A statute of a state which enacts that every railroad
corporation owning or operating a railroad in the state shall be
responsible in damages to the owner of any property injured or
destroyed by fire communicated directly or indirectly by locomotive
engines in use upon its railroad, and which provides that it shall
have an insurable interest in the property upon the route of its
railroad, and may procure insurance thereon in its own behalf, does
not violate the Constitution of the United States as depriving the
railroad company of its property without due process of law, or as
denying to it the equal protection of the laws, or as impairing the
obligation of the contract made between the state and the company
by its incorporation under general laws imposing no such
liability.
This was an action brought in an inferior court of the State of
Missouri by an owner of land in St. Louis County against a railroad
corporation organized under the laws of the state and owning and
operating with locomotive engines a line of railway adjoining the
plaintiff's land to recover damages for the destruction of the
plaintiff's dwelling house, barn, outbuildings,
Page 165 U. S. 2
shrubbery, and personal property upon that land by fire
communicated from one of those engines on August 9, 1887.
The petition contained two counts, the first of which alleged
negligence on the part of the defendant and the second did not, but
was founded on the statute of Missouri of March 31, 1887, by
which
"each railroad corporation owning or operating a railroad in
this state shall be responsible in damages to every person and
corporation whose property may be injured or destroyed by fire
communicated directly or indirectly by locomotive engines in use
upon the railroad owned or operated by such railroad corporation,
and each such railroad corporation shall have an insurable interest
in the property upon the route of the railroad owned or operated by
it, and may procure insurance thereon in its own behalf, for its
protection against such damages."
Missouri Laws of 1887, p. 101; Rev.Stat. of 1889, § 2615.
The answer, among other defenses, set up that the statute
violated the Constitution of the United States by depriving the
defendant of its property without due process of law and by denying
to it the equal protection of the laws and by impairing the
obligation of the contract made between it and the state
"by the terms and provisions of which it was impliedly agreed
that said defendant might and could use fire for the purpose of
generating steam to propel said locomotive engines and cars
attached thereto, and be responsible only for the negligent and
careless use thereof."
The defendant was incorporated September 10, 1875, under the
general laws of the state, which authorized railroad corporations
to be formed by voluntary articles of association filed in the
office of the Secretary of State, and to lay out and construct
their railroad, to take lands for the purpose, and
"to take and convey persons and property on their railroad by
the power or force of steam, or of animals, or by any mechanical
power, and to receive compensation therefor."
Missouri Gen.Stat. of 1865, c. 63, §§ 1, 2; Rev.Stat. of 1889,
§§ 2542, 2543.
At the trial, the plaintiff introduced evidence tending to
Page 165 U. S. 3
support the allegations of the petition, and the court at his
request, instructed the jury that
"if they believe from the evidence that, during the month of
August, 1887, plaintiff was the owner of the land in the petition
described, and defendant was the owner or operating a railroad
adjoining said land, having locomotive engines in use upon said
road, and that, on August 9, 1887, fire was communicated from a
locomotive engine then in use upon the railroad owned or operated
by defendant to plaintiff's property on his said land, and thereby
the buildings and other property in the petition mentioned, or any
of it, were destroyed, then the jury will find for the
plaintiff."
The court refused to give to the jury the following instruction,
requested by the defendant:
"Though the jury may believe from the evidence that fire was
communicated from a locomotive engine in use on defendant's
railroad to plaintiff's property, as charged in the second count of
plaintiff's petition, yet that fact is only
prima facie
evidence of negligence on the part of defendant, and, unless the
jury believe from the whole evidence in the case that said fire was
either negligently set out by defendant or was communicated to
plaintiff's property by reason of defendant's negligence, the
plaintiff cannot recover."
The defendant excepted to the instruction given, as well as to
the refusal to instruct as requested, and after verdict and
judgment for the plaintiff, appealed to the supreme court of the
state, which held the statute to be constitutional and affirmed the
judgment. 121 Mo. 298. The defendant sued out this writ of
error.
Page 165 U. S. 5
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
The only question presented by the record of which this Court
has jurisdiction is whether there is anything inconsistent with the
Constitution of the United States in the statute of Missouri of
March 31, 1887, by which every railroad corporation owning or
operating a railroad in the state is made responsible in damages
for property of any person injured or destroyed by fire
communicated by its locomotive engines, and is declared to have an
insurable interest in property along its route, and authorized to
insure such property for its protection against such damages.
It has been strenuously argued in behalf of the plaintiff in
error that this statute is an arbitrary, unreasonable, and
unconstitutional exercise of legislative power, imposing an
absolute and onerous liability of the consequences of doing a
lawful act and of conducting a lawful business in a lawful and
careful manner, and that the statute violates the Constitution of
the United States by depriving the railroad company of its property
without due process of law, by denying to it the equal protection
of the laws, and by impairing the obligation of the contract
previously made between it and the state by its incorporation under
general laws authorizing it to convey passengers and freight over
its railroad by the use of locomotive engines.
The argument that this statute is in excess of the power of the
legislature may be the most satisfactorily met by first tracing the
history of the law regarding the liability of persons for fire
originating on their own premises and spreading to the property of
others.
At common law, every man appears to have been obliged by the
custom of the realm to keep his fire safe so that it should not
injure his neighbor, and to have been liable to an action if a
fire, lighted in his own house or upon his land by
Page 165 U. S. 6
the act of himself or of his servants or guests, burned the
house or property of his neighbor, unless its spreading to his
neighbor's property was caused by a violent tempest or other
inevitable accident which he could not have foreseen. Thirning,
C.J., and Markham, J., in
Beaulien v. Finglam, Yearbook 2
H. IV., 18;
Anon., Cro.Eliz. 10; 1 Rol.Ab. 1, "Action sur
Case," B; 1 D'Anvers Abr. "Actions," B;
Turberville v.
Stamp (1698) Comyns 32,
s.c., 1 Salk. 13; Holt 9; 1
Ld.Raym. 264; 12 Mod. 152; Com.Dig. "Action upon the case for
Negligence," A, 6; 1 Vin.Abr. 215, 216; 1 Bac. Abr. "Action on the
case," F (Am.ed. 1852) p. 122;
Canterbury v. Attorney
General, 1 Phil.Ch. 306, 316-319;
Filliter v.
Phippard, 11 Q.B. 347, 354;
Furlong v. Carroll, 7
Ontario App. 145, 159.
The common law liability in case of ordinary accident, without
proof of negligence, was impliedly recognized in the statute of
Anne, passed within ten years after the decision in
Turberville
v. Stamp, above cited, and providing that
"no action, suit or process whatsoever shall be had, maintained,
or prosecuted against any person in whose house or chamber any fire
shall accidentally begin, or any recompense be made by such person
for any damage suffered or occasioned thereby, any law or usage or
custom to the contrary notwithstanding."
Stats. 6 Anne (1707), c. 31 [58], § 7; 8 Statutes of the Realm
795; 10 Anne (1711), c. 14 [24] § 1; 9 Statutes of the Realm 684.
By the statute of 14 Geo. III (1774), c. 78, § 86, the statute of
Anne was extended to "any person in whose house, chamber, stable,
barn or other building, or on whose estate any fire shall
accidentally begin.�
In modern times in England, the strict rule of the common law as
to civil liability in damages for fire originating on one's own
land and spreading to property of another has been recognized as
still existing, except so far as clearly altered by statute.
In
The King v. Pease (1832), 4 B. & Ad. 30,
s.c., 1 Nev. & Man. 690, a corporation expressly
authorized by act of Parliament to establish a railway between
certain points and to use locomotive engines thereon was held not
to be liable to
Page 165 U. S. 7
an indictment for a nuisance by frightening horses traveling
upon a highway parallel to the railroad.
In
Aldridge v. Great Western Railway (1841), 3 Man
& Gr. 515, 4 Scott N.R. 156, which was an action against a
railway corporation created by similar acts of Parliament to
recover damages for property destroyed by fire kindled by sparks
from a locomotive engine, it was argued for the plaintiff that, by
the common law, a civil action for damages could be sustained by
proof of injury, without evidence of negligence.
See
Broom's Legal Maxims (5th ed.) 366, 367; Holmes on Common Law
85-88. But the court held that the corporation could not be held
liable unless negligent. In
Piggot v. Eastern counties
Railway (1846), 3 C.B. 229, the same rule was recognized,
although the fact of the property having been fired by sparks from
the engine was held sufficient proof of negligence.
In the course of the argument in
Blyth v. Birmingham
Waterworks (1856), 11 Exch. 781, 783, Baron Martin 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."
In
Vaughan v. Taff Vale Railway (1858), 3 H. & N.
743, the
Court of Exchequer held that a railway company, expressly
authorized by its charter to use locomotive engines on its railway,
was responsible for damages caused to property by fire communicated
from such engines, although it had taken every precaution in its
power to prevent the injury. But the judgment was reversed in the
Exchequer Chamber, and Lord Chief Justice Cockburn said:
"Although it may be true that if a person keeps an animal of
known dangerous propensities or a dangerous instrument, he will be
responsible to those who are thereby injured, independently of any
negligence in the mode of dealing with the animal or using the
instrument, yet when the legislature has sanctioned and authorized
the use of a particular thing, and it is used for the purpose for
which it was authorized, and every precaution has been used to
prevent injury, the sanction of the legislature
Page 165 U. S. 8
carries with it this consequence -- that if damage results from
the use of such thing independently of negligence, the party using
it is not responsible."
5 H. & N. (1860) 679, 685.
The final decision in that case has since been considered in
England as establishing that a railway company which by act of
Parliament has been expressly authorized to use locomotive engines
upon its railway without being declared to be responsible for fires
communicated from those engines is not, in the absence of
negligence on its part, liable for damages caused by such fires.
Fremantle v. Northwestern Railway (1861), 10 C.B. (N.S.)
89;
Hammersmith &c. Railway v. Brand (1869), L.R. 4
H.L. 171;
Smith v. London & Southwestern Railway
(1870), L.R. 6 C.P. 14, 21-22;
London, Brighton &
Southcoast Railway v. Truman (1885), 11 App.Cas. 45.
On the other hand, a railway company chartered by act of
Parliament in 1832 to make and maintain a "railway or tram road for
the passage of wagons, engines and other carriages" for the purpose
of conveying coals and other minerals, and neither expressly
authorized nor prohibited to use locomotive engines, was held
liable for damages by sparks from such an engine, although proved
to have taken all reasonable precautions to prevent the emission of
sparks, Mr. Justice Blackburn saying that
"the defendants were using a locomotive engine with no express
Parliamentary powers making lawful that use, and they are
therefore, at common law, bound to keep the engines from doing
injury, and, if the sparks escape and cause damage, the defendants
are liable for the consequences, though no actual negligence be
shown on their part,"
and that, in order to bring them within the decision in
Vaughan v. Taff Vale Railway, above cited,
"it is essential to show that their act authorized the use of
locomotive engines, and it is not enough to show that it authorized
the making and using of a railway and that there are no words
either prohibiting the use of locomotives or showing that the
legislature meant to prohibit the use."
Jones v. Festiniog Railway (1868), L.R. 3 Q.B. 733,
736-737.
So where acts of Parliament authorizing and regulating
Page 165 U. S. 9
the use of locomotive engines on turnpike and other roads
provided that nothing in the acts contained should be construed as
authorizing any person to use upon the highway a locomotive engine
so constructed or used as to cause a public or private nuisance,
and that every person so using such an engine should be liable to
an action for such use when such an action could have been
maintained before the passage of the acts, the Court of Appeal held
that a man who used upon a public highway a locomotive engine
constructed in conformity with the provisions of the acts, and
managed and conducted with all reasonable care and without
negligence, was liable for a destruction of property on land
adjoining the highway by sparks proceeding from his engine, Lord
Justice Bramwell saying:
"The passing of the engine along the road is confessedly
dangerous, inasmuch as sparks cannot be prevented from flying from
it. It is conceded that, at common law, an action may be maintained
for the injury suffered by the plaintiffs. The locomotive acts are
relied upon as affording a defense; but instead of helping the
defendant, they show not only that an action would have been
maintainable at common law, but also that the right to sue for an
injury is carefully preserved. It is just and reasonable that if a
person uses a dangerous machine, he should pay for the damage which
it occasions. If the reward which he gains for the use of the
machine will not pay for the damage, it is mischievous to the
public, and ought to be suppressed, for the loss ought not to be
borne by the community or the injured person. If the use of the
machine is profitable, the owner ought to pay compensation for the
damage."
Powell v. Fall (1880), 5 Q.B.D. 597.
In this country, the strict rule of the common law of England as
to liability for accidental fires has not been generally adopted,
but the matter has been regulated in many states by statute.
Clark v. Foot, 8 Johns. 329;
Bachelder v. Heagan,
18 Me. 32;
Tourtellot v. Rosebrook, 11 Met. 460;
Finley v. Langston, 12 Mo. 120;
Miller v. Martin,
16 Mo. 508;
Catron v. Nichols, 81 Mo. 80; Cooley on Torts
14, 590-592; 1 Thompson on Negligence 148-150.
Page 165 U. S. 10
In the colony of Massachusetts, from the first settlement, it
was an object of legislation, "for the preservation of houses, hay,
boards, timber, etc." 1 Mass.Col.Rec. (1631) 90; (1639) 281; 3
Mass.Col.Rec. (1646) 102. In 1660 or earlier, it was enacted that
"whoever shall kindle any fires in the woods, or grounds lying in
common, or enclosed, so as the same shall run into corn grounds or
enclosures," at certain seasons, should
"pay all damages, and half so much for a fine . . . provided
that any man may kindle fire in his own ground so as no damage come
thereby either to the country or to any particular person."
Mass.Col.Laws of 1660, p. 31; of 1672, p. 51.
Soon after the introduction of railroads into the United States,
the legislature of the State of Massachusetts, by the statute of
1837, c. 226, provided that a railroad corporation should be held
responsible in damages for any injury done to buildings or other
property of others by fire communicated from its locomotive
engines, "unless the said corporation shall show that they have
used all due caution and diligence, and employed suitable
expedients to prevent such injury," and that any railroad
corporation should have an insurable interest in property along its
route for which it might be so held responsible in damages, and
might procure insurance thereon in its own behalf.
Three years later, that statute was repealed and was reenacted
with the omission of the clause above quoted, thus making the
liability of the railroad corporation absolute, and not dependent
upon negligence on its part. And the statute in this form, with
merely verbal changes, has been continued in force by successive
reenactments. Mass.Stat. 1840, c. 85; Gen.Stat. of 1860, c. 63, §
101; Stat. 1874, c. 372, § 106; Pub.Stat. 1882, c. 112, § 214.
In the first reported case under this statute, it was held by
the Supreme Judicial Court of Massachusetts that the liability of
the railroad company was not restricted to a building by the side
of its road which the very particles of fire emanating from the
engines fell upon and kindled a flame in, but extended to a
building across a street set on fire by sparks wafted by the wind
from the first building while it was burning, and
Page 165 U. S. 11
Chief Justice Shaw, in delivering judgment, said:
"We consider this to be a statute purely remedial, and not
penal. Railroad companies acquire large profits by their business.
But their business is of such a nature as necessarily to expose the
property of others to danger, and yet, on account of the great
accommodation and advantage to the public, companies are authorized
by law to maintain them, dangerous though they are, and so they
cannot be regarded as a nuisance. The manifest intent and design of
this statute, we think, and its legal effect are, upon the
considerations stated, to afford some indemnity against this risk
to those who are exposed to it, and to throw the responsibility
upon those who are thus authorized to use a somewhat dangerous
apparatus, and who realize a profit from it."
Hart v. Western Railroad (1847), 13 Met. 99.
Two years afterwards, the same court adjudged that the statute
applied to railroad companies incorporated before its passage, and
that it extended as well to estates a part of which had been
conveyed by the owner, as to those of which a part had been taken
by law, for the purposes of a railroad, and Mr. Justice Dewey, in
delivering judgment, said:
"We can perceive no sound distinction between the cases
supposed. Each of these modes for acquiring the necessary real
estate for the purpose of a railroad is authorized both by the
general laws and by the acts creating railroad corporations. In
each, the landowner is supposed to receive full satisfaction for
all the injuries necessarily resulting from the use of the same for
a railroad. But with the use of locomotive engines, greater hazard
to contiguous buildings and property owned by the adjacent
landowners may arise than was originally contemplated, or ought to
be left to the ordinary common law remedies. We consider this
provision of the statute 1840, c. 85, as one of those general
remedial acts passed for the more effectual protection of property
against the hazards to which it has become subject by the
introduction of the locomotive engine. The right to use the parcel
of land appropriated to a railroad does not deprive the legislature
of the power to enact such regulations, and impose such liabilities
for injuries suffered from the mode of using the road as the
occasion and
Page 165 U. S. 12
circumstances may reasonably justify."
Lyman v. Boston & Worcester Railroad (1849), 4
Cush. 288.
The same statute was held to cover personal property in a
building, and growing trees, destroyed by fire from a locomotive
engine, Chief Justice Bigelow saying:
"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."
Ross v. Boston & Worcester Railroad (1863), 6 Allen
87.
Again, in
Ingersoll & Quigley v. Stockbridge &
Pittsfield Railroad (1864), 8 Allen 438, it was held,
following
Hart v. Western Railroad, above cited, to be
immaterial that a building was destroyed by the spreading of a fire
from other buildings on which the sparks from the engine had
fallen, and it was also held to be immaterial that the building
stood partly within the location of the railroad; Mr. Justice Hoar
saying:
"The fact that a building or other property stands near a
railroad, or partly or wholly on it, if placed there with the
consent of the company, does not diminish their responsibility, in
case it is injured by fire communicated from 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."
Upon facts very like those of that case, this Court, at October
Term, 1875, sustained an action under a statute of Vermont, copied
from the Massachusetts statute of 1837, and, speaking by Mr.
Justice Strong, said: "The statute was designed to be a remedial
one. In Massachusetts, there is a statute almost identical with
that of Vermont," and, referring to that case as directly in point,
quoted the passage above cited from the opinion, ending with the
words:
"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."
Grand Trunk Railway v. Richardson, 91 U. S.
454,
91 U. S. 456,
91 U. S.
472.
Page 165 U. S. 13
The statute of Massachusetts, existing at the time of that
decision and for thirty-five years before and enforced in the
Massachusetts cases, imposed a liability upon the railroad company
wholly independent of negligence on its part, and the terms in
which this Court referred to that statute and quoted from one of
those cases show that no doubt of its constitutionality was
entertained.
In Maine and in New Hampshire, statutes substantially like the
statute of Massachusetts of 1840, making railroad corporations
absolutely liable, without regard to negligence, for injuries to
property by fire communicated from their locomotive engines were
enacted in 1842, and have been since continued in force and their
validity upheld by the highest courts of those states as applied to
corporations created either before or after their passage. Maine
Stat. 1842, c. 9, § 5; Rev.Stat. of 1883, c. 51, § 64;
Chapman
v. Atlantic & St. Lawrence Railroad, 37 Me. 92;
Pratt
v. Atlantic & St. Lawrence Railroad, 42 Me. 579;
Stearns v. Atlantic & St. Lawrence Railroad, 46 Me.
95;
Sherman v. Maine Central Railroad, 86 Me. 422;
N.H.Rev.Stat. of 1842, c. 142, §§ 8, 9; Gen.Stat. of 1867, c. 148,
§§ 8, 9; Gen.Laws of N.H. 1878, c. 162, §§ 8, 9;
Hooksett v.
Concord Railroad, 38 N.H. 242;
Rowell v. Railroad, 57
N.H. 132;
Smith v. Boston & Maine Railroad, 63 N.H.
25.
In Connecticut, before any legislation towards holding railroad
corporations liable for property burned by sparks from their
locomotive engines, they were held not to be so liable if their use
of such engines was with due care and skill and in conformity with
their charters.
Burroughs v. Housatonic Railroad Co., 15
Conn. 124. The subsequent legislation upon the subject, and the
reasons for it as stated by the supreme court of the state, were as
follows: experience demonstrated that in all cases of fire set by
the operation of railroads, it was extremely difficult, and in some
cases impossible, to prove negligence even when it existed. This
led to the passage in 1840, and to the reenactment in 1875, of a
statute providing that in all actions for any injury occasioned by
fire communicated by any railway locomotive engine in the state,
proof that such fire was so communicated should be
prima
facie
Page 165 U. S. 14
evidence of negligence. Conn.Stat. 1840, c. 26; Gen.Stat. of
1875, Tit.19, c. 11, § 29. Even then, the difficulty was but
partially removed, for in most cases the defendant could easily
produce evidence of due care, and the plaintiff would be ill
prepared to meet it. Therefore, in 1881, the legislature took the
broad, equitable ground that, upon proof of the fact that the
locomotive engine communicated fire to and destroyed property, the
company should be liable independently of the question of
negligence, and accordingly enacted another statute, in the words
of the Massachusetts statute of 1840 before mentioned, imposing an
absolute liability, qualified only by the insertion of the words,
"without contributory negligence on the part of the person or
corporation entitled to the care and possession of the property
injured." Conn.Stat. 1881, c. 92. The statutes of 1875 and 1881
were both reenacted in Rev.Stat. 1888, §§ 1096, 3581.
Martin v.
New York & New England Railroad, 62 Conn. 331, 339. The
provisions of the statute of 1881 have been repeatedly upheld and
enforced.
Simmonds v. New York & New England Railroad,
52 Conn. 264;
Grissell v. Housatonic Railroad, 54 Conn.
447;
Regan v. New York & New England Railroad, 60
Conn. 124;
Martin v. Same, above cited.
In
Grissell v. Housatonic Railroad, the validity of
that statute was strongly assailed upon all the grounds taken by
the plaintiff in error in the present case, and the court, in the
course of a well considered opinion, said:
"It is a mistake to suppose that it necessarily transcends the
limits of valid legislation or violates the principle of a just
equality before the law if the one using extra-hazardous materials
or instrumentalities which put in jeopardy a neighbor's property is
made to bear the risk and pay the loss thereby occasioned, if there
is no fault on the part of the owner of the property, even though
negligence in the other party cannot be proved."
The court referred to early statutes of Connecticut which
required no proof of negligence in two classes of actions of tort
-- the one making the owner of a dog, or, if the owner was a minor
or an apprentice, his parent, guardian, or master, liable for all
damage done by the dog, Conn.Stat. of 1789, Acts and
Page 165 U. S. 15
Laws 1796, p. 383; Gen.Stat. of 1875, p. 267, § 3; Rev.Stat. of
1888, § 3761;
Russell v. Tomlinson, 2 Conn. 206;
Woolf
v. Chalker, 31 Conn. 121, 133, the other making every person
setting a fire on his own or any land that runs upon the land of
any other person liable for all damage done by the fire,
Conn.Col.Laws of 1750, p. 247; 2 Swift's System 81; Gen.Stat. of
1875, p. 489, § 6; Rev.Stat. of 1888, § 1344;
Grannis v.
Cummings, 25 Conn. 165;
Ayer v. Starkey, 30 Conn.
304. The court added:
"We are not aware that the validity of any of these statutes has
been called in question. The dangerous character of the thing used
is always to be considered in determining the validity of statutory
regulations fixing the liability of parties so using it. Fire has
always been subject to arbitrary regulations, and the common law of
England was more severe and arbitrary on the subject than any
statute. In Rolle's Abridgment (Action on the case, B. Tit.
'Fire'), it is said:"
"If my fire by misfortune burns the goods of another man, he
shall have his action on the case against me. If a fire breaks out
suddenly in my house, I not knowing it, and it burns may goods, and
also my neighbor's house, he shall have his action on the case
against me. So, if the fire is caused by a servant or a guest, or
any person who entered the house with my consent. But otherwise if
it is caused by a stranger who entered the house against my will. .
. ."
"There is no force in the suggestion that the statute under
consideration unjustly selects only railroad corporations to bear
the burden of an extraordinary risk. It is confined to them because
they alone have the privilege of taking a narrow strip of land from
each owner, without his consent, along the route selected for the
track, and of traversing the same at all hours of the day and
night, and at all seasons, whether wet or dry, with locomotive
engines that scatter fire along the margin of the land not taken,
thereby subjecting all combustible property to extraordinary hazard
of loss, and that, too, for the sole profit of the
corporation."
54 Conn. 461, 462.
In Iowa, before the passage of any statute making railroad
corporations responsible for damage done by sparks from their
locomotive engines, it was held that no action could be
maintained
Page 165 U. S. 16
for such damage without proof of negligence on their part.
Gandy v. Chicago & Northwestern Railroad, 30 I. 420.
The legislature then passed a statute providing that "any
corporation operating a railway shall be liable for all damages by
fire that is set out or caused by the operating of any such
railway." Iowa Code of 1873, § 1289. The supreme court of the
state, assuming this statute to impose a liability independent of
negligence, held it to be constitutional, and applicable to
companies incorporated under general laws before its passage, and
said:
"The statute simply recognizes the doctrine that the use of the
locomotive engine is the employment of a dangerous force; that
sometimes, notwithstanding the exercise of the highest care and
diligence, it will emit sparks, and cause destructive
conflagrations; that when this occurs, loss must fall upon one of
two innocent parties; that heretofore that loss has been borne by
the owner of the property injured, but hereafter it shall be borne
by the owner of the property causing the injury. . . . What the
policy of this legislation may be experience alone can show. It may
be that it will prove to be unreasonably severe, and to stand in
the way of material progress and the best interests of the country
at large. It may, upon the other hand, promote a high degree of
skill and care and stimulate the invention and use of improved
appliances, lessening the danger of fires and greatly increasing
the safety of property, without any detriment to public interests.
With these questions we have nothing to do. For us it is enough to
know that the statute contravenes no constitutional provision,
state or national, and that it does not do so we entertain no
doubt."
Rodemacher v. Milwaukee & St. Paul Railroad, 41 Ia.
297, 309. The subsequent decision by a majority of the same court,
cited by the plaintiff in error, that this statute only made the
fact of an injury so occurring
prima facie evidence of
negligence was based wholly upon a peculiar construction of this
section in connection with other provisions of the Code, and in no
degree upon any suggestion that, regarded as imposing an absolute
liability, it would be unconstitutional.
Small v. Chicago, Rock
Island & Pacific Railroad, 50 Ia. 338.
Page 165 U. S. 17
In a recent case in the Circuit Court of the United States for
the Northern District of Iowa, Judge Shiras said:
"The right to use the agencies of fire and steam in the movement
of railway trains in Iowa is derived from the legislation of the
state, and it certainly cannot be denied that it is for the state
to determine what safeguards must be used to prevent the escape of
fire, and to define the extent of the liability for fires resulting
from the operation of trains by means of steam locomotives. This is
a matter within state control. The legislation of the state
determines the width of the right of way used by the companies. The
state may require the companies to keep the right of way free from
combustible material. It may require the depot and other buildings
used by the company to be of stone, brick, or other like material
when built in cities or in close proximity to other buildings. The
state, by legislation, may establish the extent of the liability of
railway companies for damages resulting from fires caused in the
operation of the roads."
Hartford Ins. Co. v. Chicago, Milwaukee & St. Paul
Railway Co., 62 F. 904, 907.
In Missouri, a statute was enacted in 1853 requiring railroad
corporations, whether already existing or thereafter formed under
the laws of the state, to erect and maintain fences on the sides of
their railroads where they passed through enclosed fields, with
openings or gates or bars at farm crossings, and also cattle guards
at all road crossings suitable and sufficient to prevent cattle,
horses, or other animals from getting upon the railroads, and,
until such fences and cattle guards were duly made, making the
corporation liable for all damages done by its agents or engines to
animals on the railroad. Missouri Stat. February 24, 1853, §§ 51,
56, Laws 1853, pp. 143, 144. The supreme court of the state,
following the opinion of Chief Justice Redfield in the leading case
of
Thorpe v. Rutland & Burlington Railroad, 27 Vt.
140, and referring to
Lyman v. Boston & Worcester
Railroad, 4 Cush. 288, above stated, held the statute
constitutional as applied to companies incorporated under general
laws before its passage, and Mr. Justice Scott, in delivering
Page 165 U. S. 18
judgment, said:
"Where such dangerous and powerful agents as steam engines are
brought into use, there should be a power in the legislature to
prescribe such reasonable regulations as will prevent injuries
resulting from their employment. The foresight of man is not
competent to the task of prescribing in a charter all the
regulations which time may show to be necessary for the security of
the interests of the people of the state against injuries caused by
the introduction of new, powerful, and dangerous agents for
carrying on her intercourse and commerce. The charter must be taken
subject to the understanding that, in its operation affecting the
interests of society, it will be, like individuals, liable to be
controlled by such reasonable enactments as may be dictated by a
sense of what is required for the preservation of the persons,
lives, and property of the people; such enactments not contravening
the expressed or plainly implied provisions of the charter."
Gorman v. Pacific Railroad, 26 Mo. 441, 450-451. That
statute was afterwards reenacted, modified by including unenclosed
lands as well as enclosed or cultivated fields, and by making the
corporation liable in double the amount of damages to cattle,
horses, or other animals, occasioned by failure to construct or
maintain such fences or cattle guards. Missouri Gen.Stat. of 1865,
c. 63, § 43; 1 Wagner's Stat. c. 37, art. 2, § 43; Stat. Feb. 18,
1875, Laws of 1875, p. 131; Rev.Stat. of 1889, § 2611. And the
statute, as so modified and as applied to existing railroad
corporations, was held to be valid by a decision of that court,
affirmed by this Court.
Humes v. Missouri Pacific Railway,
82 Mo. 221, and
115 U. S. 115 U.S.
512.
In Missouri, before the passage of any statute concerning the
liability of railroad corporations for fire communicated from their
engines, they were held not to be liable unless negligent, but the
fact of fire escaping from a passing engine and burning property of
another was held to be
prima facie evidence of negligence,
and to throw upon the defendant the burden of proving that it
supplied the best mechanical contrivances to prevent the fire from
escaping, and that there was no negligence on the part of its
servants.
Fitch v. Pacific
Page 165 U. S. 19
Railroad, 45 Mo. 322;
Miller v. St. Louis, Iron
Mountain & Southern Railroad, 90 Mo. 389. The statute of
March 31, 1887, now in question (reenacted in section 2615 of the
Revised Statutes of 1889), changed the rule by making the railroad
corporation absolutely responsible in damages to the owners of
property "injured or destroyed by fire communicated, directly or
indirectly, by locomotive engines" in use upon its railroad, and
providing that it should have an insurable interest in property
along its route, and might procure insurance thereon in its own
behalf for its protection against such damages. The
constitutionality of this statute was upheld by the supreme court
of the state in full and able opinions in the case at bar, and in a
similar case decided at the same time, and now argued with it in
this Court.
Mathews v. St. Louis & San Francisco
Railway, 121 Mo. 298;
Campbell v. Missouri Pacific
Railway, 121 Mo. 340. In discussing the subject, the court
said:
"If the state is powerless to protect its citizens from the
ravages of fires set out by agencies created by itself, then it
fails to meet one of the essentials of a good government. Certainly
it fails in the protection of property. The argument of the
defendant, reduced to its last analysis, is this:"
"The state authorized the railroad companies to propel cars by
steam. To generate steam, they are compelled to use fire.
Therefore, they can lawfully use fire, and, as they are pursuing a
lawful business, they are only liable for negligence in its
operation, and when, in a given case, they can demonstrate they are
guilty of no negligence, then they cannot be made liable."
"To this the citizen answers:"
"I also own my land lawfully. I have the right to grow my crops
and erect buildings on it at any place I choose. I did not set in
motion any dangerous machinery. You say you are guiltless of
negligence. It results, then, that the state, which owes me
protection to my property from others, has chartered an agency
which, be it ever so careful and cautious and prudent, inevitably
destroys my property, and yet denies me all redress. The state has
no right to take or damage my property without just
compensation."
"But what the state cannot do directly it attempts
Page 165 U. S. 20
to do indirectly, through the charters granted to railroads, if
defendant's contention be true. When it was demonstrated that
although the railroads exercised every precaution in the
construction of their engines, the choice of their operatives, and
clearing their rights of way of all combustibles, still fire was
emitted from their engines and the citizen's property burned,
notwithstanding his efforts to extinguish it and notwithstanding he
had in no way contributed to setting it out, it is perfectly
competent for the state to require the company who set out the fire
to pay his damages. . . . The organic law of the state prescribed,
before defendant obtained its charter, that"
"the exercise of the police power of the state shall never be
abridged, or so construed as to permit corporations to conduct
their business in such manner as to infringe the equal rights of
individuals, or the general wellbeing of the state."
"Constitution of Missouri, art. 12, § 5. Let it be conceded, for
it is true, that prior to the enactment of § 2615, by the decisions
of this and other courts, defendant was only liable for negligence
in setting out fire; is it to be concluded that the legislature is
powerless to enact laws which will give ample protection to
citizens against fires? Most certainly not. Fire, as one of the
most dangerous elements, has ever been the subject of legislative
control. It ought not to excite surprise among a people, the great
body of whose laws had their origin in England, that those who set
out fires which destroy the property of others should be held
absolutely responsible for them. Such was the ancient common law,
before any statutes were enacted,"
quoting Rolle's Abridgment, before cited.
"Under ordinary circumstances, this was thought to be a harsh
rule, and it was not generally adopted by the courts of the several
states; but the question we are discussing is not what the courts
have generally regarded as the reasonable rule, but what is the
power of the lawmaking power to adopt as a correct one."
121 Mo. 315-317.
Similar statutes have also been enacted, and held to be
constitutional, in Colorado and in South Carolina.Colo. Colorado
Territorial Stat. Jan. 13, 1874, § 3, Laws of 1874, p. 225;
Gen.Laws of 1877, art. 2237, § 3; Gen.Stat. of 1883, §§ 1037,
Page 165 U. S. 21
2798;
Union Pacific Railway v. De Busk, 12 Colo. 294;
South Carolina Gen.Stat. of 1882, § 1511;
McCandless v.
Richmond & Danville Railroad, 38 S.C. 103.
In
Milwaukee & St. Paul Railway v. Kellogg,
94 U. S. 469, in
Northern Pacific Railroad v. Lewis, 162 U.
S. 366, and in
Eddy v. Lafayette, 163 U.
S. 456, in which it was assumed that negligence on the
part of the defendant must be proved, the action was at common law,
unaffected by any statute. And the statutes of some states make
negligence an essential element in the liability of a railroad
company for injuries by fire from its engines. 1 Thompson on
Negligence 171.
The statute of Alabama of February 3, 1877, No. 39, which was
held to be unconstitutional in
Zeigler v. South & North
Alabama Railroad, 58 Ala. 594, cited by the plaintiff in
error, was one providing that all corporations or persons, "owning
or controlling any railroad in this state, shall be liable for all
damages to livestock or cattle of any kind, caused by locomotives
or railroad cars." Whatever may be thought of the correctness of
that decision, no question of liability for fire was before the
court, nor was any reference made to the statutes or decisions of
other states upon this subject.
In each of the cases in Arkansas cited by the plaintiff in
error, the decision was that a statute of the state, providing
generally that
"all railroads which are now or may be hereafter built and
operated in whole or in part in this state shall be responsible for
all damages to persons and property done or caused by the running
of trains in this state,"
was not intended by the legislature to make the railroad company
responsible for all damages without regard to negligence, but only
to shift the burden of proof upon the defendant. Arkansas Stat.
February 3, 1875, Mansfield's Digest § 5537;
Little Rock &
Fort Scott Railway v. Payne, 33 Ark. 816;
Tilley v. St.
Louis & San Francisco Railway, 49 Ark. 535. The court in
the first of those cases, while expressing an opinion that "it was
not within the province of the legislature to divest rights by
prescribing to the courts what should be conclusive evidence,"
impliedly admitted, or at least cautiously abstained from denying,
the validity of statutes like that now
Page 165 U. S. 22
in question by saying:
"In Massachusetts, by statute, railroad companies are made
absolutely liable for injuries by fire communicated from their
engines, but, in compensation, are given an insurable interest in
any buildings along the route. The courts have sustained this law,
but the nature of it is peculiar and exceptional, and the language
too clear to admit of doubt."
33 Ark. 820.
The learning and diligence of counsel have failed to discover an
instance in which a statute making railroad companies absolutely
liable for damages by fire communicated from their locomotive
engines to the property of others has been adjudged to be
unconstitutional as to companies incorporated before or since its
enactment.
This review of the authorities leads to the following
conclusions:
First. The law of England, from the earliest times, held anyone
lighting a fire upon its own premises to the strictest
accountability for damages caused by its spreading to the property
of others.
Second. The earliest statute which declared railroad
corporations to be absolutely responsible, independently of
negligence, for damages by fire communicated from their locomotive
engines to property of others was passed in Massachusetts in 1840,
soon after such engines had become common.
Third. In England at the time of the passage of that stature, it
was undetermined whether a railroad corporation, without
negligence, was liable to a civil action, as at common law, for
damages to property of others by fire from its locomotive engines,
and the result that it was not so liable was subsequently reached
after some conflict of judicial opinion, and only when the acts of
Parliament had expressly authorized the corporation to use
locomotive engines upon its railroad, and had not declared it to be
responsible for such damages.
Fourth. From the time of the passage of the Massachusetts
statute of 1840 to the present time, a period of more than half a
century, the validity of that and similar statutes has been
constantly upheld in the courts of every State of the Union in
which the question has arisen.
Page 165 U. S. 23
In this Court, the constitutionality of such a statute has never
been directly drawn into judgment. But it appears to have been
assumed in
Railroad Co. v. Richardson, 91 U. S.
454,
91 U. S. 472,
already cited, and it rests upon principles often affirmed
here.
As was said by Chief Justice Shaw,
"it is a settled principle growing out of the nature of well
ordered civil society that every holder of property, however
absolute and unqualified may be his title, holds it under the
implied liability that his use of it may be so regulated that it
shall not be injurious to the equal enjoyment of others having an
equal right to the enjoyment of their property not injurious to the
rights of the community."
Commonwealth v. Alger, 7 Cush. 53, 84-85. This Court
has often recognized and affirmed the fundamental principle so
declared, and has more than once said:
"Rights and privileges arising from contracts with a state are
subject to regulations for the protection of the public health, the
public morals, and the public safety in the same sense as are all
contracts and all property, whether owned by natural persons or
corporations."
Slaughterhouse
Cases, 16 Wall. 36,
83 U. S. 62;
Patterson v. Kentucky, 97 U. S. 501,
97 U. S. 505;
New Orleans Gas Co. v. Louisiana Light Co., 115 U.
S. 650,
115 U. S. 672;
Waterworks v. Rivers, 115 U. S. 674,
115 U. S. 678;
Mugler v. Kansas, 123 U. S. 623,
123 U. S. 665;
Sweet v. Rechel, 159 U. S. 380,
159 U. S.
398.
In
Beer Co. v. Massachusetts, 97 U. S.
25,
97 U. S. 33, in
which a statute of Massachusetts prohibiting the manufacture and
sale of intoxicating liquors, including malt liquors, was held to
be constitutional and valid as applied to a corporation chartered
long before by the state for the purpose of manufacturing malt
liquors, this Court, speaking by Mr. Justice Bradley, said:
"Whatever differences of opinion may exist as to the extent and
boundaries of the police power, and however difficult it may be to
render a satisfactory definition of it, there seems to be no doubt
that it does extend to the protection of the lives, health, and
property of the citizens and to the preservation of good order and
the public morals. The legislature cannot by any contract divest
itself of the power to provide for these objects. They belong
emphatically to that class of
Page 165 U. S. 24
objects which demand the application of the maxim
salus
populi suprema lex, and they are to be attained and provided
for by such appropriate means as the legislative discretion may
devise. That discretion can no more be bargained away than the
power itself."
In
Missouri Pacific Railway v. Humes, 115 U.
S. 512, already mentioned, in which a statute of
Missouri making railroad corporations not fencing their railroads
liable in double damages for injuries thereby occasioned to cattle
and other animals was held constitutional as applied to
corporations existing before its enactment, this Court, speaking by
Mr. Justice Field, said:
"If the laws enacted by a state be within the legitimate sphere
of legislative power, and their enforcement be attended with the
observance of those general rules which our system of jurisprudence
prescribes for the security of private rights, the harshness,
injustice, and oppressive character of such laws will not
invalidate them as affecting life, liberty, or property without due
process of law. . . . The law of Missouri, in requiring railroad
corporations to erect fences where their roads pass through, along,
or adjoining enclosed or cultivated fields or unenclosed lands,
with openings or gates at farm crossings, and to construct and
maintain cattle guards, where fences are required, sufficient to
keep horses, cattle, and other animals from going on the roads,
imposes a duty in the performance of which the public is largely
interested. Authority for exacting it is found in the general
police power of the state to provide against accidents to life and
property in any business or employment, whether under the charge of
private persons or of corporations. . . . In few instances could
the power be more wisely or beneficently exercised than in
compelling railroad corporations to enclose their roads with fences
having gates at crossings, and cattle guards. The speed and
momentum of the locomotive render such protection against accident
in thickly settled portions of the country absolutely
essential."
115 U. S. 115
U.S. 520-522.
"The objection that the statute of Missouri violates the clause
of the Fourteenth Amendment which prohibits a state to deny to any
person within its jurisdiction the equal protection
Page 165 U. S. 25
of the laws is as untenable as that which we have considered.
The statute makes no discrimination against any railroad company in
its requirements. Each company is subject to the same liability,
and from each the same security, by the erection of fences, gates
and cattle guards, is exacted when its road passes through, along,
or adjoining enclosed or cultivated fields or unenclosed lands.
There is no evasion of the rule of equality where all companies are
subjected to the same duties and liabilities under similar
circumstances."
115 U.S.
115 U. S. 523.
Like decisions for like reasons were made in the similar cases
of
Minneapolis & St. Louis Railway v. Beckwith,
129 U. S. 26, and
Same v. Emmons, 149 U. S. 364, in
which last case this Court, again speaking by Mr. Justice Field,
said:
"The extent of the obligations and duties required of railway
corporations or companies by their charters does not create any
limitation upon the state against imposing all such further duties
as may be deemed essential or important for the safety of the
public, the security of passengers and employees, or the protection
of the property of adjoining owners. The imposing of proper
penalties for the enforcement of such additional duties is
unquestionably within the police powers of the states. No contract
with any person, individual or corporate, can impose restrictions
upon the power of the states in this respect."
149 U.S.
149 U. S.
367-368.
In
Missouri Pacific Railway v. Mackey, 127 U.
S. 205, the judgment of the Supreme Court of Kansas in
33 Kan. 298, maintaining the constitutionality of a statute of the
state imposing for the future upon every railroad corporation,
organized or doing business in the state, a liability, to which no
person or corporation was before subject, for all damages done to
any of its employees by negligence or mismanagement of their fellow
servants, was affirmed by this Court, saying:
"The hazardous character of the business of operating a railway
would seem to call for special legislation with respect to railroad
corporations, having for its object the protection of their
employees as well as the safety of the public. The business of
other corporations is not subject to similar
Page 165 U. S. 26
dangers to their employees, and no objections therefore can be
made to the legislation on the ground of its making an unjust
discrimination. It meets a particular necessity, and all railroad
corporations are, without distinction, made subject to the same
liabilities. As said by the court below, it is simply a question of
legislative discretion whether the same liabilities shall be
applied to carriers by canal and stage coaches, and to persons and
corporations using steam in manufactories."
127 U.S.
127 U. S. 210.
The motives which have induced, and the reasons which justify,
the legislation now in question may be summed up thus: fire, while
necessary for many uses of civilized man, is a dangerous, volatile,
and destructive element which often escapes in the form of sparks,
capable of being wafted afar through the air and of destroying any
combustible property on which they fall, and which, when it has
once gained headway, can hardly by arrested or controlled. Railroad
corporations, in order the better to carry out the public object of
their creation, the sure and prompt transportation of passengers
and goods, have been authorized by statute to use locomotive
engines propelled by steam generated by fires lighted upon those
engines. It is within the authority of the legislature to make
adequate provision for protecting the property of others against
loss or injury by sparks from such engines. The right of the
citizen not to have his property burned without compensation is no
less to be regarded than the right of the corporation to set it on
fire. To require the utmost care and diligence of the railroad
corporations in taking precautions against the escape of fire from
their engines might not afford sufficient protection to the owners
of property in the neighborhood of the railroads. When both parties
are equally faultless, the legislature may properly consider it to
be just that the duty of insuring private property against loss or
injury caused by the use of dangerous instruments should rest upon
the railroad company, which employs the instruments and creates the
peril for its own profit, rather than upon the owner of the
property, who has no control over or interest in those instruments.
The very statute now in
Page 165 U. S. 27
question, which makes the railroad company liable in damages for
property so destroyed, gives it, for its protection against such
damages an insurable interest in the property in danger of
destruction and the right to obtain insurance thereon in its own
behalf, and it may obtain insurance upon all such property
generally, without specifying any particular property.
Eastern
Railroad v. Relief Ins. Co., 98 Mass. 420. The statute is not
a penal one, imposing punishment for a violation of law, but it is
purely remedial, making the party, doing a lawful act for its own
profit, liable in damages to the innocent party injured thereby and
giving to that party the whole damages, measured by the injury
suffered.
Grand Trunk Railway v. Richardson, 91 U. S.
454,
91 U. S. 472;
Huntington v. Attrill, 146 U. S. 657.
The statute is a constitutional and valid exercise of the
legislative power of the state, and applies to all railroad
corporations alike. Consequently it neither violates any contract
between the state and the railroad company nor deprives the company
of its property without due process of law, nor yet denies to it
the equal protection of the laws.
Judgment affirmed.