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HabiHty was held to exist, were cases of an intentional firing. The
case, however, of Vaughan v. Menlove (3 B. N. C. 468, ante, p. 18.)
was that of a spontaneous combustion of a hay-rick. The rick was
burned, the owner's buildings were destroyed, and thence the fire
spread to the plaintiff's cottage, which was also consumed. The
defendant was held liable. Without deciding upon the importance
of this distinction, I prefer to place my opinion upon the ground
that, in the one case, to wit, the destruction of the building upon
which the sparks were thrown by the negligent act of the party
sought to be charged, the result was to have been anticipated the
moment the fire was communicated to the building ; that its destruc-
tion was the ordinary and natural result of its being fired. In the
second, third or twenty-fourth case, as supposed, the destruction of
the building was not a natural and expected result of the first firing.
That a building upon which sparks and cinders fall should be de-
stroyed or seriously injured must be expected, but that the fire
should spread and other buildings be consumed, is not a necessary or
an usual result. That it is possible, and that it is not unfrequent,
cannot be denied. The result, however, depends, not upon any
necessity of a further communication of the fire, but upon a con-
currence of accidental circumstances, such as the degree of the heat,
the state of the atmosphere, the condition and materials of the
adjoining structures and the direction of the wind. These are acci-
dental and varying circumstances. The party has no control over
them, and is not responsible for their effects.

]\Iy opinion, therefore, is, that this action cannot be sustained,
for the reason that the damages incurred are not the immediate but
the remote result of the negligence of the defendants. The imme-
diate result was the destruction of their own wood and sheds ; be-
yond thatj it was remote. ^

To sustain such a claim as the present, and to follow the same
to its legitimate consequences, would subject to a liability against
which no prudence could guard, and to meet which no private for-
tune would be adequate." Nearly all fires are caused by negligence,
in its extended sense. In a country where wood, coal, gas and oils
are universally used, where men are crowded into cities and villages,
where servants are employed, and where children find their home
in all houses, it is impossible that the most viligant prudence should
guard against the occurrence of accidental or negligent fires. A
man may insure his own house or his own furniture, but he cannot
insure his neighbor's building or furniture, for the reason that he

* A portion of the opinion is omitted.

' See accord, Thompson, C. J., 62 Pa. 367 — but see contra, Lawrence, J.,
59 111. 349 ("1871), p. 361, inter alia, he says, that this argument "proceeds on
the assumption that, if a great loss is to be suffered, it had better be dis-
tributed among a hundred innocent victims than wholly visited upon the
wrongdoer." "The simple question is, whether a loss, that must be borne
somewhere, is to be visited on the head of the innocent or guilty."


has no interest in them. To hold that the owner must not only meet
his own loss hy fire, but that he must 5,niarantee the security of liis
neighbors on both sides, and to an unlimited extent, would be to
create a liability which would be the destruction of all civilized
society. No community could long exist, under the operation of
such a principle. In a commercial country, each man, to some ex-
tent, runs the hazard of his neighbor's conduct, and each, by insur-
ance against such hazards, is enabled to obtain a reasonable security
against loss. To neglect such precaution, and to call upon his
neighbor, on whose premises a fire originated, to indemnify him
instead, would be to award a punishment quite beyond the offense
committed. It is to be considered, also, that if the negligent party
is liable to the owner of a remote building thus consumed, he would
also be liable to the insurance companies who should pay losses to
such remote owners. The principle of subrogation would entitle
the companies to the benefit of every claim held by the party to wdiom
a loss should be paid.

In deciding this case. I have examined the authorities cited
from the Year Books, and have not overlooked the English statutes
on the subject, or the English decisions extending back for niany
years. It will not be useful further to refer to these authorities,
and it will be impossible to reconcile some of them with the view I
have taken.

The remoteness of the damage, in my judgment, forms the true
rule on which the question should be decided, and which prohibits
a recovery by the plaintiff in this case.

Judgment should be affirmed.^

Supreme Court of Pennsylvania, 1876. 80 Pennsylvania, 373.

Agnew, C. J. : Two principal questions arise in this case. Tlie
first has relation to the fact of negligence as causing the fire, and
the second to the nearness or remoteness of the injury to the negli-
gence causing it. The first three assignments of error belong to the
former, and the fourth to the latter.

[The court held that the question of negligence could not on
the evidence presented be withdrawn from the jury, who found the
fact of actual negligence.]

''Accord: Read v. NicJwlls, et al, 118 N. Y. 224 (1890), defendant liable
only for destruction of building first ignited by sparks from their factory
stacks; Jiidd v. Cushiiuj. 50 Hun, 181 (N. Y. Sup. Ct.. i888\ this applies to
city houses Iiaving same party wall: Hiitc v. Cushnig. 53 Hun. 319 (i88g).
but not when by openings made in party wall two houses are thrown into
one: Hoffman v. Kiuq. 160 N. Y. 618 (1899), liabiHty in country districts
limited to property line of owner of property first set on fire: see iVcbb v.
R. R., 49 N. Y. 420 (1872), a railroad or owner of property is hable for hre
negligently set on own property and spreading to tliat .-ifljacent.

Kerry. R. R.. 62 Pa. 353 (1869), and 5*^ /. and D. C. R. R. v. Chase, Ji
Kans 47 (187O. ace. have been overruled— Ho/r v. R. R., 80 Pa. 2,72, (if^/O)
and A. T. & S. F. R., R., v. Bales, 16 Kans. 252 (1876).


The second question is of importance, and in view of our own
case of Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith, 353,
requires a careful examination. After the mail train passed, hre
was immediately discovered in one of the cross-ties of the track,
which was communicated directly to the grass adjoining, and run-
ning into a small heap of dry grass that had been cut and pulled
and thrown into a pile, in the fall before, was carried thence by
means of rubbish and dry grass on the company's ground, across
the roadway to the fence, which was fired, and thence across two
grass fields, burning the dry grass in its pathway, until it reached
the plaintifif's fence and woodland, about six hundred feet from the
railroad, burning the fence, and a large part of the woods. The
weather was dry and windy, and the direction of the wind was
strongly toward the plaintiff's fields and woods.

It is contended that the defendants are not liable for the injury
to the plaintift"s fence and woods, on the ground that the injury
was too remote from the original cause ; and The Pennsylvania
Railroad Company v. Kerr is cited as authority for this. W'c
agree with the court below that the question of proximity was one
of fact peculiarly for the jury. How near or remote each fact is
to its next succeeding fact in the concatenation of circumstances
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 jury must determine, there-
fore, whether the facts constitute a continuous 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
consequence of the primary cause — the negligence of the defend-
ants. The rule concerning involuntary negligence, as distinguished
from wanton or intentional injury, is expressed in the maxim, causa
proxima non remota spectatur. The rule is undisputed, but the dif-
ficulty lies in its application arising sometimes from the barrenness
or uncertainty of the evidence, and sometimes from the intrinsic
difficult in the nature of the circumstances. In all or nearly all
cases, the rule for determining what is a proximate cause is, that
the injury must be the natural and probable consequence of the
negligence, and that this might and ought to have been foreseen
under the surrounding circumstances. These are the circumstances
of the particular case, and from the nature of the thing must be
referred to the jury. All the court can do is to aid the jury by
pointing to the relations of the facts. The jury must determine
whether the original cause, that is, the negligence, is, by continuous
operation, so linked to each successive fact, as that all may be
said to be o ne continuous operating s tuxession of events, in which
'"Th e tirst becomes naturally link ed to the last, and to be its cause,
anH thus to be within the proT)aT)fe~~foresight of him whose negli-
gence ran throuQ-h the succession to the injury. In determininsT
this relation, it is obvious we are not to be governed by abstrac-


tions, vvhicli, in theory only, cut off the succession. Abstractly
each blade of grass or stalk of grain is distinct from every other;
so one field may be separated from another by an ideal boundary,
or a different ownership, or it may be by a real but combustible
division line. But we cannot say that therefore the succession fails.
It is at this point the province of the jury takes up the successive
facts and ascertains whether they are naturally and probably
related to each other by a continuous sequence, or are broken off
or separated by a new and independent cause. The practical
knowledge and common sense of the jury applied to the evidence
steps in to determine whether the injury is the real proximate
result of the negligence, or, by reason of intervening and inde-
pendent causes must be regarded as too remote, and the result not
within the probable foresight of the party whose negligence is
alleged to have produced it. Applying to the facts of this case
this practical every day sense, we cannot say that the verdict of
the jury was not a well formed judgment. In a field of dry grass,
such as is described, and in such a state of the weather, it is obvious
that a fire communicated to it from the fence of the roadway, will
pass from blade to blade, and stalk to stalk, until reaching a fence
where old dried grass lies entangled among the rails, the fence, in
stead of being a barrier, only adds fuel to the flames. Thus by a
continuous succession, open and probable to every eye, a fire started
by negligence on the roadway continues onward without cessation,
and everv blade, stalk and rail becomes a part of the concatenation
leading to the result, however far it be from the starting point.^

Upon the whole case the conclusion seems to be with the plain-
tiff' below, and the judgment should be affirmed. -

* The remainder of the opinion is omitted. In it the Court defends and
distinguishes Kerr v. R. R., 62 Pa. 353 (1869) and explains it on the ground
that the point there reserved for the appellate court presented the hare
question of the liability of one negligently starting a fire for all the loss due
to its further spread, whether naturally or by reason of some abnormal assist-
ing force, human or of nature; whether the fire started naturally being a
question for the jurj'.

•Accord: P. R. R. v. Lacey. 89 Pa. 458 (1879) ; L- V. R. R. v. McKeen,
90 Pa. T22 (1879) ; Havcrlv v. R. R.. 135 Pa. 50 (1890). Accord also: Pent
V. R. R., 59 111. 349 C1871)"; A. T. & S. P. R. R. v. Stanford. 12 Kans. 354
(1874), prairie fire — property destroyed at distance of four miles; Atchison,
etc., v. Bales, 16 Kans. 2^2 '(1876) : P. W. & B. R. R. v. Constable. 39 Md.
T..19 (1^73') : Hart V. R. R.. 13 Mete, oo fMas?.. 1847") : Parley v. R. R.. 98
Tvlass. 414 (1868) ; Coates v. 7?. R., 61 Mo. 38 (1875) ; Poeppers v. R. R.. 67
Mo. 715 C1878"), property eight miles from track destroyed by prairie fire;
R. R. V. Westover. 4 Neb. 268 C1876'), property half a mile away; Adams v.
YoitJi^. 44 Ohio. 80 C1886) ; Atkinson v. Goodrich Trans. Co., 60 Wis. 141
(1884^ ; Mihi'aukee & St. Paul R. R. v. Kellogg. 04 U. S. 469 (1876). See
also Knozclton v. R. R.. 147 Mass. 606 (18S8), the whole conflagration so far
as it affects the plaintiff's property is one entire cause of action.


Supreme Court of Pennsylvania, 1890. 135 Pennsylvania, 50.
The plaintiff was engaged in lumbering upon a tract of land
adjoining the defendant's railroad. The plaintiff's testimony tended
to show that owing to a defective arrester on one of defendant's
engines, an old hemlock stump, "rotten and punky," and surrounded
by dried grass, was set on fire about 4 P. M. on May 11, 1880. On
discovering smoke issuing from the stump, one of the plaintiff's
employees was sent to extinguish the fire, and on his return reported
that he had done so. An employee sent at 10 o'clock next morning
to see if the fire was out, found it still smouldering about the roots
and after throwing water on it, he waited about half an hour and
went away satisfied the fire was out. At noon a high wind arose
and fire broke out near the stump which the plaintiff could not con-
trol and which burned over the plaintiff's tract, destroying his logs
and lumber.

Defendant took this appeal from a judgment upon a verdict for
the plaintiff, assigning for error inter alia the court's refusal to
charge that if the fire spread from the stump under the above cir-
cumstances the verdict must be for the defendant. ^

Opinion, Mr. Justice Mitchell: The test by which the line
is to be drawn between proximate and remote cause, in reference to
liability for the consequences of negligence, has been firmly estab-
lished by the three cases of Penna. R. Co. v. Kerr, 62 Pa. 353;
Pxnna. R. Co. v. Hope, 80 Pa. 373 ; and Hoag v. Railroad Co., 85
Pa. 293. It is most elaborately expressed by Chief Justice Agnew
in Penna. R. Co. v. Hope, in the following language: "The jury
must determine, therefore, whether the facts constitute a continuous
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 consequence of the primary cause, — the negligence of
the defendants;" and the rule is again put somewhat more tersely
by the present Chief Justice in Hoag v. Railroad Co., as follows:
"The injury must be the natural and probable consequence of the
negligence ; such a consequence as * * * might and ought to have
been foreseen by the wrong-doer as likely to flow from his act."

The three leading cases above referred to, though frequently
cited on opposite sides of the same argument, are not at all in con-
flict in principle. The different results which were reached in them
depended not on any different view of the law, but of the facts, and
on the application of the familiar doctrine that, where a plain infer-
ence is to be drawn from undisputed facts, the court will decide it
as a matter of law. In Penna. R. Co. v. Kerr, the negligence had
been held by the court below to be the proximate cause of the plain-
tiff's loss. This court held that it was remote, and did not award a

*The facts are restated.



new venire, but said that it would do so if plaintiff should desire it
upon grounds shown. The question was then new ; and, from what
was said about the venire, the court itself does not seem to have
been entirely clear that it should be decided as matter of law. It
may be doubted whether, on the same facts, the court would not
now send it to a jury. Certainly no subsequent case has assumed to
decide where the facts were so near the line. Hoag v. Railroad Co.
was a much clearer case, and so were Pittsburgh, etc., Ry. Co. v.
Taylor, 104 Pa. 306; JVest Malianoy Tp. v. Watson, 116 Pa. 344;
South Side Pass. Ry. Co. v. Trich, 1 17 Pa. 390, and the other cases
where the court has pronounced the negligence to be remote as
matter of law. But, whatever the result of the views taken of the
facts in these cases, the principles of decision are the same in all.

In the present case, the learned judge left the question of
proximate or remote cause to the jury, in substantial conformity
with the doctrine of Penna. R. Co. v. Hope. Appellant, however,
claims that the succession of events was so broken as to bring the
case under Hoag v. Railroad Co., and require the judge to direct
the jury in its favor. The break in the chain of events was merely
a gap in the time. Had the fire extended from the stump to plain-
tiff's lumber without interval, on the same afternoon, this case
would have been exactly parallel with Penna. R. Co. v. Hope. But
the fact that the fire smouldered awhile in the stump, and, after it
was supposed to have been extinguished, broke out again the next
day, while it makes the conclusion less obvious that the damage was
done by the same fire, does not interpose any new cause, or enable
the court to say as matter of law that the casual connection was
broken.- The sequence from the original fire to the burning of
plaintiff's logs was interrupted by two apparent cessations of the
fire, but the jury have found that the cessations were only apparent,
leaving intervals of time in the visible progress of the fire, but
making no real break at all in the actual connection. In Railroad
Co. V. Kerr, page 366, it is said by Thompsox, C. J., that the rule
"is not to be controlled by time or distance, but by the succession of
events;" and in Hoag v. Railroad Co., Trunkey, P. T., in charging
the jury, had quoted the foregoing, and added: ''Whether the fire
communicated to the plaintiff's property within a few minutes, or
after the lapse of hours from the negligent act, may be immaterial."
It is said in this case that the agents of plaintiff on the ground did
not anticipate a further spread of the fire after the inter\'al of time,
and therefore it cannot be assumed that the defendant should have
anticipated it. But the agents of plaintiff did not expect it, because
they thought the fire had been put out, not because they did not see
the danger of its spreading while it was burning; and this was the
danger that appellant was bound to contemplate, to wit. the natural
and probable consequence of the original act, not the eft'ect of the
supposed extinguishment subsequently. ^ The pauses in the progress

^Accord: Krippucr v. Bicbl. 28 Minn. 139 (1882) contra: Doggctt v.
R. R., 78 N. C. 305 (1878).

'Contra: Daggett v. R. R., 78 N. C. 305 (1878^. See as to failure of


of the fire, therefore, and the lapse of time, while matter for the
consideration of the jury in determining the continuity of effect, do
not of themselves make such a change as requires the court to say
that the}- break the connection.

But it is argued that it was not until the next morning after the
fire started in the stump, and during the time when it was apparently
extinguished, that the wind rose, and became a new cause of the
spread of the fire to plaintiff's lumber. This, however, was, like the
point already considered, dependent on the circumstances.^ In
Penna. R. Co. v. Hope, one of the facts was, a strong wind which
carried the fire and so, also, it was in Penna., etc., R. Co. v. Lacey,
89 Pa. 458, and in Lehigh V. R. Co. v. McKeen, 90 Pa. 129;
and in this last case, Trunkey, J., says the jury "could also de-
termine whether dry weather and high winds, in the spring time,
are extraordinary, and whether, under these conditions, * * *
the injury was within the probable foresight of him whose neg-
ligence ran through from the beginning to the end." No doubt
a hurricane or a gale may be such as to be plainly out of the
usual course of nature, and therefore to be pronounced by the court
as the intervention of a new cause. Such a wind would be like the
flood in Morrison v. Davis, 20 Pa. 171, But the ordinary danger of
Avind helping a fire to spread is one of the things to be naturally
anticipated. The lapse of time before the wind rose, in this case,
was therefore not clearly a new cause to be so pronounced by the
court, ^ul.a circumstance to be considered, with the others, by the
jury. ' _

On this branch of the case, generally, the mjury was not more
remote from the alleged cause than in Penna. R. Co. v. Hope, supra;
Penna., etc., R. Co. v. Lacey, 89 Pa. 458, and Lehigh V. R. Co. v.
McKeen, 90 Pa. 129; and not so much so as in Fairbanks v. Kerr,
70 Pa. 86, and Oil Creek, etc., Ry. Co. v. Keighron, 74 Pa. 316, in
all of which the question was held to have been properly submitted
to the jury.

There remains only the question of contributory negligence,
and we do not find any evidence that would have justified taking
this from the jury. If plaintiff had not known of the fire in the
stump, he would have had no duty in regard to it ; but, knowing of

third person to extinguish fire; Doggett v. R. R., supra; Wiley v. R. R., 44 N.
J. L. 244 (1883) ; Atkinson v. Goodrich Trans. Co., 60 Wis. 141 (1884). As
to suggestion that since plaintiff did not foresee spread of fire, defendant
could not be required to do so, see Oil City v. Robinson, 99 Pa. i (1881)
ace; Roedecker v. Met. St. Ry. Co., 87 N. Y. App. Div. 227 (1903), and
Wood V. R. R., 177 Pa. 306 (1896).

* Accord: P. R. R. v. Lacey, 89 Pa. 458 (1879) ; Kellogg v. R. R., 26
Wis. 223 (1870); 94 U. S. 469 (1876); Hart v. R. R., 13 Mete. 99 (Mass.,
1847) ; Coates v. R. R., 61 Mo. 38 (1875). In the following cases the wind
arose after the negligent act was complete. Hewey v. Nourse, 54 Me. 256
(1868) ; Poeppers v. R. R., 67 Mo. 715 (1878) ; Needham v. King, 95 Mich.
303 (1893); ijut see LilUhridgc v. McCann, 117 Mich. 84 (1898), contra
(semble) and R. R. v. Whiilock, 99 Ind. 16 (1884), and C/. : Marvin v.
R. R., 79 Wis. 140 (1891), fire spread by subsequent "whirlwind."


it, he was bound to take all reasonable and practicable measures to
prevent its spreading to his lumber. He was not an insurer. The
measure of his duty in this regard was reasonable care and dili-
gence, and whether he used these was fairly and accurately sub-
mitted to the jury. That they found against the defendant's view
was no fault of their instruction as to the law.

Judgment affirmed.


Supreme Court of South Dakota, 1892. 3 South Dakota, 44.
Kell^\m, p. J. :^ The complaint is that "defendant (appellant)
wrongfully and negligently * * '■'" excavated the land adjacent and
contiguous to plaintiff's said land, * * * and removed the earth
therefrom, without leaving sufficient lateral support for the plain-
tiff's said land and building; * * * that defendant did so make
such excavation as aforesaid, without using proper and ordinary
care and skill in so doing, and without taking reasonable precau-
tion to sustain the plaintiff's said land and building ; that by reason
of the excavation made as aforesaid, and the lack of support to
plaintiff's said land and building caused thereby, the stone walls
under said building sank and gave way," etc. The evidence most
directly tending to show negligence, if any, and that upon which
the verdict undoubtedly rested, was that after the excavation was
substantially done, but still open, awaiting the masons, with trenches
for the footing courses of appellant's wall, dug along and by the
side of respondent's wall, it was left in such condition that water
ran in from the street outside, and so soaked up and softened the
earth by which respondent's wall was supported that it settled, and
gave way, causing the damage complained of. In our fonner opin-
ion we meant to be understood as holding that in the excavation of
this work appellant ow ed a du tyi Jo respondent a s a coterminous

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 37 of 124)