US SUPREME COURT DECISIONS

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. chanrobles.com-red

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, chanrobles.com-red

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, chanrobles.com-red

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 chanrobles.com-red

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 chanrobles.com-red

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. chanrobles.com-red

Page 91 U. S. 468