183 Ind. 141 | Ind. | 1914
— Appellee recovered a judgment against appellant for $350 as damage done to a building, owned- by appellee and situated adjacent to appellant’s railroad, by fire communicated to such building by one of appellant’s locomotive engines in use on its railroad. From that judgment this appeal is brought and appellant relies for reversal on assignments of error which involve the sufficiency of appellee’s complaint and the correctness of the action of the trial court in instructing the jury and refusing to instruct it as requested by appellant.
But assuming that the complaint is based on this act, counsel for appellant advances the claim that the act is unconstitutional and void and can not be made the basis of an action. As the constitutional validity of the act is assailed by counsel in several particulars involving both the title and the body of the act, it is here set out fully: “An act to establish the responsibility of railroads, corporations, companies, and persons owning or operating railroads, for damages by fires communicated by locomotives. Section 1. Be it enacted by the general assembly of the State of Indiana, That each railroad corporation owning or operating a railroad in this state shall be responsible in damages to every person or corporation whose property may be injured or destroyed by fire communicated directly or indirectly by locomotive engines in use upon the railroad owned or operated by such railroad corporations, and each such railroad corporations shall have an insurable interest in the property upon the route of the railroad owned or operated
In Mathews v. St. Louis, etc., R. Co., supra, the supreme court of Missouri upheld the constitutional validity of an act almost identical in its terms with the act under consideration except that it did not contain any provision for the defense of contributory negligence such as is injected into our act by the first proviso in §1. The provisions of the Missouri statute authorizing the building and operation of railroads and the use of steam motive power were not different from ours. It was held by that court that the act imposed an absolute liability for damages to property by fires caused by the operation of locomotive engines to which contributory negligence was not made a defense, and that it was a valid exercise of the police power of the state. The case went by appeal to the Supreme Court of the United States where it was adjudged that no provisions of the Federal Constitution were infringed by the act. St. Louis, etc., R. Co. v. Mathews, supra. Such a law had before been assumed to be valid by that court but the question had not before been directly raised. Grand Trunk R. Co. v. Richardson, supra. In the opinion of the court written by Mr. Justice Gray, the law relating to liability for damages from escaping fire generally, and particularly fires from railroad locomotive engines was reviewed and the following conclusions were stated: “First. The law of England, from the earliest times, held any one lighting a fire upon his own premises to the strictest accountability for damages caused by its spreading to the property of others. Second. The earliest statute Avhieh declared railroad corporations to be absolutely responsible, independently of negligence, for damages by fire communicated from their locomotive engines to property of others, was passed in Massachusetts in 1840, soon after such engines had become common. Third. In England, at the time of the passage of that statute, it was undetermined Avhether a railroad corporation, without negligence,
It is apparent that appellant’s assaults on the constitutionality of the act in the particulars named are without support in reason, principle or precedent.
Other questions arising on the instructions which are presented in appellant’s behalf have either been disposed of by what has been determined in considering the validity of the act of 1911 or are not available to appellant for the reason that the evidence has not been brought before us. No error in the trial has been established and the judgment is affirmed.
Note. — Reported in 106 N. E. 403. As to the validity of statutes imposing on railroad companies liability for fires, see 42 Am. St. 538. As to the constitutionality of statute imposing absolute liability for fires set by locomotive, see 25 L. R. A. 161; 35 L. R. A. (N. S.) 1016; 16 Ann. Cas. 941. See, also, under (1) 33 Cyc. 1354; (2) 8 Cyc. 399; (3) 8 Cyc. 1043; (4) 8 Cyc. 1099; (5) 8 Cyc. 1094; (6) 8 Cyc. 974; (7) 36 Cyc. 1028, 1033; (8) 38 Cyc. 1598.