112

prudent man would have done, he could not recover; as regards injury by a fire negligently set or permitted to escape to the land of the plaintiff, the defendant would be liable in any event for the damages caused up to the time of discovery, and his subsequent negligence would only defeat his right to recover damages which would not have arisen except for his contributory negligence.' And it would nowhere be held that one is bound to supply himself with appliances for extinguishing fire, in anticipation of another's negligence.113 Where it is the custom of the country to take certain precautions against fire, e. g., to plow around hay stacks, the plaintiff's neglect to follow the custom may be left to the jury to decide whether he was in fault.114 His failure to do so is certainly not negligence as matter of law.115 It may be that any use of land which would be so highly dangerous anywhere, on account of liability to fire, as to be restrained

112 Stebbins v. Central Vt. Ry. Co., defence to a statutory action in Iowa 54 Vt. 464. (West v. Chicago, etc. R. Co., 77 Iowa, 654, 42 N. W. 512). In Brown v. Brooks, 85 Wis. 290, 55 N. W. 395, plaintiff saw the fire on defendant's land twenty-four hours before it reached his hay. He apprehended danger, but he did not burn or mow the stubble around his stacks, but attempted to haul his hay away. Held, whether plaintiff used reasonable care to protect his hay was for the jury.

113 McLaren v. Canada Central R. Co., 32 Upper Canada (C. P.), 324. "Plaintiff stacked hay on an open prairie about a mile and a half from the railroad, with dry grass all around it. It was usual in that part of the country to plow around such stacks, but plaintiff did not so plow. Held, that whether he had done all he should to protect his property was a question for the jury (Kansas Pac. R. Co. v. Brady, 17 Kans. 115 Hoffman v. Chicago, etc. R. Co., 380; Missouri Pac. R. v. Kincaid, 40 Minn. 60, 41 N. W. 301; Louis29 Id. 654; St. Joseph, etc. R. Co. ville, etc. R. Co. v. Hart, 119 Ind. V. Chase, 11 Id. 47). The failure 273, 21 N. E. 753; Ft. Scott, etc. R. to so plow was held not to be negli- Co. v. Tubbs. 47 Kans. 630, 28 Pac. gence in Burlington, etc. R. Co. v. 612; Union Pac. R. Co. v. McColWestover, 4 Neb. 268; Kesse v. Chi- lum, 2 Kans. App. 319, 43 Pac. 97; cago, etc. R. Co., 30 Iowa, 78; and Union Pac. R. Co. v. Arthur, 2 Colo. in Slosson v. Burlington, etc. R. Co., App. 159, 29 Pac. 1031. See Eddy 60 Id. 215, 14 N. W. 244. Even v. Lafayette, 4 U. S. App. 247, 1 though he was guilty of contributory C. C. A. 441, 49 Fed. 807. negligence in failing to plow, it is no

by special laws, would be deemed evidence of contributory negligence, when applied to land adjoining a railroad. The voluntary and needless accumulation of shavings or other combustible matter upon the land, close to a railroad, has been so regarded; the case being plainly distinguishable from those in which combustible matter had accumulated by the act of nature.116 The entire doctrine of those cases is, however, open to serious question; and certainly no exposure of inflammable materials, in the orderly conduct of a legitimate business at a place where, if the railroad did not exist, such materials could thus be used without fault, will relieve the company from liability for its own negligence.117 One who invites upon his premises an engine, which he knows to be defective, cannot hold the owner responsible for a fire caused by such defect.118

116

117 Kalbfleisch v. Long Island R. Co., 102 N. Y. 520, 7 N. E. 557. For cases of plaintiff's negligence in leaving goods intended for shipment near track, on the right of way, without protection against fire from passing locomotives, see St. Louis, etc. R. Co. v. Fire Ass'n, 55 Ark. 163, 18 S. W. 43; Gulf, etc. R. Co. v. McLean, 74 Tex. 646, 12 S. W. 843; Missouri Pac. R. Co. v. Bartlett, 69 Tex. 79, 6 S. W. 549; Texas, etc. R. Co. v. Ross, 7 Tex. Civ. App. 653, 27 S. W. 728.

Murphy v. Chicago, etc. R. Co., N. W. 330, plaintiff allowed com45 Wis. 222, where Ward v. Mil- bustible matter to accumulate bewaukee, etc. R. Co., 29 Id. 144, is tween the track and his buildings; approved, and other Wisconsin cases held, his contributory negligence for are distinguished. S. P., Coates v. the jury. Missouri, etc. R. Co., 61 Mo. 38; Macon, etc. R. Co. v. McConnell, 27 Ga. 481. Plaintiff's stable was about two feet from the railroad fence. He threw the bedding of the horse out of the window and allowed it to accumulate during a dry season from spring until end of July; near the track, where it was set fire to by a spark from an engine. Held, his negligence a question for the jury (Collins v. N. Y. Central R. Co., 5 Hun, 499). In Niskern v. Chicago, etc. R. Co., 22 Fed. 811, plaintiff failed because of his own negligence in piling his cornstalks so near the track. But no one is bound to clear the ground around his woodpile (Northern Pac. R. Co. v. Lewis, 7 U. S. App. 254, 2 C. C. A. 446, 51 Fed. 658). In Omaha Fair Ass'n v. Missouri Pac. R. Co., 42 Neb. 105, 60

118

The owners of a warehouse owned a railroad track running on their own premises near it, and employed a railroad company to send an engine to draw cars over it for their accommodation. The engine threw off sparks badly; and this they observed and complained of, but

§ 680. Negligent use of adjacent land. The occupant of land near or even next to a railroad is not chargeable with contributory negligence, merely by reason of leaving his land in its natural state 119 or making any legitimate use of his property. It makes no difference if,

119

120

nevertheless continued to make use Co. v. Scantland, 151 Ind. 488, 51 of it; and the warehouse was burned N. E. 1068 (1898). The owner of by sparks emitted from it. Held, adjoining premises only assumes the that they could not recover (Mar- risk of loss not occasioned by negliquette, etc. R. Co. v. Spear, 44 Mich. gence (Wabash R. Co. v. Miller, 18 169). S. P., Dennis v. Harris, 64 Hun, Ind. App. 549, 48 N. E. 663 (1897). 637, mem., 19 N. Y. Supp. 524 [steam Erection of structures on the right hay-press: no spark-arrester]; Hol- of way, with the consent of the comman v. Boston Land Co., 8 Colo. App. pany, is not a bar to an action for 282, 45 Pac. 519 [steam thrasher]. their destruction by negligence (KanVaughan v. Taff Vale R. Co., 3 sas City, etc. Ry. Co. v. Chamberlin, Hurlst. & N. 743; and other cases, 61 Kans. 859, 60 Pac. 15 (1900); cited in note 9. S. P., as to water Kansas City, etc. Ry. Co. v. Blaker in an aqueduct (Fik Hon v. Spring Co., 68 Kans. 244, 75 Pac. 71, 64 Val. Water Co., 65 Cal. 619. In Ta- L. R. A. 81 (1904). Erection and coma Lumber Co. v. Tacoma, 1 use for ordinary purposes of a buildWash. St. 12, 23 Pac. 929; held, ing adjoining the right of way is not there was no evidence of contribu- contributory negligence (Cincinnati, tory negligence in the fact that etc. Ry. Co. v. Cecil, 28 Ky. L. Rep. plaintiff cut logs in February, and 830, 90 S. W. 585 (1906). Nor pilallowed them to remain where cut ing wood (Boston Excelsior Co. v. until the following August, when Bangor, etc. Ry. Co., 93 Me. 52, 44 they were destroyed, and that they Atl. 138, 47 L. R. A. 82 (1899). were lying in the midst of thick Nor piling lumber (Peter v. Chicago, brush and weeds which extended to etc. Ry. Co., 121 Mich. 324, 80 N. W. the borders of the street where the 295, 80 Am. St. Rep. 500, 46 L. R. A. fire originated. To same effect, Box 6 (1899). Nor contributory negli v. Kelso, 5 Wash. St. 360, 31 Pac. gence as matter of law to store cot973. ton on lot adjoining right of way, covering it with tarpaulins and otherwise guarding against fire (Alabama, etc. Ry. Co. v. Fried Co., 81 Miss. 314, 33 So. 74 (1902). Building a house close to the railroad track and storing goods therein, St. Louis, etc. Ry. Co. v. Miller, 27 Tex. App. 344, 66 S. W. 139 (1901). Storing hay in barn fifty feet from right of way (Texas, etc. Ry. Co. v. Rutherford,

120 Fero v. Buffalo, etc. R. Co., 22 N. Y. 209; Cook v. Champlain Transp. Co., 1 Den. 91, aff'd and extended in Kalbfleisch v. Long Island R. Co., 102 N. Y. 520, 7 N. E. 557. It is not contributory negligence to place cotton on a railway platform provided for that purpose (Southern Ry. Co. v. Wilson, 138 Ala. 510, 35 So. 561 (1903). Nor to construct a warehouse on land adjoining the 28 Tex. App. 590, 68 S. W. 825 right of way and store inflammable (1902). Storing cotton on open platmaterial therein (Cleveland, etc. Ry. form fifty feet from main track, is

by so doing, his property may be extremely liable to take fire, in the event of the railroad trains being negligently managed.121 He is not required to anticipate such negligence,122 nor to give up the lawful use of his property, in such manner as would be deemed prudent under ordinary circumstances, simply because a railroad has been constructed beside his land. The fact that his building stands partly in the company's right of way, if it was placed and allowed to remain there by its license, will

(Wyo.) 657 (1909). Failure to remove litter on railway platform will not preclude the owner of goods deposited there from recovery (Erickson v. Pennsylvania Ry. Co., 170 Fed. 572, 95 C. C. A. 652 (1909). The lawful maintenance of property, though imprudent, does not make one contributorily negligent (Ide v. Boston, etc. Ry. Co., 83 Vt. 66, 74 Atl. 401 (1909). Allowing combustible material to accumulate on one's own land is not such contributory negli gence as will prevent recovery for a fire negligently set by the railroad (Louisville, etc. Ry. Co. v. Malone, 116 Ala. 600, 22 So. 897 (1897); Louisville, etc. Ry. Co. v. Sullivan Timber Co., 138 Ala. 379, 35 So. 327 (1903); Cleveland, etc. Ry. Co. v. Stephens, 173 Ill. 430, 51 N. E. 69 (1898); Pittsburg, etc. Ry. Co. v. Indiana, etc. Co., 154 Ind. 322, 56 N. E. 766 (1900).

not contributory negligence as matter of law (Louisville, etc. Ry. Co. v. Short, 110 Tenn. 717, 77 S. W. 936 (1903). Piling lumber on and near the right of way for shipment, according to custom, is not contributory negligence as matter of law (San Antonio, etc. Co. v. Home Insurance Co., 70 S. W. (Tex. App.) 999 (1902). Contra, holding that the owner assumes the risk (Connelly v. Erie, etc. Ry. Co., 68 N. Y. App. Div. 542, 74 N. Y. Supp. 277 (1902). Storing kerosene oil within a few inches of the track is not negligence per se, and owner is not precluded from recovery for negligence (Southern Ry. Co. v. Patterson, 105 Va. 6, 52 S. E. 694 (1906). Owner of a warehouse near the track is not required by law to keep a fire hose, (Alabama, etc. Ry. Co. v. Planters' Warehouse Co., 45 So. (Ala.) 82 (1907). Adjacent proprietor does not assume the risk of the company's negligence (Albany, etc. Ry. Co. v. Wheeler, 6 Ga. App. 270, 64 S. E. 122 Cincinnati, etc. R. Co. v. Smock, 1114 (1909). Plaintiff is not re- (Ind.), 33 N. E. 108, following Chiquired to protect his cotton against cago, etc. R. Co. v. Burger, 124 Ind. defendant's negligence (Louisville, 275, 24 N. E. 981. S. P., Briant v. etc. Ry. Co. v. Smith, 50 So. (Ala.) Detroit, etc. R. Co., 104 Mich. 307, 241 (1909). Owner of buggies, 62 N. W. 365; Mississippi Ins. Co. v. crated and wrapped in paper, left Louisville, etc. R. Co., 70 Miss. 119, within ten or fifteen feet of track, 12 So. 156. See cases cited under held contributorily negligent (Chi- § 92, ante.

cago, etc. Ry. Co. v. Cook, 102 Pac.

121 Kalbfleisch v. Long Island R. Co., supra.

not exempt it from the duty of care in the operation of its locomotives.123 Neither will the knowledge of an adjacent landowner, that engines on the road are habitually so mismanaged or defective as to cause frequent fires upon or near the track, make any difference. Such a fact may add to the evidence of the defendant's negligence, but cannot add to the plaintiff's duties.124 There are decisions and dicta which conflict with this view; 125 but they are against the weight of authority, and cannot be justified on principle. Accordingly, it may be considered settled law everywhere, except in Illinois,' 126 that it is not necessarily contributory negligence, for the occupant of land adjoining a railroad to leave dry grass, stubble, underbrush, etc., in his field,127 or to build on any

13 So held under the Maine statute (Sherman v. Maine Cent. R. Co., 86 Me. 422, 30 Atl. 69).

124 Evidence that fires on the railroad grounds were frequent does not increase the plaintiff's duty, but only tends to prove the defendant's negligence (Snyder v. Pittsburgh, etc. R. Co., 11 W. Va. 15).

of live coals over it, and is practically certain to drop red-hot cinders upon the land many times a day. When farmers do the same thing, even once a day, it will be time to hold them to the same obligation in this respect as railroad managers, but not until then. The decision was especially erroneous in Illinois, because the legislature had expressly required railroad companies thus to clear their lands, and had not required other land-owners to do so. So, leaving a house unfinished, without windows, near a railroad, was held (erroneously we think) con

125 Hammon v. Southeastern R. Co., Walford Railw. 183. See Smith v. Hannibal, etc. R. Co., 37 Mo. 287. 126 The ruling of a majority of the court, in Ohio, etc. R. Co. v. Shanefelt, 47 Ill. 497, that owners of land, contiguous to railroads, were as much bound in law to keep their tributory negligence (Great Western lands free from an accumulation of dry grass and weeds as railroad companies were, was adopted, although limited in its application, in Chicago, etc. R. Co. v. Simonson, 54 Ill. 504. This Illinois doctrine has possibly been adopted in Iowa, see Kesee v. Chicago, etc. R. Co., 30 Iowa, 78, but nowhere else. It is plausible, but erroneous. The reason why a railroad company is bound to clear its land of inflammable rubbish is that it continually carries masses

R. Co. v. Haworth, 39 Ill. 346). Plaintiff built his house at a reasonably safe distance from the track; a warehouse belonging to another near the track was set on fire from a passing engine, and communicated the fire to plaintiff's house; judgment for him was affirmed (Toledo, etc. R. Co. v. Maxfield, 72 Ill. 95).

127 Thus, one whose woods, or crops, on land closely adjoining a railroad have been destroyed by fire from a passing engine, is not deprived of