Wallace v. New York, N.H. & H.R. Co.

Decision Date27 February 1911
Citation208 Mass. 16,94 N.E. 306
PartiesWALLACE et al. v. NEW YORK, N.H. & H. R. CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Higgins &amp Hanify, for plaintiffs.

F. S Hall and T. J. Feeney, for defendant.

OPINION

HAMMOND J.

At the close of the testimony the court ruled that 'there was no evidence of negligence of the defendant and directed a verdict' accordingly. The only negligence alleged in the declaration is that 'the defendant carelessly and negligently used its said locomotive engine so that a great quantity of fire, cinders, sparks and burning matter were thrown therefrom.' The ruling must be considered as made with reference to the state of the pleadings and the only question raised upon the record is whether there was any evidence of the kind of negligence alleged in the declaration.

Inasmuch as the fire occurred in the state of Rhode Island our statute is not applicable; and, it not appearing that there is any statute in that state affecting the question, the rights of the parties must be determined by the common law of that state which, in the absence of proof to the contrary, must be assumed to be the same as in this.

Whatever may have been the law in England either before or after St. 6 Anne, c. 31, or the common law in this state, as to one's liability for damages caused by fire escaping from his houses or lands (as to which see among other cases St. Louis & San Francisco Railway v. Mathews, 165 U.S. 1, 17 S.Ct 243, 41 L.Ed. 611, and the cases therein cited, and Lothrop v. Thayer, 138 Mass. 466, 52 Am. Rep. 286, and the authorities therein cited), it is not well settled in England and generally throughout the United States that the gist of the action is negligence. Vaughn v. Taft Vale Railway, 5 H. & N. 679; Milwaukee & St. Paul Ry. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; Eddy v. Lafayette, 163 U.S. 456, 16 S.Ct. 1082, 41 L.Ed. 225. For a collection of the cases see 13 Am. & Eng. Encyc. of Law (2d Ed.) p. 411 (note 2) and page 415 (note 4). And such is the law in this commonwealth. Barnard v. Poor, 21 Pick. 378; Tourtellot v. Rosebrook, 11 Metc. 460; Higgins v. Dewey, 107 Mass. 494, 9 Am. Rep. 63. And this same principle is applied in the case of fire resulting from sparks falling from a locomotive engine lawfully in operation upon the track of a railroad corporation. See in addition to the cases hereinbefore cited those collected in Thompson on Negligence, §§ 22, 30 (note 7), and those named in 13 Am. & Eng. Encyc. of Law (2d Ed.) p. 411 (note 2) and page 415 (note 4). In any such case against a railroad corporation the defendant is not answerable unless shown to be negligent, the burden being upon the plaintiff to show it. This negligence may consist (1) in not providing and keeping in suitable repair the best well-known practical contrivances to prevent the unnecessary escape of sparks from the locomotive, or (2) in not keeping its grounds free from combustible materials so situated as to be likely to catch fire from sparks from the locomotive, or (3) in not taking proper precaution to stop or control a fire started with or without negligence upon its own premises, so that it will not destroy freight upon its own land or property on land of another. For negligence in either one of these respects the defendant is answerable. Whether in this case there was any evidence of the second or third kind it is unnecessary to consider, since, as above stated, only that of the first kind is alleged in the declaration.

The evidence would warrant a finding that the plaintiffs' cottage was situated about 586 feet westerly of the defendant's railroad track; that part of the intervening ground was within the location of the railroad and part without, the two parts being separated by a stone wall; that on Monday, March § 5, 1909, at about half-past 1 in the afternoon, while one of the defendant's trains was lawfully proceeding on the defendant's tracks in Tiverton in the state of Rhode Island, a spark from the locomotive fell upon the location of the road where there was 'quite a lot of heavy grass [and] weeds,' and set fire to the grass; and that the fire, spreading under the influence of a high wind, finally...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT