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
and have an insurable interest in such property "along its
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
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
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
"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
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
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
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
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
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.
14 N.Y. 218; Field v. R. Co.,
339; Webb v. R. Co.,
v. R. Co.,
42 Vt. 449; R. Co. v. Williams,
358; Smith v. R. Co.,
10 R. G. 22; Longabaugh v. R.
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,
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
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
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
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.
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,
"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.