1858. VAUGHAN fire from the engine would be an answer to the charge of negligence, provided they did not succeed in preventing it, and also in telling the jury that the conduct of the plaintiff in allowing his wood to be in such a combustible state was RAILWAy Co. not material. Grove and Giffard shewed cause (a).—The position of the defendants is analogous to that of a person who keeps a dangerous animal, such as a tiger, with knowledge of its propensities. Such a person is bound to secure it at his peril, and if it does mischief negligence is presumed. [Pollock, C. B.-In that case the keeping of such an animal after notice is negligence. Here, however, the Company are empowered to run locomotives on the line, which is an important distinction: Rex v. Pease (b).] In Gibson v. The South Eastern Railway (c) Watson, B. ruled that, in an action against a railway company for carelessly letting sparks fly from their engines so as to set fire to the herbage, it is not necessary to prove any specific act of negligence. That accords with the opinion of Martin, B., in Blyth v. The Birmingham Waterworks Company (d). In Com. Dig. "Action on the Case for Negligence," (A 6) it is said: "An action lies, upon the general custom of the realm, against the master of a house if a fire be kindled there and consume the goods of another" (e). In Turbervil v. Stamp (ƒ) the Court say of the fire in a man's field, "he must see it does no harm and answer the damage it does." [Bramwell, B.-The observation appears to be extra-judicial.] The question arose after verdict on a declaration which stated that the defendant negligenter custodivit ignem suum (a) In Trinity Term, May 27. Before Pollock, C. B., Martin, B., and Channell, B. (b) 4 B. & Ad. 30. (d) 11 Exch. 781; see p. 783. (f) 1 Salk. 13. v. TAFF VALE 1858. in clauso suo. VAUGHAN v. TAFF VALE That allegation does not mean more than that the defendant did not keep his fire within his own close. To put that sense on the declaration is to construe RAILWAY CO. it in accordance with the ruling in Beaulieu v. Finglam (a), because if the law is as there stated the allegation of negli gence is mere form, as it is in an action on the case against a carrier. Filliter v. Phippard (b) shews that the statute 14 Geo. 3, c. 78, s. 86, does not affect the liability of a person on whose estate a fire is produced by negligence, or lighted intentionally. Nor, by parity of reasoning, does it apply where the fire is occasioned in consequence of the use of a dangerous instrument by the owner or his servants. [Pollock, C. B., referred to 1 Black. Comm. 431, and Martin, B., to Viscount Canterbury v. The Attorney General (c).] J. Evans and F. Lloyd, in support of the rule.-First, assuming that sparks from the engine set fire to the wood. The ruling amounts to this: that the railway Company, having taken every precaution to prevent accidents, are to be made responsible if sparks from their engines set fire to crops on the adjacent lands. But the negligence which alone would have rendered the defendants liable was thus defined by Alderson, B., in Blyth v. The Birmingham Waterworks Company (d):—“ Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." [Bramwell, B.-Suppose a person, galloping through a public street to fetch a surgeon in a case of emergency, rode against another: that would be negligence for which the rider would be responsible, though perhaps unavoidable, and though he would (a) 2 H. 4, f. 18, pl. 6. (b) 11 Q. B. 347. (c) 1 Phillips, 306, 315. MICHAELMAS TERM, 22 VICT. 1858. VAUGHAN v. TAFF VALE be acting as a reasonable man would.] Piggott v. The Eastern Counties Railway (a) and Aldridge v. The Great Western Railway (b) lead to the inference that, as precautions had been adopted by the Company reasonably suffi- RAILWAY Co. cient to prevent accidents, they were not liable. Rex v. Pease (c) shews that the legislature must be taken to have contemplated the possibility that accidents would arise in consequence of the exercise of the powers conferred on railway companies. The case is not analogous to that of keeping a tiger, because there the wrongful act, if any, is in keeping the animal at all; here in the use of an engine which the legislature has authorized the defendants to run on their line: 8 & 9 Vict. c. 20, s. 86. [Bramwell, B.-In Manley v. The St. Helen's Railway and Canal Company (d) Pollock, C. B., said: "Though the legislature permits the Company to do the various acts described in their statutes, they are to be considered as persons doing them for their own private advantage, and are therefore personally responsible if mischief arises from their not doing all they ought."] Secondly, assuming the fire to have commenced on the defendants' banks, and from thence to have communicated to the plaintiff's wood; the defendants are not liable, except for negligence. If there was no actual negligence in producing or keeping such fire, the case is within the 14 Geo. 3, c. 78, s. 86: Filliter v. Phippard (e). The question whether there was such negligence should have been left to the jury. Lastly, the plaintiff himself, in allowing the long grass to remain till it was dry and highly combustible close to the bank of the railway, by his own negligence contributed to (a) 3 C. B. 229. (d) 2 H. & N. 840, 848. 1858. VAUGHAN v. TAFF VALE the injury he suffered; he is therefore not entitled to rerecover: Butterfield v. Forrester (a), Marriot v. Stanley (b). It would hardly be contended that the owner of a barge on RAILWAY CO. the Thames, overloaded, and in that state swamped by the waves caused by a steamer proceeding up the river at an ordinary pace, would have any remedy against the owners of the steamer. [Martin, B.-It would require a strong authority to convince me that because a railway runs along my land I am bound to keep it in a particular state.] Cur, adv. vult. The judgment of the Court was now delivered by BRAMWELL, B.-In this case the material facts are: that the defendants' line passed in a cutting by the side of the plaintiff's wood: that on the side of the cutting was tall dry grass, of very combustible character, extending to the plaintiff's wood: that the defendants used a locomotive, and did, in consequence of the use of it, burn down the plaintiff's wood, but whether by first setting fire to the grass on their own land, or by throwing lighted matter on the plaintiff's land, was not determined by the jury, though there is great probability that the former was the way in which the mischief was done. It was sworn on the part of the defendants, and for the present purpose must be taken to be true, that everything that was practicable had been done to the locomotive to make it safe; that a cap had been put to its chimney, that its ash-pan had been secured, that it travelled at the slowest pace consistent with practical utility, and that if its funnel was more guarded, or its ash-pan, or if its pace was slower, it could not be advantageously used. But it was admitted that, with these precautions, the locomotive was the cause of setting fire to the (b) 1 Man. & G. 568. (a) 11 East, 60. 1858. VAUGHAN v. TAFF VALE defendants' banks, not daily but occasionally; so that in fact it stood confessed that the locomotive was productive of mischief, that its use was dangerous, and that what had happened on this particular occasion-that is, its setting RAILWAY CO. fire to the defendants' grass-was not a particular accident, but one of the habitual incidents to the use of the locomotive. Upon this the Judge offered to direct the jury to find for the plaintiff, but Mr. Grove preferred the question should be left to them. It was left to them to say if the defendants were guilty of negligence; the learned Judge observing, among other things, that if they had kept their banks shorn, or had had a strip of incombustible matter between their land and the plaintiff's, as, for instance, a line of gravel or stone, the mischief in all probability would not have happened, and it may be taken that the case was put to the jury in the strongest way in favour of the plaintiff. Still the question was left to them, and, unless a verdict ought to have been directed for the defendants, there is no misdirection. The first question then is: Was there evidence for the jury? And, as they may have found on either count, was there evidence in support of each? Next: Was the evidence such as to warrant the strong opinion of the learned Judge? We are of opinion, on both these questions, in favour of the plaintiff. Here is confessedly the use of an instrument likely to produce damage, and producing it. This, according to general rules, would make the defendants liable. But two answers were suggested on their behalf. The first was, that if the fire originated on their own land they were protected by the 14 Geo. 3, c. 78, s. 84. But we are of opinion that the statute does not apply where the fire originates in the use of a dangerous instrument, knowingly used by the owner of the land in which the fire breaks out. |