91 U.S. 454
U.S.
1876
Mr. Justice Strong

delivered the opinion of the court.

The plaintiffs .Jrelow were permitted .to adduce evidence that those of the injured buildings which were within the lines of the roadway had been, erected within those lines by the license of the company, for the convenience of delivering and receiving freight. The admission of this evidence is the subject of the first assignment of error; and in its support it has been argued that it was the duty of the railroad company to preserve its entire roadway for the use for which it was-incorporated; that it had no authority to grant licenses to others to use any part thereof for the erection of. buildings; and, therefore, that the license to. the plaintiffs, if any was made, was void. Thus the basis of the objection to the; evidence appears to be, that it was immaterial. We are, however, of opinion that it was properly admitted. If the buildings of the plaintiffs were rightfully where they were, if there was no trespass upon the roadway of the company, it was clearly a pertinent fact to be shown; and while it must be admited that a railroad company has' the exclusive control of all the land -within the lines of its roadway, and is not at'liberty to alienate any part of it so as to interfere with the full éxercise of the franchises granted, we are not-prepared to assert that it may nót dicense the. erection of buildings for its convenience, even though they may be also for the'convenience of others. It is not doubted that the defendant might have erected similar structures on the ground on which the plaintiffs’buildings-were placed, if in its judgment the structures were convenient for the receipt and delivery of freight on its road. Such erections would not have been inconsistent with the purposes for which its charter was granted. And, if the company might have put up the buildings, why might it not license others to do the same thing for the same object; namely, the increase of its facilities for the receipt and delivery of freight ? The public is not injured, and it has no right to complain, so long as a free and safe passage is left for the carriage of freight and passengers. There is, then, no well-founded objection to the admission of evidence of a license, or evidence that the plaintiffs’ buildings were partly within the line of the roadway by the . consent of the defendant. The objection to the mode of proof is equally unsustainable. There was quite enough, without the receipt of Oct. 27, 1870, to justify a finding by the jury that the plaintiffs were not trespassers. But the receipt itself was competent evidence. It is true, it was given after the occurrence of the fire; but it was a mutual recognition by the. company and by one of the plaintiffs, that the occupation of the roadway by the buildings had been, and that it was at the time of the fire, permissive, and not adverse. Taking the receipt, as the bill of exception shows, was the act of the defendant by its agent, the engineer who had charge of the road-bed. ■ It was, therefore, an admission by the company that there had been consent to the occupation.

The second assignment of error is, that the court excluded testimony offered by the defendant to show that the usual practice of railroad companies in that section of the country was not to employ a watchman for bridges like the one destroyed. It is impossible for us to see any reason why such evidence should have been admitted. The issue to be determined was, whether the defendant had been guilty of negligence ; that is, whether it had failed - to exercise that caution and diligence which the circumstances demanded, and which prudent men ordinarily exercise. Hence the standard by which its conduct was to be measured was not the conduct of other railroad companies in the vicinity; certainly' not there usual conduct. Besides, the degree of care which the law requires in order to guard against injury to others varies greatly according to the circumstances of the. case. When the fire occurred which caused the destruction of the plaintiffs’ buildings, it was a very dry time, and there was a high wind. At such a time, greater vigilance was demaüded than might ordinarily have been required. The usual practice of other companies in that section of the country sheds no light upon the duty of the defendant when run jmg locomotives over long wooden bridges, in near proximity to frame buildings, when danger was more than commonly imminent.

The third assignment of error, is, that the plaintiffs were allowed to prove, notwithstanding objection by the defendant, that, at. various times during the same summer before the fire occurred, some of the defendant’s locomotives scattered fire when •going past the mill and bridge,, without showing that either of those which the plaintiffs claimed communicated the fire was among the number, and without showing that the locomotives were similar in their make, their state of repair, or management, to those claimed to have paused the fire complainéd of. The evidence was admitted after the defendant’s casé had closed. But, whether it was strictly rebutting .or not, if it tended to prove the plaintiffs’ case, its admission as -rebutting was within the. discretion of the court below, and not review-, .able.here. The question, therefore, is, whether it tended in any degree to show that the burning of the bridge, and the consequent destruction of the plaintiffs’ property, were caused by any of the defendant’s locomotives. The question has often been considered by. the courts in this country'and in England; and such evidence has, we think, been generally held admissible, as tending to prove the possibility, and a consequent probability, that some locomotive caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company. Piggot v. R.R. Co., 3 M. G. & S. 229; Sheldon v. R.R. Co., 14 N. Y. 218; Field v. R.R. Co., 32 id. 339; Webb v. R.R. Co., 49 id. 420; Cleaveland. v. R.R. Co., 42 Vt. 449; R.R. Co. v. Williams, 42 Ill. 358; Smith v. R.R. Co., 10 R. G. 22; Longabaugh v. R.R. Co., 4 Nev. 811. There are, it is true, some cases that seem to asse t the opposite rule. It is, of course, indirect evidence* if it be evidence at all. In . this case it was proved that engines run by the defendant had crossed the bridge not. long before it took fire. The particular engines were not identified; but their crossing raised at least some probability, in the absence of proof of any other known cause, that they caused the fire; and it seems to us, that, under the circumstances, this probability was strengthened by .the fact that some engines of the same defendant; at other ■ times during the same season, had scattered fire during their passage. We cannot, therefore, sustain this assignment.

It is contended further on behalf of the defendant, that there was error in the court’s refusal to direct a verdict in its favor because a large part of the property destroyed was wrongfully on their railway, and not within the purview of the statute of Vermont, on which the plaintiffs relied. If, however, ■ we are correct in what we have heretofore said, it was not for the court to assume that any part of the property was on the roadway wrongfully, and to instruct the jury on that assumption ; and, even if it had been wrongfully there, the fact would not justify its destruction .by any wilful or negligent conduct of the defendant. In Bains v. R.R. Co., 42 Vt. 380, it was said that a railroad company in the discharge of its duties, and, in the exercise of its right to protect its property from injury to which it is exposed by the unlawful act or neglect of another, is bound to use ordinary care to avoid injury even to a trespasser. If this be the correct rule (and it cannot be doubted), how could the Circuit Court have charged as a conclusion of law that the plaintiffs could not recover because their property was wrongfully within the lines of the defendant’s roadway ?

Again: the court was asked to direct a verdict for the defendant, for the alleged reason that the damages were too remote. The bill of exceptions shows that the fire originated in the bridge of the defendant, and spread thence to the mill and other property of the plaintiffs; and we are referred to the rulings in Ryan v. The New York Central R. W. Co., 35 N. Y. 210, and Penn. R.R. Co. v. Kerr, 62 Penn. St. 353, as showing, 'that, in such a case, negligently setting the bridge on fire is not to be considered the proximate cause. We do not, however, deem. it necessary to inquire whether the doctrine asserted in those cases is correct. It is in conflict with that laid down in many other decisions; indeed, in conflict, we think, with the large majority of decisions made by the American courts in similar cases. But we think the statuté of Vermont has a direct bearing upon the-.deféndant’s liability, and contemplates such buildings-and property as were destroyed in this instance. .The buildings were álong the route of the railroad; though some of them were, in whole or in part, within the lines of the roadway. It is obvious to us that the phrase “ along its route ” means in proximity to the rails upon which the locomotive-engines run.- That the statute gave an insurable interest in the property, for the-,destruction of which the corporation was made liable, does, not b essarily show that the only property intended was.siich as was outside the lines of the .roadway. That, indeed, was comprehended; but-property lawfully within the lines, which the company did not own, equally needed protection. The statute was designed to be a remedial one, and it is to be liberally construed. In Massachusetts, there is a statute almost identical with.that of Vermont; and under it the Supreme Judicial Court of that State held; in Ingersoll v. The Stockbridge & Pittsfield R.R. Co., and Quigley v. Same, 8 Allen, 438, that the company was liable tc both the plaintiffs, though the fire communicated directly from the locomotive to Ingersoll’s bam, and spread through an intervening shed, which stood partly upon the railroad location, to the bam of Quigley. The court said, “There is nothing in the statement to show that-any fault of the plaintiff contributed to the loss, if the buildings Were lawfully placed where they stood.. The fact that a build-: ing stands near a railroad, or wholly or partly on it, if placed there with the consent of the company,/does not diminish their responsibility in case it is'injured by fire.communicated by their locomotives. The legislature have chosen to make it a condition of the right to run carriages impelled by the agency of fire, that the corporation employing them shall be responsible for all injuries which the fire may cause.” These cases are directly in point as to. the reach of the statute. They show that it ■ embraces buildings on the line of the roadway, and buildings injured by fire spreading from other buildings to which fire was first communicated from a locomotive. , To the same effect is Hart v. The Western R.R. Co., 13 Met. 99. And, if it be con ceded that the statute is applicable only to injuries of buildings and other property which the railroad company may . insure,, we do not perceive why it may not obtain insurance of buildings and property on its location with its. consent. But, if the statute .is applicable to the case, it is plain that the Circuit Court- could not direct a verdict for the deféndant for the reason that the damages were too remote.

Exception was taken at the trial to .the refusal of the court to affirm the defendant’s points; the first of which was, that “if the jury should find that the erection of the plaintiffs’ buildings, or the storing of their lumber so near the defendant’s railroad track, as the evidence showed, was an imprudent or careless act, and that such a location in any degree contributed to the loss which ensued, then the plaintiffs could not recover, even though the fire was communicated by .the defendant’s locomotive.” We think the court correctly refused to affirm this proposition. The fact that - the destroyed property was located near the line of the railroad did not deprive the owners of the protection of the statute, certainly, if it was placed where it was under a license from the defendant. Such a location, if there was a license, was a lawful use of its property by the plaintiffs;; and they did not. lose their right to compensation for its loss occasioned by the negligence of the defendant. Cook v. Champlain Transp. Co., 1 Den. 91; Ferc v. Railroad Co., 22 N. Y. 215. Besides, it was not for the court.to.affirm that even an imprudent location of the plaintiffs’ buildings and property was a proximate cause of the loss.

The second request for instruction was, “that at all events, under the circumstances disclosed in the case, it was incumbent, upon the plaintiffs to use due caution and diligence, and to employ suitable expedients to prevent the communication of fire.” The request was broad; but the court gave the instruction asked, adding only that there was no evidence in the case to which it had any application; and we have been unable to find any in the record. A question is not to be submitted to a jury without'evidence.

The third prayer for instruction was based on the assertion, that “the statute upon which the action was predicated does not. apply to property located witihin tbe limits of tbe railroad, nor to personal property temporarily on band.”, Tbis view of tbe statute, as. we have already remarked, is not, in our judgment, correct as a general proposition, and certainly not in its application to'a case where property is placed witbin tbe lines.of a railway, by the consent of a railway company, for tbe convenience in part of its traffic.

It remains only to add, tbat we see no just ground of complaint of tbe affirmative instruction given to tbe jury. It was in accordance witb tbe rule prescribed by tbe statute; and there- Seems to bave been no controversy in tbe Circuit Court respecting tbe question, whether, if tbe fire was communicated to tb bridge by a locQmotive, it caused tbe injury to the plain! _fs. The judgment is, therefore, affirmed.