CLIFFORD, Circuit Justice.
Since the case was entered here, the same has been fully argued, the error assigned being that the district court erred in directing a verdict for the defendant. Instead of that, the proposition is, that, inasmuch as the evidence was in its nature legally admissible, its sufficiency to prove the issue was for the jury, and it was error in the presiding justice to withdraw it from their consideration. Authorities undoubtedly may be found, in which it is held that it is necessary in all cases to leave the question to the jury, if there is any evidence, even a scintilla, in support of the issue; but it is now well-settled law that the question for the judge in such a case is not whether there is literally no evidence to support the issue, but whether there is none that ought reasonably to satisfy the jury that ■ the fact sought to be proved is established. Ryder v. Wombwell, L. R. 4 Exch. 39. Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant a jury in finding a verdict in favor of .that party. Giblin v. McMullen, L. R. 2 P. C. 335.
Most of the modern decisions are in accord with the views expressed in that case, and they show the rule to be that there is, or may be, in every case, before the question is left to the jury, a preliminary question for the judge, not whether there is literally no evidence to support the issue, but whether there is any upon which the jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. Jewell v. Parr, 13 C. B. 916; Toomey v. London, B. & S. C. Ry. Co., 3 C. B. (N. S.) 150; Wheelton v. Hardisty, 8 El. & Bl. 266; Schuchardt v. Allens, 1 Wall. [68 U. S.] 369; Merchants’ Bank v. State Bank, 10 Wall. [77 U. S.] 637; Schuylkill & D. Imp. & R. Co. v. Munson, 14 Wall. [81 U. S.] 448; Pleasants v. Fant, 22 Wall. [89 U. S.] 120. Under that rule it is clear that the ruling of the district court was. correct, unless the views of the plaintiff can be sustained in regard to the causes of action set forth in the fifth and sixth counts of the declaration. Prima facie, a municipal corporation is liable for the trespass or wrongful acts of their officers; but it may become liable under special circumstances, as where the act, if not wholly ultra vires, was expressly authorized by the governing body of the corporation, or where, without special authority, it was done by its officers in the scope of their duties or employment, • and has been ratified by the corporation. Municipal corporations, or certain officers thereof, are sometimes appointed, by charter or statute, agents to judge of an emergency and to perform or direct the performance of acts which a private individual would do at his peril. Acts authorized to be done to prevent the spreading of fire may be put as an example of the kind. Officers of such corporations are accordingly sometimes authorized to pull down or destroy buildings to stay the progress of fire, and such corporations are in certain cases and under certain conditions made liable by statute for the value of the property injured or destroyed for the purpose; but the liability of the municipal corporation in such a case is purely statutory, and never existed at common law. Hence, in order to recover for such a claim, the case must be clearly proved, and be fairly brought within the statutory provision. Consequently it is decided that, where the statute allows such a recovery only when a building is demolished by the order of three firewards, a destruction of it by the order of one of those officers will [1045]*1045create no liability against the corporation. Engineers in this state have the same authority in regard to the prevention and ex-tinguishment of fires, and the performance of other offices and duties in respect thereto, as firewards, and the same rule applies in determining whether or not the corporation is liable for their acts. Gen. Acts, 1850, c. 262, § 3; Gen. St. p. 181, c. 24, § 41.
Claims of the kind, whether the property was injured or destroyed by the act of the firewards or engineers, must be brought strictly within the statute creating the liability, or the corporation will not be held responsible. Statutes of the kind cannot be modified by a by-law, as, for example, where the statute allowed such an order to be given by three firewards, and the by-law authorized one to exercise it in urgent cases, the supreme court of- Massachusetts held that the by-law was void; that the injured party could not recover. Coffin v. Nantucket, 5 Cush. 271. In order to charge the corporation in such a case, the remedy being given only by statute, the case must be brought clearly within the true intent and meaning of the provision creating the liability. Taylor v. Plymouth, 8 Metc. [Mass.] 465; Hafford v. New Bedford, 16 Gray, 302.
Houses or buildings situate at a place in immediate danger from a fire may, by the order of three firewards, be pulled down or demolished, when they judge the. same to be necessary in order to prevent the spreading of the fire. Property within such a house or building, it may be admitted, is within the scope and meaning of the provision, and the succeeding section provides that the owner shall be entitled to- recover a reasonable compensation from the city or town, if such pulling down or demolishing of the house or building was the means of stopping the fire, or if the fire stopped before it came to the same, unless the house or building pulled down or demolished was the one in which the fire first broke out, in which event the provision is that the owner shall receive no compensation. Gen. St p. 176, c. 24, § 5. Cities and towns are liable to that extent and under those conditions, and not otherwise. Unless, therefore, the evidence' offered by the plaintiff at the trial brings his case within those provisions, he cannot recover in this action. Such an action cannot be maintained unless it appears that the house or building was pulled down or demolished by the order of three firewards or three engineers, or by the joint order of some one of the other classes of officers named in section 4 of that act.
Much discussion of that question is unnecessary, as it has already been decided by the supreme court of the state. “The plain intent of the statute is that no house or building shall be demolished unless it shall be judged necessary by three firewards, or by the other officers authorized to act in their absence, or where no firewards have been appointed.” Ruggies v. Nantucket, 11 Cush. 436. Nothing is left for construction, since that decision, in disposing of the cause of action set forth in the first four counts in this case, as the court there say, “It is the united judgment of the officers to whom the power is given, acting upon the immediate exigency, and determining the necessity which is contemplated by the statute. Its language is capable of no other reasonable interpretation. It is a joint authority expressly given to the officers designated, acting together, and cannot be exercised by a minority or by any one of them,” and the court add, what it is important to observe, that it is not sufficient that a general conclusion or judgment was arrived at by three firewards, or the other officers mentioned, that it was necessary to destroy some buildings in order to put a stop to the further extension of a fire. They must go further. They must determine upon the particular house or building which they shall adjudge necessary to be destroyed for the purpose, as this cannot be left to the individual judgment of any one of the firewards.
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CLIFFORD, Circuit Justice.
Since the case was entered here, the same has been fully argued, the error assigned being that the district court erred in directing a verdict for the defendant. Instead of that, the proposition is, that, inasmuch as the evidence was in its nature legally admissible, its sufficiency to prove the issue was for the jury, and it was error in the presiding justice to withdraw it from their consideration. Authorities undoubtedly may be found, in which it is held that it is necessary in all cases to leave the question to the jury, if there is any evidence, even a scintilla, in support of the issue; but it is now well-settled law that the question for the judge in such a case is not whether there is literally no evidence to support the issue, but whether there is none that ought reasonably to satisfy the jury that ■ the fact sought to be proved is established. Ryder v. Wombwell, L. R. 4 Exch. 39. Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant a jury in finding a verdict in favor of .that party. Giblin v. McMullen, L. R. 2 P. C. 335.
Most of the modern decisions are in accord with the views expressed in that case, and they show the rule to be that there is, or may be, in every case, before the question is left to the jury, a preliminary question for the judge, not whether there is literally no evidence to support the issue, but whether there is any upon which the jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. Jewell v. Parr, 13 C. B. 916; Toomey v. London, B. & S. C. Ry. Co., 3 C. B. (N. S.) 150; Wheelton v. Hardisty, 8 El. & Bl. 266; Schuchardt v. Allens, 1 Wall. [68 U. S.] 369; Merchants’ Bank v. State Bank, 10 Wall. [77 U. S.] 637; Schuylkill & D. Imp. & R. Co. v. Munson, 14 Wall. [81 U. S.] 448; Pleasants v. Fant, 22 Wall. [89 U. S.] 120. Under that rule it is clear that the ruling of the district court was. correct, unless the views of the plaintiff can be sustained in regard to the causes of action set forth in the fifth and sixth counts of the declaration. Prima facie, a municipal corporation is liable for the trespass or wrongful acts of their officers; but it may become liable under special circumstances, as where the act, if not wholly ultra vires, was expressly authorized by the governing body of the corporation, or where, without special authority, it was done by its officers in the scope of their duties or employment, • and has been ratified by the corporation. Municipal corporations, or certain officers thereof, are sometimes appointed, by charter or statute, agents to judge of an emergency and to perform or direct the performance of acts which a private individual would do at his peril. Acts authorized to be done to prevent the spreading of fire may be put as an example of the kind. Officers of such corporations are accordingly sometimes authorized to pull down or destroy buildings to stay the progress of fire, and such corporations are in certain cases and under certain conditions made liable by statute for the value of the property injured or destroyed for the purpose; but the liability of the municipal corporation in such a case is purely statutory, and never existed at common law. Hence, in order to recover for such a claim, the case must be clearly proved, and be fairly brought within the statutory provision. Consequently it is decided that, where the statute allows such a recovery only when a building is demolished by the order of three firewards, a destruction of it by the order of one of those officers will [1045]*1045create no liability against the corporation. Engineers in this state have the same authority in regard to the prevention and ex-tinguishment of fires, and the performance of other offices and duties in respect thereto, as firewards, and the same rule applies in determining whether or not the corporation is liable for their acts. Gen. Acts, 1850, c. 262, § 3; Gen. St. p. 181, c. 24, § 41.
Claims of the kind, whether the property was injured or destroyed by the act of the firewards or engineers, must be brought strictly within the statute creating the liability, or the corporation will not be held responsible. Statutes of the kind cannot be modified by a by-law, as, for example, where the statute allowed such an order to be given by three firewards, and the by-law authorized one to exercise it in urgent cases, the supreme court of- Massachusetts held that the by-law was void; that the injured party could not recover. Coffin v. Nantucket, 5 Cush. 271. In order to charge the corporation in such a case, the remedy being given only by statute, the case must be brought clearly within the true intent and meaning of the provision creating the liability. Taylor v. Plymouth, 8 Metc. [Mass.] 465; Hafford v. New Bedford, 16 Gray, 302.
Houses or buildings situate at a place in immediate danger from a fire may, by the order of three firewards, be pulled down or demolished, when they judge the. same to be necessary in order to prevent the spreading of the fire. Property within such a house or building, it may be admitted, is within the scope and meaning of the provision, and the succeeding section provides that the owner shall be entitled to- recover a reasonable compensation from the city or town, if such pulling down or demolishing of the house or building was the means of stopping the fire, or if the fire stopped before it came to the same, unless the house or building pulled down or demolished was the one in which the fire first broke out, in which event the provision is that the owner shall receive no compensation. Gen. St p. 176, c. 24, § 5. Cities and towns are liable to that extent and under those conditions, and not otherwise. Unless, therefore, the evidence' offered by the plaintiff at the trial brings his case within those provisions, he cannot recover in this action. Such an action cannot be maintained unless it appears that the house or building was pulled down or demolished by the order of three firewards or three engineers, or by the joint order of some one of the other classes of officers named in section 4 of that act.
Much discussion of that question is unnecessary, as it has already been decided by the supreme court of the state. “The plain intent of the statute is that no house or building shall be demolished unless it shall be judged necessary by three firewards, or by the other officers authorized to act in their absence, or where no firewards have been appointed.” Ruggies v. Nantucket, 11 Cush. 436. Nothing is left for construction, since that decision, in disposing of the cause of action set forth in the first four counts in this case, as the court there say, “It is the united judgment of the officers to whom the power is given, acting upon the immediate exigency, and determining the necessity which is contemplated by the statute. Its language is capable of no other reasonable interpretation. It is a joint authority expressly given to the officers designated, acting together, and cannot be exercised by a minority or by any one of them,” and the court add, what it is important to observe, that it is not sufficient that a general conclusion or judgment was arrived at by three firewards, or the other officers mentioned, that it was necessary to destroy some buildings in order to put a stop to the further extension of a fire. They must go further. They must determine upon the particular house or building which they shall adjudge necessary to be destroyed for the purpose, as this cannot be left to the individual judgment of any one of the firewards. Federal courts, in construing state statutes, follow the decisions of the state, and in general regard the construction given to the statute by the state court as binding as the text. Leffingwell v. Warren, 2 Black [67 U. S.] 603; Loring v. Marsh [Case No. 8,514]; McKeen v. Delaney, 5 Cranch [9 U. S.] 22.
From these rides, it is very clear that the plaintiff failed to prove any right to recover under the first four counts of the writ. Evidence was given upon the subject, as, for example, the chief engineer, Damrell, testified that at a meeting of three or four engineers with him, it was voted, if, in the judgment of the chief engineer, gunpowder could be used in any way to stay the conflagration, the board were ready to co-operate, but he states that it was contrary to their judgment that gunpowder was used. Two engineers, Green and Smith, were designated to act with the chief engineer, but he testifies that he and his associates did not designate any building to be destroyed, and that they had not decided at that time to blow up any building. Persons subsequently met in consultation at the mayor’s office, but three engineers were not present Damrell was there, and perhaps Green, but no others of that class of officers. According to the testimony of William L. Burt, he, said Burt, was assigned to the district where this building was situated, by the mayor and chief engineer, with authority to use gunpowder at his discretion, and it appears that Burt blew up the building with the concurrence of Green, but no other engineer ever assented to the act. All that is proved is that one engineer gave the order, which is clearly insufficient to support the action, the rule being that “three engineers must determine upon the particular house or building which [1046]*1046they shall adjudge necessary to be destroyed for the purpose.” In the case at bar, the evidence fails to show any joint judgment of three firewards or engineers as to the necessity of destroying the building which contained the property, the value of which the plaintiff seeks to recover in this action.
[NOTE. This case was affirmed by the supreme court on the ground that the rule is settled in the United States courts that in a civil case, whenever the evidence, clearly, does not warrant a verdict for a party, and that if there were such a verdict the opposing party would be entitled to a new trial, the court should-direct the jury to find according to its (the court’s) views; also, that, the remedy being given by statute, the case must be brought clearly within it; and, further, that there was no proof of compliance with the statute, by an adjudication of three of the engineers present as to the necessity for the destruction of the building, nor proof that such destruction was by their joint order. In the language of Mr. Justice Swayne: “At least three engineers of the fire department — the chief engineer, if present, being one — must have consulted together touching the blowing up of that particular building. They must all have arrived at the conclusion that it was necessary to destroy it in order to arrest the progress of the flames. They must all, jointly and specifically, have ordered that building to be destroyed. * * * We have failed to find the slightest proof that any three of the fire engineers ever consulted in relation to destroying the building to which this controversy relates; that any three, jointly or severally, expressly or by implication, gave an order that it should be’ destroyed; or that this particular building was ever present to the minds of any three of the engineers, in that connection.” Bowditch v. Boston, 101 U. S. 16.]
. Private property, under the constitution of the state, cannot be taken from the owner, or be applied to public uses, without his own consent, or that of the representative body of the people, and the provision is, that, whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. Gen. St. p. 17. Viewed in any light, the evidence had no tendency to show that the property destroyed was taken by the corporation for any use, public or private. Enough appears to show that the property was destroyed, but there is no evidence whatever that the order for its destruction was given by any one who had any authority to represent the corporation in that regard, which is all that need be said upon the subject
Nor can the action be sustained under the sixth count, for the reason that the evidence introduced has no tendency whatever to show that the persons who destroyed it were engaged in a riot. Instead of that, the tendency of the evidence is to show that the order for the destruction of the building was •given by William L. Burt, with the concurrence of one engineer, and it is not charged, even in argument, that they were engaged in any riotous proceedings. • Suffice it to say that the charge of riot is wholly unsupported by the evidence, and that there is no evidence in the case, to support the sixth count of the writ, which deserves any consideration. Judgment of the district court affirmed, with costs.