Grand Trunk Railroad Company v. Richardson
91 U.S. 454 (1875)

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U.S. Supreme Court

Grand Trunk Railroad Company v. Richardson, 91 U.S. 454 (1875)

Grand Trunk Railroad Company v. Richardson

91 U.S. 454

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF VERMONT

Syllabus

1. The erection of buildings by the permission of a railroad company within the line of its roadway by other parties, for convenience in delivering and receiving freight, is not inconsistent with the purposes for which the charter was granted, and a license by the company to such other parties is admissible to show its consent to the occupation of its premises.

2. The determination of an issue as to whether the destruction of property by fire communicated by a locomotive was the result of negligence on the part of a railroad company depends upon the facts shown as to whether or not

it used such caution and diligence as the circumstances of the case demanded or prudent men ordinarily exercise, and not upon the usual conduct of other companies in the vicinity.

3. Where the statute of a state provides that

"When an injury is done to a building or other property by fires communicated by a locomotive engine of any railroad corporation, the said corporation shall be responsible in damages for such injury,"

and have an insurable interest in such property "along its route," held that the phrase "along its route" means in proximity to the rails upon which the locomotive engines run, and that the corporation is liable for such an injury to buildings or other property along its route, whether they are outside of the lines of its roadway or lawfully within those lines.

4. In an action for such an injury, evidence was offered by the plaintiff, that at various times during the same summer before the fire in question occurred, the defendant's locomotives scattered fire when going past the buildings, without showing that either of those which he claimed communicated the fire in question was among the number or was similar to them in its make, state of repair, or management. Held that the evidence was admissible as tending to prove the possibility, and a consequent probability, that some locomotive caused the fire and to show a negligent habit of the officers and agents of the corporation.

5. The statute applies to an injury to such buildings and property which is caused by fire spreading from other buildings to which it was first communicated by the locomotive.

Page 91 U. S. 455

This is an action by the defendants in error to recover damages for the destruction of their saw mill, lumber shed, store, boarding house, manufactured lumber, and other personal property by fire alleged to have been communicated by a locomotive engine of the plaintiff in error on the seventh day of June, 1870.

It was conceded on the trial that the railroad was duly laid out, located, and surveyed, six rods in width, under a charter granted by the Legislature of the State of Vermont to another company, and that about the year 1853, the railroad, with all the property, rights, and privileges of that company, came into the possession of the plaintiff in error, who had since that time continued to operate the same.

It was further conceded that the saw mill, lumber shed, and store of the defendants in error, when consumed, stood in part upon the company's land, having been erected and placed there after the plaintiff in error came into possession of the railroad.

The defendants in error gave evidence that their mill, lumber shed, and store were thus erected in part upon the company's land in 1854, and had been occupied by them from that date to the time of the fire; that these buildings were so erected near the railway track for the purpose of delivering and receiving freight; that soon after the mill was built, the plaintiff in error constructed a side track near to its main track, along the platform of the mill and lumber shed, and up to the end of the mill, and the side track had been used since that time in loading lumber upon the cars; that there was a platform extending from the store of the defendants in error nearly to the main track of the railroad, and that the company was accustomed to deliver freight from its cars at said store.

The defendants in error gave in evidence a receipt, dated North Stratford, Oct. 27, 1870, and signed by the station agent at that place, for one dollar, in payment of land rent at their mill for the year ending Oct. 31, 1870. It appeared that this rent was charged by the company at the suggestion of its engineer having the general charge of the roadbed on that division of the road where the said mill, shed &c., were located,

Page 91 U. S. 456

and that the engineer, before the date of the receipt, had requested Mr. Richardson, one of the defendants in error, to pay the company a nominal rent for the use of the land which they were occupying in order to prevent the latter from acquiring or claiming right thereto by adverse possession; that they had assented to this request, and at the date of the receipt the station agent presented a bill for the rent against them, which purported to come from the company's principal office in Montreal, and thereupon Richardson paid the rent and took the receipt. They never had any writing, except as above stated, authorizing them to erect or maintain said buildings on the land of the corporation or to occupy said land or buildings. All the foregoing testimony bearing upon the matter of a license was seasonably objected to as incompetent, but the same was admitted subject to exception.

The court thereupon held that the company's evidence would authorize the jury to find a license to maintain the said buildings and occupy the land, to which no exception was taken.

The following provisions of the General Statutes of Vermont, ch. 28, secs. 78, 79, were relied upon as authorizing the right to recover:

"SEC. 78. When any injury is done to a building or other property by fire communicated by a locomotive engine of any railroad corporation, the said corporation shall be responsible in damages for such injury unless they shall show that they have used all due caution and diligence and employed suitable expedients to prevent such injury."

"SEC. 79. Any railroad corporation shall have an insurable interest in such property as is mentioned in the preceding section along its route, and may procure insurance thereon in its own name and behalf."

The evidence tended to show that the fire was communicated from one of two locomotive engines belonging to the plaintiff in error, the first drawing a passenger train westerly, passing about half past one o'clock in the afternoon the mill of the defendants in error and the other, drawing a freight train easterly, passing it about four o'clock the same afternoon. The mill and other property were situated in the town of Brunswick,

Page 91 U. S. 457

Essex County, Vt., about five miles westerly from North Stratford Station on the Connecticut River in New Hampshire, and about twelve miles easterly from the Island Pond Station in Vermont.

One-half to three-fourths of an hour after the last mentioned train passed by the mill, the fire was discovered burning on the westerly end of a covered railroad bridge, which was one hundred and ten feet long. Witnesses testified, in substance, that a strong wind was blowing at the time, which carried the fire through the bridge with great rapidity, consuming it entirely, and setting on fire the saw mill, the northwesterly corner of which was located within twelve or fifteen feet of the southeasterly corner of the bridge, and about the same distance from the main track of the railroad; that it was a very dry time, and, by reason of the wind blowing the fire through and from the bridge, it caught upon the saw mill and consumed it, and was blown and carried thence to the other buildings and property sued for, consuming the same.

The defendants in error also claimed to recover the value of a large quantity of manufactured lumber, consisting of headings and boards which were piled upon and near the roadway, and burned. The headings were piled in the lumber shed and on the adjoining platform, awaiting transportation. The boards were stuck up in the mill yard to dry, for the purpose of being manufactured into headings, and extended back from the roadway at the lumber shed in a southerly direction.

The plaintiff in error seasonably objected to the admission of the testimony bearing upon this point, but the court overruled the objection, and exception was taken.

When the defendants in error rested their case, the plaintiff in error moved that a verdict be rendered in its favor, for the following reasons:

1. Because the damages claimed were too remote.

2. Because a large part of the property sued for was wrongfully on their railroad, and not within the statutes of Vermont referred to, but the court denied the motion.

The evidence of the plaintiff in error tended to show that this fire was not communicated by either of the engines complained of, but, on the contrary, that the defendants in error

Page 91 U. S. 458

for a long time had maintained a constant fire at the end of their tramway, about 163 feet down stream on the same bank of the river, where the westerly end of the railroad bridge rested, for the purpose of burning the edgings, stickings, slabs, and other waste material from the saw mill, and that the fire which consumed their bridge and the property of the defendants in error ran along the bank of the river, or was blown by the wind to the westerly end of the bridge, where it was first discovered as aforesaid.

It having appeared that the company, before and at the time of this fire, had employed one Turcot to watch their bridge on account of the danger of its being burned, and the defendants in error having claimed on the trial that the company had not used all due caution and diligence and had not employed all suitable expedients to prevent the fire, for the reason, amongst others, that said Turcot (as the defendants in error contended) did not watch the bridge more closely just before the fire, the company offered to show that it was not the usual practice among railroads in that section of the country to employ a man to watch bridges like the one destroyed; but on objection the court excluded this testimony, to which the company excepted.

After the plaintiff in error had rested its case, the defendants in error, subject to its exception, were allowed to prove that at various times during the same summer, before this fire occurred, some of the company's locomotives scattered fire when passing the mill and bridge, without showing either that those which it was claimed communicated the fire in question were among the number or that they were similar in their make, state of repair, or management to said locomotives.

The plaintiff in error requested the court to charge:

1. That if the jury found that the erection of plaintiffs' buildings or the storing of plaintiffs' lumber so near to the defendant's railroad track, as the testimony would show, was an imprudent or careless act, and that such a location of this property in any degree contributed to the loss which ensued, then the plaintiffs could not recover, even though the fire was communicated by the defendant's locomotive.

2. That at all events, under the circumstances disclosed

Page 91 U. S. 459

in this cause, it was incumbent upon plaintiffs to use due caution and diligence and to employ suitable expedients to prevent the communication of fire.

3. That the statute upon which the action is predicated does not apply to property located within the limits of the railroad, nor to personal property temporarily on hand.

The court refused to charge the jury on the first and third points as requested, but gave the charge requested on the second point, with the qualification, that there was no evidence in the case to which it had any application, to all which the defendant excepted.

The defendant also renewed its motion that a verdict be ordered in its favor for the reasons above set forth, which was again denied by the court, and the defendant excepted.

The court charged the jury that the burden of proof was upon the plaintiffs in the first instance to show that the fire in question was communicated from some of the defendant's locomotive engines to the bridge, and that if the jury were satisfied of that fact by a fair balance of evidence, then the plaintiffs were entitled to recover unless the defendant had established by a fair balance of evidence that it had used all due caution and diligence and had employed all suitable expedients to prevent the fire; that the burden of proof was on the defendant as to the latter branch of the case; to which exception was taken.

The jury returned a verdict for $22,312.12 damages. The company moved to set aside the verdict and grant a new trial for reasons set forth in the bill of exceptions, which motion was overruled, and the company excepted.

Page 91 U. S. 468

MR. JUSTICE STRONG delivered the opinion of the Court.

The plaintiffs below were permitted to adduce evidence that those of the injured buildings which were within the lines of the roadway had been erected within those lines by the license of the company, for the convenience of delivering and receiving freight. The admission of this evidence is the subject of the first assignment of error, and in its support it has been argued that it was the duty of the railroad company to preserve its entire roadway for the use for which it was incorporated; that it had no authority to grant licenses to others to use any part thereof for the erection of buildings; and therefore that the license to the plaintiffs, if any was made, was void. Thus the basis of the objection to the evidence appears to be that it was immaterial. We are, however, of opinion that it was properly admitted. If the buildings of the plaintiffs were rightfully where they were, if there was no trespass upon the roadway of the company, it was clearly a pertinent fact to be shown, and while it must be admitted that a railroad company has the exclusive control of all the land within the lines of its roadway, and is not at liberty to alienate any part of it so as to interfere with the full exercise of the franchises granted, we are not prepared to assert that it may not license the erection of buildings for its convenience, even though they may be also for the convenience of others. It is not doubted that the defendant might

Page 91 U. S. 469

have erected similar structures on the ground on which the plaintiffs' buildings were placed, if in its judgment the structures were convenient for the receipt and delivery of freight on its road. Such erections would not have been inconsistent with the purposes for which its charter was granted. And if the company might have put up the buildings, why might it not license others to do the same thing for the same object -- namely the increase of its facilities for the receipt and delivery of freight? The public is not injured, and it has no right to complain so long as a free and safe passage is left for the carriage of freight and passengers. There is, then, no well founded objection to the admission of evidence of a license, or evidence that the plaintiffs' buildings were partly within the line of the roadway by the consent of the defendant. The objection to the mode of proof is equally unsustainable. There was quite enough, without the receipt of Oct. 27, 1870, to justify a finding by the jury that the plaintiffs were not trespassers. But the receipt itself was competent evidence. It is true, it was given after the occurrence of the fire; but it was a mutual recognition by the company and by one of the plaintiffs that the occupation of the roadway by the buildings had been, and that it was at the time of the fire, permissive, and not adverse. Taking the receipt, as the bill of exception shows, was the Act of the defendant by its agent, the engineer who had charge of the roadbed. It was therefore an admission by the company that there had been consent to the occupation.

The second assignment of error is that the court excluded testimony offered by the defendant to show that the usual practice of railroad companies in that section of the country was not to employ a watchman for bridges like the one destroyed. It is impossible for us to see any reason why such evidence should have been admitted. The issue to be determined was whether the defendant had been guilty of negligence -- that is, whether it had failed to exercise that caution and diligence which the circumstances demanded, and which prudent men ordinarily exercise. Hence the standard by which its conduct was to be measured was not the conduct of other railroad companies in the vicinity -- certainly not their usual conduct. Besides, the degree of care which the law requires in

Page 91 U. S. 470

order to guard against injury to others varies greatly according to the circumstances of the case. When the fire occurred which caused the destruction of the plaintiffs' buildings, it was a very dry time, and there was a high wind. At such a time, greater vigilance was demanded than might ordinarily have been required. The usual practice of other companies in that section of the country sheds no light upon the duty of the defendant when running locomotives over long wooden bridges, in near proximity to frame buildings, when danger was more than commonly imminent.

The third assignment of error is, that the plaintiffs were allowed to prove, notwithstanding objection by the defendant, that, at various times during the same summer before the fire occurred, some of the defendant's locomotives scattered fire when going past the mill and bridge, without showing that either of those which the plaintiffs claimed communicated the fire was among the number, and without showing that the locomotives were similar in their make, their state of repair, or management, to those claimed to have caused the fire complained of. The evidence was admitted after the defendant's case had closed. But whether it was strictly rebutting or not, if it tended to prove the plaintiffs' case, its admission as rebutting was within the discretion of the court below, and not reviewable here. The question, therefore, is whether it tended in any degree to show that the burning of the bridge, and the consequent destruction of the plaintiffs' property, were caused by any of the defendant's locomotives. The question has often been considered by the courts in this country and in England; and such evidence has, we think, been generally held admissible, as tending to prove the possibility, and a consequent probability, that some locomotive caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company. Piggot v. R. Co., 3 M. G. & S. 229; Sheldon v. R. Co., 14 N.Y. 218; Field v. R. Co., 32 id. 339; Webb v. R. Co., 49 id. 420; Cleaveland v. R. Co., 42 Vt. 449; R. Co. v. Williams, 42 Ill. 358; Smith v. R. Co., 10 R. G. 22; Longabaugh v. R. Co., 4 Nev. 811. There are, it is true, some cases that seem to assert the opposite rule. It is, of course, indirect evidence, if it be evidence at all. In this

Page 91 U. S. 471

case it was proved that engines run by the defendant had crossed the bridge not long before it took fire. The particular engines were not identified; but their crossing raised at least some probability, in the absence of proof of any other known cause, that they caused the fire; and it seems to us that, under the circumstances, this probability was strengthened by the fact that some engines of the same defendant, at other times during the same season, had scattered fire during their passage. We cannot, therefore, sustain this assignment.

It is contended further on behalf of the defendant, that there was error in the court's refusal to direct a verdict in its favor because a large part of the property destroyed was wrongfully on their railway, and not within the purview of the statute of Vermont, on which the plaintiffs relied. If, however, we are correct in that we have heretofore said, it was not for the court to assume that any part of the property was on the roadway wrongfully, and to instruct the jury on that assumption; and even if it had been wrongfully there, the fact would not justify its destruction by any willful or negligent conduct of the defendant. In Bains v. R. Co., 42 Vt. 380, it was said that a railroad company in the discharge of its duties, and in the exercise of its right to protect its property from injury to which it is exposed by the unlawful act or neglect of another, is bound to use ordinary care to avoid injury even to a trespasser. If this be the correct rule (and it cannot be doubted), how could the circuit court have charged as a conclusion of law that the plaintiffs could not recover because their property was wrongfully within the lines of the defendant's roadway?

Again, the court was asked to direct a verdict for the defendant, for the alleged reason that the damages were too remote. The bill of exceptions shows that the fire originated in the bridge of the defendant, and spread thence to the mill and other property of the plaintiffs, and we are referred to the rulings in Ryan v. New York Central R. W. Co., 35 N.Y. 210, and Penn. R. Co. v. Kerr, 62 Penn.St. 353, as showing, that, in such a case, negligently setting the bridge on fire is not to be considered the proximate cause. We do not, however, deem it necessary to inquire whether the doctrine asserted in those cases is correct. It is in conflict with that laid down in

Page 91 U. S. 472

many other decisions; indeed, in conflict, we think, with the large majority of decisions made by the American courts in similar cases. But we think the statute of Vermont has a direct bearing upon the defendant's liability, and contemplates such buildings and property as were destroyed in this instance. The buildings were along the route of the railroad; though some of them were, in whole or in part, within the lines of the roadway. It is obvious to us that the phrase "along its route" means in proximity to the rails upon which the locomotive engines run. That the statute gave an insurable interest in the property, for the destruction of which the corporation was made liable, does not necessarily show that the only property intended was such as was outside the lines of the roadway. That, indeed, was comprehended; but property lawfully within the lines, which the company did not own, equally needed protection. The statute was designed to be a remedial one, and it is to be liberally construed. In Massachusetts, there is a statute almost identical with that of Vermont; and under it the Supreme Judicial Court of that state held, in Ingersoll v. Stockbridge & Pittsfield R. Co., and Quigley v. Same, 8 Allen 438, that the company was liable to both the plaintiffs, though the fire communicated directly from the locomotive to Ingersoll's barn, and spread through an intervening shed, which stood partly upon the railroad location, to the barn of Quigley. The court said,

"There is nothing in the statement to show that any fault of the plaintiff contributed to the loss, if the buildings were lawfully placed where they stood. The fact that a building stands near a railroad, or wholly or partly on it, if placed there with the consent of the company, does not diminish their responsibility in case it is injured by fire communicated by their locomotives. The legislature have chosen to make it a condition of the right to run carriages impelled by the agency of fire, that the corporation employing them shall be responsible for all injuries which the fire may cause."

These cases are directly in point as to the reach of the statute. They show that it embraces buildings on the line of the roadway, and buildings injured by fire spreading from other buildings to which fire was first communicated from a locomotive. To the same effect is Hart v. Western R. Co., 13 Met. 99. And, if it be conceded

Page 91 U. S. 473

that the statute is applicable only to injuries of buildings and other property which the railroad company may insure, we do not perceive why it may not obtain insurance of buildings and property on its location with its consent. But if the statute is applicable to the case, it is plain that the circuit court could not direct a verdict for the defendant for the reason that the damages were too remote.

Exception was taken at the trial to the refusal of the court to affirm the defendant's points, the first of which was, that

"if the jury should find that the erection of the plaintiffs' buildings, or the storing of their lumber so near the defendant's railroad track, as the evidence showed, was an imprudent or careless act, and that such a location in any degree contributed to the loss which ensued, then the plaintiffs could not recover, even though the fire was communicated by the defendant's locomotive."

We think the court correctly refused to affirm this proposition. The fact that the destroyed property was located near the line of the railroad did not deprive the owners of the protection of the statute, certainly, if it was placed where it was under a license from the defendant. Such a location, if there was a license, was a lawful use of its property by the plaintiffs; and they did not lose their right to compensation for its loss occasioned by the negligence of the defendant. Cook v. Champlain Transp. Co., 1 Den. 91; Ferc v. Railroad Co., 22 N.Y. 215. Besides, it was not for the court to affirm that even an imprudent location of the plaintiffs' buildings and property was a proximate cause of the loss.

The second request for instruction was

"that at all events, under the circumstances disclosed in the case, it was incumbent upon the plaintiffs to use due caution and diligence, and to employ suitable expedients to prevent the communication of fire."

The request was broad; but the court gave the instruction asked, adding only that there was no evidence in the case to which it had any application; and we have been unable to find any in the record. A question is not to be submitted to a jury without evidence.

The third prayer for instruction was based on the assertion, that

"the statute upon which the action was predicated does not

Page 91 U. S. 474

apply to property located within the limits of the railroad, nor to personal property temporarily on hand."

This view of the statute, as we have already remarked, is not in our judgment correct as a general proposition, and certainly not in its application to a case where property is placed within the lines of a railway, by the consent of a railway company, for the convenience in part of its traffic.

It remains only to add that we see no just ground of complaint of the affirmative instruction given to the jury. It was in accordance with the rule prescribed by the statute, and there seems to have been no controversy in the circuit court respecting the question whether, if the fire was communicated to the bridge by a locomotive, it caused the injury to the plaintiffs.

The judgment is therefore affirmed.

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