pany, which, under the circumstances, the company would be very likely to withhold. So, also, it would seem that the duty is imposed upon the company of so keeping its road-bed, and lands immediately adjoining, free from such inflammable material as would, in conjunction with the use upon the engine of an element so generally dangerous as fire, create a special risk to those who had property in the vicinity. It will not be a sufficient defense to an action against a railroad company for damage by fire from its locomotive alone, to show that the engine was properly constructed and run, if it appear that the lands of the company through which the road runs, or the road-bed itself, are so covered with dry grass, forest leaves, or other inflammable substances, to such an extent as to render the danger of fire on that account peculiar, it being made to appear that the conflagration was caused by sparks falling upon such inflammable substances.1

1 Where the company permits dry grass to remain on the strip of land between the track and the fence, and the dry grass, being there, constitutes a means of fire from the engine, extending to and injuring property; the fact of the grass so being permitted to remain is one proper for the jury to consider in an action against the company for damages resulting from the fire. If the dry herbage was permitted to remain standing in such quantities as shows negligence, evidence of that fact would ordinarily be admissible. (Henry v. S. P. R. R. Co. Sup. Ct. Cal. August 2, 1875; Sill v. Reese, 47 Cal. 341; Flinn v. R. R. Co. 40 Cal. 11.) Spaulding v. C. & N. R. R. Co. 30 Wis. 123. On the trial of this cause the following instruction was asked: "The defendant was not bound to burn the dry vegetation on any portion of its way, when, by reason of the direction or force of the wind, or other attendant circumstances, it would endanger its own property, or the property of others, so to do." This request was refused, and, on appeal, the Supreme Court said: "It seems to have been taken for granted, on the trial below and in this Court, that the only, or the most practicable and usual method resorted to by railroad companies to remove the dry grass or other inflammable materials, such as forest leaves, etc., accumulating on the right of way, is, under the supervision of workmen, to burn them on the way, on either side of the track, to the fences or boundaries of the company's land on either side. To carry on this operation with safety, many things must be taken into account, and especially the course of the wind, when that is blowing; the fire must be set to windward of the track, which will interrupt its passage, and not be taken in the direction of the adjoining fields on the side where set, from which mischief and the destruction of property might ensue. There was some evidence, and enough, we think, to have carried the question to the jury, whether the failure of the company to remove, in this way, the dry grass and leaves from the place where the fire was shown to have been communicated, was or was not negligence, or an omission of duty on its part, for which it should be held to respond in damages to the plaintiff in this action. The duty of removing such inflammable materials from the way owned by the company, implies, as of course, that the company is to have reasonable time and opportunity for that

§ 72. Care required in running locomotive.-From the principles involved, it necessarily results that the company must not only keep its engines properly equipped with all available appliances to prevent damage by fires from sparks, but must also compel employees to such management and control of the fires on the locomotives as are most conducive to safety in the use of the dangerous element used for making motive power. For any carelessness by the company's employees in using the fire, cleaning the grates, emptying cinders from the engine, or otherwise, the company must be held answerable for any damage to property which may result.1

And even without such carelessness, the company may be

purpose, if the accumulation of such materials be unavoidable, or if not suffered or caused by the neglect of the company.

"The testimony fails to show that there was any other fit or feasible means of removing the combustible materials than by burning, to which the company should have resorted when that method became impracticable. The testimony does not clearly show that no reasonable opportunity had been presented for burning at that place, but it tends to show that, and, at the same time, to show that it was a place more than ordinarily exposed to danger from fire, and which on that account should have received the earliest attention practicable on the part of the workmen and servants of the company. On the whole, we are of the opinion that the testimony was such that it should have been submitted to the jury to say whether there was any negligence on the part of the company in this particular or not, and that the instruction under consideration should, for this reason, have been given." (Bass v. C. B. & Q. R. R. Co. 28 Ill. 17.) "And we hold, also, that it is negligence in a railroad company to suffer dry grass or rubbish to be on their right of way."

1 Where running in a place of peculiar exposure to fire, extra diligence is required of a railroad. (Fero v. B. & S. L. R. R. Co. 22 N. Y. 209; Rood v. N. Y. & E. R. R. Co. 18 Barb. 80; Field v. N. Y. C. R. R. Co. 32 N. Y. 339.)

Evidence of dropping coals on the track, and thereby causing fires, is proper for the jury. (Sheldon v. H. R. R. Co. 14 N. Y. 218; Hinds v. Barton, 25 N. Y. 544; Field v. R. R. Co. 32 N. Y. 339.)

"At a time of continued and extreme drouth, while a strong wind was blowing from the land of the defendant toward the adjoining woodland of plaintiff, coals were negligently dropped from one of defendant's engines, which set fire to a tie. The fire was communicated to an accumulation of weeds and grass and rubbish which defendant had suffered to gather by the side of its track; thence it spread to the fence, and on to plaintiff's woodland, burning and destroying his trees, etc. In an action for the damages, held that the questions as to whether the injury was a probable consequence of the negligent acts and omissions, were properly submitted to the jury, and that the evidence was sufficient to sustain a verdict for plaintiff. Also held that the question of negligence did not consist merely in suffering the coals to drop from the engine; but that that, together with the dryness of the atmosphere and earth, the strength and direction of the wind, the permitted accumulation of weeds, rubbish, and grass, were all constituents of the act, and went together to make it negligent."

FARM-6.

held responsible for damages from fire caused by sparks from locomotives, if it appear that the engine was being overworked to such an extent as to render futile the precautions usually employed to guard against the escape of sparks by appliances ordinarily sufficient to guard against that danger.

It has come to be a recognized fact that when trains are run at a high rate of speed, by brisk fires in the engines being maintained, the danger from the escape of sparks is correspondingly increased. It is not law, therefore, that trains should not be run rapidly; but, from the premises, it does result that the liability of the company for damages caused by fires from the engine is made greater in proportion to the increase of danger, and the precautions used must also be correspondingly increased.1

§ 73. Fires must be extinguished when discovered— If a fire be set by sparks from a locomotive, and the employees of the railroad company see or otherwise be made aware of the fact, they ought to take all proper and available means to pre

1 Hammond v. Southeastern Railw. Co. Maidstone Spring Assizes, 1845, before Lord Denman, cited in Redfield on Railways, Vol. 1, 454. "The testimony in this case showed that the danger of emitting sparks is very much increased by overtasking the engine, and that it may be altogether avoided by shutting off the steam in passing a place where there is danger from sparks, or that the danger may be guarded against by mechanical contrivances." (Henry v. S. P. R. R. Sup. Ct. Cal. Aug. 2, 1875.)

"The Court below properly refused a nonsuit. We think there was evidence tending to prove that the fire was not the probable result of the ordinary working of a locomotive under like circumstances, and, in such case, evidence that the fire was communicated from the engine is evidence of negligence sufficient to go to the jury.

"There was, however, evidence of specific negligence, in that there was evidence tending to prove that the particular engine was required to perform service which caused it to labor and emit more sparks than if a less number of cars had been attached to it." (Walford on Railways, 183, 184, and notes.)

T. P. & W. R. R. Co. v. Pindar, 53 III. 447. "Railroad companies are required to provide, and keep constantly in use and in proper repair, the most approved machinery to prevent the escape of fire from their engines, to the injury of property along their lines. If, notwithstanding the use of such machinery, sparks escape, and fire is thereby communicated to buildings, a company will not be deemed guilty of negligence unless the damage results from the neglect of some other duty. But even with the use of the best appliances to prevent the escape of fire, and sparks are produced to a dangerous extent, the company will be deemed guilty of gross negligence." (Chicago v. Quintance, 58 Ill. 389.) The use of wood in a coal-burning engine, in a dry and windy time, held to be indicative of gross negligence. (Chicago v. Quintance, 58 Ill. 389.)

vent the spread of the conflagration and damage thereby. If it be possible for men on the train to do so, they should put out the fire. They should even stop the train long enough to do so, when by so stopping they do not incur the danger of collision with other trains; and even if it is prudent or necessary for the train to move off, men should be left or sent back from the next station to put the fire out.

The duty is general upon the railroad company, by its employees, to take all the precautions to prevent injury to property of others which sensible, prudent persons would, under similar circumstances, use to prevent the communication of fire to their property.1

1 Cook v. C. T. Co. 1 Denio, 91; Field v. N. Y. C. R. R. Co. 32 N. Y. 339; Polke r. C. & N. R. R. Co. 26 Wis. 538, by Cole, J.: Among other instructions asked by the plaintiff, which the County Court refused to give, was one in substance to the effect that if the jury found from the evidence that the engine set a fire on the track of the roadway, on the day named, adjoining the premises of the plaintiff, and that the servants of the defendant, in charge of such engine and train, knew such fire to be so set and kindled, then the servants of the company were bound to use ordinary care and diligence to extinguish the fire; and if the servants of the defendant knew the fire was so set at or about the time it was so set, and used no efforts whatever to extinguish such fire, but went away and left it burning, such conduct on the part of the servants of the company was evidence of negligence, and ought to be taken into consideration in determining the question whether the train was managed with due care with regard to fire. We think the instruction should have been given. It appears that the train in question was a gravel train, engaged in the repair of the road-bed, and had about twenty-eight men on the train. And even if it had been prudent and necessary for the train itself to move off to the proper station as soon as it was unloaded, in order to avoid collision with other trains, what difficulty was there in leaving behind a sufficient number of men to put out the fire? It was a dry time in the summer, when a fire kindled upon the track of the road would very likely spread to the adjoining premises. Men of ordinary care would, under such circumstances, use proper diligence to prevent the fire from communicating to the property of others. And if, according to the hypothesis upon which the instruction is framed, the employees of the company knew that a fire had been kindled on the track by means of the locomotive, they were certainly bound to use ordinary care and diligence to extinguish it; and if they used no efforts whatever to extinguish it, but went away and left it burning, such conduct, we think, would amount to gross negligence.” These remarks are made with reference to the character and condition of the train in question. "In the case of an ordinary freight or passenger train, even if the employees knew the locomotive had kindled a fire upon the track, it might not be possible to stop the train and put it out, or leave behind any one for that purpose. The safety of the train and passengers would be a matter of first importance, and negligence could not necessarily be imputed if the servants left the fire burning, without using any efforts to extinguish it. But the instruction, when applied to the facts of the case, raises a very different question." So in Bass v. C. B. & Q. R. R. Co. 28 Ill. 19. A case in which sparks

§ 74. Proximate and remote damages by fire from locomotive. The fact that fire from a locomotive was not communicated directly to the property destroyed is no defense to an action for damages. If it appear that sparks have escaped, or fire-brands or coals have been thrown or dropped from an engine, and that thence fire has got out and spread, it will be of no avail for the company to claim that damage therefrom, for which an action will lie, must be confined to the immediate result upon the premises adjoining the roadway.

It being shown that the fire originated by reason of negligence, the fact that property destroyed is remote from the railroad, that the fire reached it only after passing through intervening lands, does not prevent the owner from recovering damages from the railroad company on the ground that the cause of loss is too remote.1

from a locomotive set fire to stubble in a wheat-field through which the road ran, and thence spread to plaintiff's wheat stacks. Plaintiff being away from his home, his neighbor tried to extinguish the flames, but could not, and called upon the employees of the company who were near; informed them that the field was on fire by sparks from one of the company's engines, and that, unless they helped him put the fire out, the stacks would be destroyed. The employees of the company refused to try to put the fire out, the stacks of grain were destroyed, and this action brought against the company for the value of the property lost by the fire. The Supreme Court gives its opinion in these words: "Railroad companies in some of the States maintain, at great expense, a regular, well drilled, and efficient police along the line of their roads, through cultivated places, to protect the interests of property-holders from injuries such as those described in this case. They feel and know, in the use of an element so destructive as fire, they ought to be bound to use the greatest precautions. What, then, shall be said of these men, who were on the spot of the fire, who refused to extinguish it, uninfluenced by their duty to their employers or by the common feelings of regard for the interests and property of another, which they should have manifested, and through which they could have saved valuable property from total destruction? It presents a case which will not bear favorable examination, and stamps these men with infamy and disgrace, and for whose conduct the defendant ought to suffer."

Shearman & Redfield on Negligence, 322: "It is the duty of the conductor of a train, not carrying passengers, nor pressed for time, to stop when the train has kindled a fire, and to extinguish it." (Bass v. Chicago Etc. R. R. Co. 28 III. 9; I. C. R. R. Co. v. Mills, 42 Ill. 407; Piggott v. E. C. R. R. Co. 3 C. B. 229; Fitch v. P. R. Co. 45 Mo. 322; Bedford v. H. R. Co. 46 Mo. 456; Spaulding v. C. R. Co. 30 Wis. 110; Case v. N. R. R. Co. 59 Barb. 644.)

1 Kellogg v. C. & N. W. R. R. Co. 26 Wis. 223; Perley v. Eastern R. R. Co. 98 Mass. 417. "Under the instructions, the jury must have found that the fire which destroyed the plaintiff's property proceeded from defendant's locomotive, and came in a direct line, and without any break, to the plaintiff's property. But in reaching plaintiff's land it went across the land of three or four different