Opinion
No. 4391.
Argued May 3, 1955.
Decided June 30, 1955.
The statutory liability of a railroad as an insurer (R. L., c. 300, s. 1) for damage to persons and properties resulting from fires caused by its locomotives is limited to those persons and properties as to which the operation of the railroad could foreseeably constitute an extra hazard of injury or destruction by fire.
In actions against the railroad under such statute by different plaintiffs owning properties at various locations and distances from the railroad right of way, a finding of liability in favor of those owning property abutting the right of way used by the locomotive alleged to have started the fire and within a mile from the point of origin of the fire would not be contrary to the intent of the statute.
However, recovery thereunder by other plaintiffs owning properties not abutting that right of way and all over four miles distant from the point of origin of the fire is precluded as a matter of law due to the remoteness of the hazard.
TEN ACTIONS, under R. L., c. 300, s. 1, to recover damages to the properties and homes of plaintiffs resulting from a fire whose date, origin and course are fully described in State v. Railroad, 99 N.H. 66. It started in the afternoon of October 21, 1947, allegedly from sparks emitted by an engine of defendant operating on its Farmington-Rochester right of way. All of plaintiffs' properties were burned on October 23.
The property of plaintiffs Conrad is located in Farmington, abuts the above right of way and is almost a mile from where the fire started. The properties of all the other plaintiffs are located in Rochester. None abuts said right of way and most of them are from five-tenths to seven-tenths of a mile from it. Their distances from the point of origin of the fire measured in a straight line vary from 4 3/4 to 6 4/10 miles.
Trial by jury limited to the question of the liability of the defendant under R. L., c. 300, s. 1, resulted in a verdict for the plaintiffs.
After the decision in State v. Railroad, supra, the defendant filed a second motion for judgment non obstante veredicto in each action (a first motion having been filed after verdict and denied subject to exception). The Court (Griffith, J.) reserved and transferred the following question: "Should the motion of the defendant for judgment non obstante veredicto be granted in each or any case by reason of the distance between the plaintiffs' properties and the place of origin of the fire and/or the defendant's right of way or ways." This transfer was made without prejudice to the parties' rights to proceed further with the main appeal in the event of a ruling that plaintiffs are not barred by reason of the location of their property.
Sleeper Mullavey (Mr. Mullavey orally), for the plaintiffs.
Burns, Calderwood Bryant (Mr. Bryant orally), for the defendant.
R. L., c. 300, s. 1, provides that "the proprietors of every railroad shall be liable for all damages to any person or property by fire or steam from any locomotive or other engine upon their road." Section 2 reads as follows: "Such proprietors shall have an insurable interest in all property situate upon the line of their road which is exposed to such damage, and they may effect insurance thereon for their own benefit." By virtue of section 1 the defendant is liable as an insurer for such damages. Hooksett v. Concord Railroad, 38 N.H. 242, 245; Rowell v. Railroad, 57 N.H. 132; State v. Railroad, 99 N.H. 66, 72. "The extraordinary use of the element of fire, by which the property of individuals situated along the line of railroads becomes endangered beyond the usual and ordinary hazard to which it is exposed, no doubt caused the Legislature to interfere, and impose the liability which is fixed by the statute." Hooksett v. Concord Railroad, supra, 244.
The question in issue in this case is whether there are any limitations on the liability so imposed "by reason of the distance between the plaintiffs' properties and the place of origin of the fire and/or the defendant's right of way or ways?"
A review of the judicial decisions interpreting this statute indicates that there are some limitations to defendant's liability. "Perhaps it will be found to extend to such property only as can be said to be reasonably exposed to the danger; that the act must have a reasonable construction; and that consequently where buildings are situated at such a distance from the track as not to be exposed except in some violent gale of wind or other extraordinary circumstances, the loss might be held not to be within the spirit or intent of the act." Hooksett v. Concord Railroad, supra, 246, 247. "The statute has been understood to be limited to property, real and personal, along the line of a railroad." Welch v. Railroad, 68 N.H. 206, 207.
"That act applies only to those so situated that as to them the operation of the railroad constitutes an extra fire hazard. If the act is broad enough in its terms so that it could have been construed to include all damage that could in any sense be deemed to be `caused' by the defendant, it is settled that such was not the legislative intent." Clark v. Railroad, 78 N.H. 428, 429. In State v. Railroad, 99 N.H. 66, 70, it was stated that the liability of the railroad under section 1 has been limited to "property along the line of the railroad which is reasonably exposed to the danger of fire" and that the liability imposed by that section "has been limited geographically to exposed property along the right of way." Id., 71.
This statute having remained unchanged for a century it must be concluded that although it does not contain within it specific words of limitation it was nevertheless the intent of the Legislature that its provisions be subjected to limitations in their application to particular cases. Coleman v. Coleman, 94 N.H. 456, 457; Krewski v. Hooksett, 98 N.H. 175, 176. It is our opinion that it was not intended to apply to all damages to persons or property which can be traced to a fire from a locomotive on defendant's railroad regardless of the intervening factors of time, distance, manner of communication and other circumstances which may vary from fire to fire. Harper, Torts, 402. Rather we think it was intended to apply only to those persons or properties for which the operation of the railroad could foreseeably constitute an extra hazard of injury or destruction by fire. Hart v. Railroad, 13 Met. 99; Pratt v. Atlantic St. Lawrence Railroad Company, 42 Me. 579, 586; Martin v. Railway, 87 Me. 411; 22 Am. Jur. 623, 625.
In determining whether the properties of the various plaintiffs fell within the intended orbit of this statute, their distances from the railroad right of way in question as well as from the origin of the fire are among the important factors to be considered. State v. Railroad, supra.
The Conrad property abuts the right of way being used by the locomotive alleged to have started the fire. Even though it was situated almost a mile from the point of origin of the fire and was not reached by it until it had burned about two days we cannot say as a matter of law that a finding of liability is contrary to the intent of the statute. Hooksett v. Concord Railroad, supra; Clark v. Railroad, supra.
As to the properties of the other plaintiffs, none abuts the Farmington-Rochester right of way. They were all from 4 3/4 to 6 4/10 miles from the point of origin of the fire. As a matter of law the use being made by the defendant of its right of way could not foreseeably constitute an extra hazard to them of destruction by fire originating therefrom.
Judgment for defendant in all actions except that of Andrew R. and Gladys T. Conrad which is remanded.
All concurred.