 529 (44 Am. Rep. 42); Wabash, etc., R. W. Co. v. Locke, 112 Ind. 404, 14 N.E. 391; Louisville, etc., R. W. Co. v. Wood, 113 Ind. 544, 14 N.E. 572 (556), and cases cited; Clore v. McIntire, 120 Ind. 262, 22 N.E. 128 (265); Cincinnati, etc., R. R. Co. v. Cooper, 120 Ind. 469, 22 N.E. 340 (472); Terre Haute, etc., R. R. Co. v. Clem, 123 Ind. 15, 23 N.E. 965; Lane v. Atlantic Works, 111 Mass. 136; Hill v. Winsor, 118 Mass. 251.

The only difficulty which this case presents grows out of the fact that the fire crossed the land of Hawkinson and of Schaffer before reaching that of the appellee, but the difficulty will be found, upon scrutiny and analysis, to be apparent rather than real. Its apparel of seeming strength drops when the tests of reason and authority are applied, for neither upon principle nor authority can it be justly concluded that the injury was so remote as to defeat a right of recovery. As has been shown, the act of setting out a fire at such a season and on an inflammable and continuous bed of peat was a positive wrong and not mere passive negligence, so that the case falls within the rule declared in the famous "Squib case" which our own and other courts have so often and so strongly approved. Scott v Shepherd, 2 W. Black. 892; Billman v. Indianapolis, etc., R. R. Co., supra; Dunlap v. Wagner, supra; Terre Haute, etc., R. R. Co. v. Buck, 96 Ind. 346 (49 Am. R. 168); Louisville, etc., R. W. Co. v. Falvey, 104 Ind. 409, 3 N.E. 389; Indianapolis, etc., R. W. Co. v. Pitzer, 109 Ind. 179, 6 N.E. 310 (188); Ohio, etc., R. R. Co. v. Hecht, 115 Ind. 443, 17 N.E. 297, and cases cited; Louisville, etc., R. W. Co. v. Snyder, 117 Ind. 435, 20 N.E. 284; Denver, etc., R. W. Co. v. Harris, 122 U.S. 597, 30 L.Ed. 1146, 7 S.Ct. 1286; Lake Shore, etc., R. W. Co. v. Rosenzweig, 113 Pa. 519, 6 A. 545; Addison Torts, 42; Cooley Torts, 70; Bishop Non-Contract Law, section 45; 2 Shear. & Redf. Neg. (4th ed.), section 742. The wrong of the...