4 question is to be left to the jury to decide.' It has been held not contributory negligence to leave open the doors of an unfinished building situated near the track, although upon the floor were considerable shavings; 2 nor to suffer the roof of a building to be in such a condition as to be more liable to take fire than if it had a safe and secure roof;3 nor neglecting to keep down grass; nor permitting grass to accumulate in the fence-corners near the track; nor allowing leaves and combustible matter to accumulate on the land; nor building a house within thirty yards of the railroad track; nor to stack hay on a newly mown meadow thirty rods from the track; nor failing to plow a trench around a hedge and straw-ricks; nor failing to remove a barn which stands in dangerous proximity to the track; nor suffering the roof of a barn which stood near the track, and which was made of shingles, to become and remain dry and decayed, and peculiarly liable, on a dry and windy day, to be set on fire by a spark from a passing engine; " nor leaving a pane of glass out of a window in a building near the track.1 But in other cases the following have been held to constitute contributory negligence on the part of the plaintiff: For 10 1 Illinois etc. R. R. Co. v. Mills, 42 Ill. 407; Illinois etc. R. R. Co. v. Frazier, 47 Ill. 505; Illinois etc. R. R. Co. v. Nunn, 51 Ill. 78; Chicago etc. R. R. Co. v. Simonson, 54 Ill. 504; 5 Am. Rep. 155; Ohio etc. R. R. Co. v. Shanefelt, 47 Ill. 497; 95 Am. Dec. 504; Great Western R. R. Co. v. Haworth, 39 Ill. 347; Toledo etc. R. R. Co. v. Pindar, 53 Ill. 447; 5 Am. Rep. 57; Bass v. R. R. Co., 28 Ill. 9; 81 Am. Dec. 254. 2 Fero v. R. R. Co., 22 N. Y. 209; 78 Am. Dec. 178. 8 R. R. Co. v. Salmon, 39 N. J. L. 299; 7 Burke v. R. R. Co., 7 Heisk. 451; 19 Am. Rep. 618. 8 St. Joseph etc. R. R. Co. v. Chase, 11 Kan. 47. Burlington etc. R. R. Co. v. Westover, 4 Neb. 268; Karsen v. R. R. Co., 29 Minn. 12. See Lewis v. R. R. Co., 57 Iowa, 127; Ormond v. R. R. Co., 58 Iowa, 742. 10 Caswell v. R. R. Co., 42 Wis. 193; Jefferis v. R. R. Co., 3 Houst. 447. 11 Jefferis v. R. R. Co., 3 Houst. 447. 12 Martin v. R. R. Co., 23 Wis. 437; 99 Am. Dec. 189; Louisville etc. R. R. Co. v. Richardson, 66 Ind. 43; 32 Am. Rep. 94. 3 the owner of a warehouse adjoining a railroad track to permit the windows of a room to remain open and unglazed, in which were stored cobs, husks of corn, grain, rags, and other inflammable material; to allow shavings to accumulate around an unfinished house situated about one hundred feet from the track; to pile wood near a side-track; or after the discovery of the fire by the plaintiff, to neglect to use reasonably practicable means to suppress it.. The fact that the land to which the fire is communicated is wood-land is relevant on the question of the plaintiff's negligence. The greater difficulty of keeping such land clear of inflammable matter will abate the degree of diligence required of the landowner. Where a land-owner has claimed and obtained damages for the occupation by the company of a certain strip of his land, the fact that he has run his fence outside that strip is also relevant. One who authorizes the use of a locomotive-engine on his premises for conve nience in loading and unloading cannot maintain an action to recover damages caused by sparks from such engine." Where the defendant's negligence caused a fire on the plaintiff's land, although the plaintiff's negligence increased the loss, the plaintiff may still recover for the damage done before his own negligence began to operate. In an action to recover the value of an elevator alleged to have been burned by fire communicated to it from the building of another, which was set on fire by sparks from a locomotive on defendant's railroad, it was held that the contributory negligence of the owner of the building first burned would not constitute a defense." ILLUSTRATIONS. The plaintiff's barn, in which he kept his horses, stood within two feet of the railroad fence. Straw and manure had been thrown outside, and had accumulated in a pile, and become dry and combustible. A spark from a passing engine set it on fire. Held, that this was evidence of contributory negligence to go to a jury: Collins v. R. R. Co., 5 Hun, 499. Fire was communicated by sparks from the defendant's engine to a pile of wood in its yard, and from there was carried to the plaintiff's premises, adjacent thereto. Held, that the latter, in building his house so near the wood-yard, had assumed the increased risk: Macon etc. R. R. Co. v. McConnell, 27 Ga. 481. The plaintiff had placed his house some distance from the railroad track, but subsequently, through the erection by another of a building more contiguous to the track, it was placed in a much more hazardous position, and was, a short time afterwards, destroyed by fire communicated in the first instance to the later and nearer building, and from thence to the plaintiff's property. Held, that the plaintiff was not guilty of contributory negligence: Toledo etc. R. R. Co. v. Maxfield, 72 Ill. 95. Plaintiffs owned a warehouse, with a branch track connecting with defendants' railroad, and employed the defendants to draw cars upon that track for their accommodation. The engine thus used emitted sparks; the plaintiffs complained of this to the defendants; the defendants promised to repair it, but neglected to do so, and the plaintiffs continued to employ the engine. The warehouse being set on fire by sparks from this engine, held, that the plaintiffs were negligent, and had no remedy therefor against defendants: Marquette etc. R. R. Co. v. Spear, 44 Mich. 169; 38 Am. Rep. 242. Plaintiff carried on a varnish factory adjoining defendant's railroad, and in the manufacture exposed benzine out of doors on his premises, which was ignited by sparks from defendant's engine, and caused the destruction of the factory. Held, that plaintiff was not negligent: Kalbfleishe v. R. R. Čo., 102 N. Y. 520; 55 Am. Rep. 832. A building belonging to a railroad took fire from sparks from one of their engines, and from this building fire was blown across the street to the storehouse of P., which, with several thousand dollars in money contained therein, was consumed. In an action by P., held, 1. That as the loss of the money could have been prevented by reasonable efforts for its preservation, the company were not responsible as to it; 2. That the question whether the injury sustained was too remote was for the jury: Toledo etc. R. R. Co. v. Pindar, 53 Ill. 447; 5 Am. Rep. 57. § 1364. Statutory Liability.-In several states the causing of fire by railroads to adjoining property is made prima facie evidence of negligence. In Maine and Massachusetts, when injury is done to any building or other property of any person by fire "communicated" by a locomotive-engine of any railroad company, the latter shall be held responsible in damages to the person or corporation so injured. A railroad company is also given an insurable interest in the property for which it may be held responsible in damages "along its route," and may procure insurance upon it in its own behalf. New Hampshire has a statute in all respects similar to these, except that the word "from" is used in the place of "communicated by," and the words "on the line of such road" in the place of the phrase "along its route"; consequently, in those states, the liability of a railroad is not dependent on its want of care. These statutes apply to corporations which have obtained their charters before their enactment, and a railroad company which has leased its line to another company remains responsible for any damage by the latter caused by fire," 1 Vermont. Gen. Stats., c. 28, secs. 78, 79; Grand Trunk R. R. Co. v. Richardson, 91 U. S. 454; 3 Cent. L. J. 353; Cleaveland v. R. R. Co., 42 Vt. 449. Maryland. - Code, art. 77, sec. 2; Baltimore etc. R. R. Co. v. Woodruff, 4 Md. 242; 59 Am. Dec. 72; Baltimore etc. R. R. Co. v. Shipley, 39 Md. 252; Baltimore etc. R. R. Co. v. Dorsey, 37 Md. 19. New Jersey.--Rev. Stats., c. 697, secs. 13, 14; Delaware etc. R. R. Co. v. Salmon, 39 N. J. L. 299; 23 Am. Rep. 214. Kansas.-Gen. Stats. 1122, c. 118, sec. 2; Missouri etc. R. R. Co. v. Davidson, 14 Kan. 349. Iowa. Code, sec. 1289; Rodemacher v. R. R. Co., 41 Iowa, 297; 20 Am. Rep. 592. In Small v. R. R. Co., 6 Cent. L. J. 310, it was held by a divid. ed court that the liability of railroad companies for damages caused by fire from their engines was by this section of the code made absolute. But on a rehearing this decision was overruled: See 50 Iowa, 338. - Illinois. Rev. Stats. 1877, p. 775, sec. 89. And see Chicago etc. R. R. Co. v. McCahill, 56 Ill. 28; Pittsburgh etc. R. R. Co. v. Campbell, 86 Ill. 445; Ind. etc. R. R. Co. v. Nicewander, 21 Ill. App. 305. Under the South Carolina statute making railroads liable for property burned near the right of way when the fire originates from acts of an agent, questions of negligence and proximate cause are irrelevant: Thompson v. R. R. Co., 24 S. C. 366. 2 Stats. 1842, c. 9, sec. 5. 3 Gen. Stats. 1860, c. 63, sec. 101; Perley v. R. R. Co., 98 Mass. 414; 96 Am. Dec. 645; Ingersoll v. R. R. Co., 8 Allen, 438. For a construction of this word, see Hart v. R. R. Co., 13 Met. 99; 46 Am. Dec. 719; Safford v. R. R. Co., 103 Mass. 583. Pratt v. R. R. Co., 42 Me. 578; Ingersoll v. R. K. Co., 8 Allen, 438; Lyman v. R. R. Co., 4 Cush. 288. Ingersoll v. R. R. Co., 8 Allen, 438. A railroad company may be held liable, independent of statute, for injuries caused by fire thrown from the loco as also does the lessee. Under these statutes the defense of contributory negligence is not available. These statutes embrace both real and personal property, provided it be permanently existing and capable of being insured. Growing timber and mechanics' tools and fences are within them. But not cedar posts that were deposited temporarily near the track, and which were intended to be used elsewhere. Property is "along the route" of the road when it is so near as to be exposed to the danger of fire; the actual distance is immaterial." It is not necessary that the railroad company shall have had actual notice of the presence of property along its line.? motive of another company permitted to run over its track, and whose want of proper appliances is known to its agents: Delaware etc. R. R. Co. v. Salmon, 39 N. J. L. 299; 23 Am. Rep. 214; Pierce v. R. R. Co., 51 N. H. 590; Stearns v. R. R. Co., 46 Me. 96. 1 Pierce v. R. R. Co., 51 N. H. 132; Davis v. R. R. Co., 121 Mass. 134. 2 Rowell v. R. R. Co., 57 N. H. 132; 24 Am. Rep. 59; Ingersoll v. R. R. Co., 3 Pratt v. R. R. Co., 42 Me. 579. Pratt v. R. R. Co., 42 Me. 579; 7 Ross v. R. R. Co., 6 Allen, 87. |