96 but a of combustible materials on its right of way; failure to use reasonable diligence to remove such materials or to take other reasonable precautionary measures against their taking fire from its engines, in consequence of which a fire, kindled in such materials, spread to the plaintiff's property, though not conclusive," is sufficient evidence of negligence to submit to a jury.98 thereby facilitating the dropping of live coals, and that the engine set four fires in running a little over a mile, is sufficient to justify submission of the question as to whether the engine was in a reasonably safe condition (Mills v. Chicago, etc. R. Co., 76 Wis. 422, 45 N. W. 225). 96 "Gulf, etc. R. Co. v. Benson, 69 Tex. 407, 5 S. W. 822. It is not per se negligence to permit combustible material, such as "stalks, grass, grain, or stubble," to grow or remain on right of way in considerable quantities (Union Pac. R. Co. v. Gilland, 4 Wyo. 395, 34 Pac. 953). But compare Gulf, etc. R. Co. v. Rowland, 23 S. W. (Tex. App.) 421. "It is not an indisputable conclusion of law that a railway company is guilty of negligence, to be inferred from the fact that fire ignites in dry weeds or grass on the land of the railway. It is a question of fact, to be determined by the jury, in view of the extent to which dead grass and weeds have been allowed to accumulate in the locality, the season of the year, and all other circumstances affecting liability to fire" (Illinois Cent. R. Co. v. Mills, 42 Ill. 407, per Walker, C. J.). See also Kansas Pac. R. Co. v. Butts, 7 Kans. 308; Herne v. So. Pac. R. Co., 50 Cal. 482. A railroad company is not an insurer that fire will not arise from combustible materials on its right of way, but it must keep its track and right of way reasonably free from such materials (Briant v, Detroit, etc. R. Co., 104 Mich. 307, 62 N. W. 365). 9 Eddy v. Lafayette, 163 U. S. 456, 16 S. Ct. 1082, aff'g 4 U. S. App. 247, 1 C. C. A. 441, 49 Fed. 807; Richmond, etc. R. Co. v. Medley, 75 Va. 499. The true question for the jury to determine in such a case is: "From the evidence and all the circumstances and surroundings, including the dryness of the time, did the defendant permit such an accumulation of grass, weeds, or leaves, of a combustible nature, within its right of way, at the point where the said fire occurred, exposed to ignition by its engines, as would not be permitted by a prudent man upon his own premises, if exposed to the same hazard from fire?" (Snyder v. Pittsburgh, etc. R. Co., 11 W. Va. 14). S. P., Louisville, etc. R. Co. v. Miller, 109 Ala. 500, 19 So. 989; St. Johns, etc. R. Co. v. Ransom, 33 Fla. 406, 14 So. 892; Black v. Aberdeen, etc. R. Co., 115 N. C. 667, 20 S. E. 713, 909; Aycock v. Raleigh, etc. R. Co., 89 N. C. 321; Clarke v. Chicago, etc. R. Co., 33 Minn. 359; Kellogg v. Chicago, etc. R. Co., 26 Wis. 223; Moore v. Chicago, etc. R. Co., 78 Id. 120, 47 N. W. 273; Abbot v. Gore, 74 Wis. 509, 43 N. W. 365; Poeppers v. Missouri, etc. R. Co., 67 Mo. 715; in all of which cases there was a finding of negligence against the company in allowing such accumulations. See also And the company is not relieved from liability for such negligence on proof of its freedom from negligence in the construction, equipment or management of its engines; nor is it so exempt on showing due care and diligence on the part of its servants in arresting the fire and preventing its spread; for diligence in trying to put a stop to the effects of its negligence cannot relieve it from responsibility for the original negligence.' But 99 100 York, etc. Ry. Co., 208 Mass. 16, 94 N. E. 306 (1911). See note 3, § 674, ante. 99 Stacy v. Milwaukee, etc. R. Co., 85 Wis. 225, 54 N. W. 779; Steele v. Pacific Coast R. Co., 74 Cal. 323, Ohio, etc. R. Co. v. Shanfelt, 47 Ill. 497; Illinois Cent. R. Co. v. Mills, 42 Id. 407; Flynn v. San Francisco, etc. R. Co., 40 Cal. 14; White v. Missouri Pac. R. Co., 31 Kans. 280, 1 N. W. 611; Diamond v. Northern Pac. R. Co., 6 Mont. 15 Pac. 851; Gram v. Northern Pac. 580, 13 Pac. 367; Comes v. Chicago, etc. R. Co., 78 Iowa, 391, 43 N. W. 235; West v. Chicago, etc. R. Co., 77 Iowa, 654, 35 N. W. 479; s. c., 42 Id. 512; McMahon v. HetchHetchy, etc. Ry. Co., 2 Cal. App. 400, 84 Pac. 350 (1905); Atlantic Coast Line Ry. Co. v. Watkins, 104 Va. 154, 51 S. E. 172 (1905); Great Northern, etc. Ry. Co. v. Coats, 115 Fed. 452, 53 C. C. A. 382 (1902); Baltimore, etc. Ry. Co. v. Perryman, 95 Ill. App. 199 (1901); Pittsburgh, etc. Ry. Co. v. Indiana, etc. Co., 154 Ind. 322, 56 N. E. 766 (1900); St. Louis, etc. Ry. Co. v. Ludlum, 63 Kans. 719, 66 Pac. 1045 (1901); Shields v. Norfolk, etc. Ry. Co., 129 N. C. 1, 39 S. E. 582 (1901); Hamburg, etc. Inc. Co. v. Atlantic Coast Line Ry. Co., 132 N. C. 75, 43 S. E. 548 (1902); Southern Ry. Co. v. Thompson, 129 Ga. 367, 58 S. E. 1044 (1907); Smith v. Ogden, etc. Ry. Co., 93 Pac. (Utah) 185 (1907); Southern Ry. Co. v. Dickens, 49 So. (Ala.) 766 (1909); Ft. Worth, etc. Ry. Co. v. Arthur, 124 S. W. (Tex. App.) 213 (1910); Carter v. Maryland, etc. Ry. Co., 112 Md. 599, 77 Atl. 301 (1910); Wallace v. New R. Co., 1 N. Dak. 252, 46 N. W. 972; Kelsey v. Chicago, etc. R. Co., 1 S. Dak. 80, 45 N. W. 204; Toledo, etc. R. Co. v. Endres, 57 Ill. App. 69; Lake Erie, etc. R. Co. v. Clark, 7 Ind. App. 155, 34 N. E. 587. In O'Neill v. N. Y., Ontario, etc. R. Co., 115 N. Y. 579, 22 N. E. 217, a verdict against defendant for allowing combustible material to accumulate along its track, was sustained, though it did not appear that the engine was not properly provided with a spark-arrester, or that it was out of order or mismanaged. Eighmie v. Rome, etc. R. Co., 57 Hun, 586, 10 N. Y. Supp. 600, defendant proved the good equipment of the engine and its careful management, but a verdict against it was sustained. See N. Y., Phila., etc. R. Co. v. Thomas, 92 Va. 606, 24 S. E. 264; Louisville, etc. R. Co. v. Hart, 119 Ind. 273, 21 N. E. 753; Texas, etc. R. Co. v. Ross, 7 Tex. Civ. App. 653, 27 S. W. 728. In 100 Austin v. Chicago, etc. R. Co., 93 Wis. 496, 67 N. W. 1129; Abbot v. Gore, 74 Wis. 509, 43 N. W. 365. But in Indiana, it is held that there must be proof of some negligence in as negligence is the ground of the action, it is incumbent on plaintiff to show, even under a statute imposing liability on railroad companies for failure to keep their rights of way free from combustibles, that a sufficient quantity of such material was present to indicate to common prudence a danger from fire.101 The duty applies to natural vegetation, while standing upon the land,102 as well as to the same vegetation, when cut down and suffered to lie in drying heaps, for an unreasonable time, on any part of the right of way.' And the duty is obligatory upon the party actually operating the Ill. 346 [undergrowth of grass grown the previous fall, and not removed]. 103 permitting the fire to spread, as well as in originating it (Pittsburgh, etc. R. Co. v. Culver, 60 Ind. 469; Pittsburgh, etc. R. Co. v. Nelson, 51 Ind. 150; Toledo, etc. R. Co. v. Wand, 48 Id. 476; Pittsburgh, etc. R. Co. v. Hixon, 79 Id. 111; Louisville, etc. R. Co. v. Spenn, 87 Id. 322). The Indiana rule seems to be approved in Kansas (Union Pac. R. Co. v. Buck, 3 Kans. App. 671, 44 Pac. 904), and in South Dakota (Haugen v. Chicago, etc. R. Co., 3 S. Dak. 394, 53 N. W. 769). 101 Spencer v. Montana R. Co., 11 Mont. 164, 27 Pac. 681. See Rost v. Missouri Pac. R. Co., 76 Tex. 168, 12 S. W. 1131. 102 Delaware, etc. R. Co. v. Salmon, 39 N. J. Law, 299; Poeppers v. Missouri, etc. R. Co., 67 Mo. 715; Burlington, etc. R. Co. v. Westover, 4 Neb. 268; Mobile, etc. R. Co. v. Gray, 62 Miss. 383. See also Illinois Cent. R. Co. v. Frazier, 64 Ill. 28. In Billings v. Fitchburg R. Co., 58 Hun, 605, 11 N. Y. Supp. 837, there were weeds, yarrow, and burdock that grew there the summer before, as well as bushes and weeds two feet high, and also a pile of dry chippings from pine trees. Held, sufficient to justify a finding of negligence. S. P., Rockford, etc. R. Co. v. Rogers, 62 104 which had been mown and left on the right of way during a dry summer month, is for the jury (Brown v. Buffalo, etc. R. Co., 4 N. Y. App. Div. 465, 38 N. Y. Supp. 655; Van Nostrand v. Wallkill Val. R. Co., 64 Hun, 636, 19 N. Y. Supp. 621; St. Louis, etc. R. Co. v. Richardson, 47 Kans. 517, 28 Pac. 183). But allowing them to remain thereon during the winter is insufficient to show negligence (Taylor v. Pennsylvania Val. R. Co., 174 Pa. St. 171, 34 Atl. 457). 104 The duty to keep the right of way clear of combustibles extends to its full width (Blue v. Aberdeen, etc. R. Co., 117 N. C. 644, 23 S. E. 275); and even to a temporary side track laid under a license from plaintiff for use in connection with his property (Kurz, etc. Ice Co. v. Milwaukee, etc. R. Co., 84 Wis. 171, 53 N. W. 850). As to duty of a railroad company to keep its right of way "entirely" free from combustible materials, see Chicago, etc. R. Co. v. Gilbert, 10 U. S. App. 375, 3 C. Several road, whether as owner, lessee or otherwise.105 States, as also Canada, have statutes imposing on railroad companies an absolute duty to keep their rights of way clear from combustible materials, and their simple failure to do so is actionable negligence. § 679. Contributory negligence. Where a fire which has been set by another is seen, one who is exposed to the risk of injury is undoubtedly bound to take such precautions to protect himself as a prudent man would usually take in view of the danger, but is under no obligation to do more than this. And as one has a right to use his land as he sees fit so long as he interferes with no one else; he is under no obligation to subordinate his use of it to the possible negligence of a railway company, hence it is not contributory negligence for him to leave dry grass to accumulate thereon near the company's right of way, or to build or carry on his business in as close proximity thereto as suits his convenience, subjecting himself only, by a failure of reasonable prudence, to the dangers ordinarily incident to the operation of railroads.106 But, if the plaintiff, or his servant in C. A. 264, 52 Fed. 711. Under a statute which declares a failure of a railroad company to keep its track and right of way, to the distance of 100 feet on each side, free from dead grass, weeds, and other combustible material, to be prima facie evidence of negligence, the fact that the right of way at points other than that at which the fire was set out by its locomotive, but in the immediate neighborhood, was incumbered by combustible material, is admissible (Northern Pac. R. Co. v. Lewis, 7 U. S. App. 254, 2 C. C. A. 446, 51 Fed. 658 [action under Montana stat.]). Under the Kansas statute, if the company has removed all combustible materials within 140 feet of its track, it is not chargeable with negligence (Union Pac. R. Co. v. Buck, 3 Kans. App. 904, 44 Pac. 904). 105 Hence a company operating the road cannot escape liability on the ground that the accumulation of the dry grass and brush was due to the carelessness of the former operator; for having adopted the road for its own use, and having negligently set on fire the combustible material, it is answerable for the consequence (Genung v. N. Y. & New England R. Co., 66 Hun, 632, 21 N. Y. Supp. 97; Lake Erie, etc. R. Co. v. Cruzen, 29 Ill. App. 212). 106 See note 120, § 680, post. charge, saw fire approaching, and could have extinguished it before it reached his land, by the use of ordinary diligence, the plaintiff cannot recover from the person by whose fault the fire originated,107 even if the latter likewise saw the fire, and neglected to extinguish it.108 He should use the same diligence to prevent it from extending upon his own land that a prudent man would use, had the fire been started by his own negligence.' But in order to prevent his recovery, it must appear that any delay on his part,110 or even failure to make any effort whatever, to extinguish the fire, after it reached his land, contributed to his loss. But it has rightly been held error to instruct the jury that if the plaintiff, when he discovered the fire on his land, failed to do what a 107 Illinois Central R. Co. v. McClelland, 42 Ill. 355; Richter v. Harper, 95 Mich. 221, 54 N. W. 768; Eaton v. Oregon R. Co., 19 Ore. 391, 24 Pac. 415. See Haverly v. State Line R. Co., 135 Pa. St. 50, 19 Atl. 1013 [plaintiff endeavored to extinguish fire and thought, mistakenly, he had done so for the jury]; Austin v. Chicago, etc. R. Co., 93 Wis. 496, 67 N. W. 1129 [no fault in leaving a fire not wholly extinguished, when no danger of its revival was reasonably to be apprehended]. Contributory negligence will not be imputed to one injured while endeavoring to extinguish a fire on adjoining land, on the theory that his effort to save the property of his neighbor, rather than defendant's negligence in setting the fire, was the proximate cause of his injury (Liming v. Illinois Cent. R. Co., 81 Iowa, 246, 47 N. W. 66; Ide v. Boston, etc. Ry. Co., 83 Vt. 66, 74 Atl. 401 (1909); Stewart v. Quincy, etc. Ry. Co., 142 Mo. App. 322, 126 S. W. 1003 (1910); Van Dyke v. Grand Trunk, etc. Ry. Co., 78 Atl. (Vt.) 958 (1911). 109 108 Illinois Cent. R. Co. v. McKay, 69 Miss. 139, 12 So. 447. 100 Illinois Cent. R. Co. v. McClelland, 42 Ill. 355. See Chicago, etc. R. Co. v. Pennell, 94 Id. 448; McNarra v. Chicago, etc. R. Co., 41 Wis. 69; Doggett v. Richmond, etc. R. Co., 78 N. C. 305; St. Louis, etc. R. Co. v. Hecht, 38 Ark. 357; Snyder v. Pittsburgh, etc. R. Co., 11 W. Va. 15. But where fire originated thirty or forty rods from plaintiff's land, evidence that he saw smoke rising from defendant's track for two or three days (the last time being eight days before his property was burned) and took no measures to have the fire extinguished, did not sustain a finding of contributory negligence (McNarra v. Chicago, etc. R. Co., 41 Wis. 69). 110 Mills v. Chicago, etc. R. Co., 76 Wis. 422, 45 N. W. 225 [question for jury]. 111 Sugarman v. Manhattan R. Co., 16 N. Y. Supp. 533 [plaintiff, frightened, ran away]. |
