But growing trees, orchards, and all other property which is attached to the soil, or is a part of the realty, or is of such a character as to be permanently upon the premises, in such manner as that the company may fairly be presumed to have known that it might be exposed to injury by fire from their engines, when they accepted their charter or built the road, are within the provisions of such statutes, and the owners of such property may, in this connection, regard the railroad company as a special insurer to the extent prescribed.1

§ 68. State laws as to fires caused by locomotives.The statute of New Hampshire is of such a character, and makes the company liable for all damages which may accrue to any person or property by fire or steam from any locomotive, or other engine, on a railroad; 2 and the liability of the proprietors of a railroad, under this statute, for injuries caused by its operation, extends to all persons who may come within its influence.3

So, in Maryland, the code provides that a railroad company shall be responsible for injuries by fire occasioned by its engines, or carriages, upon its road, unless the company can prove, to the satisfaction of the Court, that the injury complained of was committed without any negligence on the part of the company

1 Pratt v. H. & St. L. R. R. Co. 42 Me. 579. The statute under which this action was brought made provision that "when injury is done to a building or other property of any person or corporation, by fire communicated by a locomotive engine of any railroad corporation, the said corporation shall be held responsible in damages to the person or corporation so injured." (Stats. of Maine, 1842, Chap. 9, Sec. 5.) But that this liability might not be too onerous on the company, the same section provides that the railroad corporation should have an insurable interest in the property. The action was for the recovery of damages done to growing timber on the plaintiff's land, by fire from the defendants' engine, distant almost three hundred feet from the line of the railroad, communicated to materials growing and naturally lying on the land between the plaintiff's premises and the railroad track, and thence spreading to the land of the plaintiff. The defendants relied upon Chapman v. At. & St. L. R. R. Co. 37 Me. 92, above cited. In this case, commenting on Chapman v. At. & St. L. R. R. the Court says: "The analogy between the cedar posts deposited some few rods from the railroad, and growing trees, is not strong. The former being considered, in the case cited, as movable property, having no permanent location, but from its nature left for the purpose of being put in some other place within a short time, was not insurable property, so that it would be understood as falling within the purview of the statute."

2 Sec. 8, Chap. 148, General Stats. N. H.

* Price v. Concord R. R. Co. 51 N. H. 591.

or its agents; and in that State it has also been held that the law applies alike to cases where the party complaining suffers loss directly from the engine itself, by sparks escaping through the smoke-stack, or from coals or cinders thrown from the engine or fire-box by the servants of the company. If the party injured establishes, by sufficient proof, the fact that the fire originated from the fire in the locomotive, and that he has suffered damage thereby, then the onus is cast upon the company of proving that such damage was not the result of carelessness or negligence on the part of the employees of the company.

§ 69. Value of common-law rule in America. From these laws above mentioned, and similar statutory enactments, it would appear that the necessity of the rule which has been recognized in England is, to some extent, manifest in America, and has been there, also, regarded in the provisions inserted in the law to impose upon the railroad companies the taking of such precautions as would, to the greatest possible extent, prevent the occurrence of loss so great as is liable to result from the spread of fire.

Beyond the individual injury to him whose property is immediately affected by the danger of fire by passing locomotives, the public is liable to great loss from conflagrations originating from the use of so dangerous an element as steam on roads, and it is not wholly apparent that the American invasions of the common-law rule have been judicious.3

1 Art. 77, Sec. 1, Code of General Laws of Maryland.

2 Baltimore & O. R. R. Co. v. Dorsey, 37 Md. 24; Woodruff's Case, 4 Md. 242; Lamborn's Case, 12 Md. 257.

8 Grand Trunk R. R. Co. v. Richardson, U. S. Sup. Court, January, 1876. "The plaintiffs were allowed to prove that, at various times during the season, before the fire occurred, some of the defendant's locomotives scattered fire while passing, without showing that either of those which the plaintiffs claimed communicated the fire were among the number, and without showing that the locomotives were similar in make, state of repair, or management, to those claimed to have caused the fire. Held, that the evidence was admissible."

This case was from Vermont, under a statute providing that in case of fire communicated by locomotives the company should be responsible, unless it showed due care.

In Massachusetts, under a similar statute, it was held that the company was responsible for all negligent injuries so communicated, whether proximate or remote. (Hart v. R. R. Co. 13 Met. 99; Albany L. J. Feb. 5th, 1876, p. 89.)

Redfield on Railways, Vol. 1, p. 456. "We cannot forbear to add that the in

§ 70. Burden of proof of negligence. The question whether negligence as to the construction and management of a locomotive, is to be implied from the fact of fire having escaped from it, by which property is destroyed, so as to cast the burden upon the company of showing that it was properly constructed and properly managed, is one with respect to which there seems to be a clear and decided conflict of authority. The rule of the English Courts, and that of many of the American States, is that the burden of proof rests upon the company when property is thus shown to have been destroyed.1

And upon the converse of the proposition it has been contended that the statute of 6 Anne, Chap. 3, Sec. 6, enacted in 1807,2 providing that no action shall be maintained against any in whose house or chamber any fire shall accidentally begin, and the statute of 14 Geo. III, Chap. 78, Sec. 86, which ordains that "no action, suit, or process whatever, shall be had against any person in whose house, chamber, stable, barn, or other building, or on whose estate, any fire shall, after the 24th day of June, 1784, accidentally begin, nor shall any recompense be made by such person for any damage thereby, any law, usage, or custom to the contrary notwithstanding," were adopted by the several States as a part of the common law, and that at least the burden of

terference of the legislatures upon this subject in many of the American States" (making the companies liable, and throwing on them the onus of showing absence of carelessness, etc.) seems to us an indication of the public sense, in favor of placing the risk in such cases upon the party in whose power it lies most to prevent such injury occurring. There seems to us both justice and policy in the English rule on the subject."

1 Albridge v. G. W. R. Co. 3 Man. & Gr. 515 (42 E. C. L. R. 272); Piggott v. Eastern Counties R. Co. 3 Man. Gr. & Scott, 229 (54 E. C. L. R. 228); Gibson v. Southeastern R. Co. 1 Foster & Finl. 23; Ellis v. P. & R. R. R. Co. 2 Ird. Law, 138; Herring v. W. & R. R. R. Co. 10 Id. 402; Hugett v. P. & R. R. R. Co. 23 Penn. St. 373; Hull v. S. V. R. R. Co. 14 Cal. 387; Bass v. C. B. & Q. R. R. Co. 28 III. 9; III. C. R. R. Co. v. Mills, 42 Ill. 407; McGready v. R. W. Co. 2 Strobh. Law, 356; Cleveland v. G. T. R. R. Co. 42 Vt. 449; B. & L. R. R. v. Woodruff, 4 Md. 242; Spaulding v. Ch. & N. W. R. R. Co. 33 Wis. 582.

"The fact that damage was caused by fire escaping from a locomotive engine creates a presumption that the engine was defective in construction or condition, which throws upon the railroad company the burden of proving the contrary. Such presumption is, however, but a presumption of law; and it is for the Court, not the jury, to determine the amount and character of the proof necessary to overcome it." This case was decided in 1873, with all the older decisions considered upon full argument, the case being in the Supreme Court for the second time.

21 Bl. Com. 431.

proof of negligence was upon the plaintiff; that defendant being engaged in a legitimate business, the conduct of which required the use of fire in such manner as that some danger of setting fire was necessarily incurred, the plaintiff must show negligence in the construction or management of defendant's engine, and that the fact that fire gets out from the locomotive does not make a prima facie case of negligence against the company.1

§ 71. Duty of railroad company to guard against fire. -But whatever may be the rule, if there is one applicable, as to burden of proof, the law is such that railroad companies, in the construction of their engines, are bound not only to employ all due care and skill for the prevention of mischief arising to

1 R. R. Co. v. Yeiser, 8 Barr. (Penn.) 366; Turnpike Co. v. R. R. Co. 54 Penn. St. 349; Lansing v. Stone, 37 Barb. 18; Burroughs . R. R. Co. 15 Conn. 124; Paramore v. R. R. Co. 31 Ind. 145; Rood v. R. R. Co. 18 Barb. 80; Sheldon v. R. R. Co. 4 Kern. 224; Opinion by Hubbard, J.; Field v. R. R. Co. 32 N. Y. 349; Smith v. R. R. Co. 37 Mo. 294, in which the proposition was most strongly stated, and it was held that "in an action for damages against a railroad for negligently managing its engines, so that fire was communicated to the standing crop and grass of plaintiff, the burden of proof is upon the plaintiff to show that the fire was caused by the negligence or want of care of the defendant. There is no legal presumption of negligence in such cases-it must be shown as a matter of fact."

These cases are decided upon the application of the general principle that the use of locomotives is lawful; that an action does not lie for a reasonable exercise of one's right, though it be to the injury of another (P. & R. R. R. Co. v, Yeiser, 2 Am. R. R. Cases, 325; Burroughs v. N. R. R. Co. 2 Am. R. R. Cas. 30; Rood v. N. Y. & E. R. R. Co. 18 Barb. 80); and that a railroad company, being in the lawful use of appliances to carry on its business, to which is necessarily incident a risk of setting fire, the plaintiff against the company must take the affirmative upon the issue of negligence. (Indianapolis Etc. R. R. Co. v. Paramore, 31 Ind. 143; P. & R. R. R. Co. v. Yeager, 73 Penn. St. 121.) “A party is not answerable in damage for the reasonable exercise of a right, unless upon proof of negligence, unskillfulness, or malice. Buildings were burned by sparks from a locomotive used in the ordinary way upon a railroad; in a suit by the owner against the company, held, there being no evidence to justify an inference of negligence, that the jury should have been instructed to find for defendant." Rood v. N. Y. & E. R. R. Co. 18 Barb. 87, in which it was held that authority to run a steam-engine is an authority to emit sparks therefrom. So in Garrett . N. W. R. Co. 36 Iowa, 121, it was held that the mere fact that fire was caused by sparks from a locomotive does not establish a prima facie case of negligence against the company, but that, as in the nature of the case, the plaintiff must labor under difficulties in making proof of negligence, it may be established by circumstances bearing more or less directly on the case, which might not be satisfactory in other cases free from such difficulties and open to clearer proofs.

the property of others by the emission of sparks, or any other cause, but they are also bound to avail themselves of all the discoveries which science has put within their reach for that purpose, provided they are such as, under the circumstances, it is reasonable to require the companies to adopt;1 and if fires occur by sparks from a locomotive, the company must be prepared to show that the engine was properly provided with such appliances. The reasons given for requiring the companies to show that this duty has been performed on their part, and that the agents and employees of the road know, or at least are bound to know, that the engine is properly equipped to prevent fire from escaping, and that they know whether any mechanical contrivances were employed for that purpose, and if so what was their character; whilst, on the other hand, persons not connected with the road, and who only see trains passing at a high rate of speed, have no such means of information, and the same is inaccessible to and cannot be obtained by them without great trouble and expense, and then often as a favor from the com

1 Dimmock et al. v. N. S. R. R. Co. 4 Foster & Finlason, 1064. The rule in the English Courts is thus stated: The company, in the construction of its engines, must take all due care, and avail itself of all the appliances which science has put within its reach, provided it is, under the circumstances, reasonable to require them to adopt; and the test is the comparative degree of the risk on the one hand, and the expense or practical inconvenience on the other. It is for the jury to draw the line, and if, in the case before them, the jury find that there were precautions which, under the circumstances, it would have been reasonable to require the company to adopt, then the non-adoption of these precautions would be negligence on their part. With reference to that question the jury should consider the evidence of the scientific and practical witnesses, on one side and the other, and decide the proposition by the preponderance, and especially as to the practical value of the appliances which it is claimed the company ought to have adopted.

In the American Courts this decision is quoted, approved, and made the basis of the rule as to employment of appliances to prevent escape of sparks so as to cause damage by fire to property. (Spaulding v. C. Etc. R. R. Co. 30 Wis. 110; Bedell v. L. I. R. R. Co. 44 N. Y. 367; Cleveland v. Grand Trunk R. R. Co. 42 Vt. 449.) The rule is given in Shearman & Redfield on Negligence, Sec. 322. A railroad, authorized to use steam power, "has necessarily the right to use fire as a means of generating steam, and is not liable for injuries by sparks or coals escaping from its locomotives, if it has adopted every known precaution against such accidents; though it will be liable therefor if such precautions be not adopted. It is not meant by this that the company will be thus liable, on simple proof that an invention was in existence, by the use of which the injury might have been prevented. It must appear that, before the time of the injury, the invention had come into common use, and had been approved by experience."