Perley v. Eastern Railroad , 98 Mass. 414 ( 1868 )

Chapman, J.

Under the instructions of the presiding judge the jury must have found that the fire which destroyed the plaintiff’s property proceeded from the defendants’ locomotive, and came in a direct line, and without any break, to the plaintiff’s property. But in reaching the plaintiff’s land it went across the land of three or four different parties which lay between the plaintiff’s land and the railroad track, and the distance to the plaintiff’s land was about half a mile. It was fed on its way by grass, stubble, and woodland. The defendants contend that they are not liable for this injury, because it was remotely and not proximately connected with the escape of the fire from their engine.

But it was none the less “ communicated ” from the engine, because the intermediate land belonged to other persons, nor because the distance was half a mile. If the land had all belonged to the plaintiff, and had extended a mile, it would be difficult to establish a line on his land and to hold that the statute gives him no remedy for the damage happening beyond that line. Nor does the fact that there were several owners .make the damage to the plaintiff remote, in the sense in which that term is used as contradistinguished from direct and immediate. This was decided in Hart v. Western Railroad Co. 13 Met. 99. In that case the fire was communicated from the engine to a carpenter’s shop, and destroyed it. There was a high wind which wafted sparks from this shop while it was burning, over a street, sixty feet, upon the plaintiff's dwelling-house, and set it on fire. This was held to be a communication of the fire to the plaintiff’s house, within the statute. In Ingersoll v. Stockbridge & Pittsfield Railroad Co. 8 Allen, 438, the fire went from the locomotive to a barn, thence through a shed to the plaintiff’s barn; and the company was held liable. The fact therefore that the fire passes through the air, driven by a high wind, and that it is communicated to the plaintiff’s property from other intermediate property of other men, does not make his loss a remote consequence of the escape of the fire from the engine.

By the common law, if one kindled a fire upon his own land, and negligently suffered it to escape, and burn his neighbor’s property, he was liable for the damage. If a wind and tempest arose and drove it into his neighbor’s field, he would be liable, unless he could show that the injury was occasioned to his neighbor by the act of God, and not by his own negligence. Turberville v. Stampe, 1 Ld. Raym. 264; S. C. 1 Salk. 13. Pantam v. Isham, Ib. 19. Com. Dig. Action for Negligence (A, 6.)

The liability of this railroad is not at common law, nor dependent upon the defendants’ want of care; but is under a statute, which is very general in its terms, making a railroad corporation responsible in damages to any person whose buildings or other property may be injured by fire communicated by its locomotive engines ; and giving the corporation an insurable interest in the property upon its route for which it may be so held responsible, with authority to procure insurance thereon in its own behalf. Gen. Sts. c. 63, § 101. In Ross v. Boston & Worcester Railroad Co. 6 Allen, 87, it is said that this statute is remedial, and is not to be construed strictly, but fairly and liberally. The terms of the statute do not restrict the liability so as to exclude any cases where the fire is communicated from the engine, nor limit the insurable interest to any specific distance from the track.

The defendants’ counsel have referred us to the case of Ryarn v. New York Central Railroad Co., lately decided in the court of appeals of New York, but not yet reported, except in the Railroad Journal. We understand the liability in that state is by the common law, and not under the provisions of any statute. In that case a distinction is made between proximate and remote damages. The fire was communicated from the defendants’ locomotive to their woodshed, and thence, by sparks, one hundred and thirty feet, to the plaintiff’s house; and it was held that the plaintiff could not recover, because the injury was a remote and not a proximate consequence of the carelessness of the defendants in permitting their fire to escape. Our own cases, above referred to, are not noticed in the opinion. Nor does the opinion draw any line of distinction between what is proximate and what is remote; and such a line is not obvious in that case. If, when the cinder escapes through the air, the effect which it produces upon the first combustible substance against which it strikes is proximate, the effect must continue to be proximate, as to everything which the fire consumes in its direct course. This is so, whether we regard the fire as a combination of the burning substance with the oxygen of the air, or look merely at its visible action and effect. As matter of fact, the injury to the plaintiff was as immediate and direct as an injury would have been which was caused by a bullet, fired from the train, passing over the intermediate lots and wounding the plaintiff as he stood upon his own lot. It is as much so as pain and disability are proximate effects of an injury, though they occur at intervals, through successive years after the injury was received. Yet these are called proximate effects, though the actual effects of the injury may be greatly modified, in every case, by bodily constitution, habits of life, and accidental circumstances.

The instructions given in respect to the back-fires, which were kindled with a view to check the fire which had proceeded from the locomotive, were correct; for they required the jury to find, in substance, that these fires did not in fact contribute to the loss of the plaintiff, but that they were swallowed up by the advancing flame which went on and destroyed the plaintiff's property. Exceptions overruled.