Flynn v. San Francisco & San Jose Railroad
40 Cal. 14
Cal.
1870
Check Treatment
Bhodes, 0. J.,

delivered the opinion of the Court,- Tem:-3?le, J., Wallace, J., and Spbague, J., concurring:

The plaintiff was in possession of a tract of land, one por - tion of which was cultivated in wheat, and another portion was used for pasturage. At the time of the injury complained of, the wheat was in stacks, on the ground where it was harvested, and the stubble on that land and the grass on the pasture land were very dry. ‘ ‘ There were no furrows or cleared space inside the fence or around the wheat stacks.’’ The defendant’s railroad ran along the side of the plaintiff’s land. The grass and weeds along the railroad had been cut and left on the ground, and had become very combustible. The defendant’s engines were provided with the best and most approved apparatus for preventing the escape of sparks, but, as a construction train passed'along the plaintiff’s land, the engine dropped sparks, which ignited the grass and weeds along the track, and a high wind swept the fire through the fence, over the pasture land and stubble-field, to the grain stacks, and the stacks were entirely consumed by the fire.

*19The Court belcl that, “although the defendant was at fault in the condition of its road, the plaintiff himself was at fault in failing to take ordinary precautions to prevent fire, which might unavoidably break out, from spreading to his wheat stacks. And, as this neglect of the plaintiff contributed to the injury complained of, as much as the negligence of the defendant in omitting to clear its road of the weeds and grass which had been cut upon it, no recovery can be had.”

No one is required to take any precautions against unavoidable or inevitable accidents, for the precautions which could not avert the injury would be futile. Nor is the ignition of combustible material lying on the track of a railroad, by sparks dropped by a passing engine, unavoidable accident. The removal of the combustible matter from the road, is an obvious and sure precaution.

"We had occasion in Needham v. San Francisco and San Jose Railroad Company (37 Cal. 409), and in Kline v. Central Pacific Railroad Company (Id. 400), to consider the subject of contributory negligence, and we held that the rule releasing the defendant from responsibility for damages, because of the negligence of the plaintiff, was limited to cases where the act or omission of the plaintiff was the proximate cause of the injury. The negligence in this case, which was the proximate cause of the destruction of the plaintiff’s grain, was the leaving of the dry grass and weeds upon the railroad, where it was liable to be set on fire by sparks falling from passing engines. It was not negligence in a legal sense, for the plaintiff to leave the grass and stubble standing on his pasture and grain field. He was not required to destroy or remove either, in order to obviate the consequences of the possible or even probable negligence of the defendant.

Judgment reversed and cause remanded, with directions to render judgment for the plaintiff for $1,524.

Csogicett^ J., expressed no opinion.