16. A question of considerable practical importance has been somewhat discussed, in regard to the extent of the responsibility prove that this apparatus was so perfect that no fumes possibly could escape from the defendant's chimneys. On this evidence, it was pressed upon the jury that the plaintiff's damage must have been due to some of the numerous other chimneys in the neighborhood; the jury, however, being satisfied that the mischief was occasioned by chlorine, drew the conclusion that it had escaped from the defendants' works somehow, and in each case found for the plaintiff. No attempt was made to disturb these verdicts, on the ground that the defendants had taken every precaution which prudence or skill could suggest to keep those fumes in, and that they could not be responsible unless negligence were shown; yet if the law be as laid down by the majority of the Court of Exchequer, it would have been a very obvious defence. If it had been raised, the answer would probably have been that the uniform course of pleading in actions on such nuisances is to say that the defendant caused the noisome vapors to arise on his premises, and suffered them to come on the plaintiff's, without stating there was any want of care or skill in the defendant; and that the case of Tenant v. Goldwin showed that this was founded on the general rule of law, that he whose stuff it is must keep it that it may not trespass. There is no difference in this respect between chlorine and water; both will, if they escape, do damage, — the one by scorching and the other by drowning; and he who brings them there, must at his peril see that they do not escape and do that mischief. What is said by Gibbs, C. J., in Sutton v. Clarke, though not necessary for the decision of the case, shows that that very learned judge took the same view of the law that was taken by Lord Holt. But it was further said by Martin, B., that when damage is done to personal property, or even to the person, by collision, either upon land or at sea, there must be negligence in the party doing the damage, to render him legally responsible, and this is no doubt true; and, as was pointed out by Mr. Mellish during his argument before us, this is not confined to cases of collision, for there are many cases in which proof of negligence is essential; as, for instance, where an unruly horse gets on the footpath of a public street, and kicks a passenger (Hammack v. White); or where a person in a dock is struck by the falling of a bale of cotton which the defendants' servants are lowering (Scott v. The London Dock Company), and many other similar cases may be found. But we think these cases distinguishable from the present. Traffic on the highways, whether by land or sea, cannot be conducted without exposing those whose persons or property are near it to some inevitable risk; and that being so, those who go on the highway, or have their property adjacent to it, may be held to do so subject to their taking upon themselves the risk of suffering from that inevitable danger; and persons who, by the license of the owner, pass near to warehouses where goods are being raised or lowered, certainly do so subject to the inevitable risk of accident. In neither case, therefore, can they recover without proof of want of care or skill occasioning the accident; and it is believed, that all the cases in which inevitable accident has been held an excuse for what primâ facie was a trespass, can be explained on the same principle; viz., that the circumstances were such as to show that the plaintiff had taken the risk upon himself. But there is no ground for saying that the plaintiff here took upon him of railway companies, or others, for fires communicated by the accidental extension of other fires, for which the party, through negligence or otherwise, is confessedly responsible. Upon principle, it would seem, that one who is the unintentional, but careless, cause of setting a fire, should not be held responsible for damage beyond the immediate, direct, and natural consequences of the original fire. There are numerous disastrous consequences resulting sometimes from setting fires, but which are so rare as not to be fairly reckoned in the category of natural or ordinary results, by way of cause and effect. A fireman may be fatally injured and a family beggared, or a horse may be frightened, and the fathers of more than one dependent family killed, or crippled for life, in consequence. But no actions have ever been instituted for any such remote damages. And although some of the cases bear a considerably close analogy to these in principle, it must, we think, be treated as the prevailing rule of law that such remote and consequential damages will not form the ground of an action in the courts. Thus in Ryan v. New York Central Railway,23 it was held the defendants were not responsible for the destruction of the plaintiff's house, distant one hundred and thirty feet from their shed, which had been set on fire through their own negligent conduct in regard to one of their engines, or by reason of some defect in the engine, from which the fire had communicated to the plaintiff's house. self any risk arising from the uses to which the defendants should choose to apply their land. He neither knew what there might be, nor could he in any way control the defendants or hinder their building what reservoirs they liked, and storing up in them what water they pleased, so long as the defendants succeeded in preventing the water which they there brought from interfering with the plaintiff's property. "The view which we take of the first point renders it unnecessary to consider whether the defendants would or would not be responsible for the want of care and skill in the persons employed by them, under the circumstances stated in this case. "We are of opinion that the plaintiff is entitled to recover; but as we have not heard any argument as to the amount, we are not able to give judgment for what damages. The parties, probably, will empower their counsel to agree on the amount of damages; should they differ on the principle, the case may be mentioned again. Judgment for the plaintiff." 23 35 N. Y. 210. But see Trask v. Hartford & New H. Railw., 2 Allen, 331. *CHAPTER XVIII. INJURIES TO DOMESTIC ANIMALS. 1. Company not liable unless bound to keep | 15. Actions may be maintained sometimes, for the animals off the track. remote consequences of negligence. 2. Some cases go even further, in favor of 16-18. Especially where a statutory duty is 5. Where company bound to fence are primâ 21. Testimony of experts receivable as to facie liable for injury to cattle. 6. But if owner is in fault, company not liable. management of engines. 22. One who suffers cattle to go at large must take the risk. 7. In such case company only liable for 23. The company owe a primary duty to pas gross neglect or wilful injury. 8. Owner cannot recover, if he suffer his cattle to go at large near a railway. 9. Company not liable in such case, unless they might have avoided the injury. 10. Where company are required to keep gates closed, are liable to any party injured by omission. 11. Opinion of Gibson, Justice, on this subject. 12, 17. Not liable for consequences of the proper use of their engines. 13. Questions of negligence ordinarily to be determined by jury. sengers, &c. 24. In Maryland company liable unless for 25. In Indiana common-law rule prevails. 28, 29. Abstract of late cases in Illinois. 31. Company not liable except for negli gence. 32. Company must use all statutory and other precautions. 14. But this is true only where the testimony 33. Not competent to prove negligence of the leaves the question doubtful. same kind on other occasions. § 126. 1. THE decisions upon the subject of injuries to domestic animals by railways are very numerous, but may be reduced to a comparatively few principles. Where the owner of the animals is unable to show that as against the railway they were properly upon the track, or, in other words, that it was through the fault of the company that they were enabled to come upon the road, the company are not in general liable, unless, after they discovered the animals, they might, by the exercise of proper care and prudence have prevented the injury. * The fact of killing an animal of value by the company's engines, is not prima facie evidence of negligence on their part.1 A distinction is here taken by the court between injuries to permanent property situated along the line of the railway, as injury to buildings by fires communicated by the company's engines, and damage to cattle which are constantly changing place, there being more evidence of fault on the part of the company from the mere occurrence of the injury in the former than in the latter case.2 2. Most of the better considered cases certainly adopt this view of the subject, and some perhaps go even further in favor of exempting the company from liability, where they were not originally in fault, and the animals were exposed to the injury through the fault of the owner, mediately or immediately. 3. For instance, if the animal escape into the highway, and thus get upon the track of the railway where it intersects with the highway, and is killed, the company are not liable. And if the animals are trespassing upon a field, and stray from the field, upon the track of the railway, through defect of fences, which the company are bound to maintain, as against the owner of the field, and are killed, the company are not liable, either at common law or under the English statute, or upon the ground that the defendant exercised a dangerous trade. The obligation to make and maintain fences, both at common law and under the statute, applies only as against the owners or occupiers of the adjoining close.5 1 Scott v. W. & R. Railw., 4 Jones Law, 432. See note 1, and also Ind. & Cincin. Railw. v. Caldwell, 9 Ind. 397. 3 Towns v. Cheshire Railw., 1 Foster, 363; Sharrod v. London & N. W. Railw., 4 Exch. 580. Halloran v. New Y. & Harlem Railw., 2 E. D. Smith, 257. In Maryland it was held that a statute for the protection of animals and stock did not include negro slaves. Scaggs v. Balt. & Wash. Railw., 10 Md. 268. 48 & 9 Vict. ch. 20, § 68. Ricketts v. The East and West India Docks and Birm. J. Railw., 12 C. B. 160; s. c. 12 Eng. L. & Eq. 520. The same point is ruled in the following cases. Jackson v. Rut. & Bur. Railw., 25 Vt. 150. See also cases referred to in §§ 166, 167. And it was held, Man. Sh. & Lincolnshire Railw. v. Wallis, 14 C. B. 243; s. c. 25 Eng. L. & Eq. 373, that a railway are not bound to fence against cattle straying upon a highway running along the railway, and that they are not liable for an injury sustained by cattle in getting from such highway upon the railway, through a defect of the fences maintained by the company; although the cattle strayed upon the highway without any fault of the owner. N. Y. & Erie Railw., 13 Barb. 594. But in the Midland Railw. v. Daykin, Brooks v. *4. So where the statute requires railways to fence their road, where the same passes through "enclosed or improved lands," if injury happen to another's cattle through want of fences, upon common or unenclosed land, it is not legally imputable to the negligence of the company. 5. But if the railway are bound to maintain fences, as against the owner of the cattle, and they come upon the road through defect of such fences, and are injured, the company are, in general, liable without further proof of negligence." *6. But where the statute imposes the duty of building fence upon the railway, they may lawfully stipulate with the land-owners to maintain it, and if such land-owner suffer his cattle to be where they may come upon the railway without building the fence, he 17 C. B. 126; s. c. 33 Eng. L. & Eq. 193, it was held, that where a colt strayed from a field, upon a public road, abutting upon which was a yard not fenced from a railway, the gate of which was, through the neglect of the company's servants, left open, and, while the colt was being driven back to the field by the servants of the owner, it escaped into the yard, and thence upon the railway, where it was killed by a passing train, the company were liable. Jervis, Ch. J., says: “I can see no room to doubt that that was a lawful use of the highway." But in Ellis v. London & Southwestern Railw., 2 H. & N. 424, where a railway company constructed their road across a public footway, in such a manner that no security against injury to passers on the way was afforded within the provisions of the English statute, 8 & 9 Vict. ch. 20, §§ 46, 61, 68, by means of a bridge or stile, but the company erected high gates which obstructed the footway and gave the key to plaintiff's servant, which had been lost and the gates left open, without notice to the railway company, whereby the plaintiff's colts escaped from his lands adjoining, and came upon the railway and were killed by a passing train, the jury having found that the plaintiff, by his own negligence and that of his servants had contributed to the accident, it was held he could not recover, notwithstanding the omission of duty by the company. Perkins v. Eastern Railw. and the Boston & M. Railw., 29 Maine, 307. And if by the common usage cattle have the right to run upon unenclosed land, the owner incurs the risk of all accidents. Knight v. Abert, 6 Penn. St. 472; Phil. & Germ. Railw. v. Wilt, 4 Whart. 143. 7 Suydam v. Moore, 8 Barb. 358; Waldron v. Rensselaer & Sar. Railw., 8 Barb. 390; Horn v. Atlantic & St. Lawrence Railw., 35 N. H. 169; s. c. 36 id. 440; Smith v. Eastern Railw., 35 N. H. 356. But where the cattle come upon the railway, at a point not proper to be fenced, as at the intersection of a highway, or at a mill yard, the company are not liable for injury to them, unless the plaintiff prove some fault on the part of the company's servants, besides the want of fences. Indianapolis & C. R. v. Kinney, 8 Ind. 402; Lafayette & Ind. Railw. v. Shriner, 6 Ind. 141. |