179 Mass. 524 | Mass. | 1901
This is an action to recover damages for the burning of the plaintiffs’ mill and contents by a fire alleged to have been communicated by the locomotive engines of the defendant. There was a verdict for the plaintiffs, and the case is here on exceptions by the defendant to various rulings and refusals to rule by the presiding judge which we shall consider only so far as relied on by the defendant at the argument, treating the others as waived.
I. The defendant excepted to the admission of certain evidence which the plaintiffs were allowed to introduce in rebuttal tending to show that diamond stack engines with spark arresters and netting of the standard kind, all in good condition, would throw sparks and set fires and had done so ; that there were no appliances that would prevent a locomotive under all circum
2. The defendant excepted to the refusal of the court to rule that the plaintiffs were not entitled to recover upon the second count and to direct a verdict for the defendant on that count. In effect the defendant asked the court to rule that there was no evidence that the fire was caused by the defendant’s locomotives. We think that the court rightly refused so to rule. The plaintiffs’ mill consisted of a main building of wood with a slated roof one hundred and twelve feet long by forty-one feet wide three stories high with an addition, also of wood and with a slated roof of the same height and width extending westerly about sixty feet from the centre of the main building. The main building was about fifty feet westerly of the defendant’s main track and was nearly parallel to it. The fire occurred between three and four o’clock on the morning of July 9. There was testimony tending to show that on the day before a number of trains had passed by the mill including two gravel trains which were hauling gravel from a pit not far away, the last train having passed by between eight and nine o’clock in the evening. There was also testimony that the wind was blowing strongly from the east the day before the fire, that one or more of the engines threw sparks and smoke and cinders which were blown towards the mill and to a much greater distance than the mill; that there had been no rain for several days ; that there had been no. fire in the mill; that the mill was left securely fastened up the evening before,
3. The defendant in substance asked the judge to rule that the burden was on the plaintiffs to show that they were in the exercise of due care, and that if they were guilty of contributory negligence they could not recover. The judge refused to rule as thus requested, and instructed the jury that the question of due care on the part of the plaintiffs, meaning manifestly ordinary care, did not enter into the case, but that negligence on their part in order to prevent a recovery must be gross, or such as to amount to fraud. We think that the ruling of the court was right. Wild v. Boston & Maine Railroad, 171 Mass. 245. Wall v. Platt, 169 Mass. 398. Boston Excelsior Co. v. Bangor & Aroostook Railroad, 93 Maine, 52. Rowell v. Railroad, 57 N. H. 132. Mathews v. St. Louis San Francisco Railway, 121 Mo. 298. West v. Chicago Northwestern Railroad, 77 Iowa, 654.
In view of the danger of fire from locomotives, the Legislature, it seems to us, has imposed upon railroad corporations a liability which is almost that of insurers, — the idea being, we think, that the parties who are authorized to use so dangerous an agency, and who have the control of it and the power to adopt safeguards in regard to its use, should bear the loss that may ensue from fires that are caused by locomotives, rather than those who have nothing to do with the management and control of them, and who are in the lawful enjoyment and occupation of
.Exceptions overruled.
