CHAPTER V. INJURY BY FIRE. §50. General rule as to damage by fire. § 51. No redress for damage by unavoidable accident. § 52. Common-law rule as to damage by fire. $53. One may burn stubble, when. $ 54. One may burn rubbish or wood on his land. § 55. As to burden of proof of negligence in case of fire. § 56. Proximate damages alone recoverable. § 60. Liability of hunters or travelers for damage by fire. 61. Damage by fire from steam thresher. § 62. Negligence in use of steam thresher. § 63. Duty of proprietor of steam thresher to use appliances to prevent escape of sparks. § 64. Owner of steam thresher not an insurer. § 65. Fires caused by locomitives, common-law rule. § 66. Rule in America as to fires by sparks from locomotives. § 67. Statute as to fires from locomotives. § 68. State laws as to fires from locomotives in America. § 69. Value of common-law rule as to fires from locomotives. § 70. Burden of proof of negligence when fire occurs from locomotive. § 71. Duty of railroad corporation to guard against fire. § 72. Care required to prevent escape of fire from locomotive. § 73. Duty of railroad company to extinguish fires caused by locomotives. § 74. Proximate and remote damage by fire from locomotive. § 75. Liability of railroad companies for damage by spread of fire. § 50. General rule as to damage by fire.-By the common law, one who negligently sets fire to any building, rubbish, or anything upon his land, was liable for the damage which resulted from the spread of the fire to his neighbor's premises.1 The owner or possessor of property is, in general, responsible that it be so used as that others receive no injury; and where such injury happens from the negligence of a person about the 1 Beaulieu v. Fringham, Year Book, 2 H. IV, f. 18, pl. 6. premises, it lies upon the owner to absolve himself, whether the damage results from his own act, or that of his servant, or other person acting under his direction. The principle is, that every man is bound to so deal with his own property as not to injure that of others, and, therefore, if a fire occurs by the negligence of the owner of land on which it originated, and by the fire his neighbor's crops, buildings, or other property is destroyed, he whose negligence has caused the damage must be held liable for it; but he is not liable if the accident was inevitable, or he was not in fault. § 51. No redress for damage by inevitable accident, or for losses resulting from mutual negligence. But when the injury comes from the negligence of one party, he cannot shield himself from liability by calling it an accident. A man is answerable for the natural and probable consequences of his fault. But if his fault happen to concur with something extraordinary and not likely to be foreseen, he will not be answerable. If, however, a man engage in an act which the circumstances indicate may be dangerous to others, he must take all the care which prudence would suggest, to avoid an injury. § 52. Common-law rule as to damage by fire.-Certain English statutes, enacted before the separation of the American colonies, relieved the owner of real property from liability for the spread of fire which commenced on his land accidentally, even though the commencement of the fire was due to his negligence; and the Supreme Court of New York has held that these statutes are to be regarded as part of the common law as adopted by that State, and that, on principle, a man should not be held responsible for damages which result by spread of fire which accidentally caught on his land, even though he was negligent in allowing it to begin.2 The opinion of Blackstone seems 1 Altherf v. Wolf, 22 N. Y. 355; Booth v. Mister, 7 Carr. & Payne, 66; Blake v. Ferris, 1 Seld. 48; Vaughn v. Menlove, 3 Bing. N. C. 468; Barnard v. Porr, 21 Pick. 378; Hanlon v. Ingram, 3 Clarke, (Iowa) 81. 2 Lansing v. Stone, 37 Barb. 15; 3 Kent's Com. 436, Note C; McGrew v. Stone, 53 Penn. St. 436. to be in accord with this proposition. But the general construction of these statutes, even in England, leaves the original common-law rule in force, and does not materially vary or modify it.2 1 Bl. Com. 431. 2 Vaughn v. Menlove, 3 Bing. N. C. 468; 4 Scott, 244, in which the defendant stacked on his land some hay in such condition as that there was danger of its taking fire from spontaneous combustion; he was warned of its liability to take fire, and advised to take the rick down, but replied "that he would chance it." It did take fire, and was not only destroyed, but the fire, spreading to the plaintiff's land, there burned his cottage. Defendant was held liable, on the ground that, though an accident, the fire was attributable to his culpable negligence, and he ought to respond to the damage done. In Canterbury v. Attorney-General, 1 Phillips, 306, Lord Lyndhurst comments upon this case, and questions the soundness of the decision, because the statutes of Anne and George III appeared to have been overlooked; but in Filliber. Phippard, 12 Q. B. 347, the doctrine of Vaughn v. Menlove was to be law upon the proposition that those statutes applied only to fires purely accidental. It should be considered, however, that the point was not absolutely involved in this case of Filliber v. Phippard, as the fire was not accidental at all, but was purposely lighted by defendant on his land, and thence spread to his neighbor's. In Barnard v. Poor, 21 Pick. 378, the common-law rule was held to be law, and that the statutes of Anne and George III were, in effect, declaratory of it. It was held that an action on the case would lie for so carelessly carrying fire by defendant as that plaintiff's stock-yard was destroyed. But in Maulle. Wilson, 2 Harring. 443, it was held that an action would not lie for damages from a fire which was purely accidental, but spread from defendant's to plaintiff's premises. In a late New York case, Webb v. R. W. & O. R. R. Co. 49 N. Y. 425, the law was discussed at length, and the opinion of the Court was: "It certainly is not a novel proposition that he who, by his own negligence or misadventure, creates or suffers a fire upon his own premises, which, burning his property, spreads thence on to the immediate adjacent premises of another, and there destroys the property of the latter, is liable to him in an action for the damages which he has suffered. This rule was founded on the general custom of the realm; in other words, it was the peculiarity of the common law, and it has its support in the maxim, 'every man must use his own so as not to hurt another,' and it was applied, not only to the case of a fire arising in a house, but to that of one arising on the open land; and not only where the fire was intentionally set and carelessly managed, but where negligently kindled. At first it was held that the defendant was liable, though guiltless of negligence, and that he could defend himself only by showing that the fire was excited by some superior cause which he could not resist nor control. And so firmly fixed was this rule in the common law that there must needs be a statute to soften its rigor. (6 Anne, Chap. 31, Sec. 67; and 14 Geo. III, Chap. 78, Sec. 76.) "We have the common-law principle well established, thoroughly recognized, and still existing to this extent that he who negligently sets or negligently manages a fire on his own property is liable to his immediate neighbor for the damage caused to him by the spread of the fire on to his neighbor's next adjacent property. It is urged that the statute of Anne, as amended by that of the third George, is a part of the common law of this State, and that thereby it is |