Hooksett v. Concord Railroad

38 N.H. 242

Opinion

Eastman, J.

*

This action is founded upon section 8, chapter 142, of the Revised Statutes, which is as follows: “ Every railroad corporation shall be liable for all damages which shall accrue to any person or property within this State by fire or steam from any locomotive or other engine on such road.”

The next section of the same chapter provides that “Every such corporation shall have an insurable interest in all property situated on the line of such road, and exposed to damage as aforesaid, and may effect insurance thereon for the benefit of such corporation.”

These provisions relieve the court from any consideration of the question of negligence by the defendants, so that we are only called upon to give a construction to the statute as applicable to the facts stated.

The extraordinary use of the element of fire, by which the property of individuals situated along the lines of railroads becomes endangered beyond the usual and ordinary hazard to which it is exposed, no doubt caused the legislature to interfere, and impose the liability which is fixed by the statute.

By this exposure, an increased risk of loss of property is caused. This risk must be borne by some one; and if the property is insured, a larger premium must be paid. Upon whom shall this risk fall and this burden rest ? upon the owners of the property, or upon the corporations who make this extraordinary use of the fire ? Such was probably the question before the legislature; and we think it was their intention to place the responsibility and burden upon the corpoi-ations. "We think also that it was their intention to give the owners a complete indemnity for the loss of all property that might reasonably be said to be exposed to the danger.

If, as contended by the defendants, the liability attaches only when the property is destroyed by fire directly communicated from the locomotive, and that it is only for the loss of such property as shall be thus consumed, that the corporations are liable, then all buildings, however near to those to which the fire is communicated from the locomotive, unless they are attached to and made a part of them, would not come within the operation of the statute. That there are many buildings thus situated along the lines of the various railways in this State is probably the case, and the legislature could hardly have intended to exclude such property from protection. If such had been their intention, it would seem singular that they should not use language more exact and appropriate to express it. In drafting such an act the question would very naturally suggest itself. To what extent do we intend this liability to go ? Is it to be general, or confined to such property only as shall be destroyed by the proximate, direct and immediate communication of the fire from the engine ? If they had intended the latter, we think they would have so ex-pi’essed it; and instead of saying, as the act now does, “by fire from the engine,” they would have said by fire directly from the- engine.

Such has been the decision of the Supreme Court of Massachusetts upon a similar statute, in the ease of Hart v. Western Railroad, 13 Met. 99; and in Maine the same doctrine has been acquiesced in, by the case of Chapman v. Atlantic & St. Lawrence Railway, 37 Maine 92.

"We are aware that this view of the question presents some serious difficulties, and cases might be supposed where the principle, if carried out to its fullest extent, would operate with great hardship upon the corporations. This consideration did not escape the notice of the learned chief justice, in the case cited from Metcalf, but he seemed to think that the power given to the corporations to effect insurance upon the property was indicative of the intention of the legislature to make the liability general.

That case did not call for a judicial determination of the extent to which the corporations shall be liable under the statute, neither does this. There, a shop, adjoining a railroad track, was destroyed by fire communicated by a locomotive, and while the shop was burning, the wind blew sparks from it, across a street, sixty feet, upon a house, and set it on fire ; and the court held that the fire was communicated to the house by the locomotive, within the intention and meaning of the act, and that the corporation was liable for the damage.

In this case the plaintiffs’ bridge was about fifty-eight feet from that of the defendants. The fire that consumed the latter came from the defendants’ engine, and in its progress reached the plaintiffs’ bridge, and destroyed that; and we think that, within the intent and meaning of the statute, the loss was occasioned by fire from the defendants’ locomotive, and that they are consequently liable for the damages.

Should a case arise under this statute requiring the court to define the extent to which this liability shall go, perhaps it will be found to extend to such property only as can be said to be reasonably exposed to the danger; that the act must have a reasonable construction; and that consequently where buildings are situated at such a distance from the track as not to be exposed except in some violent gale of wind or other extraordinary circumstances, the loss might he held not to be within the spirit or intent of the act. But we leave that question to be decided when it shall arise. The present is not such a case.

Our opinion is that upon the facts stated,

The action can be sustained.

Pebley, O. J., and Powleb, J., did not sit.