Lowney v. New Brunswick Railway Co.

Emery, J. If this case were within § 64, of chap. 51, of E. S., the burden would still be upon the plaintiff to prove that the fire which consumed his sleepers was communicated by the defendant’s locomotive-engine. The only evidence ' we find of such a communication is the fact that the fire was discovered in Shaw’s barn, (from which it spread to the sleepers,) within a few minutes after the passage of the engine. It may be doubted if that alone is sufficient proof. But the case is not within the statute above cited, and the judge .so instructed the jury. The instruction was correct. The statute does not include movable articles, that are only temporarily left near the railroad track and are liable to be changed at any time. Chapman v. A. & St. L. R. R. Co. 37 Maine, 92; Pratt v. Same, 42 Maine, 579. The burden upon the plaintiff, therefore, was to prove not only that the fire was communicated by the engine, but also that the defendants were guilty of negligence, and their negligence was the cause of the communication of the fire. The communication of the fire alone does not import negligence, nor does [481] proof of negligence alone import that it was the cause of the fire. The negligence must be proved. Its relation as the efficient cause of the fire must also be proved. Pierce on Railroads, 437; Sheldon v. Hudson River R. R. 14 N. Y. 218; Bachelder v. Heagan, 18 Maine, 32; Sturgis v. Robbins, 62 Maine, 289; Lesan v. Maine Central R. R. Co. 77 Maine, 85; State v. Same, 77 Maine, 538. In this case we find no evidence of such negligence, nor of its causal relation. It is urged in the argument for the plaintiff that the dampers were probably open or warped, or that ignited coals may have been blown out of the ash pan, or that the smoke stack might not have had proper appliances to arrest sparks. We do not find the evidence of them however. Indeed what evidence there was upon these points seems to negative the plaintiff’s suggestions. The verdict seems to us clearly against the law and the evidence, and it should be set aside. I fit be suggested that it is difficult to prove negligence in such a case, and that the rules of law above stated are a hardship upon the plaintiff and those situated as he is, it should be remembered that the defendants were pursuing in a lawful manner a lawful business, and one useful to the entire community. It is the genera] rule of law that one engaged in a lawful business and acting in a lawful manner, is liable for such injuries only as are caused by his negligence. In some actions against individuals, it may be difficult to prove that the defendant was negligent and that his negligence caused the injury, but that difficulty would be no good reason for changing the rule. Bachelder v. Heagan, and Sturgis v. Robbins, supra. Verdict set aside. Hew trial granted. Peters, C. J., WaltoN, DaNFoetii, Foster and Haskell, JJ., concurred.