Francis H. (Francis Hermann) Bohlen.

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Schlosscr V. State, 5S Ind. 82 (1877), wife beaten by drunken husband:
Mulford V. Clczi'cll, 21 Ohio St. 191 (1871) ; Woolhcathcr v. Rislcy. t,?' la. 4^^6
(1874). and Ilcnuncns v. Bcntlcy, 32 Mich. 89 (T873), wife's property squan-
dered by drunken husband: contra, Szi'inford v. Lo'u-ry. },- Minn. 345 (1887),
night clerk of hotel shot by drunken guest.

See as to liability of one selling liquor to one obviously drunk for the
harm done by latter during his subsequent violent intoxication : Belding v.
Johnson. S6 Ga. 177 (1890), the assault on plaintiff, however, took place some
hours after the alleged sale and a complicated chain of events led from the
one to the other, cf. Sivinford v. Lozury, supra.

A saloonkeeper's duty to protect his patrons from obviously drunken
fellow-customers, Roinincf v. Schajiibachcr, ^20 Pa. ?70 (1887'), or to c.nre for
a helplessly drunken customer, Wcytnirc v. IVolfc. 52 Ta. ^3;^ (1879), i? quite
distinct and does not depend on his having furnished the liquor which has
caused the intoxication — cf. Black v. R. R., 193 Mass. 448 (1907^ and
Depue v. Flatau, 100 Minn. 299 (1907).



24c SMITH r. LONDON & SOUTHWESTERN RV. CO.

Plea, not guilty and issue joined thereon.

The case was tried by Keating, J., at the summer assizes, 1869,
held at Dorchester.

At the close of the plaintiff's case the counsel for the defend-
ants submitted that there was no case to go to the jury. At the
suggestion of the judge, and by consent, a verdict was taken for the
plaintiff for 30/., subject to leave reserved to the defendants to move
to set it aside and instead thereof to enter a verdict for them, on
the ground that there was no evidence to go to the jury of any
liability on the part of the defendants. The court to be at liberty to
draw inferences and to amend the pleadings.

The defendants applied for and obtained a rule pursuant to the
leave reserved, which, after argument, was discharged, and from
the judgment so given discharging the rule the present appeal was
brought.

Kingdon, Q.C. {Miirch with him), for the defendants.

Cole, Q.C. {Bcrc, Q.C, with him), for the plaintiff.^

Kelly, C.B. :- I certainly entertained some doubts during the
argument as to whether the judgment of the Court below could be
sustained ; but when I consider the facts, I cannot but feel that it is
a case in which there was some evidence of negligence on the part
of the defendants, and negligence which caused the injury com-
plained of. It appears that about the time that the spot in question
v.as passed by an engine which, as we know, would emit sparks
vv-hich would fall on the adjoining ground, a fire was discovered on
the defendants' ground adjoining the line. It appears that it had
been a drv summer, and the hot weather had continued for many
v/eeks before the occurrence ; and probably with a view to prevent
mischief, the defendants had caused the grass that grew by the
line and the fence to be cut, and the cuttings of the grass and
hedge were placed in small heaps on the ground between the rails
and the hedge. On the other side of the hedge was a stubble-field
of considerable extent which would be extremely dry, and at a dis-
tance of two hundred yards across a road was the cottage belonging
to the plaintiff. This was the state of facts. The trimmings caught
fire, there was a strong southeast wind blowing; and though w'e
have no proof of the exact progress of the fire, because the com-
pany's servants who had seen it were not called, it appears to have
extended to and through the hedge and across the field to the plain-
tiff's cottage which was burnt. The question for us is, how all this
occurred. There is some doubt how the fire originated. ^ but there



^ The facts are restated and the arguments of counsel are omitted.

*The opinions of Martin and Pigott, BB., and Lush, J., concurring, are
omitted.

' There was no evidence that the defendant's engines were improperly
constructed or worked, nor was there any evidence, except that the engines
had recently passed, to show that the fire originated from them. Kingdon.
Q. C. having suggested that the fire might have been caused by a fuse thrown
from the window of a train or by a spark from a pipe of one of the work-
men on the line, Channel B. replied : "But here the two causes of the fire



SMITH V. LONDON' & SOUTHWESTERN RV. CO. 24I

was ample evidence for the jury, which would have been rightly left
to them, that it originated from sparks from the engine falling on
the dry heaps of trimmings, and thence extending to tli£ hedge and
stubble-field. If that was so, the question arises whether there was
any negligence in the defendants. Now it can scarcely be doubted
that the defendants were bound in such a summer, knowing that
trains were passing from which sparks might fall upon them, to
remove these heaps of trimmings; and, at any rate, it was a question
for the jury whether it was not negligent of them not to do so. I
think, therefore, there was a case for the jury on which they might
reasonably have found that the defendants were negligent in not
removing the trimmings as soon as possible, and that this was the
cause of the injury. Then comes the question raised by Brett, J.,
to which at first I was inclined to give some weight. lie puts it
thus: *'I quite agree that the defendants ought to have anticipated
that sparks might be emitted from their engines, notwithstanding
that they were of the best construction, an«l were worked without
negligence, and that they might reasonably have anticipated that the
rummage and hedg-e trimmings allowed to accumulate might be
thereby set on fire. lUit I am of opinion that no reasonable man
would have foreseen that the fire would consume the hedge and pass
across a stubble-field, and so get to the plaintiff's cottage at the dis-
tance of 200 yards from the railway, crossing a road in its passage."
It is because I thought, and still think, the proposition is true that
any reasonable man might well have failed to anticipate such a con-
cur.ence of circumstances as is here described that I felt pressed
at first by this view of the question ; but on consideration I do not
feel that that is a true test of the liability of the defendants in this
case. It may be that they did not anticipate, and were not bound to
anticipate, that the plaintiff's cottage would be burnt as a result of
their negligence ; but I think the law is, that if they were aware that
these heaps were lying by the side of the rails, and that it was a hot
season, and that therefore by being left there the heaps were likely to
catch fire, the defendants were bound to provide against all circum-
stances which might result from this, and were responsible for all
the natural consequences of it. I think, then, there was negligence
in the defendants in not removing these trimmings, and that they
thus became responsible for all the consequences of their conduct,
and that the mere fact of the distance of this cottage from the point
where the fire broke out does not affect their liabilitv, and that th'^
judgment of the Court below must be affirmed.

CiiANNELL, ?). : I am of the same opinion. I quite agree that
where there is no direct evidence of negligence, the question what
a reasonable man might foresee is of importance in considering t!ie
question wdiether thei-e is evidence fo r the iary of neg+rtrtTTrr
'iTot, ami this is wliar"was meant by Bramwell, B., in his judgment
in Blyth v. Birjuingliain ]]''atcrivorks Co., it Ex. 781: 2; L. T.



supEcested, viz., the engine and the pipe or cigar, arc not of equal probabil.ty,
and there was evidence for the jury, therefore, that the fire was caused by
tne more probable of the two alleged causes."



242 SMITH v. LONDON' & SOUTHWESTERN RV. CO.

(Ex.), 212, referred to by Mr. Kingdon ; bu t when it has been once
determined that there is evidence of neghgence, the person guilty ot '
it is er ^iipH}- Jiahip f , nr jts consequcnce s, whether he could have fore-
seen them or not.

Blackburn, J. : I also agree that what the defendants might
reasonably anticipate is, as my Brother Channell has said, only ma-
terial with reference to the question whether the defendants were
negligent or not, and cannot alter their liability if they were guilty
of negligence. I have still some doubts whether there was any
evidence that they were negligent, but as all the other judges are of
opinion that there was evidence that they were, I am quite content
that the judgment of the Court below should be affirmed. I do not
dissent, but I have some doubt, and will state from what my doubt
arises. I take it that, since the case of VaugJian v. Taff Vale Ry.
Co., 5 H. & N. 679; 29 L. J. (Ex.) 247, which was expressly af-
firmed in Brand v. Hammersmith Ry. Co., Law Rep. 4 H. L. 171, it
is clear that when a railway company is authorized by their Act of
parliament to run engines on their line, and that cannot be done
without their emitting sparks, the company are not responsible for
injuries arising therefrom, unless there is some evidence of negli-
gence on their part.'* That being so, I agree that if they have the
land at the edge of the line in their own occupation they ought to
take all reasonable care that nothing is suffered to remain there
which would increase the danger. Then comes the question, is there
evidence enough in this case of a want of that reasonable care? It
can hardly be negligent not to provide against that which no one
would anticipate. I have no doubt that if the company strewed
anything very inflammable, such as, to put an extreme case, petro-
leum along the side of their line, they would be guilty of negligence.
The reasoning for the plaintiff is that the dry trimmings were of an
inflammable character and likely to catch lire. My doubt is, whether,



* At common law an owner of land was liable for the spread of fire started
thereon, whether negligently or accidentally or intentionally for a proper pur-
pose and in a proper manner, by himself or his servant (Rolle, Abr. action sur
case, B 1-3. Tubervillc v. Stamp, 12 Alod. 455), and every fire on his premises
was presumed to be so started (Tenterden, C. J., Becquat v. McCarthy, 2 B.
& Ad. 958, 1831), though he could exculpate himself by showing that the fire
was kindled by a stranger (Rolle, Abr. action sur case, B. 6), or even a lodger
(Allen V. Stephenson, i Lutw. 90). The statute of 6 Anne C. 31, §6, re-
enacted 14, Geo. III. c. 78, Sec. 86. merely destroyed this presumption and re-
quired the plaintiff, to show that the defendant or his servant had negligently
or intentionally started the lire (Filliter v. Phippard, 11 Q. B. (A. & E. N. S.)
347). In the United States, however (owing probably to the construction
placed by Blackstone upon the statute 6 Anne: i Com. 431, see Gibson, C. J.,
Lehigh, Etc., Co. v. L. C. & N. Co., 4 Rawle. Pa. 9. pp. 24-25 ; Clarke v. Foote,
8 Johns, N. Y. 421 (1811) ; Lansing v. Stone, 37 Barb. 17 (N. Y. i862)_;
Bachelder v. Heagan, 18 Maine 32), it has been uniformly held that negli-
gence must be shown either in starting the fire (Necdham v. King, 95 Mich.
303 and cases cited, p. 306), or in guarding or preventing the spread of a
fire properly or accidentally kindled. McCnlly v. Clark, etc., 40 Pa. 399 (t86i\
failure to extinguish accidental fire; McNaUy v. Colville, 91 Mich. 527 (1892),
no appliances for extinguishing fire kept on premises containing highly in-
flammable material Ca saw mill) ; Hauch v. Hernandez. 41 La. Ann. 992 (1889),
porcelain kilns heated to 3,000 deg. F. left unattended.



SMITH V. LONDON & SOUTHWESTERN RV. CO. 243

since the trimmings were on the verge of the railway on the com-
pany's land, it the quickset hedge had been in its ordinary state,
they might not have burned only on the company's premises, and
done no further harm, and whether the injury, therefore, was not
really caused by the hedge being dry, so that it caught fire, and by
the fire thus spreading to the stubble-field, and thence to the plain-
tiff's cottage. I think it is clear that when the company were plan-
ning the railway they could not expect that the hedge would become
so dry, and therefore were not negligent in putting a hedge instead
of a stone wall; and though the drought had lasted some weeks, I
can hardly think it was negligent in them not to remove the hedge.
I do not say that there is not much in what is said with respect to
the trimmings being the cause of the injury, and not the state of
the hedge, but I doubt on this point, and, therefore, doubt if there
was evidence of negligence; if the negligence were once established,
it would be no answer that it did much more damage than was ex-
pected. If a man fires a gun across a road where he may reasonably
anticipate that persons will be passing, and hits some one. he is
guilty of negligence, and liable for the injury he has caused; but if
he fires in his own wood, where he cannot reasonably anticipate that
any one will be, he is not liable to any one whom he shoots, which
shews that what a person may reasonably anticipate is important in
considering whether he has been negligent; but if a person fires
across a road when it is dangerous to do so and kills a man who is
in the receipt of a large income, he will be liable for the whole dam-
age, however great, that may have resulted to his family, and can-
not set up that he could not have reasonably expected to have in-
jured any one but a labourer.

Judgment affirmed.^



s



Accord: Clifford v. R. R., 9 Col. 22>2i (1886), paralysis from exposure;
///. Ccn. R. R. V. Siler, 229 111. 390 (1907). plaintiff burned trying to extin-
guish fire negligently started on her premises ; Coj) v. Indiana[>olis Gas Co.. 146
Ind. 655 (1896), plantiffs ill children suffered relapse and died as result of
cold of his house due to defendant's wrongful failure to furnish gas; Tucker
& Dorscy Co. v. Staley, 40 Ind. App. 63 (1906), workman's hand injured by
saw lacking guard required by statute; Cutter v. Des Moiues, 113 N. W.
(Iowa) 1081 (1907), horse frightened by obstruction in street, threw plaintiff
out of sleigh and down an embankment. A. T. & S. F. R. R. v. Parry. 67
Kan. 515 (.1903), drunken passenger removed from train and left in station
improperly cared for, run over at point five miles away, to which he had in
his helpless drunkenness wan(k>rcd; Balto. Ry. v. Kemp, 61 I\I(1. 74 (1883").
cancer developing from a slight blow received in course of transportation ;
Higgins v. Dezi'cy. 107 Mass. 494 (1871), fire negligently set by defendant on
his own land; .'^elleck v. Lake Shore, Etc. R. R.. 93 Mich. 375 (1892). horse
frightened while detained at crossing improperly blocked by defendant's train ; •
Hansen v. St. Paul Gaslight Co.. 82 Minn. 84 (1900), escape of gas into green- ,
house, damage due to peculiar nature of the flowers therein ; Hoepper v.
Southern Hotel Co., 142 Mo. 378 ("1897), employee injured in laundry; HivjJ-
son v. K. C. F.lecir-ic L. Co., iOt Mo. 606 ("1906), death by electric shock from
uninsulated wire; circuit completed by plaintiff's son tapping the wire; F.rh- ^
gott v. }fayer. 96 N. Y. 264 (1884"), injuries due to exposure to rain and cold
after falling into ditch; Bacon v. Pullman Co.. 159 Fed. i Ct9o8'), plaintiff's
illness aggravated by lack of medicines and stimulants contained in bncr stolen
while en route on defendants' car; Isham v. Dew, 70 Vt. 588 (1898), dog shot



244 IIOAG V. LAKE SHORE & MICHIGAN SOUTHERN R. R. CO.

Colt, J., in Hill v. IVinsor, ii8 Mass. 251 (1875), ^ 258: It
cannot be said, as matter of law, that the jury might not properly
find it obviously probable that injury in some form would be caused
to those who were at work on the fender by the act of the defendants
in running against it. This constitutes negligence, and it is not
necessary that injury in the precise form in which it in fact resulted
should have been foreseen. It is enough that it now appears to have
been a natural and probable^ consequence.-

DuNN, J., in Illinois Central R. R. Co. v. Siler, 229 111. 390
(1907) p. 394: In order to make a negligent act the proximate
cause of an injury it is not necessary that the particular injury, and
the particular manner of its occurrence, could reasonably have been
foreseen. {City of Dixon v. Scott, 181 111. 116.) If the conse-
quences follow in unbroken sequence from the wrong to the injury
without an intervening efficient cause, it is sufficient if, at the time
of the negligence, the wrongdoer might, by the exercise of ordinary
care, have foreseen that some injury might result from his negli-
gence. Chicago and Alton Railroad Co. v. Penncll, 94 111. 448;
Pullman Palace Car Co., v. Laack, 143 111. 242; Chicago Hair and
Bristle Co. v. Mueller, 203 111. 558.^



HOAG V. LAKE SHORE AND MICHIGAN SOUTHERN

RAILROAD CO.

Supreme Court of Pennsylvania, 1877. 85 Pennsylvania, 293.

Mr. Justice Paxson delivered the opinion of the court, No-
vember 19, 1877.

This was an action on the case to recover compensation for cer-
tain property destroyed by fire, caused, as was alleged, by the
negligence of the defendants. The facts, so far as they are essen-
tial to elucidate the point in controversy, are as follows : The plain-
tiffs were the occupiers of a piece of land situated within the limits
of Oil City, on the western bank of Oil creek. The railroad of
defendants is constructed along said creek, over the land of the




by defendant ran into house and knocked down owner's wife ; Stevens
V. Dudley, 56 Vermont, 158 (1883), plaintiff injured by horse so violently re-
moved from race track as to throw out driver; Gilson v. D. & H. Canal Co.,
65 Vermont. 213 C1892), water wrongfully diverted toward plaintiff's quar-
ries, the walls of which were weakened by plaintiff's own workings therein.

'See Wabash R. R. v. Coker. 81 III. App. 660 (1898), p. 664; "a person
puilty of negligence, or an unlawful act, should be held responsible for all the
consequences which a prudent and experienced man, fuliy acquainted with
jijl the circumstances which in fact existed would, at thCTmTe of the negli-
f%W-or~H*ftewfaract, Rave tHought reasonably to follow, if they h ad occurred
•to h|s^ mind."

"" -See ace. Powers. J., Marsh v. Paper, loi Me. 489 (1906). p. 502; Elliot,
J., R. R. V. Wood, 113 Ind. 544 (1887), p. 566; Walker, J., Drum v. Miller,
I3S N. C. 204 (1904), P- 215.

* See C. P. and St. L. R. R. v. Willard, iii III. App. 225 (1903), p. 230.



HOAG V. LAKE SHORE & MICHIGAN SOUTHERN R. R. CO. 245

plaintiffs and at the base of a higli hill. On the afternoon of April
5, 1873, during- a rain storm, there was a small slide of earth and
rock from the hill-side down to and upon the railroad. About ten
minutes prior to the accident, one of the defendants' engines had
passed over the road in safety. At that time no slide had occurred.
This engine was followed in a few minutes by another engine draw-
ing a train of cars loaded with crude oil in bulk. The latter engine
ran into the slide, was thrown off the track, ran on about one hun-
dred to one hundred and fifty feet, when the tender, which was in
front of the engine, was overturned into Oil creek; the engine itself
was partly overturned ; two or three oil cars became piled up on the
track and burst. The oil took fire, was carried down the creek, then
swollen by the rain, for several hundred feet, set fire to the property
of the plaintiffs and partly consumed it. The question of negligence
in defendants' engineer in not seeing the obstruction and stopping
his train before reaching it is not raised upon this record, and need
not be discussed. The only question for our consideration is. whe-
ther the negligence of the defendants' servants was the proximate
cause of the injury to the plaintiffs' property. The answer to the
plaintiffs' third point, embraced in the second specification of error,
raises this question distinctly. The court was asked to say : "That
if the jury believe from the evidence, that the accident complained
of was the result of negligence on the part of the defendant, and
that by reason of such negligence, the oil, ignited by the engine
attached to the train, ran immediately down to Oil creek, where it
was carried by the current in the space of a few minutes to the
property of the plaintiffs, when it set fire to and destroyed said prop-
erty, the plaintiffs are entitled to recover, provided they did not in
any manner contribute to said accident." The court answered this
point in the negative, and then instructed the jury that as a matter
of law, upon the facts in the case, the plaintiffs were not entitled
to recover, which instruction is assigned here for error.

It was strongly urged that the court erred in withdrawing the
case from the jury, and the recent cases of Pennsylvania Railroad
Co. V. Hope, 30 P. F. Smith, 373, and Raydnre v. Knight, 2 W.
N. C. 713, were cited as supporting this view. In the case first
cited it was said by the chief justice, in delivering the opinion of the
court, "We agree with the court below that the question of prox-
imity was one of fact peculiarly for the jury. How near or remote
each fact is to its next succeeding fact in the concatenation of cir-
cumstances from the prime cause to the end of the succession of
facts which is immediately linked to the injury, necessarily must be
determined by the jury. These facts or circumstances constitute
the case, and depend upon the evidence. The jur}- must determine,
therefore, whether the facts constitute a succession of events, so
linked together that they become a natural whole, or whether the
chain of events is so broken that they become independent, and the
final result cannot be said to be the natural and probable conse-
quence of vhc primary cause, the negligence of the defendants."
The case of Raydnre v. Knight, was meagerly presented ; the charge



246 HOAG Z\ LAKK SHORE & IMICIIIGAX SOUTHERN R. R. CO.

of the court was not sent up, and a majority of the court were of
Opinion that no sufficient cause for reversing the judgment had been
shown. I am unable to see any special bearing this case has upon
the question before us. The doctrine laid down in the Railroad
Co. V. Hope, and to be gathered incidentally perhaps from Raydure
V. Knight is, that the question of proximate cause is to be decided
by the jury upon all the facts in the case; that they are to ascer-
tain the relation of one fact to another, and how far there is a con-
tinuation of the causation by which the result is linked to the cause
by an unbroken chain of events, each one of which is the natural,
foreseen, and necessary result of such cause. But it has never been
held that when the facts of a case have been ascertained, the court
may not apply the law to the facts. This is done daily upon spe-
cial verdict and reserved points. Thus in the Railroad Co. y.
Kerr, 12 P. F. Smith, 353, a case bearing a striking analogy to this,
the court submitted the question of negligence to the jury, but re-
served the question of proximate cause upon the undisputed facts
of the case. Of course this could not have been done if the facts
were in dispute. A reserved point must be based upon facts ad-
mitted in the cause or found by the jury. In questions of negli-
gence it has been repeatedly held that certain facts when established
amount to negligence per se\ Railroad Co. v. Stinger, 28 P. F.
Smith, 219; McCullv v. Clark, 4 Wright, 399; Pennsylvania Rail-
road Co. V. Barncit, 9 P. F. Smith, 259; while in Raydure v.
Knight, supra, the court below, in answer to the defendants' second
point, instructed the jury that if certain facts were believed by them,
the negHgence complained of was the proximate cause of the injury
to plaintiff's property. This ruling was affirmed by this court. I
do not understand the decision in the Railroad Co. v. Hope, to be in
conflict with this view. It remains to apply this principle to the
case before us. There is not a particle of conflict in the evidence,
so far as it affects the question of proximate cause. This was doubt-
less the reason why the plaintiffs assumed the facts in their third
point. They would not have been justified in doing so had not the
facts been admitted, nor is it likely the learned judge would have
answered it. We may, therefore, regard the plaintiff's third point
as a prayer for instructions upon the undisputed facts of the case.
Can it be doubted that the court had the right to give a binding
instruction? We think not.

But one question remains. Was the negligence of the defend-