Summary
In State v. Railroad, 99 N.H. 66, 70, it was stated that the liability of the railroad under section 1 has been limited to "property along the line of the railroad which is reasonably exposed to the danger of fire" and that the liability imposed by that section "has been limited geographically to exposed property along the right of way."
Summary of this case from Beard v. RailroadOpinion
No. 4225.
Argued March 2, 1954.
Decided May 19, 1954.
In an action to recover expenses in extinguishing a fire under R. L., c. 300, s. 8, the condition of extreme drought, the inflammable condition of the railroad right of way, the absence of other known fire-setting agency and the time sequence between the passing of a coal-burning locomotive and the fire furnished a sufficient basis to conclude that the fire was started by the locomotive.
Certain evidence was sufficient in such case to establish a causal relationship between a fire on the railroad's right of way on one side of the track and a fire on the opposite side under the close proximity of location, time and distance.
Liability for expenses in extinguishing fires caused by a railroad company under the statute (R. L., c. 300, s. 8) is not limited geographically to any particular area and is coextensive with the spread of any such fire.
The statutory right (R. L., c. 300, s. 8) to recover expenses in extinguishing a fire caused by a railroad company is not predicated upon negligence. While contributory negligence is not a defense to such action, the conduct of the plaintiffs may be considered on the question of what expenses were "just and reasonable" within the meaning of the statute.
A wind will not constitute an intervening cause of the spread of a fire, caused by a railroad, to a second location unless it is of such extraordinary force as to be an act of God.
The extent of a railroad's liability under the statute (R. L., c. 300, s. 8) for expenses in extinguishing a fire which it has caused is not limited to the expense which it reasonably could or should have foreseen.
In an action under the statute to recover expenses in extinguishing a fire caused by the railroad evidence of other fires caused by it and found to be under substantially similar conditions is admissible.
THREE ACTIONS OF CASE, brought by the State of New Hampshire, the city of Rochester and the town of Farmington to recover the expenses of fighting a fire allegedly originating on the defendant's right of way in Farmington on October 21, 1947. R. L., c. 300, s. 8. Trial by jury, with a view, resulted in a jury disagreement.
On the afternoon of October 21, 1947, the defendant's unscheduled local freight, consisting of a caboose, locomotive and coal car, was operated in reverse in a general northerly direction from Rochester to Farmington arriving there at 1:58 P.M. During the shifting operations at Farmington, which took eleven minutes, the firemen increased the intensity of the fire and the return trip to Rochester was started with a box car substituted for the coal car. About one mile south of Farmington near Richardson Crossing the steam pressure almost reached the blow-off point. The engineer operated the injector putting more water in the boiler thus reducing the steam pressure and wetting down the ashes in the ash pans of the engine. As the train proceeded southerly fifteen to twenty miles per hour slightly downgrade between Richardson Crossing and Meeting House Crossing, the brakeman, looking back, noticed smoke behind the train on the east side of the railroad right of way. He notified the conductor who applied the emergency brakes, stopping the train just above Meeting House Crossing. About five minutes in all was required to get back to a point opposite where the fire was burning. The area of the fire was irregular in shape but covered a space about twenty-five feet square. The fire was burning in several directions but generally in a southerly direction parallel to the track and about twenty feet easterly of the easterly rail of the track. The fire was spreading rapidly in dry grass and weeds and the crew were unable to stop it. The crewmen blew the railroad fire alarm and later at Meeting House Crossing requested the driver of a passing truck to notify the Farmington fire department to sound its fire alarm.
After the fire alarm was sounded there were several witnesses who came to the scene of the fire and at that time the fire was on both the east side of the track and the west side. The wind direction that afternoon was generally westerly but as the fire was "between that ridge" the "wind would eddy back and forth" and the smoke was "swirling all around." The fire continued and had burned an area of 1300 acres in Farmington on the westerly side of the state highway, Route 11 by midnight of October 22. On the third day the fire fighters were warned to expect winds of twenty miles per hour. That afternoon the wind increased. There was considerable variation in the testimony describing the wind conditions. There were estimates of 20, 25, 35 and 40 miles per hour and it was variously described as unusual, a "bloody unusual wind," high, not unusual, and "kind of a hurricane gale wind, something outrageous for the time being." The fire crossed Route 11 to the east side of the highway; and continued on toward Rochester. The area thereafter burned was two and one-half times as large as the 1300 acres which had burned up to that time. It was mostly out by October 28.
For a considerable period prior to the fire a condition of severe drought existed and at the time of the fire a proclamation of the Governor closing the woodlands was in effect. Between Richardson Crossing and Meeting House Crossing where the fire originated, there were dry weeds, bushes and wolf grass on the roadbed and the right of way. Other facts appear in the opinion.
Motions in each action for a nonsuit, a directed verdict and judgment notwithstanding the disagreement of the jury were denied subject to the defendant's exception. The defendant also excepted to the granting of certain of the plaintiffs' requests for instructions to the jury, to the denial of certain instructions requested by the defendant and to portions of the Court's charge to the jury. All questions of law raised by the foregoing exceptions were reserved and transferred by Wescott, J.
Warren E. Waters, Deputy Attorney General (by brief and orally), for the State.
Errol S. Hall (by brief and orally), for the town of Farmington.
Cooper, Hall Cooper and John M. Brant (Mr. Brant orally), for the city of Rochester.
Burns, Calderwood Bryant (Mr. Bryant orally), for the defendant.
The motions for a nonsuit, a directed verdict and judgment notwithstanding the disagreement of the jury are based in part on the proposition that on all the evidence the jury could not properly find that the defendant's locomotive started any fire on the railroad right of way. In several cases where it has been found that the railroad started the fire, there was evidence of other fires caused by the railroad under similar circumstances. Since there is no such evidence in this case, it is said that these cases are distinguishable and cannot be used by the plaintiffs to avoid directed verdicts. Boyce v. Railroad, 43 N.H. 627; Smith v. Railroad, 63 N.H. 25; Haseltine v. Concord Railroad, 64 N.H. 545; Bailey c. Co. v. Railroad, 78 N.H. 94. In 1908 in Staples v. Railroad, 74 N.H. 499, 500, appeared the following statement on which the plaintiffs rely: "The fact that locomotives frequently emit sparks which fall near the track causing fires, is some evidence that where the grass or undergrowth near a track is on fire and trains have passed along within an hour or two, the fire was caused by sparks from a locomotive. It is not a mere conjecture, but may be a reasonable inference from the facts proved." The defendant distinguishes that case as no longer controlling since the evidence discloses that most locomotives have been equipped with spark-arresters since 1920 as this locomotive was in this case. In 1928, however, when Russell v. Railroad, 83 N.H. 246, 249, was decided the same thought was expressed in the following language: "When fire starts on the ground close to a railroad track soon after the passage of a train, it may be a legitimate inference that the fire was set by the locomotive." The defendant dismisses this as a dictum which is no longer authority under present conditions. In doing so, it overlooks the fact that it was recognized as late as 1947 that sparks from a locomotive may start a fire even though standard precautions are taken. Glines v. Railroad, 94 N.H. 299, 301.
It is true that there was evidence that overhauls, inspections and tests showed this locomotive's spark arrester and ash pan equipment to be in operating condition. Here, as in the Glines case, the locomotive was not shown to be defective. Defendant's expert testimony furnishes a basis for a jury to find that this locomotive did not set this fire but that is not the only inference they may draw from the evidence. II Wig. Ev. (3rd ed.) s. 453; anno. 18 A.L.R. (2d) 1081, 1092; Hicks v. Chicago N.W. Ry. Co., 215 Wis. 462, 469. There was no eye-witness to testify that the fire was, in fact, caused by the locomotive but that is not required as appears from Emery v. Tilo Roofing Company, 89 N.H. 165, 167. See Bohan v. Company, 98 N.H. 144. The condition of extreme drought, the inflammable condition of the railroad right of way, the absence of any other known fire-setting agency and the time sequence between the passing of the coal-burning locomotive and the fire are all factors which furnish a sufficient basis for a jury to conclude that the fire was started by the defendant's locomotive. Russell v. Railroad, supra; Goodwin v. Boston Maine Railroad, 134 Me. 282, 284, 285.
The contention is made that even if the Court rules that there was evidence that the fire on the east side of the track was started by the defendant, there is no evidence that the fire on the west side of the track was started by the defendant. The behavior of this fire is a grim reminder that the progress of fire is not deterred by time, distance, highways, rights of way or the points of the compass. The fire burning on the west side was opposite the fire that the defendant's train crew unsuccessfully attempted to control. The wind was blowing generally toward the west side of the track and it could be found that there was a causal relation between them because of close proximity of location, time and distance.
The applicable statute provides as follows: "EXPENSES. All just and proper expenses incurred in extinguishing forest or brush fires caused by the railroad company or its employees shall be paid by such railroad company; but the fact that such payment has been made shall not be admissible as evidence that such fire was so caused." R. L., c. 300, s. 8. This statute was originally enacted in 1913 (Laws 1913, c. 155, s. 2) but has never been the subject of legal interpretation. Section 8 limits recoverable fire-fighting expense to "just and proper expenses" but contains no express limitation as to the area covered by the fire. The plaintiffs claim none were intended while the defendant insists its liability is limited to property along the line of the railroad which is reasonably exposed to the danger of fire. Since section 1, which has been in existence for more than a century, has been so limited in scope, it is urged a similar limitation should be placed on section 8. Welch v. Railroad, 68 N.H. 206; Gordon v. Railroad, 58 N.H. 396, 398; Clark v. Railroad, 78 N.H. 428. If section 8 is equated to section 1, it follows that the fire-fighting expenses in Rochester and some of the fire-fighting expenses in Farmington cannot be recovered because of the distance from the railroad's right of way.
The 1913 legislation which now appears in R. L., c. 300, ss. 4-11, placed additional duties on the railroad to prevent fires and additional liability to pay for expenses incurred by others in extinguishing them if they were caused by the railroad company or its employees. The burdens imposed were not a duplication of the liability imposed by sections 1 to 3 of this chapter but, on the contrary, imposed additional new liabilities. It is significant that while section 1 has been limited geographically to exposed property along the right of way, mainly because of the provisions of section 2 (Welch v. Railroad, supra) the liability under section 8 is unlimited geographically insofar as it relates to the expenses incurred in extinguishing fires caused by the railroad. If the fire was started by the railroad company or its employees, its liability for the resulting fire-fighting expenses is coextensive with the spread of the fire thus caused. The expenses incurred by the State and its municipalities in extinguishing fires stands on a different footing from liability for property destroyed or damaged by fire. We find nothing in the legislative history of the statutes relating to fire prevention and damage by railroads indicating a legislative intent to restrict recovery of fire-fighting expenses to inexpensive fires or to those confined to the railroad right of way or in close proximity thereto. Cf. Perley v. Eastern Railroad Co., 98 Mass. 414.
Exception was taken to the failure of the Court to charge the jury that the high wind of October 23 constituted an intervening cause which relieved the defendant from liability for expenses of fighting the fire in Rochester. The plaintiffs were not required to prove negligence in order to recover since the statute imposes liability if the fire was "caused by the railroad company." R. L., c. 300, s. 8. However the intensity of the wind may be characterized on the evidence in this case, it was not an intervening cause unless it was of such extraordinary force as to constitute an act of God. Dippold v. Cathlamet Timber Co., 111 Ore. 199, 209. At least in the northern latitude of Vermont and New Hampshire "we know no winds which can be counted on to blow for any length of time with a force and direction practically unvaried . . . Such winds . . . are not intervening agents." Ide v. Boston Maine R.R., 83 Vt. 66, 81. The wind was at most a concurring cause for the spread of the fire which did not relieve the railroad of its statutory liability. Anno. 18 A.L.R. (2d) 1081, 1098; Brady v. Waccamaw Lumber Co., 175 N.C. 704. If the jury finds that the defendant caused the fire, foreseeability as to the expense of extinguishment is not an element for consideration. The Court correctly instructed the jury that "the mere fact that the defendant railroad neither foresaw nor should have foreseen the extent of the harm does not prevent the defendant from being liable if you find that the defendant or its employees did cause the fire and it extended onto other property in Farmington and Rochester." Tullgren v. Amoskeag Mfg. Co., 82 N.H. 268; Brackett v. Corporation, 87 N.H. 173.
The same considerations apply to the requested instruction that the contributory negligence of the town of Farmington in fighting the fire was an intervening cause of the fire extending into Rochester. Contributory negligence does not apply to this case. Rowell v. Railroad, 57 N.H. 132; 1 Shearman Redfield, Negligence (Rev. ed.) 209 note. See Laird v. Railroad, 62 N.H. 254; Prosser, Torts 358. However, the conduct of the plaintiffs may be considered on the question of what expenses were "just and proper" within the meaning of R. L., c. 300, s. 8.
The long established principle that the Legislature may constitutionally impose absolute liability on railroads for fire damage caused by its locomotives (Smith v. Railroad, 63 N.H. 25; Boston Ice Co. v. Railroad, 77 N.H. 6) is equally applicable to the provisions of R. L., c. 300, s. 8, imposing liability on railroads to pay the expenses of extinguishing fires caused by them. The fact that this statute has not been the subject of appellate litigation is no reason to construe it strictly or imply an obligation of negligence where none is expressed in the statute. Cf. Hoebee v. Howe, 98 N.H. 168; Mass. Anno. Laws, c. 160. s. 241.
The plaintiffs sought to introduce evidence of other fires caused by the defendant but the evidence in the offer of proof was excluded as being too indefinite. Since the disagreement of the jury necessitates a new trial, there is no occasion to consider its admissibility as then presented. If an offer of proof as to other fires is made definite and the Court finds that the conditions attending the other fires were substantially similar such evidence would be admissible. Bailey c. Co. v. Railroad, 78 N.H. 94, 98; Lovett v. Railway, 85 N.H. 345, 352.
Remanded.
All concurred.