It has been claimed that where a fire has, by a locomotive, been set at or near the roadway, a spread of it thence may result from an increased wind, by accidental circumstances, such as accumulations of inflammable materials upon premises not under the control of the company, and for the presence of which the company could not be held responsible, and that, therefore, the business of running locomotives being lawful, railroad companies ought to be held only for proximate, and not remote results, from the escape of fire, and such reasoning is not entirely without foundation upon principle and precedent.1

§ 75. Railway companies liable for damage by spread of fire. The general tenor of the later decisions is against the railroad companies, upon the proposition of their liability being confined to the immediate damage by fire from locomotives, and the maxim, causa proxima non remota spectatur, is not controlled by time or distance, nor by the succession of events. An efficient, adequate cause being found, whence the damage has ensued, such must be considered the true cause, unless some

parties, which lay between plaintiff's land and the railroad track, and the distance to the plaintiff's land was about half a mile. It was fed, on its way, by grass, stubble, and woodland. The defendants contend that they are not liable for this injury, because it was remotely, not proximately, connected with the escape of the fire from their engine. But it was none the less communicated from the engine because the intermediate land belonged to other persons, nor because the distance was half a mile. If the land had all belonged to plaintiff, and had extended a mile, it would be diffcult to establish a line on his land, and to hold that the statute gives him no remedy for the damage happening beyond that line. Nor does the fact that there are several owners make the damage to the plaintiff remote, in the sense in which that term is used, as contradistinguished from 'direct' and 'immediate.'"

1 Ryan v. N. Y. Central Railroad Company, 35 N. Y. 210. In this case, by careless management of its engine, in the city of Syracuse, defendants set fire to their own wood-shed; thence the fire spread to plaintiff's house, a distance of one hundred and thirty feet, the heat and sparks from the burning shed setting fire to the house. The Court held that the company could not be held for the loss of the house; that if it could, it might be made an insurer of the whole city, and that the remoteness of the danger forms the true rule on which the question should be decided, and that the company could only be held for the immediate result from carelessness, negligence, or mismanagement.

Penn. R. R. Co. v. Kerr, 62 Penn. St. 353, in which, by negligence, fire was set to a warehouse, and thence spread to and consumed plaintiff's hotel. It was held that the company were not liable for the loss of the latter. That every one has to take the risks of the vicissitudes of organized society, and that because of the act of negligence the first building was set fire to, does not make the company liable for all consequences.

other, independent of and not incidental to it, can be shown to have intervened between it and the result. The maxim includes liability for all injuries which naturally result from the wrongful act of omission or commission, and the company must take their precautions, and make them extreme, to guard against the escape of fire from their engines, having in view the fact that they are to be held liable, not only for such loss as may immediately ensue, but also all such as are likely to result from any neglect or mismanagement in the construction or use of their engines.1

§ 76. Must the farmer guard against fire from locomotives?-That he must do so may appear from the recognition of the right of the company to use engines, the escape of fire from which is a danger too obvious to be overlooked by any

1 Safford v. B. & M. R. R. 103 Mass. 583. In this case a fire was set by sparks from a locomotive to wood piled against a freight depot at a village station; the freight-house and contents were soon in a blaze, the wind rose and blew cinders and sparks from the burning depot to plaintiff's dwelling-house, a distance of nearly 1,600 feet, set fire to and destroyed it. Held, that the railroad company was liable for the loss of the plaintiff's house. (Hart v. W. R. R. Co. 13 Met. 99; Perly v. E. R. R. Co. 98 Mass. 414; Quigley v. S. & P. R. R. Co. 8 Allen, 438– 40; Tulerville v. Stampe, 1 Ld. Raym. 264; Hooknett v. C. R. R. Co. 38 N. H. 242.) In Kellogg v. C. & N. W. R. R. Co. 26 Wis. 238, the cases of Ryan v. N. Y. C. R. R. Co. 35 N. Y. and Penn. R. R. Co. v. Kerr, 62 Penn. St. 353, are commented upon, examined, and disapproved, while the converse of the proposition therein stated is held to be law, and Perley v. E. R. R. Co. 98 Mass. 414, is approved and followed, and in Perley . E. R. R. Co. these cases from New York and Pennsylvania are mentioned with disapproval and dissent. (Henry v. S. P. R. R. Sup. Ct. Cal. Aug. 2, 1875.)

2.

"It is said that the nonsuit should have been granted, inasmuch as the fire was not kindled in plaintiff's field, but in the field of one Cagney, an adjoining proprietor, from which it extended into the field of the plaintiff. The legal proposition involved in the foregoing statement is, that if by negligence a fire shall commence on the premises of one proprietor and spread from thence to those of another, the latter shall never have his action against him guilty of the negligence. We think this proposition cannot be maintained; to refute it, it is not necessary to establish the counter proposition, that the adjoining proprietor thus injured shall always recover; it may be assumed, perhaps, that a city fire which has its origin in one building will not ordinarily extend throughout a block, and yet a jury may be justified in saying, when a fire is started in a field which constitutes a portion of a larger tract of dry grass or corn fully ripe, that it will usually be driven into another field, from which the first is separated only by a fence of boards. It is a rule, applicable to all cases of mere negligence, that the wrongdoer is liable for proximate and not for remote consequences of his fault." "We are still confident, considering the long, dry season of California, and the prevalence of certain winds in our valleys, that it may be left to a jury to determine whether the spreading of a fire from one field to another is not the natural, direct, or proximate consequence of the original firing."

prudent man in the ordinary conduct of his affairs. Thus, if it is negligence for a railroad company to leave dry grass and rubbish to accumulate upon the road-bed and the adjoining lands of the company, it is not clearly apparent why it is not also negligence for the farmer to permit such accumulations to occur on his premises, immediately adjoining, and subject to the same casualty, and be such contributory negligence as to prevent a recovery by him of damages for loss by fire so occasioned.1 That one may so use his land as though there was no railroad

1 "Where the carelessness of the plaintiff, as well as that of the defendant, operated directly to produce the injury complained of, the plaintiff has no right to recover; and, in a case where the defendant is entitled to and requests a charge to that effect, the refusal or neglect of the Court to so instruct the jury, in unambiguous terms, is error, for which a judgment in favor of the plaintiff will be reversed." (R. R. Co. v. Kiechbairns, 63 Ill. 119.) Dissenting opinion of Paine, J., in Kellogg v. C. & N.W. R. R. Co. 26 Wis. 241, in which it is said that, as it would be but little trouble for a farmer to plow a few furrows next the line of the road, and to do so would furnish a cheap and natural preventive to the spread of fire; and so soon as it is established to be negligence in a railroad company to leave the dry grass and weeds upon its lands-because, if a fire should occur, it might run across the adjoining owner's stubble-field, and reach his buildings-it follows necessarily that, if plowing a narrow strip on those fields would prevent the loss, and he, after knowledge of the danger, neglects to plow it, he should be held guilty of a want of ordinary care. To say that he should have taken that precaution does not deprive him of the ordinary or beneficial use of his property. It does not impose on him any burden or serious inconvenience. It is usual for farmers to plow their land in the fall. Plowing is an effectual preventive of the spread of fire, and it could hardly be matter of serious consequence to a farmer whether he plowed a strip sufficient for this purpose at one time or another. To determine the degree of negligence in such cases, regard should be had to the facility and effectiveness of the means of prevention which the parties respectively possess; and I think it more clear that an owner, whose buildings are only endangered by reason of the liability of fire to run a half mile across his stubble-fields to reach them, is guilty of negligence if he neglects the simple precaution of plowing a strip sufficiently wide to prevent it, which he might do without any serious burden or inconvenience, than that the railroad company was negligent in not removing the entire dry grass and weeds upon its line, which, as already suggested, could only be done at so great an expense as to make it really impracticable. (Henry v. R. R. Co. 30 Vt. 638; Norris r. R. R. Co. 28 Vt. 99; Horstman v. R. R. Co. 18 B. Mon. 218.)

The propositions are not wholly void of merit that farmers along the line of railways cannot, without negligence, make precisely the same uses of all parts of their land, which might be made without negligence in lands remote from such roads; that persons who enjoy the advantages of these new agents of civilization must bear the burden, in part, of the increased care required to guard against the dangers which they necessarily create; and that the compensation paid by the railway company for the right of way must be assumed to have included payment for such increased care on the land-owner's part. (Angell on Carriers, 489; Babcock v. R. R. Co. 9 Met. 553; Norris v. R. R. Co. 28 Vt. 99; Boothby v. R. R. Co. 51 Me. 318; R. R. Co. v. Parramore, 31 Ind. 143.)

adjoining, and no danger reasonably to be apprehended from fire from locomotives, does not appear to be wholly consistent with the rights of the company to use fire upon their engines, it being conceded that if the company use all the best appliances to prevent the escape of fire, and are careful and prudent in the management of their engines, they are not responsible for damages which occur, notwithstanding the exercise, on the part of the company, of all due precautions.

§ 77. Farmers not compelled to guard against fire.—The general tenor of ruling by the Courts, of late years, has been to the effect that farmers whose lands lie near to or adjoining railroads may cultivate and use them in the manner which is customary among their neighbors, and may recover for damages caused by fire from sparks or coals from passing locomotives, although they have not plowed up the stubble of their grainfields, or burned over the lands, or plowed strips of land adjoining the track, or taken other unusual means to guard against negligence on the part of the company. It is not negligence— such as would bar an action for recovery against a railroad company-for a farmer to leave the grass and stubble standing on his pasture or grain-field, along the side of which is a railway track. When the fire is lighted on his land by sparks from an engine, the farmer cannot stand by and let it burn without doing what he reasonably may to protect his property; but where the danger is not seen, but is only anticipated as a possibility merely, or is dependent on the continuance of an observed negligence on the part of the railroad employees, the farmer is not bound to protect himself by unusual precautions, such as plowing, burning over, or otherwise. One who is in the exercise of his lawful business has a right to presume that other persons will so conduct their business as not to interfere with or injure him, and it is not negligence for such a person to assume that he is not exposed to danger which can only affect him through a disregard of law on the part of some other person or a railroad company.1

1 Flinn v. S. F. & S. J. R. R. Co. 40 Cal. 14. In this case, the plaintiff was in possession of a piece of land, one portion of which was cultivated in wheat, and another portion was used for pasturage. At the time of the injury complained

of, the wheat had been cut, and stood in stacks on the land where it had been grown. The stubble on the grain land and the grass on the pasture were very dry. There were no furrows plowed, or land in any way cleared from inflammable material in the field along the line of the lands of the railway. The grass and weeds along the railroad had been cut and left upon the ground, and had become very combustible. The defendant's engines were provided with the best and most approved apparatus for preventing the escape of sparks; but as a construction train passed along plaintiff's lands, the engine dropped sparks, which ignited the grass and weeds along the track, and a high wind swept the fire through the fence, over the pasture land and stubble-field, to the grainstacks, and the stacks were entirely consumed by the fire. In the action against the company for the damage done, the Court below held that, although the company was at fault in the condition of its road, the plaintiff himself was at fault in failing to take ordinary precautions to prevent fire, which might unavoidably break out from spreading to his wheat-stacks; that this neglect of plaintiff contributed to the injury complained of, as much as the negligence of the defendant in omitting to clear its road of the weeds and grass which had been cut upon it, and that, therefore, no recovery should be had. The Supreme Court, however, held this ruling to be error, and, because of that error, reversed the judgment, saying: "No one is required to take any precautions against unavoidable or inevitable accidents; for the precautions which could not avert the injury would be futile. Nor is the ignition of combustible material lying on the track of a railroad, by sparks dropped by a passing engine, unavoidable accident. The removal of the combustible matter from the road is an obvious and sure precaution. The rule releasing the defendant from responsibility for damages, because of the negligence of the plaintiff, is limited to cases where the act or omission of the plaintiff was the proximate cause of the injury. The negligence in this case, which was the proximate cause of the destruction of the plaintiff's grain, was the leaving of the dry grass and weeds upon the railroad, where they were liable to be set on fire by sparks falling from passing engines. It was not negligence, in a legal sense, for the plaintiff to leave the grass and stubble standing on his pasture and grain-field. He was not required to destroy or remove either, in order to obviate the consequences of the possible or even probable negligence of the defendant."

Richmond v. Sacramento Etc. R. R. Co. 18 Cal. 357.

Tuff v. Warman, 5 C. B. N. S. 573; Fitch v. P. R. R. Co. 45 Mo. 322. "If the conduct of a railroad company's agents was the immediate cause of fire spreading from a locomotive, and if, with the exercise of prudence and the use of proper appliances on their part, the result might have been prevented, the company is not excused from liability by some remote negligence in the plaintiff; such as that he carelessly left grass in the fence-corners adjacent to the road, whereby the fire was kindled. Such carelessness, not being the proximate cause of the loss, is not contributory negligence which will excuse the company."

Robinson v. W. P. R. R. Co. 48 Cal. 409; Cleveland v. R. R. Co. 8 O. R. 570; Shearman & Redfield on Negligence, 29.