57 N.H. 132 | N.H. | 1876
Lead Opinion
FROM ROCKINGHAM CIRCUIT COURT. "The proprietors of every railroad shall be liable for all damages which shall accrue to any person or property by fire or steam from any locomotive or other engine on such road. Such proprietors shall have an insurable interest in all property situate on the line of *136 such road exposed to such damage, and may effect insurance thereon for their own benefit." Gen. Stats., ch. 148, secs. 8, 9. This appears to be a reestablishment, as to railroads, of the ancient doctrine of the common law, requiring them to keep the fire from their engines on their own premises at their peril. Com. Dig., Action upon the Case for Negligence (6 A).
But the learned judge who tried the case was of opinion that the usual rule, as to contributory negligence on the part of the plaintiff, should nevertheless be applied, and charged the jury, in broad terms, that the plaintiff was bound to take customary and reasonable precautions (in view of the circumstances of exposure) to protect himself; that he was bound to take such care and make such use of his mill, under the circumstances of its location, as people ordinarily take with regard to property so situated.
Now it is not difficult to suppose a case where the application of this rule would impose such restrictions upon the use which the owner of real property, situated near the line of a railway, may make of that property, as will entirely ruin a legitimate business established and carried on by him there, either before or after the construction of the railroad (and it probably makes no difference whether before or after), and so, to all practical intents, destroy the value of his land. Certainly, it must often impose upon the owner of land thus situated, obligations and restrictions in the use of it of an exceedingly onerous and annoying kind. On the other hand, it is easy to suppose cases where the exercise of reasonable care to guard against the danger thus brought to one's door by a railroad would be a very slight burden to the owner, when the omission of such care would leave the property exposed in such way that to guard it against the danger would be an exceedingly great burden to the railroad.
Suppose a land-owner has been accustomed to store hay or cotton, or some even more inflammable and dangerous goods, in an open shed standing upon the margin of land taken for a railroad, and very near the track: common prudence, nay, any, the least prudence, would require that when the road is opened for use, and locomotive steam engines begin to pass daily and hourly along the line, the owner of such property should take suitable precautions to secure it against the danger thus brought upon it, and the expense and trouble of so doing might be comparatively slight. Suppose another land-owner has a mill, or other manufacturing establishment, so situated that the business carried on in it cannot be continued without exposing the property to imminent peril of destruction by fire from the engines: it may be that the exercise of no more than reasonable and ordinary care (in view of the circumstances of exposure) will require an outlay so great as to absorb the entire profits of his business, and so render his property practically valueless. Now the question is, whether a line can be drawn in such cases, and if so, where it is to be located and how described.
The liability of the railroad is made absolute by the statute. *137 No question of care or negligence on their part is left open. If they throw sparks or fire upon the land of an adjoining owner, or allow their fire — that is, fire from their engines — to escape upon the land of such owner, they are made responsible in the same way as the owner of cattle, whose nature it is to rove, is liable for the damage they do in case they escape upon the land of another; and in the same way one is liable for damage caused by filth or noxious odors originating or accumulated upon his land, and passing therefrom to that of another. There is no rule of law that requires the plaintiff to so use his land that it shall not be exposed to injury from the act of another, especially when that act is impliedly forbidden by the law. And even without the statute, the throwing of a spark or coal of fire upon a pile of shavings, which I have negligently suffered to accumulate near a house I am building, is as much a trespass as would be the throwing of a spark or coal upon shavings which I have packed away, using ordinary care to ensure their safety. I do not see what restriction the court can place upon the use one may make of his own, inside the maxim sic utere, c., without a sheer invasion of his right of property. It seems to me the observations of BEARDSLEY, J., in Cook v. The Champlain Transportation Company, 1 Den. 91, are sound, and that they apply directly in the present case. He says (p. 101), — "We may run through every imaginable variety of position, some of more and some of less exposure and hazard, and we must at last, I think, come to the conclusion, that, while a person confines himself to a lawful employment on his own premises, his position, however injudicious and imprudent it may be, is not therefore wrongful; and that his want of due care or judgment in its selection can never amount to negligence, so as thereby to deprive him of redress for wrongs done to him by others."
So in Fero v. The Buffalo State Line R. R. Co.,
In Vaughan v. Taff Vale Railway Co., 3 H. N. 750, MARTIN, B., says (arguendo), — "It would require a strong authority to convince me that, because a railway runs along my land, I am bound to keep it in a particular state." And BRAMWELL, B., in delivering the opinion of the court in the same case (p. 752) says, — "It remains to consider another point made by the defendants. It was said that the plaintiff's land was covered with very combustible vegetation, and that he contributed to his own loss. We are of opinion this objection fails. The plaintiff used his land in a natural and proper way for the purposes for which it was fit. The defendants come to it, he being passive, and do it a mischief." In Blyth v. Birmingham Waterworks Co., 11 *138 Exch. 783, MARTIN, B., said, — "I held, in a case tried at Liverpool, in 1853, that, if locomotives are sent through the country emitting sparks, the persons doing so incur all the responsibilities of insurers; that they were liable for all the consequences. I invited counsel to tender a bill of exceptions to that ruling."
In Kellogg v. The Chicago N.W. Railway Co.,
Bearing in mind that the absolute liability cast upon the defendants by our statute has the effect to relieve the plaintiff from showing negligence on their part, all these observations are entirely applicable to the case before us.
Ross v. Boston Worcester R. R., 6 Allen 87, is not an authority the other way, except that the court did not go out of their way to disapprove the ruling of the judge at nisi prius, — because, the verdict being for the plaintiff, the question was not before the court at all. But it seems to me a fair construction of the statute must give it an effect beyond that already assumed, — that is to say, the effect of relieving the plaintiff from proving negligence on the part of the defendants. I think the manifest intention of the legislature was to cast upon the proprietors of railroads the substantial liability of insurers against fire with respect to the property specified; and that being so, the same rule, as to contributory negligence by the plaintiff, that obtains between the parties to a fire policy in case of loss should be applied. In Shaw v. Robbards, 6 A. E. 83, Lord DENMAN, C. J., says — "One argument more remains to be noticed, viz., that the loss here arose from the plaintiff's own negligent act in allowing the kiln to be used for a purpose *139 to which it was not adapted. There is no doubt that one of the objects of insurance against fire is to guard against the negligence of servants and others; and therefore the simple fact of negligence has never been held to constitute a defence. But it is argued that there is a distinction between the negligence of servants or strangers and that of the assured himself. We do not see any ground for such a distinction, and are of opinion that, in the absence of all fraud, the proximate cause of the loss only is to be looked to." And it is said that this doctrine is now well settled law in this country; — see cases collected in 2 Par. on Con. (5th ed.) 449, n. v.
Of course any fraud, any intentional exposure of property, in short, any act by the property-owner which would have the effect to avoid a fire policy, should have the same effect in cases of this description; that is, to discharge the railroad from the liability of insurers imposed upon them by the statute. For these reasons I am of opinion the verdict should be set aside.
Concurrence Opinion
In the case of Kellogg v. The Chicago Northwestern R. R. Co., Mr. Chief-Justice DIXON has illustrated with much vigor the difficulties in the way of applying the common law doctrine of contributory negligence to actions against railway companies by adjacent land-owners for damages occasioned by the negligent management of their engines. If this were an action at common law, I should be very much disposed to follow the doctrine of that case.
This, however, is an action under our statute — ch. 149, sec. 8 — by which it is provided that "the proprietors of every railroad shall be liable for all damages which shall accrue to any person or property by fire or steam from any locomotive or other engine on such road." By section 9 it is provided that "such proprietor shall have an insurable interest in all property situated on the line of such road, exposed to such damage, and may effect insurance thereon for their own benefit." By section 10 a certain interest is given to such proprietors in any insurance effected by the owners.
It seems to me that the effect of this legislation is to make the proprietors of a railroad liable as insurers. This construction of the statute makes the liability exactly commensurate with the indemnity which the proprietors are entitled to provide for, and to claim under the statute.
Contributory negligence does not furnish any defence 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, c., and have an insurable interest in all property exposed to such damage. Negligence, either of the railroad or of the land-owner, would not, according to the authorities, be a defence 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. Chandler v. Worcester Ins. Co., 3 Cush. 328; Johnson v. Berkshire Ins. Co., 4 Allen 338; Par. on Con., B. 3, sec. 3, C. *140
Parsons, in commenting on Chandler v. Ins. Co., after saying that the supreme court holding that there might be a degree of negligence which would discharge an insurer, adds, — "But the court in their decision so described the negligence, which would alone have this effect, that there was no new trial, the insurers paying the loss, with some abatement." I think that we ought to hold a reasonable construction of this statute to be, that the defendants in this case ought to be held liable as insurers, and that the jury ought to have been instructed that no negligence of the plaintiff would discharge the defendants, unless so great as to be equivalent to fraud.
STANLEY, J., C. C., concurred.
Verdict set aside.