Philadelphia & Reading Railroad v. Hendrickson
80 Pa. 182
Pa.
1876
Check Treatment
Chief Justice Agnew

delivered the opinion of the court,

Whether a barn or a house standing near to the track of a railroad was set on fire by sparks thrown from a locomotive is a question of fact, depending on the circumstances, when no direct proof is made, and therefore must be decided by a jury. Hence all the circumstances tending to the proof of the fact must be admitted in evidence: Huyett v. Phila. & Read. Railroad Co., 11 Harris 373; Penna. Railroad Co. v. Stranahan, 29 P. F. Smith 405; Webb v. Rome, Watertown et al. Railroad Co., 49 N. Y. 423. The first and second errors are not supported. The third and fourth need no comment. Nor do we discover any error in the charge of the court and the answers to the points. The case was fairly submitted to the jury on the question of actual negligence and carelessness in the management of the defendants’ engines. If none, the jury were instructed that the plaintiff could not recover. But if the barn was set on fire by actual carelessness, and negligent management of the engines, no question of contributory negligence could arise under the evidence. There was no evidence of any act of the plaintiff contributing to the burning of the barn. The defendants rested their case on the condition of the roof of the barn and the dry weather. The substance of the defendants’ points was, that if the condition of the barn was such as to render it more liable to take fire than if it had had a secure and safe roof, the plaintiff was guilty of contributory negligence in suffering it to be in that con*190dition. This is clearly unsound, and if sustained would require the owner of property lying along a railroad to keep it in a condition to be always safe from sparks or fire thrown from the passing engines. It would deprive the owner of the enjoyment of his property in the way most suited to himself. He could not put his hay into stacks or ricks, or suffer straw to lie around his barn for his cattle to feed or rest upon. He must keep his houses, outhouses, stables and barns under the best known safe roofs, or insure them against the negligence of the company. An owner of property near to a railroad must run all the risks of a proper and careful use of the road, for this is the company’s right: Turnpike Co. v. Phila. & Trenton Railroad Co., 4 P. F. Smith 352. When the railroad company uses the most approved spark arresters, and the proper care and vigilance in the running of its engines, and the landowner’s barn or hay rick or meadow takes fire from the sparks thrown out, he has no remedy. It is his own risk if he build too near to the railroad, or erects his stacks or scatters his straw where they may be consumed by fire caused by no negligence. But where actual negligence is proved, and the loss arises from it, the mere condition of his property is no defence to the company. In Flynn v. San Francisco et al. Railroad Co., 40 Cal. 14, it was held that to leave combustible matter lying on the railroad, where it was liable to be fired by the passing engines, was not an unavoidable accident, but was negligence in the company, and that it was not negligence, in a legal sense, for the plaintiff to leave the grass and stubble standing on his pasture and grain field. It-was also held that the negligence of a plaintiff, which is contributory, and will release the defendant, is limited to cases where the act or omission of the plaintiff is the proximate cause of the injury; but the plaintiff is not required to remove combustible materials in order to obviate the consequences of possible or even probable negligence of the defendant. A stronger case is that of Kellogg v. The Chicago & N. W. Railroad Co., 26 Wis. 223, in which the right of the adjoining landowner and the duties of the railroad company are discussed very ably by Chief Justice Drummond. See also Vaughan v. Taffrale Railway Co., 5 Hurlst. & Nor. 743. In Missouri the doctrine is carried even to a greater length, the fact that the plaintiff’s premises were fired by sparks from a locomotive being held to be primá. facie evidence of negligence in the company, which it must rebut by proof that it was using proper and safe engines, in a proper and safe way: Clemens v. Han. & St. Jo. Railroad Co., 12 Mo. 366. The conclusion from the cases is very clear, that a plaintiff is not responsible for the mere condition of his premises lying along a railroad, but in order to be held for contributory negligence, must have done some act or omitted some duty, which is the proximate cause of his injury, concurring witb *191the negligence of the company. Farmers may cultivate, use and possess their farms and improvements, in the manner customary among farmers, and are not bound to use unusual means to guard against the negligence of the railroad company; indeed, are not bound to expect that the company will be guilty of negligence.

Judgment affirmed.