Breese, J.
This was an action on the case, against a railroad company for negligence. First, in negligently and carelessly suffering the fire from the engine, while running upon their road, to be communicated to the dry grass on their right of way, and from that to the adjoining stubble of the plaintiff, and through that to his wheat stacks, by which they were fired and totally consumed, twenty servants of the defendants standing by, whilst the fire was raging, and before it reached the stacks, and being duly notified of the fact, and requested to extinquish the fire refused to do so, or to make any effort thereto, but suffered the fire to pursue its course and destroy the wheat stacks. Second, that immediately after the fire had escaped from the engine to the dry grass and stubble, and whilst the servants of the defendant were very near to the fire, and before the fire had reached the wheat stacks, a neighbor of the plaintiff, one Belden, then and there informed those servants that the fire was communicated from1 the engine of the defendant, and that the plaintiff and his servants were absent from home, and had no knowledge of the fire, and that the fire would burn the plaintiff’s wheat stacks unless they, the said servants, extinguished it, and that from their force and proximity to the fire, they could easily have extinguished the same and saved the wheat stacks, alleging that it was their duty so to have done. That Belden, who gave the information to the defendant’s servants, was unable by any personal effort of his own, or by any assistance within his reach, to extinguish the fire, requested these servants of the company to extinguish it, and save the stacks, but that they, well knowing the premises, culpably and negligently permitted the fire so communicated, to run its course through the stubble to the wheat stacks, whereby the same was destroyed and totally lost to the plaintiff; that neither he, the plaintiff, nor any of his servants, were present, or had any knowledge of the fire until it had communicated with his wheat stacks. And Third, that it was the duty of the defendant to keep his right of way, when the same adjoined the stubble field of the plaintiff, free from dry grass, so that fire would not communicate from locomotives running on the road to dry grass, and through that to-the plaintiff’s stubble; but that the defendant, well knowing the premises, omittted to do its duty in this behalf, and then and there negligently suffered the strip of land where it adjoined the stubble field of the plaintiff, to become foul with dry grass, and whilst a locomotive and train of cars in charge of the defendant’s servants were being run through the plain tiff’s farm on the railroad, the fire communicated from the locomotive to this dry grass, and through it to the plaintiff’s stubble, and thence through the stubble to the plaintiff’s wheat stacks, whereby the same were consumed and totally lost to him.
There was a demurrer to the declaration, admitting all the facts alleged in it, and the question is presented, do they, or any of them, constitute a good cause of action? The question is an important one, not only to the railroad companies in this State, now become a great interest, but to the community at large, and it has received our most serious consideration. *
Several of the States have statutes upon the subject of the liability of railroad companies for fires communicated by their engines, and their courts have established rules of decision, more or less stringent, as their views of justice and policy dictated. Whilst our legislature have provided for the recovery of damages for a death caused by the wrongful act, neglect or default of a railroad company, they have not provided for losses occasioned by fire, nor have any rules been established by this court upon the subject. This case is one of the first impression, and must be governed by the rules and principles of the common law, so far as they may be applicable to our condition.
The first question that arises is, does the mere fact of fire escaping from a locomotive, by which property is destroyed, imply negligence ?
At an early period in the history of railroads, it was settled by the courts of Great Britain upon great consideration, that the fact of premises being fired by sparks emitted from a passing engine, vas prima facie evidence of negligence on the part of the company, making it incumbent on them to show that proper precautions had been adopted by them, reasonably calculated to prevent such accidents.
There seems to us great good sense in the remarks of Tindall, Ch. J., in the case of Pigott v. Eastern Counties Railway Company, 3 Common Bench Reports, 229. He said: “ The defendants are a company entrusted by the legislature with an agent of an extremely dangerous and unruly character, for their own private and particular advantage; and the law requires of them that they shall, in the exercise of the rights and powers so conferred upon them, adopt such precautions as may reasonably prevent damage to the property of third persons, through or near which their railway passes. The evidence in this case was abundantly sufficient to show that the injury of which the plaintiff complains, was caused by the emission of sparks, or particles of ignited coke coming from one of the defendant’s engines; and there was no proof of any precaution adopted by the company to avoid -such a mischance. I therefore think the jury came to a right conclusion in finding that the company were guilty of negligence, and that the injury complained of was the result of such negligence.”
A rule not so stringent as this, has been established by the courts of several States, based upon the principle, that as the business of railways is lawful, no presumption of negligence arises, merely from the fact of fire being communicated by their engines. The principle is, that the plaintiff must aver and prove the negligence of the defendant.
"We think there is great justice in the English rule, and are inclined to adopt it as. most conducive to the safety of property on our lines of railroad, extending as they do through vast prairies, filled, at certain seasons of the year, with dry grass of a highly inflammable nature. And we hold also, that it is negligence in a railroad company to suffer dry grass and rubbish to be upon their right of way, or permit vegetation of any kind to grow upon it to such a height and density as would conceal animals which might be upon it. It is their duty to keep their entire right of way well cleared and free from everything which might obstruct the driver’s view and prevent the discovery of animals upon it, which, by being frightened by the noise of the engine, might suddenly come upon the track and throw off the train, occasioning thereby the loss of limb or life to passengers upon it.
Negligence ought to be implied from the escape of fire, and the onus should be upon the company against which an action is brought for such negligence, to show that all the most approved mechanical contrivances were used upon the engine to prevent its escape. Locomotives in which wood is used for fuel, are liable to emit sparks, sometimes in great volume, and they are carried, in a windy day or night, a great distance. It is incumbent therefore, on the companies, to use the greatest precaution, so as to secure the engines against emitting sparks. If they send an element abroad, in a cultivated country, so destructive and devastating in its nature as fire, they ought to be responsible for the mischief it produces.
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Breese, J.
This was an action on the case, against a railroad company for negligence. First, in negligently and carelessly suffering the fire from the engine, while running upon their road, to be communicated to the dry grass on their right of way, and from that to the adjoining stubble of the plaintiff, and through that to his wheat stacks, by which they were fired and totally consumed, twenty servants of the defendants standing by, whilst the fire was raging, and before it reached the stacks, and being duly notified of the fact, and requested to extinquish the fire refused to do so, or to make any effort thereto, but suffered the fire to pursue its course and destroy the wheat stacks. Second, that immediately after the fire had escaped from the engine to the dry grass and stubble, and whilst the servants of the defendant were very near to the fire, and before the fire had reached the wheat stacks, a neighbor of the plaintiff, one Belden, then and there informed those servants that the fire was communicated from1 the engine of the defendant, and that the plaintiff and his servants were absent from home, and had no knowledge of the fire, and that the fire would burn the plaintiff’s wheat stacks unless they, the said servants, extinguished it, and that from their force and proximity to the fire, they could easily have extinguished the same and saved the wheat stacks, alleging that it was their duty so to have done. That Belden, who gave the information to the defendant’s servants, was unable by any personal effort of his own, or by any assistance within his reach, to extinguish the fire, requested these servants of the company to extinguish it, and save the stacks, but that they, well knowing the premises, culpably and negligently permitted the fire so communicated, to run its course through the stubble to the wheat stacks, whereby the same was destroyed and totally lost to the plaintiff; that neither he, the plaintiff, nor any of his servants, were present, or had any knowledge of the fire until it had communicated with his wheat stacks. And Third, that it was the duty of the defendant to keep his right of way, when the same adjoined the stubble field of the plaintiff, free from dry grass, so that fire would not communicate from locomotives running on the road to dry grass, and through that to-the plaintiff’s stubble; but that the defendant, well knowing the premises, omittted to do its duty in this behalf, and then and there negligently suffered the strip of land where it adjoined the stubble field of the plaintiff, to become foul with dry grass, and whilst a locomotive and train of cars in charge of the defendant’s servants were being run through the plain tiff’s farm on the railroad, the fire communicated from the locomotive to this dry grass, and through it to the plaintiff’s stubble, and thence through the stubble to the plaintiff’s wheat stacks, whereby the same were consumed and totally lost to him.
There was a demurrer to the declaration, admitting all the facts alleged in it, and the question is presented, do they, or any of them, constitute a good cause of action? The question is an important one, not only to the railroad companies in this State, now become a great interest, but to the community at large, and it has received our most serious consideration. *
Several of the States have statutes upon the subject of the liability of railroad companies for fires communicated by their engines, and their courts have established rules of decision, more or less stringent, as their views of justice and policy dictated. Whilst our legislature have provided for the recovery of damages for a death caused by the wrongful act, neglect or default of a railroad company, they have not provided for losses occasioned by fire, nor have any rules been established by this court upon the subject. This case is one of the first impression, and must be governed by the rules and principles of the common law, so far as they may be applicable to our condition.
The first question that arises is, does the mere fact of fire escaping from a locomotive, by which property is destroyed, imply negligence ?
At an early period in the history of railroads, it was settled by the courts of Great Britain upon great consideration, that the fact of premises being fired by sparks emitted from a passing engine, vas prima facie evidence of negligence on the part of the company, making it incumbent on them to show that proper precautions had been adopted by them, reasonably calculated to prevent such accidents.
There seems to us great good sense in the remarks of Tindall, Ch. J., in the case of Pigott v. Eastern Counties Railway Company, 3 Common Bench Reports, 229. He said: “ The defendants are a company entrusted by the legislature with an agent of an extremely dangerous and unruly character, for their own private and particular advantage; and the law requires of them that they shall, in the exercise of the rights and powers so conferred upon them, adopt such precautions as may reasonably prevent damage to the property of third persons, through or near which their railway passes. The evidence in this case was abundantly sufficient to show that the injury of which the plaintiff complains, was caused by the emission of sparks, or particles of ignited coke coming from one of the defendant’s engines; and there was no proof of any precaution adopted by the company to avoid -such a mischance. I therefore think the jury came to a right conclusion in finding that the company were guilty of negligence, and that the injury complained of was the result of such negligence.”
A rule not so stringent as this, has been established by the courts of several States, based upon the principle, that as the business of railways is lawful, no presumption of negligence arises, merely from the fact of fire being communicated by their engines. The principle is, that the plaintiff must aver and prove the negligence of the defendant.
"We think there is great justice in the English rule, and are inclined to adopt it as. most conducive to the safety of property on our lines of railroad, extending as they do through vast prairies, filled, at certain seasons of the year, with dry grass of a highly inflammable nature. And we hold also, that it is negligence in a railroad company to suffer dry grass and rubbish to be upon their right of way, or permit vegetation of any kind to grow upon it to such a height and density as would conceal animals which might be upon it. It is their duty to keep their entire right of way well cleared and free from everything which might obstruct the driver’s view and prevent the discovery of animals upon it, which, by being frightened by the noise of the engine, might suddenly come upon the track and throw off the train, occasioning thereby the loss of limb or life to passengers upon it.
Negligence ought to be implied from the escape of fire, and the onus should be upon the company against which an action is brought for such negligence, to show that all the most approved mechanical contrivances were used upon the engine to prevent its escape. Locomotives in which wood is used for fuel, are liable to emit sparks, sometimes in great volume, and they are carried, in a windy day or night, a great distance. It is incumbent therefore, on the companies, to use the greatest precaution, so as to secure the engines against emitting sparks. If they send an element abroad, in a cultivated country, so destructive and devastating in its nature as fire, they ought to be responsible for the mischief it produces. There is no hardship in this, nor in the other requirement, that they shall keep no combustible matter on their roadway, nor any vegetation whose height and thick growth might obstruct the view of the engine driver, for in the one case mechanical ingenuity has provided safeguards, and in the other, a few hours’ labor, properly directed, can keep the track and road clear.
It is no answer to say that the plaintiff should have kept his stubble field clear of combustible matter. There was no obligation on him to do so, for it is considered good farming, and is the uniform custom of the country, to suffer it to remain until the proper time arrives for turning it under by the plow; and it is also a very common custom, in this State, for farmers to stack their grain in the field in which it grew. No negligence, then, can be imputed to the plaintiff in either of these respects.
But the case is greatly aggravated on the part of the defendant, by the facts so distinctly charged, that while the fire was in progress through the stubble field, twenty servants of the defendant were at hand who were notified the fire came from a locomotive of the defendant, and who were in a condition to arrest and extinguish it before it reached the stacks, and his servants were absent, without any knowledge of the disaster, and who were specially requested'to interfere and extinguish the fire, they having the present ability to extinguish it, and which they refused to do. The plea set up by the defendant for the refusal is so absurd as to be unworthy of notice, any farther than to stamp it as unworthy of civilized and Christian men. They had no right, forsooth, to enter upon the premises for such a purpose! Has it come to this, that citizens of this community are not permitted to enter the premises of another, whose house or barn is on fire, to extinguish the flames? Is any license necessary for a purpose so benevolent? Would not savages, prompted by their own instincts, rush to the rescue of property so endangered? It is sad and humiliating to contemplate the fact, that employees of a railroad company, acting under a charter granted by this State, should be so lost to all the calls of benevolence and kindness—to all the common instincts of the most ordinary humanity, as to refuse to aid in extinguishing a fire, which their own employers, by their negligence, had originated, which threatened the destruction of valuable property, and which they had the power to prevent. We are shocked at the exhibition of such heartless, such criminal indifference, and can find no apology for it. The facts are admitted by the demurrer, and stand out in bold relief condemnatory of the defendant.
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 disgrace and infamy, and for whose conduct the defendant ought to suffer.
We are of opinion the demurrer should have been overruled, as the declaration is good in form and substance, and makes out a prima facie case against the defendant. The judgment of the court below is reversed, and the cause remanded, with liberty to the defendant to plead issuably.
Catón, C. J., and Walker, J. We do not believe the question of the duty of railroad companies to prevent the growth of weeds upon their track, is presented by this record, and decline giving any opinion upon that question.