THE DECISIONS OF TAK Supreme Court of the United States AT OCTOBER TERM, 1896. athenticated copy of opinion record strictly followed, except as to such reference words and figures as are inclosed in brackets.] ST. LOUIS & SAN FRANCISCO RAIL-|comotive engines a line of railway adjoining WAY COMPANY, Piff. in Err., atute making railroad liable for fires—when constitutional. The Missouri statute of March 31, 1887, making every railroad corporation liable for all property injured or destroyed by fire from its locomotives, and giving it an insurable interest in the property for its protection, is constitutional and valid. Such statute neither violates any contract between the state and the railroad company, nor deprives the company of its property without due process of law, nor denies it the equal protection the plaintiff's land, to recover damages for the destruction of the plaintiff's dwelling house, barn, *out-buildings, shrubbery, and [2 personal property upon that land, by tire communicated from one of those engines on August 9, 1887. The petition contained two counts, the first of which alleged negligence on the part of the defendant, and the second did not, but was founded on the statute of Missouri of March 31, 1887, by which "each railroad corporation owning or operating a railroad in this state shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated, directly or indirectly, by locomotive engines in use upon the railroad owned or operated by such railroad corporation; and each such railroad corporation shall have an insurable interest in the property upon the Argued November 4, 1896. Decided January route of the railroad owned or operated by it, of the laws. [No. 105.] 4, 1897. Statement by Mr. Justice Gray: This was an action brought in an inferior court of the state of Missouri, by an owner of land in St. Louis county, against a rail road corporation organized under the laws of the state, and owning and operating with lo NOTE-As to liability of railroad company for fires set by it along its line; what admissible to prove negligence by company.-see note to Grand Trunk R. Co. v. Richardson, 23: 357. As to what is due process of law, see note to Pearson v. Yewdall, 24: 436. and may procure insurance thereon in its own behalf, for its protection against such damages. Mo. Laws 1887, p. 101; Mo. Rev. Stat. 1889, § 2615. The answer, among other defenses, set up that the statute violated the Constitution of the United States, by depriving the defendant of its property without due process of law; and by denying to it the equal protec tion of the laws; and by impairing the obligation of the contract made between it and the state, "by the terms and provisions of which it was impliedly agreed that said. defendant might and could use fire for the purpose of generating steam to propel said locomotive engines and cars attached thereto, and be responsible only for the negligent and careless use thereof." The defendant was incorporated September 10, 1875, under the general laws of the state, which authorized railroad corporations to be formed by voluntary articles of association filed in the office of the Secretary of State; and to lay out and construct their railroad; to take lands for the purpose; and "to take and convey persons and property on their railroad by the power or force of steam, or of | animals, or by any mechanical power, and to receive compensation therefor." Mo. Gen. Stat. 1865, chap. 63, §§ 1, 2; Mo. Rev. Stat. 1889, § 2542, 2543. 682 (29: 528); People v. Jackson & M. Pl. Road' Co. 9 Mich. 285; Sloan v. Pacific R. Co. 61 Mo. 24, 21 Am. Rep. 397; Smith v. Hannibal & St. J. R. Co. 37 Mo. 295; Burroughs v. Housatonic R. Co. 15 Conn. 128, 38 Am. Dec. 64; Mother At the trial, the plaintiff introduced evi- v. Utica & S. R. Co. 8 Barb. 427; Rood v. New 3] dence tending to support the allegations York & E. R. Co. 18 Barb. 80; Piqua Branch of the petition; and the court, at his request, Bank v. Knoop, 57 U. S. 16 How. 369 (14:977);. instructed the jury that "if they believe from Dodge v. Woolsey, 59 U. S. 18 How. 331 (15: the evidence that during the month of Au- 401): Thomas v. West Jersey R. Co. 101 U. S. 71 gust, 1887, plaintiff was the owner of the (25: 950); Ashbury R. Carriage & I. Co. v. Riche, land in the petition described, and defend- L. R. 7 H. L. 653; Bailey v. Philadelphia, W. & ant was the owner or operating a railroad ad- B. R. Co. 4 Harr. (Dei.) 401, 64 Am. Dec. 593; joining said land, having locomotive engines Lake View v. Rose Hill Cemetery Asso. 70 III. in use upon said road, and that on August 196, 22 Am. Rep. 71; Ohio & M. R. Co. v. 9, 1887, fire was communicated from a loco Lackey, 78 Ill. 57, 20 Am. Rep. 259; Thorpe motive engine then in use upon the railroad v. Rutland & B. R. Co. 27 Vt. 143, 62 Am. Dec. owned or operated by defendant to plaintiff's 625; Benson v. New York, 10 Barb. 223; Small property on his said land, and thereby the v. Chicago, R. I. & P. R. Co. 50 Iowa, 346; buildings and other property in the petition! Vincennes University v. Indiana, 55 U. S. 14 mentioned, or any of it, were destroyed, then | the jury will find for the plaintiff." The court refused to give to the jury the following instruction requested by the defendant: "Though the jury may believe from the evidence that fire was communicated from a locomotive engine in use on defendant's railroad to plaintiff's property, as charged in the second count of plaintiff's petition, yet that fact is only prima facie evidence of negligence on the part of defendant, and unless the jury believe from the whole evidence in the case that said fire was either negligently set out by defendant or was communicated to plaintiff's property by reason of defendant's negligence the plaintiff cannot recover." The defendant excepted to the instruction given, as well as to the refusal to instruct as requested; and, after verdict and judg. ment for the plaintiff, appealed to the supreme court of the state which held the statute to be constitutional, and affirmed the judgment. 121 Mo. 298 [25 L. R. A. 161]. The defendant sued out this writ of error. Messrs. D. D. Duncan, L. F. Parker, John F. Dillon, and Winslow F. Pierce, for plaintiff in error: Section 2615 of the Missouri Revised Statutes of 1889 is unconstitutional, because: (a) It impairs the obligation of the contract contained in defendant's charter. Mo. Rev. Stat. 1889, § 2543; Fletcher v. Peck, 10 U. S. 6 Cranch, 87 (3: 162); Dartmouth College v. Woodward, 17 U. S. 4 Wheat. 518 (4: 629); United States v. Quincy, 71 U. S. 5 Wall. 535 (18: 403); Green v. Biddle, 21 U. S. 8 Wheat. 92 (5: 570); Planters' Bank v. Sharp. 47 U. S. 6 How. 327 (12: 458); Com. v. Erie & W. Transp. Co. 107 Pa. 112; Pennsylvania R. Co. v. Balti more & O. R. Co. 60 Md. 263; Bank of the Republic v. Hamilton County, 21 Ill. 53: Payne v. Baldwin, 3 Smedes & M. 661; Edwards v. Kearzey, 96 U. S. 607 (24: 799): Howard v. Bugbee, 65 U. S. 24 How. 461 (16: 753); Meriwether v. Garrett, 102 U. S. 472 (26: 197); Bronson v. Kinzie, 42 U.S.1 How. 311 (11: 143): McCracken v. Hayward, 43 U.S.2 How. 608 (11:397); Louisiana v. New Orleans, 102 U. S. 203 (26: 132); New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 668 (29: 525); New Orleans Waterworks Co. v. Rivers, 115 U. S. How. 268 (14:416); Scotland County v. Missouri, (b) It denies defendant the equal protection of the laws. Pearson v. Portland, 69 Me. 278; State v. Hayes, 81 Mo. 586; Chicago, St. L. & N.O. R Co. v. Moss, 60 Miss. 641; Butchers' Benev. Asso. v. Crescent City L. S. L. & S. H. Co. ("Slaughter House Cases"), 83 U. S. 16 Wall. 36 (21: 394); San Mateo County v. Southern P. R. Co. (“Railroad Tax Case"), 13 Fed. Rep. 722; Santa Clara County v. Southern P. R. Co. 118 U. S. 394 (30: 118). (c) It takes defendant's property without due process of law. Ohio & M. R. Co. v. Lackey, 78 Ill. 57, 20 Am. Rep. 259: Small v. Chicago, R. I. & P. R. Co. 50 Iowa, 340: Zeigler v. South & N. Ala. R. Co. 58 Ala. 594; Miller v. Martin, 16 Mo. 50%, 57 Am. Dec. 242; Kahle v. Hobein, 30 Mo. App. 476; Catron v. Nichols, 81 Mo. 82, 51 Am. Rep. 222; Wally v. Kennedy, 2 Yerg. 554, 24 Am. Dec. 511. Said section, if valid, only makes the fact of the injury prima facie evidence of negligence. Tilley v. St. Louis & S. F. R. Co. 49 Ark. 535, 32 Am. & Eng. R. Cas. 324. Said section does not authorize damages for. property upon which plaintiff could not have obtained insurance. Chapman v. Atlantic & St. L. R. Co. 37 Me.92. Plaintiff was not entitled to damages for his personal property. The question of plaintiff's contributory negligence should have been submitted to the jury. Ross v. Boston & W. R. Co. 6 Allen, 92. Plaintiff was compensated for his loss in the condemnation proceedings instituted by the defendant. The defendant should have been allowed to prove the amount of insurance which plaintiff had upon his buildings at the time they were destroyed. Messrs. Percy Werner and Garland Pollard, for defendant in error: The statute in question does not deny defendant in error the equal protection of the law. Barbier v. Connolly, 113 U. S. 27 (28: 923); Soon Hing v. Crowley, 113 U. S. 703 (28: 1145): Missouri P. R. Co. v. Humes, 115 U. S. 512 (29: 463); Minneapolis & St. L. R. Co. v. Beck aoith, 129 U. S. 26 (32: 585); Charlotte, C. & A. R. Co. v. Gibbes, 142 U. S. 386 (35: 1051); Mis souri P. R. Co. v. Mackey, 127 U. S. 205 432: 107). It does not deprive plaintiff in error of its property without due process of law. Missouri P. R. Co. v. Humes, 115 U. S. 512 (29: 463); Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96 (32: 352, 2 Inters. Com. Rep. 238); Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659 (24: 1036); Boston Beer Co. v. Massachusetts, 97 U. S. 25 (24: 989); Missouri P. R. Co. v. Mackey, supra. It does not impair obligations of a contract made between the state of Missouri and plaintiff in error. Pearsall v. Great Northern R. Co. 161 U. S. 671 (40: 847); Northwestern Fertilizing Co. v. Hyde Park, supra; Cooley, Const. Lim. 6th ed. chap. 16, pp. 707-710; Mo. Const. art. 12, § 5, 14. careful manner; and that the statute violates the Constitution of the United States, by depriving the railroad company of its property without due process of law, by denying to it the equal protection of the laws, and by impairing the obligation of the contract previously made between it and the state by its incorporation under general laws, author. izing it to convey passengers and freight over its railroad by the use of locomotive engines. The argument that this statute is in excess of the power of the legislature may be the most satisfactorily met by first tracing the history of the law regarding the liability of persons for fire originating on their own premises and spreading to the property of others. At common law, every man appears to have been obliged, by the custom of the realm, to keep his fire safe so that it should Statutes substantially the same as that of not injure his neighbor; and to have been Missouri here drawn in question, imposing liable to an action, if a fire, lighted in his liability for damages caused by railroad loco-own house, or upon his land, by *the act of [6 motives, irrespective of negligence, have in no himself or of his servants or guests, burned case been held unconstitutional, though passing the house or property of his neighbor, ununder judicial review for a period of more less its spreading to his neighbor's property than fifty years. was caused by a violent tempest or other inevitable accident which he could not have foreseen. Thirning, Ch. J., and Markham, J., in Beaulieu v. Finglam, Year Book 2 Hen. IV. 18; Anonymous, Cro. Eliz. 10:1 Rolle, Abr. 1, Action sur Case, B; 1 D'Anvers, Abr., Actions, B; Turberville v. Stamp (1698) Comyns, 32, 1 Salk. 13, Holt, 9, 1 Ld. Raym. 264, 12 Mod. 152; Com. Dig. Action upon the Case for Negligence, A, 6; 1 Vin. Abr. 215, 216; 1 Bac. Abr. Action on the Case, F (Am. ed. 1852) p. 122: Canterbury v. Attorney General, 1 Phil. Ch. 306. 316319; Filliter v. Phippard, 11 Q. B. 347, 354; Furlong v. Carroll, 7 Ont. App. 145, 159. Lyman v. Boston & W. R. Corp. 4 Cush. 288; Hart v. Western R. Co. 13 Met. 105, 46 Am. Dec. 719; Ross v. Boston & W. R. Co. 6 Allen, 90; Pierce v. Worcester & N. R. Co. 105 Mass. 199; Trask v. Hartford & N. H. R. Co. 16 Gray, 71: Chapman v. Atlantic & St. L. R. Co. 37 Me. 92; Pratt v. Atlantic & St. L. R. Co. 42 Me. 579; Hooksett v. Concord R. Co. 38 N. H. 242; Rowell v. Railroad, 57 N. H. 132, 24 Am. Rep. 59; Smith v. Boston & M. R. Co. 63 N. H. 25; Grissell v. Housatonic R. Co. 54 Conn. 447; Martin v. New York & N. E. R. Co. 62 Conn. 331; Rodemacher v. Milwaukee & St. P. R. Co. 41 Iowa, 297, 20 Am. Rep. 592; Small v. Chicago, R. I. & P. R. Co. 50 Iowa, 340; Union P. R. Co. v. De Busk, 12 Colo. 294, 3 L. R. A. 350; McCandless v. Richmond & D. R. Co. 38 S. C. 103, 18 L. R. A. 440; Mathers v. St. Louis & S. F. R. Co. 121 Mo. 298, 25 L. R. A. 161; Campbell v. Missouri P. R. Co. 121 Mo. 340, 25 L. R. A. 175. Mr. Justice Gray delivered the opinion of the court: The only question presented by the record, of which this court has jurisdiction, is whether there is anything inconsistent with the Constitution of the United States in the statute of Missouri of March 31, 1887, by which every railroad corporation owning or operating a railroad in the state is made responsible in damages for property of any person injured or destroyed by fire communicated by its locomotive engines; and is declared to have an insurable interest in property along its route, and authorized to insure such property, for its protection against such damages. It has been strenuously argued, in behalf of the plaintiff in error, that this statute is an arbitrary, unreasonable, and unconstitutional exercise of legislative power, impos ing an absolute and onerous liability for the consequences of doing a lawful act, and of conducting a lawful business in a lawful and The common-law liability in case of ordinary accident, without proof of negligence, was impliedly recognized in the statute of Anne, passed within ten years after the decision in Turberville v. Stamp, above cited, and providing that “ no action, suit, or process whatsoever shall be had, maintained, or prosecuted against any person in whose house or chamber any fire shall accidentally. begin, or any recompense be made by such person for any damage suffered or occasioned thereby, any law or usage or custom to the contrary notwithstanding." Stat. 6 Anne (1707) chap. 31 [58], §7; 8 Statutes of the Realm, 795; 10 Anne (1711) chap. 14 [24], § 1; 9 Statutes of the Realm, 684. By the Statute of 14 Geo. III. (1774) chap. 78, 86, the statute of Anne was extended to any person in whose house, chamber, stable, barn, or other building, or on whose estate, any fire shall accidentally begin." In modern times in England, the strict rule of the common law as to civil liability in damages for fire originating on one's own land and spreading to property of another, has been recognized as still existing, except so far as clearly altered by statute. In Rex v. Pease (1832) 4 Barn. & Ad. 30, 1 Nev. & Macn. 690, a corporation expressly authorized by act of Parliament to establish a railway between certain points, and to use locomotive engines thereon, was held not to 7]be liable to an indictment for a nuisance by frightening horses traveling upon a highway parallel to the railroad. In Aldridge v. Great Western R. Co. (1841) 8 Man. & G. 515, 4 Scott, N. R. 156, which was an action against a railway corporation created by similar acts of Parliament to recover damages for property destroyed by fire kindled by sparks from a locomotive engine, it was argued for the plaintiff that by the common law a civil action for damages could be sustained by proof of injury without evidence of negligence. See Broom, Legal Maxims (5th ed.) 366, 367; Holmes, Common Law, 85-88. But the court held that the corporation could not be held liable, unless negligent. In Piggot v. Eastern Counties R. Co. (1846) 3 C. B. 229, the same rule was recognized, although the fact of the property having been fired by sparks from the engine was held sufficient proof of neg. ligence. In the course of the argument in Blyth v. Birmingham Waterworks Proprs. (1856) 11 Exch. 781, 783, Baron Martin said: "I held, in a case tried at Liverpool, in 1853, that, if locomotives are sent through the country emitting sparks, the persons doing so incur all the responsibilities of insurers; that they Iwere liable for all the consequences." R. Co. v. Truman (1885) L. R. 11 App. On the other hand, a railway company So, where acts of Parliament, authorizing and regulating *the use of locomotive en-19 gines on turnpike and other roads, provided that nothing in the acts contained should be construed as authorizing any person to use upon the highway a locomotive engine so con In Vaughan v. Taff Vale R. Co. (1858) 3 Hurlst. & N. 743, the court of exchequer held that a railway company, expressly authorized by its charter to use locomotive engines on its railway, was responsible for damages caused to property by fire communicated from such engines, although it had taken every precaution in its power to pre-structed or used as to cause a public or privent the injury. But the judgment was reversed in the exchequer chamber, and Lord Chief Justice Cockburn said: "Although it may be true, that if a person keeps an animal of known dangerous propensities, or a dangerous instrument, he will be responsible to those who are thereby injured, independently of any negligence in the mode of dealing with the animal, or using the instrument, yet when the legislature has sanctioned and authorized the use of a particu lar thing, and it is used for the purpose for which it was authorized, and every precaution has been used to prevent injury, the 8 sanction of the legislature *carries with it this consequence, that if damage results from the use of such thing independently of neg. ligence the party using it is not responsible." (1860) 5 Hurlst. & N. 679, 685. The final decision in that case has since been considered in England as establishing that a railway company which by act of Parliament has been expressly authorized to use locomotive engines upon its railway, without being declared to be responsible for fires communicated from those engines, is not, in the absence of negligence on its part, liable for damages caused by such fires. Fremantle v. London & N. W. R. Co. (1861) 10 C. B. N. S. 89; Hammersmith & C. R. Co. v. Brand (1868) L. R. 4 H. L. 171; Smith v. London & S. W. R. Co. (1870) L. R. 6 C. P. 14, 21, 22; London, B. & S. C. vate nuisance; and that every person so using such an engine should be liable to an action for such use, when such an action could have been maintained before the pas sage of the acts,-the court of appeal held that a man who used upon a public highway a locomotive engine constructed in conformity with the provisions of the acts, and managed and conducted with all reasonable care and without negligence, was liable for a destruction of property on land adjoining the highway by sparks proceeding from his engine, Lord Justice Bramwell saying: "The passing of the engine along the road is con fessedly dangerous, inasmuch as sparks cannot be prevented from flying from it. It is conceded that at common law an action may be maintained for the injury suffered by the plaintiffs. The locomotive acts are relied upon as affording a defense, but, instead of helping the defendant, they show not only that an action would have been maintainable at common law, but also that the right to sue for an injury is carefully preserved. It is just and reasonable that if a person usesa dangerous machine he should pay for the damage which it occasions; if the reward which he gains for the use of the machine will not pay for the damage, it is mischievous to the public and ought to be suppressed, for the loss ought not to be borne by the community or the injured person. If the use of the machine is profitable, the owner |