Ross v. Boston & Worcester Railroad
88 Mass. 87
Mass.
1863
Check Treatment
Bigelow, C. J.

1. We cannot concur in the proposition of the learned counsel for the defendants, that the statute under which this action is brought (St. 1840, c. 85, reenacted in Gen. Sts. c. 63, § 101) is to be very strictly construed. It is not a penal statute, but purely remedial in its nature; and it is to be interpreted fairly and liberally, so as to secure to parties injured an indemnity from those who reap the advantages and profits arising from the use of a dangerous mode of locomotion, by means of which buildings and other property are destroyed. Hart v. Western Railroad, 13 Met. 99. That it was not intended to confine this right of indemnity to cases of injury or destruction of property of a fixed or immovable nature is clearly indicated by the language of the statute, which is sufficiently broad and comprehensive to include every species of property liable to be injured or consumed by fire communicated by a locomotive engine. Nor are we able to see anything in the policy of the statute, or the reasons on which it is founded, to lead us to the conclusion that any restriction or limitation on these very general words should be imposed by judicial construction. There is certainly no distinction in principle by which a right to an indemnity should be secured to the owner of one species of property, in case of its injury or destruction, and denied under like circumstances to the owner of a different kind of property. The claim for an indemnity is as strong, and the necessity and expediency of creating the liability are as great, whether the property injured or consumed is of a fixed and permanent nature, or of a kind to be moved or changed at the pleasure of the owner. Indeed it would be difficult if not impossible to draw any line or establish any sound principle by which the distinction for which the defendants contend could be carried into practical effect. The statute prescribes a clear, plain rule, arbitrary it is true, but one which can be easily and intelligibly administered. The decisions cited by the counsel *91for the defendants, giving a construction to a statute of the state of Maine, in terms the same as the one in question, serve to ■show the embarrassment which would be occasioned, if we departed from the plain and literal interpretation of the language of the statute. Chapman v. Atlantic & St. Lawrence Railroad, 37 Maine, 92. Pratt v. Atlantic & St. Lawrence Railroad, 42 Maine, 579.

The argument urged by the counsel for the defendants, that the provision giving railroad corporations an insurable interest in the property for which they are liable in damages under the statute necessarily operates to restrict the extent of their liability, seems to us to be founded in misapprehension. It assumes that no insurance can be obtained by them except on property exposed to the risk of fire from locomotive engines, of which they have previous notice or knowledge; and, proceeding on this assumption, it is contended that they should not be held liable for the loss of property which is movable or liable to change its situation, and of the existence of which in proximity to their railroad the corporation cannot be supposed to have known. But we know of no reason for such limitation on the power and authority of corporations to procure insurance on property for the loss of which they may be held liable under the statute. On the contrary, we cannot see why they may not protect themselves by policies in an amount sufficient to cover all possible risks to which they may be exposed. No specification of the particular property covered by the insurance would be necessary, as the statute makes their insurable interest commensurate with the risk to which they are liable. The fact of loss by reason of fire communicated by a locomotive engine would therefore be sufficient to establish a right to an indemnity under a contract of insurance entered into in pursuance of the provisions of the statute. For these reasons it se'ems to us that there is no sufficient reason for exempting the defendants from liability for the destruction of any of the articles belonging to the plaintiff which the jury have found were consumed by a fire caused by one of their engines.

2. The evidence to which the defendants objected was clearly *92competent. One of the grounds of defence was, that no sparks of coal from the engine of the defendants could reach the premises of the plaintiff, so as to communicate fire. To meet this position, it was certainly fit and apposite for the plaintiff to prove the physical possibility that fire could be so communicated by showing that on a previous occasion the same engine using the same species of fuel had emitted burning sparks which fell within the enclosure of the plaintiff. Such evidence would have been open to question, if offered solely in support of the plaintiff’s case; but it was rendered relevant and material by the ground taken in defence. On the same ground, evidence concerning the emission of sparks from similar engines used on other roads was admissible.

3. The court were not bound to instruct the jury upon an assumed state of facts, in a case where there was a conflict of evidence, and especially where the question of negligence involved a series of complicated facts, that the plaintiff was not entitled to recover. As the case stood before the jury, it was a proper one to be submitted to practical men, having all the facts before them, to determine whether due care had been exercised oy the plaintiff. It is only where the facts are undisputed, and taken together they show a clear case of negligence, that the court is bound to instruct the jury that a party having the burden of proof, to establish the use of due and reasonable care, is not entitled to recover.

Judgment on the verdict.