inevitable accident which he could not have foreseen. Thirning, C. J., and Markham, J., in Beaulieu v. Finglam, Yearbook 2 H. IV, 18; Anon, Cro. Eliz. 10; 1 Rol. Abr. 1, Action sur Case, B 1; D'Anvers Abr., Actions, B; Turberville v. Stamp, (1698) Comyns, 32; S. C., 1 Salk. 13, Holt, 9, 1 Ld. Raym. 264, 12 Mod. 152; Com. Dig., Action upon the Case for Negligence, A, 6; 1 Vin. Abr. 215, 216; 1 Bac. Abr., Action on the Case, F (Amer. ed. 1852), p. 122; Canterbury v. Attorney General, 1 Phil. Ch. 306, 316-319; Filliter v. Phippard, 11 Q. B. 347, 354; Furlong . Carroll, 7 Ontario App. 145, 159. The common law liability in case of ordinary accident, without proof of negligence, was impliedly recognized in the statute of Anne, passed within ten years after the decision in Turberville v. Stamp, above cited, and providing that "no action, suit or process whatsoever shall be had, maintained or prosecuted against any person in whose house or chamber any fire shall accidentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby; any law or usage or custom to the contrary notwithstanding." Stats. 6 Anne (1707), c. 31 (58), § 7, 8 Statutes of the Realm, 795; 10 Anne (1711), c. 14 (24), § 1, 9 Statutes of the Realm, 684. By the statute of 14 Geo. III (1774), c. 78, § 86, the statute of Anne was extended to "any person in whose house, chamber, stable, barn or other building, or whose estate, any fire shall accidentally begin."

In modern times in England, the strict rule of the common law as to civil liability in damages for fire originating on one's own land, and spreading to property of another, has been recognized as still existing, except so far as clearly altered by statute. . . . In the course of the argument in Blyth v. Birmingham Waterworks, (1856) 11 Exch. 781, 783, Baron MARTIN said:

"I held, in a case tried at Liverpool in 1853 that, if locomotives are sent through the country emitting sparks, the persons doing so incur all the responsibilities of insurers; that they were liable for all the consequences."

In Vaughan v. Taff Vale Railway, (1858) 3 H. & N. 743, the Court of Exchequer held that a railway company, expressly authorized by its charter to use locomotive engines on its railway, was responsible for damages caused to property by fire communicated from such engines, although it had taken every precaution in its power to prevent the injury. But the judgment was reversed in the Exchequer Chamber; and Lord Chief Justice COCKBURN said:

"Although it may be true, that if a person keeps an animal of known dangerous propensities, or a dangerous instrument, he will be responsible to those who are thereby insured independently of any negligence of the mode of dealing with the animal, or using the instrument; yet when the Legislature has sanctioned and authorized the use of a particular thing, and it is used for the purpose for which it was authorized, and every precaution has been used to prevent the injury, the sanction of the Legislature carries with it this consequence, that if damage results from the use of such thing independently of negligence, the party using it is not responsible." 5 H. & N. (1860) 679, 685.

The final decision in that case has since been considered in England as establishing that a railway company, which by Act of Parliament has been expressly authorized to use locomotive engines upon its railway, without being declared to be responsible for fires communicated from those engines, is not, in the absence of negligence on its part, liable for damages caused by such fires. Fremantle v. Northwestern Railway, (1861) 10 C. B. (N.S.) 89; Hammersmith, &c. Railway v. Brand, (1869) L. R. 4 H. L. 171; Smith v. London & Southwestern Railway, (1870) L. R. 6 C. P. 14, 21, 22; London, Brighton & Southcoast Railway v. Truman, (1885) 11 App. Cas. 45..

In this country, the strict rule of the common law of England as to liability for accidental fires has not been generally adopted; but the matter has been regulated, in many States, by statute. Clark v. Foot, 8 Johns. 329; Bachelder v. Heagan, 18 Maine, 32; Tourtellot v. Rosebrook, 11 Met. 460; Finley v. Langston, 12 Missouri, 120; Miller v. Martin, 16 Missouri, 508; Catron v. Nichols, 81 Missouri, 80; Cooley on Torts, 14, 590-592; 1 Thompson on Negligence, 148-150. In the Colony of Massachusetts, from the first settlement, it was an object of legislation, "for the preservation of houses, hay, boards, timber, &c." 1 Mass. Col. Rec. (1631) 90, (1639) 281; 3 Mass. Col. Rec. (1646) 102. In 1660, or earlier, it was enacted that,

"whoever shall kindle any fires in the woods, or grounds lying common, or enclosed, so as the same shall run into corn grounds or enclosures," at certain seasons, should "pay all damages, and half so much for a fine"; "provided that any man may kindle fire in his own ground so as no damage come thereby either to the country or to any particular person." Mass. Col. Laws of 1660, p. 31; of 1672, p. 51.

Soon after the introduction of railroads into the United States, the legislature of the State of Massachusetts, by the statute of 1837, c. 226, provided that a railroad corporation should be held responsible in damages for any injury done to the buildings or other property of others. by fire communicated from its locomotive engines, "unless the said corporation shall show that they have used all due caution and diligence, and employed suitable expedients to prevent such injury "; and that any railroad corporation should have an insurable interest in property along its route for which it might be so held responsible in damages, and might procure insurance thereon in its own behalf. Three years later, that statute was repealed, and was re-enacted with the omission of the clause above quoted, thus making the liability of the railroad corporation absolute, and not dependent upon negligence on its part. And the statute in this form, with merely verbal changes, has been continued in force by successive re-enactments. Mass. Stat. 1840, c. 85; Gen. Stat. of 1860, c. 63, § 101; Stat. 1874, c. 372, § 106; Pub. Stat. of 1882, c. 112, § 214. . . In Maine and in New Hampshire, statutes substantially like the statute of Massachusetts of 1840, making railroad corporations absolutely liable, without regard to negligence, for

injuries to property by fire communicated from their locomotive engines, were enacted in 1842, and have been since continued in force, and their validity upheld by the highest Courts of those States, as applied to corporations created either before or after their passage. Maine Stat. 1842, c. 9, § 5; Rev. Stat. of 1883, c. 51, § 64. . . . In Connecticut, before any legislation towards holding railroad corporations liable for property burned by sparks from their locomotive engines, they were held not to be so liable, if their use of such engines was with due care and skill, and in conformity with their charters. Burroughs v. Housatonic Railroad, 15 Conn. 124. The subsequent legislation upon the subject, and the reasons for it as stated by the Supreme Court of the State, were as follows: Experience demonstrated that in all cases of fire set by the operation of railroads it was extremely difficult, and in some cases impossible, to prove negligence even when it existed. This led to the passage in 1840, and to the re-enactment in 1875, of a statute providing that, in all actions for any injury occasioned by fire communicated by a railway locomotive engine in the State, proof that such fire was so communicated should be prima facie evidence of negligence. Conn. Stat. 1840, c. 26; Gen. Stat. of 1875, tit. 19, 11, § 29. Even then, the difficulty was but partially removed, for in most cases the defendant could easily produce evidence of due care, and the plaintiff would be ill prepared to meet it. Therefore, in 1881, the Legislature took the broad, equitable ground that upon proof of the fact that the locomotive engine communicated fire to and destroyed property the company should be liable, independently of the question of negligence; and accordingly enacted another statute, in the words of the Massachusetts statute of 1840, before mentioned, imposing an absolute liability, qualified only by the insertion of the words, "without contributory negligence on the part of the person or corporation entitled to the care and possession of the property injured." Conn. Stat. 1881, c. 92. . . .

The learning and diligence of counsel have failed to discover an instance in which a statute, making railroad companies absolutely liable for damages by fire communicated from their locomotive engines to the property of others, has been adjudged to be unconstitutional, as to companies incorporated before or since its enactment.

This review of the authorities leads to the following conclusions: First. The law of England, from the earliest times, held any one lighting a fire upon his own premises to the strictest accountability for damages caused by its spreading to the property of others.

Second. The earliest statute which declared railroad corporations to be absolutely responsible, independently of negligence, for damages by fire communicated from their locomotive engines to property of others, was passed in Massachusetts in 1840, soon after such engines had be

come common.

Third. In England, at the time of the passage of that statute, it was undetermined whether a railroad corporation, without negligence,

was liable to a civil action, as at common law, for damages to property of others by fire from its locomotive engines; and the result that it was not so liable was subsequently reached after some conflict of judicial opinion, and only when the acts of Parliament had expressly authorized the corporation to use locomotive engines upon its railroad, and had not declared it to be responsible for such damages.

Fourth. From the time of the passage of the Massachusetts statute of 1840 to the present time, a period of more than half a century, the validity of that and similar statutes has been constantly upheld in the courts of every State of the Union in which the question has arisen.

The motives which have induced, and the reasons which justify, the legislation now in question, may be summed up thus: Fire, while necessary for many uses of civilized man, is a dangerous, volatile and destructive element, which often escapes in the form of sparks, capable of being wafted afar through the air, and of destroying any combustible property on which they fall; and which, when it has once gained headway, can hardly be arrested or controlled. Railroad corporations, in order the better to carry out the public object of their creation, the sure and prompt transportation of passengers and goods, have been authorized by statute to use locomotive engines propelled by steam generated by fires lighted upon those engines. It is within the authority of the Legislature to make adequate provision for protecting the property of others against loss or injury by sparks from such engines. The right of the citizens not to have his property burned without compensation is no less to be regarded than the right of the corporation to set it on fire. To require the utmost care and diligence of the railroad corporations in taking precautions against the escape of fire from their engines might not afford sufficient protection to the owners of property in the neighborhood of the railroads. When both parties are equally faultless, the Legislature may properly consider it to be just that the duty of insuring private property against loss or injury caused by the use of dangerous instruments should rest upon the railroad company, which employs the instruments and creates the peril for its own profit, rather than upon the owner of the property, who has no control over or interest in those instruments. The very statute now in question, which makes the railroad company liable to damages for property so destroyed, gives it, for its protection against such damages, an insurable interest in the property in danger of destruction, and the right to obtain insurance thereon in its own behalf; and it may obtain insurance upon all such property generally, without specifying any particular property. Eastern Railroad v. Relief Ins. Co., 98 Mass. 420. The statute is not a penal one, imposing punishment for a violation of law; but it is purely remedial, making the party, doing a lawful act for its own profit, liable in damages to the innocent party injured thereby, and giving to that party the whole damages, measured by the injury suffered. Grand Trunk Railway v. Richardson, 91 U. S. 454, 472; Huntington v. Attrill, 146 U. S. 657.

The statute is a constitutional and valid exercise of the legislative power of the State, and applies to all railroad corporations alike. Consequently, it neither violates any contract between the State and the railroad company, nor deprives the company of its property without due process of law, nor yet denies to it the equal protection of the laws. Judgment affirmed.

522. BERTHOLF v. O'REILLY

COURT OF APPEALS OF NEW YORK. 1878

74 N. Y. 509

APPEAL from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 8 Hun, 16.) The nature of the action and the facts are set forth sufficiently in the opinion.

Lewis E. Carr, for appellant. The Civil Damage Act so far as it assumes to give a right of action against the owner of the building in which the intoxicating liquors were sold for damages is unconstitutional. . . . It was unconstitutional because it deprived the owner of the building wherein intoxicating liquors may be sold of the freedom from liability for the tenant's acts which belongs to other landlords.

W. J. Groo, for respondent. The Legislature had authority to pass the Civil Damage Act and it did not contravene the provisions of article 1, sections 1 and 6 of the Constitution.

ANDREWS, J. This and other cases which have been argued and are awaiting decision raise the question of the constitutionality of the "Act to suppress intemperance, pauperism and crime," passed April 29, 1873, commonly known as the Civil Damage Act. Some of the cases are actions against the vendors of liquors sold to be drunk by the purchasers, and causing intoxication and consequential injury to the plaintiffs. This action is brought by the plaintiff against the defendant, as the landlord of hotel premises, let with knowledge that intoxicating liquors were to be sold therein by the lessee, to recover the value of a horse owned by the plaintiff, which died in consequence of having been overdriven by the plaintiff's son while in the state of intoxication, produced in part by liquor sold him by the lessee at his bar on the leased premises. The essential facts, as established by the verdict of the injury, may be briefly stated.

The defendant, when the Act in question was passed, was the owner of a hotel building and premises. In June, 1875, he leased them to one Firnhaber, knowing that the lessee intended to occupy the building for a hotel and boarding-house, and sell intoxicating liquors therein. The lessee entered into possession and opened a