121 Mich. 324 | Mich. | 1899
Lead Opinion
This action is brought to recover the value of a large quantity of lumber belonging to the plaintiff, which was consumed by fire occurring on the 18th of November, 1893, which fire is claimed to have had its origin in sparks emitted from an engine on defendant’s road. The lumber was manufactured for the plaintiff by Horning & Hart, who owned a mill at Keno, a place between three and four miles north of Woodville, a station on the defendant’s Big Rapids branch. The track into Keno was built by defendant at its own cost, except for right of way, and was originally used exclusively for the purpose of taking out the plaintiff’s lumber. Later the defendant extended the track to rea'ch other mills farther north, owned by other parties. The evidence of plaintiff tended to show that the engine used on the road set out the fire, which destroyed over 7,000,000 feet of plaintiff’s lumber, valued at over $90,000; that the engine used was of an old pattern, known as the diamond-stack pattern, not in common use. The defendant’s testimony tended to show that the engine was in good order, of a design in common use, and entirely serviceable. The defendant also offered testimony tending to show that the lumber where the fire started was piled but eight feet from the track, and that provisions for putting out fire were wanting. The jury found for the defendant, and the plaintiff brings error.
“Any railroad company building, owning, or operating any railroad in this State shall be liable for all loss or damage to property by fire originating from such railroad, either from engines passing over such roads, fires set by company employés by order of the officers of said road, or otherwise originating in the constructing or operating of such railroad: Provided, that such railroad company shall not be held so liable if it prove to the satisfaction of the court or jury that such fire originated from fire by engines whose machinery, smokestack, or fire-boxes were in good order and properly managed, or fires originating in building, operating, or repairing such railroad, and that all reasonable precautions had been taken to prevent their origin, and that proper efforts had been made to extinguish the same in case of their extending beyond the limits of such road, when the existence of such fire is communicated to any of the officers of such company.”
It will be noted that the character of the engines to be used is not defined, although it is required that, to relieve the company from liability for fires, the engines, v etc., must be shown to be in good order and condition. It is not open to question that under this statute, on the plaintiff’s showing the fact of the fire from the defendant’s locomotive, the burden is cast upon the defendant to show that the locomotive was in good order and condition, and properly managed. The court in this case so charged. The plaintiff claims, however, that the court did not lay down the correct rule as to the character of the engine re
' “The railroad company is exonerated from liability under the statute if the appliances it has used to prevent or limit the escape of sparks and fire from the locomotive are such as have been in common use for a long time for that purpose, and have substantially guarded against the danger sought to be avoided. * * * If you should find that this defendant used this engine, and it was of such a pattern as was in common use by careful, experienced, and prudent railroad operators, and such as they would use and did use for this kind of business at that time, why that is all that is necessary for this defendant to do, so far as the quality of the engine is concerned.”
We think the charge of the circuit judge correctly stated the rule as established in this State in Hagan v. Railroad Co., 86 Mich. 615. As was said in that case:
“Two or more kinds of appliances may be used, each one of which is approved by a number of railroad companies which are managed by practical and prudent men, and the adoption of each may have been after careful consideration of the merits of all; yet, unless that adoption and approval has some weight, there is no safety in the use of either.”
Under the instruction given, the jury were not authorized to find that it was proper to use a character of locomotive which had been generally displaced by better appliances. The only doubtful expression in the charge was the reference to “use for this kind of business.” If this were understood to mean that a, less degree of care was required in this service than in the ordinary business of the company, it was not proper, as we think the company was bound to use the same degree of caution at this place as at other points on the road.
First.- Where the liability of defendant rests upon the common law.
Second. Where the liability of the company for fires set out by its locomotives is made absolute by statute.
Third. Where, as in this State, such liability is limited by the statute itself.
In the first class of cases, the contributory negligence is a defense; in the second class, the liability of the company is absolute, and the contributory negligence of the plaintiff is not a defense. 3 Elliott, R. R. § 1238. This case falls within the third class. The statute creates an absolute liability for all loss or damage to property by fire originating from engines, etc., with a proviso that the company shall not be liable if it proves certain facts enumerated, among which is not the contributory negligence of the plaintiff.
In the case of Laird v. Railroad, 62 N. H. 254 (13 Am. St. Rep. 564), the supreme court had under consideration a statute of Vermont which read:
“When 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. Stat. Vt. (1862) chap. 28, § 78.
The court held that the contributory negligence of plaintiff did not constitute a defense, under this statute. The decision was rested upon two grounds: (1) The analogy of the Vermont decisions holding that the contributory negligence of the owner of animals killed or injured by a railroad company which had not fenced its tracks constituted no defense; and (2) that the fair construction of
It will be readily seen that the case cited is directly in point, and that both grounds upon which the case rested, may be urged with equal force in this State; for not only is there the same room for the application of the rule “Fxpressio unius est exclusio alterius,” but we have also held in this State that the defense of contributory negligence is not available in an action under the preceding section of our statute (1 How. Stat. § 3377), which provides that the company shall be liable for damages done to cattle, etc., in case of a failure to fence its tracks. Flint, etc., R. Co. v. Lull, 28 Mich. 510; Neversorry v. Railway Co., 115 Mich. 146. The reasoning of the court in Laird v. Railroad, supra, is convincing, and seems to us unanswerable. To reach any other conclusion, we must interpolate into the statute words not found there, and create an additional ground for exemption. The contention of appellant is also sustained by numerous cases which hold that, under a statute fixing the liability of a railroad company for fires set out by its locomotives, the defense of contributory negligence is not available. Of this class are Rowell v. Railroad, 57 N. H. 132 (24 Am. Rep. 59); West v. Railway Co., 77 Iowa, 654; Union Pacific R. Co. v. Arthur, 2 Colo. App. 159. As is stated by the learned author in 3 Elliott, R. R. § 1238, there may be cases in which, after the property is set on fire by a railroad company, the owner, by a slight effort, could save it from destruction, and that such cases should be subject to a different rule. In such case, it might be said with much force that the damage does not directly result from the fire. But in this case we are dealing with the alleged precedent negligence of plaintiff,
If the defense were available in any case, we should also be of opinion that no such act of negligence was shown in piling the lumber eight feet from the track. See Stacy v. Railway Co., 85 Wis. 225; Fero v. Railroad Co., 22 N. Y. 209 (78 Am. Dec. 178). We have not overlooked the cases cited by defendant’s counsel. The case of Ross v. Railroad Co., 6 Allen, 87, is negative authority. The court did not go out of its way to disapprove the holding of the court below. If it be treated as affirming the doctrine contended for, it is at variance with the New Hampshire and Iowa cases. The opinion in Murphy v. Railway Co., 45 Wis. 222 (30 Am. Rep. 721), is able and exhaustive, but, so far as the case discloses, it rests on the common-law doctrine of negligence. We have been cited to no statute of Wisconsin, nor have we been able to find any, in force when the action in Murphy’s Case arose, which bears on the subject. The case is not, therefore, an authority which aids us in placing a construction on our statute.
Judgment reversed, and new trial ordered.
Dissenting Opinion
(dissenting). 1. Does 1 How. Stat. § 3378, abrogate the rule of the common law that he whose negligent act contributes to his own injury cannot recover damages from another whose negligence contributed to
Considerable reliance is placed upon Laird v. Railroad, 62 N. H. 254 (13 Am. St. Rep. 564). The court in that case based its decision upon the law of Vermont. The fact is noted that the statute of Vermont gives railroad companies an insurable interest in their own name upon property situated along their right of way. The statute in Rowell v. Railroad, 57 N. H. 132 (24 Am. Rep. 59), w&s the same. It is evident that the court placed considerable stress upon the fact that the statute gave railroad companies the right to insure the property of others situated along their right of way, and argue from that that it was the intention of the legislature to place railroad companies upon the same basis as insurance companies, and make them insurers against loss by fire. The chief justice in his opinion used the following language:
“Contributory negligence does not furnish any defense to any action by the insured on the policy of the insurance. By the statute, the proprietors are liable for all damages which shall accrue, etc., and have an insurable interest in all property exposed to such damage. Negligence, either of the railroad or of the landowner, would not, according to the authorities, be a defense to an action by the proprietors to recover on their policy the amount of the loss insured. It would be odd enough if the proprietors could recover on their policy, and then turn round and defeat the property owner on the ground of contributory negligence.”
Whether the same result would have been reached in
The statute in regard to fencing by railroads, and liability for failure to erect and maintain them, and the decisions thereunder, have no application to this case. There is no liability at common law for failure to maintain fences. The liability therefor is purely statutory. Besides, the language of the statute in regard to fences is very different from that now under discussion, and is so strong as to leave no doubt of the intent of the legislature. Flint, etc., R. Co. v. Lull, 28 Mich. 510; Neversorry v. Railway Co., 115 Mich. 146. The statute under which these decisions were rendered is given in full in Flint, etc., R. Co. v. Lull, supra. The contributory negligence relied upon was that the plaintiffs permitted their cattle to run at large in the public highway, unattended. It was held that the statute was adopted as much for the protection of trainmen and passengers as for the protection of property. I do not think that those decisions affect the question now before us.
As already shown, it must be clear that the statute imposes this absolute liability, and takes away the com
‘ ‘ And provided, further, that any corporation operating a railway shall be liable for all damages by fire that is set out or caused by operating of any such railway, and such damage may be recovered by the party damaged in the same manner as set forth in this section in regard to stock, except to double damages. ”
In West v. Railway Co., 77 Iowa, 654, the court held that under this statute the liability was absolute, and that contributory negligence was no defense. The liability for damages by fire is placed upon the same basis as that of liability from failure to fence. It is difficult to see how the court could have held otherwise.
Section 1288 of the same Code provides:
“Every corporation constructing or operating a railway shall * * * construct at all points where such railway crosses any public highway good, sufficient, and safe crossings and cattle-guards; * * * and any railway company neglecting or refusing to comply with the provisions of this section shall be liable for all damages sustained by reason of such neglect and refusal, and, in order for the injured party to recover, it shall only be necessary for him to prove such neglect or refusal.”
A switchman was killed at the cattle-guard while engaged in switching cars. The court, in Ford v. Railway Co., 91 Iowa, 179 (24 L. R. A. 657), held that this statute did not take away the defense of contributory negligence. The court said:
*335 “Under section 1288, a liability is fixed, and it provides what the party seeking to recover must prove in the first instance. If, in such an action, the plaintiff establishes the neglect and refusal of the company to comply with the statute, and the fact that he has sustained an injury by reason thereof, he has made a case entitling him to recover, in the absence of evidence offered by the defendant; but it seems to us that the language used does hot cut off the right of defendant to establish the fact, as a defense, that the injury was the result of the intestate’s contributorj negligence, or, in a proper case, the fact of independent negligence on his part, or any other defense it may have.”
In Ross v. Railroad Co., 6 Allen, 87, the statute imposed a liability for fire, as follows:
“When any injury is done to a building or other property of any person or corporation by fire communicated by a locomotive engine of any railroad corporation, the said railroad corporation shall be held responsible in damages to the person or corporation so injured; and any railroad corporation shall have an insurable interest in the property for which it may be so held responsible in damages, along its route, and may procure insurance thereon in its own behalf.” Stat. 1840, chap. 85, § 1.
It will be observed that the language is substantially the same as in our statute, except that it gives the railroad companies an insurable interest in property, while’ours does not. The case was tried upon the theory that contributory negligence was a defense.
The question was raised and decided in Arkansas under a statute similar to ours, and the defense of contributory negligence sustained. Tilley v. Railway Co., 49 Ark. 535.
Elliott recognizes that the decisions are not in harmony, even where there are no statutory enactments, and, after stating that where statutes impose an absolute liability the question of the owner’s contributory negligence is immaterial, says: “We do not believe, however, that such a strict rule, even where there is an absolute statutory liability, is entirely just.” 3 Elliott, R. R. § 1238. This statement of the learned author is only material in showing
2. "Was there evidence of contributory negligence ? The jury, in reply to special questions, found that the lumber was piled so close to the track that cars in passing struck the ends of the piles, and that a communication was addressed by the defendant company to the agents of plaintiff upon the subject of this dangerous proximity. Barrels of water kept upon the tops of the piles for use in putting out incipient fires had been emptied, although there was at the time no danger of their freezing up. One witness testified that he looked for pails with which to get water to put out the fire, but they had been taken away, and the barrels were empty. He also testified that with two pails of water he could, in his judgment, have put the fire out when it was first discovered. This testimony, in my judgment, made the question one of fact to be determined by the jury. Counsel cite cases where buildings, built near the right of way, were burned. The courts properly hold that their erection was a legitimate use of one’s own property, of. which the owner could not be deprived, and that in running their trains past them the railroads were held to a greater degree of care. These
“There was little evidence on this subject beyond the statements in the complaint, referred to, and the fact, which is of common knowledge, that the grounds around this, as all other such mills, are to a considerable extent covered with sawdust, and some testimony that edgings and debris to some extent had accumulated under the tramway, — a necessary result, to some extent, in the operation of any such mill. There is nothing to show that there was an unusual or dangerous condition of affairs in these respects, or that the plaintiffs were guilty of any specific act or omission of a negligent character, or that they failed to provide and keep means for the prompt ex-tinguishment of incipient fires.”
The court further stated that the trial court had better means of forming a correct judgment upon this question than had- the appellate court, and they therefore regarded the judgment of the lower court upon this point as controlling, and practically setting aside the finding. That was not a case of piling lumber near the track. There was a tramway between the piles of lumber and the track, the tramway being a few feet from the track, the exact distance not being stated.
I think the question of contributory negligence was properly submitted to the jury.
3. Certain insurance companies, having policies upon this lumber, had paid plaintiff the full amount of the insurance, which covered nearly the entire value of the
I think the judgment should be affirmed.