| Pa. | Mar 1, 1880
delivered the opinion of the court, May 3d 1880.
Complaint is made by the plaintiff in error, defendant below, in that, though proof was made that the locomotive from which the plaintiff’s property was fired, was furnished with an approved spark arrester, yet the court submitted the question of negligence to the jury. This, however, was necessitated by the fact, that the testimony of the plaintiff was in serious conflict with the allegation above stated. It is indeed true, that a locomotive cannot be run without fire; that human ingenuity has not as yet devised any contrivance which will wholly arrest sparks; so, if these, now so important vehicles, are to be run .at all, more or less damage in. the way of fire, must result from them. Therefore, the rule of law is, and must be, that if reasonable precautions are taken in providing them with those appliances which are deemed best for the prevention of such damage, the company or persons using them, cannot be made liable though they fire every rod of the country through which they run. In accordance with this now so well established rule of law, we have but recently held, that the mere fact of the firing of a property will not, of itself, prove negligence, where it is shown that approved spark-arresters were in use: Jennings v. The Railroad Co., ante, p. 337.
But unfortunately for the defendant. in this case, the plaintiff furnished abundant proof, that the engine in question, either was not furnished with the necessary spark-arresting appliances, or, if so, they had been tampered with by the persons in charge thereof. On any other theory it is unaccountable that this locomotive alone, of all run upon the road, should have fired the country through which it passed almost daily, for the period of two weeks; and that it should have become so notorious in. this respect that, as one of the witnesses says, “We watched for that train every day, so that we might be ready to put out fire.” Moreover, two of plain
This testimony was ample, if the jury believed it, to rebut that the defendant, and the court could do nothing' else than submit it.
Again, complaint is made that the court refused to instruct the jury, that if either Schultz, or the owner of the strip lying between his land and the railroad, allowed the accumulation of dry leaves, brushwood and other rubbish, on his property, which would be readily fired by sparks ordinarily issuing from a properly equipped locomotive, that might be regarded as contributory negligence. This was certainly an extraordinary proposition; first, because the learned judge throughout the trial held, that if the defendant’s locomotive was properly equipped with spark-arresting appliances, the plaintiff could not recover whether he had been careful or negligent; second, because it is an attempt to impose upon property owners along the line of a railroad, duties unknown and unnecessary before the building of the road; and third, if this proposition means anything, it means, that upon such property owners devolves the duty of guarding against the negligence of railroad companies and their servants, but this is simply absurd. The plaintiff was obliged to run the risk of fires necessarily following the proper and lawful use of the defendant’s locomotives ; and if he was negligent in the protection of his property against such risk, the loss resulting therefrom would be his own; he could recover no compensation, not indeed because of his negligence, but because there would be no liability on part of the railroad company ; but that he must guard, in any way, or by any means, against the improper and unlawful use of the locomotive, is a proposition that cannot be sustained. The case of the Railroad Co. v. Hendrickson, 30 P. F. Smith 182, is in point; and this question is so well stated, and so clearly disposed of, in the opinion delivered in that ease, by Chief Justice Agnew, that further comment or explanation is unnecessary.
Judgment affirmed.