62 N.H. 254 | N.H. | 1882
The plaintiff's buildings, standing on the land of the railroad with the right of removal, were personal property (Aldrich v. Parsons,
The defendants contended that their liability was fixed by the common law, but the court ruled that it was determined by the law of Vermont, and the defendants excepted; and this presents the principal question in the case. It involves a construction of the Vermont statute relating to the liability of railroad corporations for injuries by fire communicated from locomotive engines which is as follows: "Where any injury is done to a building or other property by fire communicated by a locomotive engine of any railroad corporation, the said corporation shall be responsible in damages for such injury, unless they shall show that they have used all due caution and diligence, and employed suitable expedients to prevent such injury." Gen. St. Vt., c. 28, s. 78. The statute also provides that a railroad corporation shall have an insurable interest in such property along their route, and may procure insurance thereon in their own name and behalf. If the courts of Vermont had given a construction to this statute, it would be for lowed, upon the principle, generally if not universally recognized, that the judicial department of every government is the appropriate organ for construing the legislative acts of that government. Elmendorf v. Taylor, 10 Wheat. 157, 159. But we have been unable, by our own research or by the aid of counsel, to find any case where the courts of Vermont have been called upon or have undertaken to give a legal construction of the statute upon the question whether it was intended to change the common-law liability of railroad corporations in cases of injury by fire from locomotive engines, or whether it was designed to affect the remedy merely, by enacting that proof of the fact that the fire was communicated by a locomotive should be prima facie evidence of negligence of the company. If the statute changes the common-law liability of the defendants, the ruling of the court was right. If it relates merely to the mode of trial and the remedy, the common-law rule should have governed the trial.
In Cleavelands v. G. T. R. Co.,
Richardson v. Grand Trunk Railway Co. was an action under this statute, brought in the circuit court of the United States for the district of Vermont. The court charged the jury "that the burden of proof was upon the plaintiffs, in the first instance, to show that the fire in question was communicated from some of the defendant's locomotive engines to the bridge; and that if the jury were satisfied of that fact by a fair balance of evidence, then the plaintiffs were entitled to recover, unless, the defendant had established, by a fair balance of evidence, that it had used all due caution and diligence, and had employed all suitable expedients to prevent the fire; that the burden of proof was on the defendant as to the latter branch of the case." This was excepted to. On error to the supreme court of the United States, upon this point the court say, — "We see no just ground of complaint of the affirmative instruction given to the jury. It was in accordance with the rule prescribed by the statute; and there seems to have been no controversy in the circuit court respecting the question, whether, if the fire was communicated to the bridge by a locomotive, it caused the injury to the plaintiffs." Grand Trunk Railway Co. v. Richardson,
In some jurisdictions the rule is adopted by the courts that the destruction of property by fire from a locomotive raises a presumption of negligence, meaning thereby that proof of the escape of fire from a locomotive is prima facie evidence of negligence. Shear. *264 Red. Neg., s. 333; Clemens v. Railroad,
The defendants contend that the Vermont statute is merely a legislative enactment of the rule adopted by the courts in the foregoing cases, designed to affect the order of proof at the trial, and not intended to impose any additional burden upon the defendants; and that under the statute the defendants are required only to counteract the evidence of negligence arising from proof that the fire was communicated by a locomotive, and that they are not required to prove by a preponderance of evidence that they were not negligent; that the burden still remains as at common law upon the plaintiff to prove negligence, and not upon the defendants to disprove it. The fact that the statute recognizes negligence as the gist of liability favors this view. On the other hand, it is argued that the statute is not a mere rule prescribing the order of trial; that it was the intention of the legislature to enlarge the common-law liability of railroad corporations, on account of the increased hazard to contiguous buildings and property by reason of the use of locomotive engines, and to secure greater care in their operation and management by enacting a more rigorous rule than that imposed by the common law; that the statute was designed in general terms to make such corporations responsible in damages for all injuries caused by fire from locomotives, allowing this liability to be avoided only by showing affirmatively that they were free from fault.
We are inclined to this view. It seems to be the fair and reasonable interpretation of the language of the statute. If it had been the intention of the legislature simply to enact a rule of procedure, not affecting the question of liability, it is reasonable to assume that it would have been expressed in unambiguous language. If the purpose was to impose an absolute liability in all cases unless the company could exonerate themselves by showing affirmatively that they "had used all due caution and diligence, and employed suitable expedients to prevent such injury," it is not readily apparent how that purpose could be more clearly expressed.
This view of the construction of the statute is confirmed by the *265
reasoning of the court in Wakefield v. Railroad,
The reasoning of the court in Wakefield v. Railroad is applicable to the present case. It is a construction by the supreme court of Vermont of secs. 55 and 56 of chap. 28 of the General Statutes of Vermont, relating to railroads. We are considering section 78 *266 of the same chapter. Sections 55 and 56 provide in substance that railroad corporations shall be responsible in damages for injuries caused by omission to ring the bell or blow the whistle, unless they shall show that such omission was reasonable and prudent under the circumstances of the case. Section 78 provides that railroad corporations shall be responsible in damages for injuries caused by fire, unless they shall show that they have used all due caution and diligence, and employed suitable expedients to prevent such injuries. Upon the point in question, the cases are analogous. and we think that the ruling of the court at the trial, upon this branch of the case, and the charge to the jury upon the burden of proof, were correct. The charge upon that point was, in substance, the same as was given in Richardson v. Grand Trunk Railway Co., supra.
The court ruled that the doctrine of contributory negligence was not applicable to this case. What constitutes contributory negligence, and how far it is a defence in cases of injury by fire from locomotive engines, has been a subject of discussion in the courts in many jurisdictions, and the decisions are conflicting. Under our New Hampshire statute relating to the liability of railroad corporations for damages by fire, the question of negligence does not arise (G. L., c. 162, ss. 8, 9, Hooksett v. Concord Railroad,
In favor of this construction it may be argued that it is not only *267
in harmony with the Vermont decisions in analogous cases, but it is the natural and reasonable interpretation of the language of the statute, "that the corporation shall be responsible in damages for such injury unless they shall show that they have used all due caution and diligence and employed suitable expedients to prevent such injury;" that the statute expressly declares in what cases the corporation shall be relieved from liability, and no other defence is recognized, except showing "that they have used all due caution and diligence, and employed suitable expedients to prevent the injury; "that unless these facts are shown, the liability of the corporation is absolute; and that, by the elementary rule of construction, expressio unius est exclusio alterius, the defence of contributory negligence is excluded in cases under this statute. The Vermont statute, like ours, gives railroad corporations an insurable interest, in their own name and behalf, in property exposed to danger along their route; and the suggestions of Cushing, C. J., in Rowell v. Railroad,
Judgment on the verdict.
SMITH and CARPENTER, JJ., did not sit: the others concurred.