Chapter LXXIII: Section 3: of this statute is as follows (1)

“The officers and men of the Boston Protective Department, with their
teams and apparatus, shall have the right of way, while going to a
fire, through any street, lane, or alley in the city of Boston,
subject to such rules and regulations as the city council and the fire
commissioners may prescribe, and subject also to the rights of the
Boston Fire Department; and any violation of the street rights of the
Boston Protective Department shall be punished in the same manner as
is provided for the punishment of violations of the rights of the
Boston Fire Department in chapter three hundred and seventy-four of
the acts of eighteen hundred and seventy-three.”

Footnote 249:

Monroe _v._ Hartford R. Co., 76 Conn. 201; Tackett _v._ Taylor, 123
Ia. 149; Baker _v._ Portland, 58 Me. 199; Bourne _v._ Whitman, 209
Mass. 155; Chesapeake R. Co. _v._ Jennings, 98 Va. 70 _Accord_.

Footnote 250:

Atlantic R. Co. _v._ Weir, 63 Fla. 69; Lockridge _v._ Minneapolis R.
Co., 161 Ia. 74 _Accord_. See Lindsay _v._ Cecchi, 3 Boyce, 133; Hyde
_v._ McCreery, 145 App. Div. 729.

In Bourne _v._ Whitman, 209 Mass. 155, a duly licensed automobile was
being driven by an unlicensed person. Knowlton, C. J., said:

“It is universally recognized that the violation of a criminal statute
is evidence of negligence on the part of the violator, as to all
consequences that the statute was intended to prevent. It has been
said in a general way that such a violation is evidence of negligence
of the violator, and it has sometimes been stated that this would show
negligence that can be availed of as a ground of recovery by one who
suffers any kind of an injury from him while this illegality
continues; but it is now settled that it is not even evidence of
negligence, except in reference to matters to which the statute
relates. Davis _v._ John L. Whiting & Son Co., 201 Mass. 91, 96 and
cases cited. A criminal statute in the usual form is enacted for the
benefit of the public. It creates a duty to the public. Every member
of the public is covered by the protecting influence of the
obligation. If one suffers injury as an individual, in his person or
his property, by a neglect of this duty, he has a remedy, not because
our general criminal laws are divided in their operation, creating one
duty to the public and a separate duty to individuals; but because as
one of the public in a peculiar situation, he suffers a special
injury, different in kind from that of the public generally, from the
neglect of the public duty....

If we consider the effect of such a violation of law by a plaintiff,
upon his right to recover, the principles that have been recognized
are instructive. They were considered long ago in connection with our
Sunday law. It has been established from early times that one who is
violating a criminal law cannot recover for an injury to which his
criminality was a directly contributing cause....

The only matter which seems to be left doubtful under our decisions in
this class of cases, is what constitutes ‘illegality,’ which is
sometimes a directly contributing cause of the injury. Some cases have
been decided, which seem to imply that if there is an illegal element
entering into a plaintiff’s act or conduct, and this act or conduct
directly contributes to his injury, he cannot recover, although the
illegal element or the objectionable quality of the act had no
tendency to produce the injury, and the consequences would have been
the same under the other existing conditions, if the criminal element
had been absent. In other cases the decision seems to turn upon
whether the criminal element in the act or conduct, considered by
itself alone, operated as a direct cause to produce a result that
would not have been produced under the same conditions in other
respects, if the criminal element had been absent. This latter seems
to be the pivotal question in most cases decided in other States.

The fact that the number of punishable misdemeanors has multiplied
many times in recent years, as the relations of men in business and
society have grown complex with the increase of population, is a
reason why the violation of a criminal statute of slight importance
should not affect one’s civil rights, except when this violation,
viewed in reference to the element of criminality intended to be
punished, has had a direct effect upon his cause of action. Our
decisions seem to have been tending toward the adoption of such a
rule. Welch _v._ Wesson, 6 Gray, 505. Spofford _v._ Harlow, 3 Allen,
176. Steele _v._ Burkhardt, 104 Mass. 59. Damon _v._ Scituate, 119
Mass. 66. Hall _v._ Ripley, 119 Mass. 135. Dudley _v._ Northampton
Street Railway, 202 Mass. 443, 446. Moran _v._ Dickinson, 204 Mass.
559, 562. Chase _v._ New York Central & Hudson River Railroad, 208
Mass. 137, 157.

Under particular statutes, we are brought back to the question, what
is the legal element which is the essence of the command or
prohibition? In most cases, the effect of doing or failing to do that
which the law forbids or requires under a penalty, when considered in
reference to its relation to one’s civil rights in collateral matters,
ought to be limited pretty strictly. Take the case of driving without
sleigh bells in violation of the law of the road. R. L., c. 54, § 3.
Kidder _v._ Dunstable, 11 Gray, 342. Counter _v._ Couch, 8 Allen, 436,
437. The requirement of the law is that ‘No person shall travel on a
bridge or way with a sleigh or sled drawn by a horse, unless there are
at least three bells attached to some part of the harness.’ The wrong
to be prevented is the failure to have bells while travelling in this
way. The travelling in other respects is unobjectionable. The question
arises whether the act should be deemed illegal as a whole, in
reference to the rule that the courts will not aid one to obtain the
fruits of his disobedience of law, or whether in this aspect its
different qualities may be considered separately. It is possible to
decide this question either way, but we think it is more consistent
with justice and with the course of decision elsewhere, to hold that,
in reference to the law of negligence and the rule as to rejection of
causes of action that are founded on illegality, an act may be
considered in its different aspects in its relation to the cause of
action, and if only that part of it which is innocent affects the
cause of action, the existence of an illegal element is immaterial. We
do not think, under this statute, that one who drives in a sleigh
without bells should be treated as a trespasser on the highway,
although he is punishable criminally for the failure to have the bells
attached to the harness, and is liable in damages to any member of the
public who suffers a special injury by reason of this failure.

Consider the St. 1909, c. 514, § 74, which forbids, under a penalty,
the regular operation of any elevator by a person under the age of
sixteen years, and the regular operation of any rapidly running
elevator by a person under the age of eighteen years. If a person
under the prescribed age, while employed to operate an elevator, is
injured through the negligence of the owner, in leaving it in an
unsafe condition, shall his violation of the statute by entering this
service before reaching the prescribed age, be treated as criminality,
entering into every one of his acts in moving the elevator, so as to
prevent his recovery for an injury from the joint effect of his
employer’s negligence and his own application of the power to raise or
lower the elevator? We think it better to hold, if his age and the
degree of his competency, which might depend in part upon his age, had
no causal connection with the injury, that his criminality was not a
direct cause of the injury. In other words, that the punishable
element in the act is only disobedience as to age, and although his
act in applying the power to the elevator which brought him in contact
with the defect, is punishable, and in a sense illegal because of the
existence of that element, in determining the relation of his conduct
to the cause of action, to see whether the court will aid him in the
prosecution of it, we ought to limit the illegality to that part of
his conduct towards which the statute is particularly directed. We are
to consider the specific thing at which the statute is aimed, and the
immediate effect that it was intended directly and proximately to
accomplish by its command or prohibition....

Take the provision in St. 1903, c. 473, § 5, that ‘No person shall
operate an automobile or motor cycle for hire, unless specially
licensed by the commission so to do,’ and the earlier provision in the
same section that no person shall ‘operate an automobile or motor
cycle upon any public highway or private way laid out under authority
of statute unless licensed so to do under the provisions of this act.’
The operating of the automobile in itself is unobjectionable. The
illegal element in the act is the failure to have a license. The
purpose of the requirement of a license is to secure competency in the
operator. If in any case the failure to have a license, looking to
those conditions that ordinarily accompany the failure to have it, is
a cause contributing directly to an injury, a violator of the law
would be legally responsible to another person injured by the failure;
or, if he is injured himself, would be precluded from recovery against
another person who negligently contributed to the injury. But we are
of opinion that his failure in that respect is only evidence of
negligence in reference to his fitness to operate a car, and to his
skill in the actual management of it, unless in the case of the
plaintiff, it is shown to be a contributing cause to the injury sued
for, in which case it is a bar to recovery. We think that the
operation of a car without a license, while it is a punishable act,
does not render the operator a trespasser on the highway, but that the
illegal element in the act is only the failure to have a license while
operating it, so that if the operation and movement contributed to the
accident with which the want of a license had no connection, except as
a mere condition, they would not preclude the operator as a plaintiff
from recovery. If the illegal quality of the act had no tendency to
cause the accident, the fact that the act is punishable because of the
illegality, ought not to preclude one from recovery for harmful
results to which, without negligence, the innocent features of the act
alone contributed.

The other part of this statute, relative to the licensing of
automobiles, has been construed differently. In Dudley _v._
Northampton Street Railway, 202 Mass. 443, because of the peculiar
provisions of the statute and the dangers and evils that it was
intended to prevent, it was decided, after much consideration, that
the having of such a machine in operation on a street, without a
license, was the very essence of the illegality, and that the
illegality was inseparable from the movement of the automobile upon
the street at any time, for a single foot; that in such movement the
machine was an outlaw, and any person on the street as an occupant of
the automobile, participating in the movement of it, was for the time
being a trespasser. Some of us were disinclined to lay down the law so
broadly, and the opinion of the court was not unanimous; but the
doctrine has been repeatedly reaffirmed and is now the established law
of the Commonwealth. Feeley _v._ Melrose, 205 Mass. 329. Chase _v._
New York Central & Hudson River Railroad, 208 Mass. 137, 158. The
difference between this provision of the statute and that involved in
the present case is in part one of form, but in connection with the
form, it is still more the seeming purpose and intent of the
Legislature as to permitting such machines upon the public ways
without adequate means of identifying them and ascertaining their
owner, together with the requirement that the machine itself, as a
thing of power, shall have its own registration and legalization, the
evidence of which it shall always carry with it....

We are of opinion that the law of these last cases should not be
extended to the provision of the statute requiring every operator to
have a personal license to operate the car. The jury should have been
instructed that the defendant’s failure to have a license was only
evidence of his negligence as to the management of the car.”

See also Holland _v._ Boston, 213 Mass. 560; Holden _v._ McGillicuddy,
215 Mass. 563; Conroy _v._ Mather, 217 Mass. 91.

In Taylor _v._ Stewart, 172 N. C. 203, Brown, J., (for the court)
said:

“The plaintiff sues to recover for the death of his child, who was run
over and killed by an automobile, belonging to the defendant J. W.
Stewart. At the time the car was being operated by James Stewart, the
son of the said J. W. Stewart, a lad of 13 years of age. A colored
chauffeur, who had been sent out with the car by the owner, was
sitting beside the lad.

His honor charged the jury that under the laws of North Carolina it
was a misdemeanor for a person under the age of 16 to drive an
automobile upon any highway or public street, and that it is a
circumstance from which the jury may infer negligence, and that it
does not necessarily follow that the jury shall conclude it was
negligence, but that it is a circumstance to go to the jury. In this
his honor erred. He should have instructed the jury that it is
negligence _per se_ for the defendant James Stewart to have driven the
machine in violation of the statute law of the state. Zageir _v._
Southern Express Co., 89 S. E. 44; Paul _v._ Railroad, 170 N. C. 231,
87 S. E. 66, L. R. A. 1916B, 1079; Ledbetter _v._ English, 166 N. C.
125, 81 S. E. 1066.”

See Davis, The Plaintiff’s Illegal Act as a Defense in Actions of
Tort, 18 Harvard Law Rev. 505; Thayer, Public Wrong and Private
Action, 27 Harvard Law Rev. 317.

Footnote 251:

Part of case omitted; also arguments of counsel.

Footnote 252:

Williams _v._ New Albany R. Co., 5 Ind. 111; Vandalia R. _v._ Duling,
60 Ind. App. 332; Union R. Co. _v._ Rollins, 5 Kan. 167 (as to
legislation, see Darling _v._ Rodgers, 7 Kan. 592; Missouri R. Co.
_v._ Olden, 72 Kan. 110); Crawford _v._ Hughes, 3 J. J. Marsh. 433;
Little _v._ Lathrop, 5 Me. 356; Richardson _v._ Milburn, 11 Md. 340;
Eames _v._ Salem R. Co., 98 Mass. 560; Collins _v._ Lundquist, 154
Mich. 658; Vandegrift _v._ Rediker, 22 N. J. Law, 185; Munger _v._
Tonawanda R. Co., 4 N. Y. 349; Gregg _v._ Gregg, 55 Pa. St. 227; Hurd
_v._ Rutland R. Co., 25 Vt. 116; Metropolitan Ins. Co. _v._ Clark, 145
Wis. 181 _Accord_.

As between adjoining owners, in absence of statutory duty as to
division fence, see Bissell _v._ Southworth, 1 Root, 269; McNeer _v._
Boone, 52 Ill. App. 181; Myers _v._ Dodd, 9 Ind. 290; Stephenson _v._
Elliott, 2 Ind. App. 233; De Mers _v._ Rohan, 126 Ia. 488; Markin _v._
Priddy, 40 Kan. 684; Sturtevant _v._ Merrill, 33 Me. 62; Gillespie
_v._ Hendren, 98 Mo. App. 622; Tewksbury _v._ Bucklin, 7 N. H. 518;
Deyo _v._ Stewart, 4 Denio, 101; Angell _v._ Hill, 18 N. Y. Supp. 824;
Kobayashi _v._ Strangeway, 64 Wash. 36.

_As to liability of the owner for unauthorized entry of a dog_ on
another’s lands, see Brown _v._ Giles, 1 Carr. & P. 118; Read _v._
Edwards, 17 C. B. N. S. 245; Doyle _v._ Vance, 6 Vict. L. R. (Law) 87.

_Trespass on unenclosed land by chickens_, see Evans _v._ McLalin, 189
Mo. App. 310.

Footnote 253:

Morgan _v._ Hudnell, 52 Ohio St. 552 _Accord_.

Footnote 254:

Arguments omitted.

Footnote 255:

Hartford _v._ Brady, 114 Mass. 466; Wood _v._ Snider, 187 N. Y. 28;
Erdman _v._ Gottshall, 9 Pa. Super. Ct. 295; Metropolitan Ins. Co.
_v._ Clark, 145 Wis. 181 _Accord_.

Cattle, while being driven on the highway, enter on the unfenced land
of A adjoining the highway, and pass thence on to the unfenced land of
B, adjoining the land of A, but not adjoining the highway. B has an
action against the owner of the cattle. Wood _v._ Snider, 187 N. Y.
28. See also note in 12 L. R. A. N. S. 912.

Footnote 256:

As to the effect of statutes requiring lands to be fenced, see
Northern R. Co. _v._ Cunningham, 89 Fed. 594; Comerford _v._ Dupuy, 17
Cal. 308 (as to later legislation see Hahn _v._ Garratt, 69 Cal. 146;
Fisch _v._ Nice, 12 Cal. App. 60); Nuckolls _v._ Gaut, 12 Col. 361;
Wright _v._ Wright, 21 Conn. 329; Frazier _v._ Nortinus, 34 Ia. 82
(but no application to cultivated land—Hallock _v._ Hughes, 42 Ia.
516); Louisville R. Co. _v._ Simmons, 85 Ky. 151; Gorman _v._ Pacific
R. Co., 26 Mo. 441 (as to later legislation, see O’Riley _v._ Diss, 41
Mo. App. 184); Smith _v._ Williams, 2 Mont. 195; Randall _v._ Gross,
67 Neb. 255 (no application to cultivated lands); Jones _v._
Witherspoon, 52 N. C. 555; Kerwhaker _v._ Cleveland R. Co., 3 Ohio St.
172; Walker _v._ Bloomingcamp, 34 Or. 391; Gregg _v._ Gregg, 55 Pa.
St. 227 (as to later legislation see Thompson _v._ Kyler, 9 Pa. Co.
Ct. R. 205); Davis _v._ Davis, 70 Tex. 123; Poindexter _v._ May, 98
Va. 143; Walls _v._ Cunningham, 123 Wis. 346.

As to effect of statutes providing for division fences, see D’Arcy
_v._ Miller, 86 Ill. 102; Duffees _v._ Judd, 48 Ia. 256; Wills _v._
Walters, 5 Bush, 351; Gooch _v._ Stephenson, 13 Me. 371; Shepherd _v._
Hees, 12 Johns. 433; Barber _v._ Mensch, 157 Pa. St. 390; Tower _v._
Providence R. Co., 2 R. I. 404.

Such statutes apply only as between adjoining owners: Aylesworth _v._
Herrington, 17 Mich. 417; Wilder _v._ Wilder, 38 Vt. 678; and as to
cattle lawfully on the adjoining land: Lord _v._ Wormwood, 29 Me. 282;
Vandegrift _v._ Rediker, 22 N. J. Law, 185; Melody _v._ Reab, 4 Mass.
471; Lawrence _v._ Combs, 37 N. H. 331.

Footnote 257:

Arguments and portions of the opinion omitted.

Footnote 258:

Buford _v._ Houtz, 133 U. S. 320; Nashville R. Co. _v._ Peacock, 25
Ala. 229 (as to later legislation, see Phillips _v._ Bynum, 145 Ala.
549); Little Rock R. Co. _v._ Finley, 37 Ark. 562; Morris _v._ Fraker,
5 Col. 425; Studwell _v._ Ritch, 14 Conn. 292; Sprague _v._ Fremont R.
Co., 6 Dak. 86; Savannah R. Co. _v._ Geiger, 21 Fla. 669; Macon R. Co.
_v._ Lester, 30 Ga. 911 (but see later legislation, Puckett _v._
Young, 112 Ga. 578); Seeley _v._ Peters, 5 Gilm. 130 (but see Ill.
Rev. St. c. 8, § 1); Bulpit _v._ Mathews, 145 Ill. 345; Vicksburgh R.
Co. _v._ Patton, 31 Miss. 156; Gorman _v._ Pacific R. Co., 26 Mo. 441
(but see later legislation, Gumm _v._ Jones, 115 Mo. App. 597);
Delaney _v._ Errickson, 10 Neb. 492; Laws _v._ North Carolina R. Co.,
52 N. C. 468 (but see later legislation, State _v._ Mathis, 149 N. C.
546); Cleveland R. Co. _v._ Elliott, 4 Ohio St. 474 (but see later
legislation, Marsh _v._ Koons, 78 Ohio St. 68); Murray _v._ South
Carolina R. Co., 10 Rich. Law, 227; Hardman _v._ King, 14 Wyo. 503
_Accord_.

_Turning or driving cattle on another’s uninclosed, unimproved lands_,
where the common law is inapplicable or is abrogated by legislation:
Lazarus _v._ Phelps, 152 U. S. 81; Bell _v._ Gonzales, 35 Col. 138;
Bedden _v._ Clark, 76 Ill. 338; Dexter _v._ Heaghney, 47 Ill. App.
205; Harrison _v._ Adamson, 76 Ia. 337; Union R. Co. _v._ Rollins, 5
Kan. 167; Powers _v._ Kindt, 13 Kan. 74; Monroe _v._ Cannon, 24 Mont.
316; Musselshell Cattle Co. _v._ Woolfolk, 34 Mont. 126; Herrin _v._
Sieben, 46 Mont. 226; Delaney _v._ Errickson, 11 Neb. 533; Addington
_v._ Canfield, 11 Okl. 204; Thomas _v._ Blythe, 44 Utah, 1; Cosgriff
_v._ Miller, 10 Wyo. 190; Martin _v._ Platte Valley Sheep Co., 12 Wyo.
432; Healey _v._ Smith, 14 Wyo. 263. Compare Avery _v._ Maxwell, 4 N.
H. 36.

Compare reasons given for the inapplicability of the common-law rule
to Colorado. BECK, J., in Morris _v._ Fraker, 5 Col. 425, 428, 429.

Footnote 259:

Arguments omitted.

Footnote 260:

See Herold _v._ Meyers, 20 Ia. 378; Williams _v._ Michigan R. Co., 2
Mich. 259; Christy _v._ Hughes, 24 Mo. App. 275; Peek _v._ Western
Tel. Co., 159 Mo. App. 148; Crandall _v._ Eldridge, 46 Hun, 411.

_Whether there is a right of pasturage on uninclosed lands_, where the
common law rule is not in force, see Union R. Co. _v._ Rollins, 5 Kan.
167; Caulkins _v._ Mathews, 5 Kan. 191; Knight _v._ Abert, 6 Pa. St.
472.

Footnote 261:

The arguments are omitted.

Footnote 262:

After stating that “if a man have a beast, as a bull, cow, horse, or
dog, used to hurt people, if the owner know not his quality, he is not
punishable, &c.,” Hale adds (citing authorities) that “these things
seem to be agreeable to law.

“1. If the owner have notice of the quality of his beast, and it doth
anybody hurt, he is chargeable with an action for it.

“2. Though he have no particular notice that he did any such thing
before, yet if it be a beast that is _ferae naturae_, as a lion, a
bear, a wolf, yea an ape or monkey, if he get loose and do harm to any
person, the owner is liable to an action for the damage, and so I knew
it adjudged in Andrew Baker’s Case, whose child was bit by a monkey
that broke its chain and got loose.

“3. And therefore in case of such a wild beast, or in case of a bull
or cow, that doth damage, where the owner knows of it, he must at his
peril keep him up safe from doing hurt, for though he use his
diligence to keep him up, if he escape and do harm, the owner is
liable to answer damages.” 1 Hale’s P. C. 430, Part I, c.
33.—Reporter’s Note.

Footnote 263:

Jackson _v._ Smithson, 15 M. & W. 563; Card _v._ Case, 5 C. B. 622;
Strouse _v._ Leipf, 101 Ala. 433; Holt _v._ Leslie, 116 Ark. 433;
Laverone _v._ Mangianti, 41 Cal. 138; Gooding _v._ Chutes Co., 155
Cal. 620; Woolf _v._ Chalker, 31 Conn. 121; Kightlinger _v._ Egan, 75
Ill. 141; Gordon _v._ Kaufman, 44 Ind. App. 603; Holt _v._ Myers, 47
Ind. App. 118; Kennett _v._ Engle, 105 Mich. 693; Hall _v._ Huber, 61
Mo. App. 384; O’Neill _v._ Blase, 94 Mo. App. 648; Muller _v._
McKesson, 73 N. Y. 195; People _v._ Shields, 142 App. Div. 194; Tubbs
_v._ Shears, 55 Okl. 610; Mann _v._ Weiand, 81* Pa. St. 243; McCaskill
_v._ Elliot, 5 Strob. 196; Missio _v._ Williams, 129 Tenn. 504; Harris
_v._ Carstens Packing Co., 43 Wash. 647; Gunderson _v._ Bieren, 80
Wash. 459 _Accord_.

Footnote 264:

See Mason _v._ Keeling, 12 Mod. 332.

Footnote 265:

Besozzi _v._ Harris, 1 F. & F. 92; Texas R. Co. _v._ Juneman, 71 Fed.
939 (wild steer); Jackson _v._ Baker, 24 App. D. C. 100; Graham _v._
Payne, 122 Ind. 403 (ram); Marble _v._ Ross, 124 Mass. 44 (bull);
Marquet _v._ La Duke, 96 Mich. 596; Phillips _v._ Garner, 106 Miss.
828; Manger _v._ Shipman, 30 Neb. 352; Van Leuven _v._ Lyke, 1 N. Y.
515; Mahoney _v._ Dwyer, 84 Hun, 348; Malloy _v._ Starin, 113 App.
Div. 852 (reversed on other grounds, 191 N. Y. 21); Stamp _v._
Eighty-sixth St. Amusement Co., 95 Misc. 599 _Accord_.

Compare Hayes _v._ Miller, 150 Ala. 621, as to a wolf domesticated to
such an extent that the owner believed it harmless.

_As to the liability of the owner of bees_, see O’Gorman _v._
O’Gorman, [1903] 2 I. R. 573; Parsons _v._ Manser, 119 Ia. 88; Petey
Mfg. Co. _v._ Dryden, 5 Pennewill, 166; Lucas _v._ Pettit, 12 Ont.
Law, 448; Notes in 97 Am. State Rep. 287, and 62 L. R. A. 132. Compare
Earl _v._ Van Alstine, 8 Barb. 630; Olmsted _v._ Rich, 25 N. Y. St.
Rep. 271; Arkadelphia _v._ Clark, 52 Ark. 23.

Footnote 266:

“Certain animals _ferae naturae_ may doubtless be domesticated to such
an extent as to be classed, in respect to the liability of the owner
for injuries they commit, with the class known as tame or domestic
animals; but inasmuch as they are liable to relapse into their wild
habits and to become mischievous, the rule is that if they do so, and
the owner becomes notified of their vicious habit, they are included
in the same rule as if they had never been domesticated, the gist of
the action in such a case, as in the case of untamed wild animals,
being not merely the negligent keeping of the animal, but the keeping
of the same with knowledge of the vicious and mischievous propensity
of the animal.” Clifford, J., in Spring Company _v._ Edgar, 99 U. S.
645, 653.

Footnote 267:

See Bennet _v._ Bostock, 13 Scottish Sheriff Court Reports, 50; in the
same direction with Scribner _v._ Kelley, 38 Barb. 14, cited in the
foregoing opinion.

Footnote 268:

Kelley _v._ Killourey, 81 Conn. 320; Keightlinger _v._ Egan, 65 Ill.
235; Feldman _v._ Sellig, 110 Ill. App. 130; Donahue _v._ Scott
Transfer Co., 141 Ill. App. 174; Bush _v._ Wathen, 104 Ky. 548; Quimby
_v._ Woodbury, 63 N. H. 370; Badali _v._ Smith, (Tex. Civ. App.) 37 S.
W. 642 _Accord_.

“There are expressions in some of the cases indicating that the
liability of the owner is not affected by the negligence of the person
injured.... If a person with full knowledge of the evil propensities
of an animal wantonly excites him or voluntarily and unnecessarily
puts himself in the way of such an animal, he would be adjudged to
have brought the injury upon himself, and ought not to be entitled to
recover. In such a case it cannot be said, in a legal sense, that the
keeping of the animal, which is the _gravamen_ of the offence,
produced the injury.... But as the owner is held to a rigorous rule of
liability on account of the danger to human life and limb, by
harboring and keeping such animals, it follows that he ought not to be
relieved from it by slight negligence or want of ordinary care [on the
part of the plaintiff].... As negligence, in the ordinary sense, is
not the ground of liability, so contributory negligence, in its
ordinary meaning, is not a defence. These terms are not used in a
strictly legal sense in this class of actions, but for convenience ...
I think ... that the rule of liability before indicated is a
reasonable one, and that the owner cannot be relieved from it by any
act of the person injured, unless it be one from which it can be
affirmed that he caused the injury himself, with a full knowledge of
its probable consequences.” _Church, C. J._, in Muller _v._ McKesson,
73 N. Y. 195, 201, 202, 204.

So Woolf _v._ Chalker, 31 Conn. 121; Vredenberg _v._ Behan, 33 La.
Ann. 627; Fake _v._ Addicks, 45 Minn. 37; Malloy _v._ Starin, 113 App.
Div. 852.

_Negligence of the person injured_, see Graham _v._ Walsh, 14 Ga. App.
287; Buckley _v._ Gee, 55 Ill. App. 388; Milne _v._ Walker, 59 Ia.
186; Carpenter _v._ Latta, 29 Kan. 591; Tolin _v._ Terrell, 133 Ky.
210; Garland _v._ Hewes, 101 Me. 549; Twigg _v._ Ryland, 62 Md. 380;
Spellman _v._ Dyer, 186 Mass. 176; Ryan _v._ Marren, 216 Mass. 556;
Warrick _v._ Farley, 95 Neb. 565; Earhart _v._ Youngblood, 27 Pa. St.
331.

Footnote 269:

Arguments omitted. Compare report of same case in 1 Ld. Raym. 606.

Footnote 270:

_Sed quaere_: for in S. C. 1 Ld. Ray. 608, it is said that the case
was adjourned, and that afterwards the parties agreed, and therefore
no judgment was given.—Reporter’s Note.

As to the requirement of _scienter_ in case of injury by domestic
animals, Shaw _v._ Craft, 37 Fed. 317; Kitchens _v._ Elliott, 114 Ala.
290; Finney _v._ Curtis, 78 Cal. 498; Warner _v._ Chamberlain, 7
Houst. 18; Reed _v._ Southern Express Co., 95 Ga. 108; Domm _v._
Hollenbeck, 259 Ill. 382; Indianapolis Abattoir Co. _v._ Bailey, 54
Ind. App. 370; Trumble _v._ Happy, 114 Ia. 624; Ballou _v._ Humphrey,
8 Kan. 219; Murray _v._ Young, 12 Bush. 337; Goode _v._ Martin, 57 Md.
606; Dix _v._ Somerset Coal Co., 217 Mass. 146; Durrell _v._ Johnson,
31 Neb. 796; Smith _v._ Donohue, 49 N. J. Law, 548; Vrooman _v._
Lawyer, 13 Johns. 339; Dufer _v._ Cully, 3 Or. 377; Robinson _v._
Marino, 3 Wash. 434; Johnston _v._ Mack Mfg. Co., 65 W. Va. 544;
Kertschacke _v._ Ludwig, 28 Wis. 430 _Accord_.

_Liability for injury to trespassers in case of scienter_: Woolf _v._
Chalker, 31 Conn. 121; Conway _v._ Grant, 88 Ga. 40; Engebretson _v._
Bremer, 128 Minn. 232; Loomis _v._ Terry, 17 Wend. 496; Pierret _v._
Moller, 3 E. D. Smith, 574; Sherfey _v._ Bartley, 4 Sneed, 58.

_Liability where dog runs at large unmuzzled in violation of
ordinance_: Buchanan _v._ Stout, 139 App. Div. 204.

_Where vicious dog kills trespassing dog_: Wiley _v._ Slater. 22 Barb.
506.

_What constitutes knowledge_, see: Shaw _v._ Craft, 37 Fed. 317;
Barclay _v._ Hartman, 2 Marv. 351; Keightlinger _v._ Egan, 65 Ill.
235; Domm _v._ Hollenbeck, 259 Ill. 382; Kolb _v._ Klages, 27 Ill.
App. 531; Cameron _v._ Bryan, 89 Ia. 214; Holt _v._ Myers, 47 Ind.
App. 118; Murray _v._ Young, 12 Bush, 337; Twigg _v._ Ryland, 62 Md.
380; Knowles _v._ Mulder, 74 Mich. 202; Slater _v._ Sorge, 166 Mich.
173; Rowe _v._ Ehrmanntraut, 92 Minn. 17; Reynolds _v._ Hussey, 64 N.
H. 64; Emmons _v._ Stevane, 73 N. J. Law, 349, 77 N. J. Law, 570;
Rider _v._ White, 65 N. Y. 54; Brice _v._ Bauer, 108 N. Y. 428; Martin
_v._ Borden, 123 App. Div. 66; McGarry _v._ New York R. Co., 60 N. Y.
Sup. Ct. 367; Hayes _v._ Smith, 62 Ohio St. 161; Holden _v._ Shattuck,
34 Vt. 336.

_Knowledge of single vicious act_: Eastman _v._ Scott, 182 Mass. 192;
Kittredge _v._ Elliott, 16 N. H. 77; Keenan _v._ Gutta Percha Mfg.
Co., 46 Hun, 544; Cockerham _v._ Nixon, 11 Ired. 269. Compare: Linck
_v._ Scheffel, 32 Ill. App. 17; Cooper _v._ Cashman, 190 Mass. 75;
Buckley _v._ Leonard, 4 Denio, 500.

Statutes making owners or keepers of dogs liable irrespective of
_scienter_ or of negligence in keeping are not uncommon, but vary
greatly in detail.

Footnote 271:

Worthen _v._ Love, 60 Vt. 285 _Accord_. Baker _v._ Snell, [1908] 2 K.
B. 352, 825; Laverone _v._ Mangianti, 41 Cal. 138; Muller _v._
McKesson, 73 N. Y. 195; Dockerty _v._ Hudson, 125 Ind. 102 _Contra_.

Compare: The Lord Derby, 17 Fed. 265; Melsheimer _v._ Sullivan, 1 Col.
App. 22; Woodbridge _v._ Marks, 17 App. Div. 139; Lloyd _v._ Bowen,
170 N. C. 216; Hayes _v._ Smith, 62 Ohio St. 161; Fallon _v._ O’Brien,
12 R. I. 518.

See also Vredenberg _v._ Behan, 33 La. Ann. 627 (bear teased by third
person broke loose and injured plaintiff); Kinmouth _v._ McDougall, 19
N. Y. Supp. 771 (ram teased by children injured plaintiff).

See Bevan, The Responsibility at Common Law for the Keeping of
Animals, 22 Harvard Law Rev. 465.

Footnote 272:

Compare Merritt _v._ Matchett, 135 Mo. App. 176.

Footnote 273:

Hadwell _v._ Righton, [1907] 2 K. B. 345; Higgins _v._ Searle, 25
Times L. R. 301; Klenberg _v._ Russell, 125 Ind. 531; Dix _v._
Somerset Coal Co., 217 Mass. 146; Shipley _v._ Colclough, 81 Mich.
624; Smith _v._ Donahue, 49 N. J. Law, 548; Meegan _v._ McKay, 1 Okl.
59 _Accord_. But see Barnes _v._ Chapin, 4 All. 444.

Footnote 274:

Jewett _v._ Gage, 55 Me. 538 (hog) _Accord_.

Compare COULTER, J., in Goodman _v._ Gay, 15 Pa. St. 188, 193, 194;
Corcoran _v._ Kelly, 61 Misc. 323.

_A fortiori_ if one turns loose a vicious animal: McGuire _v._
Ringrose, 41 La. Ann. 1029.

_Injuries by animals running at large contrary to statute_, see:
Williams _v._ Brennan, 213 Mass. 28; Low _v._ Barnes, 30 Okl. 15;
Palmer _v._ Saccocia, 33 R. I. 476.

Footnote 275:

In the argument for defendant the declaration is set out as follows:—

“In a plea of the case for that the said plaintiff, on the 14th day of
September, 1855, was possessed of a valuable horse, of the value of
$125.00, which was peaceably and of right depasturing in his own
close, and the defendant was possessed of another horse, vicious and
unruly, which was running at large where of right it ought not to be,
and being so unlawfully at large, broke into the plaintiff’s close, at
the time aforesaid, and viciously and wantonly kicked, reared upon,
and injured the plaintiff’s horse, so that his death was caused
thereby, which vicious habits and propensities were well known to the
defendant at the time aforesaid. To the damage, &c.”

Footnote 276:

The arguments are omitted.

Footnote 277:

Angus _v._ Radin, 2 South. (N. J.) 815 _Accord_. The same result has
often been reached in an action of trespass _quare clausum_ in which
the injury by the trespassing animal is set up in aggravation. Lee
_v._ Riley, 17 C. B. N. S. 722; Theyer _v._ Purnell, [1918] 2 K. B.
333; Van Leuven _v._ Lyke, 1 N. Y. 515; Dolph _v._ Ferris, 7 Watts &
Sergt. 367; Chunot _v._ Larson, 43 Wis. 536.

But see McDonald _v._ Jodrey, 8 Pa. Co. Ct. R. 142 (cat went on
plaintiff’s premises and killed canary).

Footnote 278:

Statement and arguments omitted.

Footnote 279:

17 C. B. N. S. 260.

Footnote 280:

13 C. B. N. S. 430.

Footnote 281:

18 C. B. N. S. 732.

Footnote 282:

L. R. 10 C. P. 10.

Footnote 283:

McClain _v._ Lewiston Driving Ass’n, 17 Idaho, 63; Green _v._ Doyle,
21 Ill. App. 205; Chunot _v._ Larson, 43 Wis. 536 _Accord_.

Buck _v._ Moore, 35 Hun, 338 (defendant’s trespassing dog killed
plaintiff’s dog); Van Etten _v._ Noyes, 128 App. Div. 406 _Contra_.

Footnote 284:

Statement condensed. Arguments and portions of opinions omitted.

Footnote 285:

But compare Bischoff _v._ Cheney, 89 Conn. 1 (trespassing cat).

In Pollock on Torts, 6th ed., 479, it is said that the owner of cattle
and other live stock straying on the land of others is “liable only
for natural and probable consequences, not for an unexpected event,
such as a horse not previously known to be vicious kicking a human
being.” In 1 Beven on Negligence, 2d ed., 637, it is said, that if
animals are trespassing and do injury not in accordance with the
ordinary instinct of the animals, “the owner is not liable for the
injury apart from the trespass (though he may be for the trespass),
unless he knows of the particular vice which caused the injury.”

See FISK, J., in Peterson _v._ Conlan, 18 N. D. 205, 212.

Footnote 286:

Statement abridged. Arguments in all the courts omitted; also opinions
in Court of Exchequer.

Footnote 287:

“It is not every use to which the land is put that brings into play
that principle [Rylands _v._ Fletcher]. It must be some special use
bringing with it increased danger to others, and must not merely be
the ordinary use of the land or such a use as is proper for the
general benefit of the community.” Lord Moulton in Rickards _v._
Lothian, [1913] A. C. 263, 280.

“This was a case of the escape of water from lavatory pipes. It would
appear, therefore, that the construction of distributing water-pipes
in a building is an ordinary and natural use of land, but that the
construction of the water-mains or reservoirs from which the water is
obtained is not so. Such unreal and impracticable distinctions are not
creditable to the development of English law.” Salmond, Torts (4 ed.)
§ 61, n. 13.

See the remarks of Doe, C. J., in Brown _v._ Collins, _infra_, p. 482.

“This rule is rightly applicable only to such unusual and
extraordinary uses of property in reference to the benefits to be
derived from the use and the dangers or losses to which others are
exposed, as should not be permitted except at the sole risk of the
user. The standard of duty established by the courts in these cases is
that every owner shall refrain from these unwarrantable and extremely
dangerous uses of property unless he provides safeguards whose
perfection he guarantees.... The principle applicable to the erection
of common buildings whose fall might do damage to persons or property
on the adjacent premises holds owners to a less strict duty. This
principle is that where a certain lawful use of property will bring to
pass wrongful consequences from the condition in which the property is
put, if these are not guarded against, an owner who makes such a use
is bound at his peril to see that proper care is taken in every
particular to prevent the wrong.... The duty which the law imposes
upon an owner of real estate in such a case, is to make the conditions
safe so far as it can be done by the exercise of ordinary care on the
part of all those engaged in the work. He is responsible for the
negligence of independent contractors as well as for that of his
servants. This rule is applicable to every one who builds an ordinary
wall which is liable to do serious injury by falling outside of his
own premises.... The uses of property governed by this rule are those
that bring new conditions which involve risks to the persons or
property of others, but which are ordinary and usual and in a sense
natural, as incident to the ownership of the land. The rule first
referred to applies to unusual and extraordinary uses which are so
fraught with peril to others that the owner should not be permitted to
adopt them for his own purposes without absolutely protecting his
neighbors from injury or loss by reason of the use.” Knowlton, J., in
Ainsworth _v._ Lakin, 180 Mass. 397, 399–401.

Footnote 288:

Eastern Tel. Co. _v._ Capetown Tramways Cos., [1902] A. C. 381;
Midwood _v._ Manchester Corporation, [1905] 2 K. B. 597; Charing Cross
Co. _v._ London Hydraulic Power Co., [1913] 3 K. B. 442, [1914] 3 K.
B. 772; Brennan Construction Co. _v._ Cumberland, 29 App. D. C. 554
(crude petroleum in tank); Shipley _v._ Associates, 106 Mass. 194;
Cahill _v._ Eastman, 18 Minn. 324; Wiltse _v._ Red Wing, 99 Minn. 255
(reservoir); French _v._ Carter Creek Mfg. Co., 173 Mo. App. 220
(stored nitroglycerine); Defiance Water Co. _v._ Olinger, 54 Ohio St.
532; Bradford Co. _v._ St. Mary’s Co., 60 Ohio St. 560 (stored
nitroglycerine); Langabaugh _v._ Anderson, 68 Ohio St. 131 (crude
petroleum in tank); Texas R. Co. _v._ Frazer (Tex. Civ. App.) 182 S.
W. 1161 (dam); Weaver Mercantile Co. _v._ Thurmond, 68 W. Va. 530
_Accord_. See Wing _v._ London General Omnibus Co., [1909] 2 K. B.
652.

“In every case of the kind which has been reported since Rylands _v._
Fletcher, that is, during the last 25 years, there has been a manifest
inclination to discover something in the facts which took the case out
of the rule. According to the English judicial system which has gone
round the world with the English language and English or Anglicized
institutions, the decisions of superior courts are not merely
instructive and worthy of regard, but of binding authority in
subsequent cases of the like sort. But there are some authorities
which are followed and developed in the spirit, which become the
starting-point of new chapters of the law; there are others that are
followed only in the letter, and become slowly but surely choked and
crippled by exceptions. This again, is independent of the
considerations of local fitness which must always have weight when
precedents are cited from a country remote both in place and in
manners.” Pollock, Law of Fraud in British India, 53–54 (1894).

“In August, 1908, Count Z. sent one of his dirigibles from Mainz to
Friederickshafen. Some motor trouble happened, and the ship was landed
in a field. Thousands of people rushed to the place, so ropes were run
around it, and soldiers were ordered on guard. The ship was anchored,
and in addition held by forty men with ropes at the stem, and by
thirty at the stern. In the afternoon a sudden thunderstorm came up,
struck the dirigible, tore it loose and sent it adrift for about a
mile, when it caught fire and was destroyed.

Spectators had been around all the time, and were standing outside the
ropes in rows several deep. Some unfortunate person standing in the
outer row near the rear gondola, was caught by the ship’s anchor,
dragged into the air and carried for some distance; in the fall, one
of his legs sustained such injuries that it had to be amputated.

He brought suit for damages, and was nonsuited; appealed; same result.
Finally, he appealed to the Reichsgericht. It refused to interfere,
for the following reasons: There being no special law governing damage
by air-navigation, it becomes necessary to prove negligence on the
part of the aviator or promoter. The idea that the mere undertaking of
a business, acknowledged to be dangerous, carries with it
responsibility for all damage caused thereby, is not law. The only
duty which the hazardousness of the undertaking imposes upon the
person engaged therein, is that of extra care. Otherwise, almost all
kinds of transportation would be impossible.

In this case, the trip had commenced during exceptionally fine
weather, which continued until after the time when the ship had been
landed and anchored. Defendant had proved that on former occasions he
had succeeded in landing, anchoring and holding his ship, even when
the weather was unfavorable, and that the means he on such occasions
had employed in keeping the ship at its moorings, were not any
stronger than those employed on this occasion; in fact, they were
weaker. It could not be demanded of the defendant that he should
anticipate and provide against such an extraordinary violent gust of
wind as tore his airship away.” 75 Central Law Journ. 311 (1912).

In Charing Cross Co. _v._ London Hydraulic Power Co., [1914] 3 K. B.
772, hydraulic mains under the streets burst and injured plaintiff’s
cables, also laid in the streets. Lord Sumner said (pp. 779–780): “I
think that this present case is also indistinguishable from Rylands
_v._ Fletcher. Two grounds of distinction have been suggested. It is
said that the doctrine of Rylands _v._ Fletcher is applicable between
the owners of adjacent closes, which are adjacent whether there be any
intermediate property or not; and that it is a doctrine depending upon
the ownership of land and the rights attaching to the ownership of
land, under which violations of that species of right can be prevented
or punished. In the present case instead of having two adjacent owners
of real property, you have only two neighboring owners, not strictly
adjacent, of chattels, whose chattels are there under a permission
which might have been obtained by the private license of the owners of
the soil, though in fact obtained under parliamentary powers; hence
the two companies are in the position of co-users of a highway, or at
any rate of co-users of different rooms in one house, and Rylands _v._
Fletcher does not apply. The case depends on doctrines applicable to
the highways, or to houses let out in tenements. I am unable to agree
with any of these distinctions, though they have been pressed upon us
by both learned counsel with great resource and command of the
authorities. Midwood _v._ Manchester Corporation, [1905] 2 K. B. 597,
is not decided as a case of a dispute arising between the owners of
two adjacent closes. The case is treated as one between a corporation,
whose business under the roadway is exactly similar to that of the
defendant corporation here, and injured occupiers of the premises. If
the distinction drawn between the present case and that of adjacent
landowners in Rylands _v._ Fletcher be a good one, it either was not
taken in Midwood _v._ Manchester Corporation or was taken and treated
as of no importance. Further I am satisfied that Rylands _v._ Fletcher
is not limited to the case of adjacent freeholders. I shall not
attempt to show how far it extends. It extends as far as this case,
and that is enough for the present purpose.”

See Thayer, Liability Without Fault, 29 Harv. Law Rev. 801; Bohlen,
The Rule in Rylands _v._ Fletcher, 59 University of Pennsylvania Law
Rev. 298, 373, 423; Wigmore, Responsibility for Tortious Acts: Its
History, 7 Harv. Law Rev. 315, 383, 442.

_Liability in case of customary or statutory duty or authority_ to use
land as defendant did, see Madras R. Co. _v._ Zemindar, L. R. 1 Ind.
App. 364; Green _v._ Chelsea Waterworks Co., 70 L. T. 547; Price _v._
South Metropolitan Gas Co., 65 L. J. Q. B. N. S. 126; City _v._
Bridgeport Hydraulic Co., 81 Conn. 84.

Footnote 289:

Argument abridged.

Footnote 290:

The judgment of the Court below, read by BRAMWELL, B., states the
finding thus: “In this case I understand the jury to have found that
all reasonable care had been taken by the defendant, that the banks
were fit for all events to be anticipated, and the weirs broad enough;
that the storm was of such violence as to be properly called the act
of God, or _vis major_.”

Footnote 291:

See Salmond, Torts (4 ed.) § 65.

Footnote 292:

Arguments omitted.

Footnote 293:

See Carstairs _v._ Taylor, L. R. 6 Ex. 217; Wilson _v._ Newberry, L.
R. 7 Q. B. 31; Rickards _v._ Lothian, [1913] A. C. 263.

Footnote 294:

Actiesselskabet Ingrid _v._ Central R. Co., (C. C. A.) 216 Fed. 72
(explosives); Judson _v._ Giant Powder Co., 107 Cal. 549 (explosives);
Lake Shore R. Co. _v._ Chicago R. Co., 48 Ind. App. 584 (semble);
Owensboro _v._ Knox, 116 Ky. 451 (electricity); Murphy _v._ Gillum, 73
Mo. App. 478 (semble); Losee _v._ Buchanan, 51 N. Y. 476 (boiler);
Cosulich _v._ Standard Oil Co., 122 N. Y. 118 (petroleum); Huff _v._
Austin, 46 Ohio St. 386 (boiler); Pennsylvania Coal Co. _v._
Sanderson, 113 Pa. St. 126 (semble); Sowers _v._ McManus, 214 Pa. St.
244 (explosives); Davis _v._ Charleston R. Co., 72 S. C. 112 (boiler)
_Accord_.

_Bursting of dam_, see: Alabama Coal & Iron Co. _v._ Turner, 145 Ala.
639; Todd _v._ Cochell, 17 Cal. 97; Shrewsbury _v._ Smith, 12 Cush.
177; City Water Power Co. _v._ City, 113 Minn. 33; King _v._ Miles
City Co., 16 Mont. 463; Livingston _v._ Adams, 8 Cow. 175; Lapham _v._
Curtis, 5 Vt. 371. Compare Pennock _v._ Central R. Co., 159 App. Div.
517.

_As to constitutionality of legislation imposing liability without
fault_, see City _v._ Sturges, 222 U. S. 313, 322; Pittsburgh R. Co.
_v._ Home Ins. Co., 183 Ind. 355; Daugherty _v._ Thomas, 174 Mich.
371; Ives _v._ South Buffalo R. Co., 201 N. Y. 271, 295–298.

Footnote 295:

See Cahill _v._ Eastman, 18 Minn. 324; Madras R. Co. _v._ Zemindar of
Carvatenagarum, L. R. 1 Ind. App. 364.—Reporter’s Note.

Footnote 296:

Only so much of the case is given as relates to a single point.

Footnote 297:

_Damage through escape of gas from pipes_, see: Gould _v._ Winona Gas
Co., 100 Minn. 258; Taylor _v._ St. Joseph Gas Co., 185 Mo. App. 537;
Morgan _v._ United Gas Co., 214 Pa. St. 109; Windish _v._ Peoples Gas
Co., 248 Pa. St. 236.

Footnote 298:

Herndon _v._ Stultz, 124 Ia. 734 Accord. But see Indiana, Burns’ Ann.
Stat., 1914, §§ 5524–5525; Texas, McEachin’s Civil Stat., arts.
6601–6602.

As to constitutionality of such legislation, see Ex parte Hodges, 87
Cal. 162.

Footnote 299:

Argument omitted.

Footnote 300:

Edwards _v._ Massingill, 3 Ala. App. 406; Kansas City R. Co. _v._
Wilson, (Ark.) 171 S. W. 484; Bullock _v._ Porter, 2 Boyce, 180;
Talmadge _v._ Central R. Co., 125 Ga. 400; Beckham _v._ Seaboard Ry.,
127 Ga. 550; Pittsburgh R. Co. _v._ Culver, 60 Ind. 469; Brummit _v._
Furness, 1 Ind. App. 401; Hanlon _v._ Ingram, 3 Ia. 81; Johnson _v._
Veneman, 75 Kan. 278; Needham _v._ King, 95 Mich. 303; Bolton _v._
Calkins, 102 Mich. 69; Steffens _v._ Fisher, 161 Mo. App. 386; Bock
_v._ Grooms, 2 Neb. Unoff. 803; Read _v._ Pennsylvania R. Co., 44 N.
J. Law, 280; Clark _v._ Foot, 8 Johns. 421; Stuart _v._ Hawley, 22
Barb. 619; Hitchcock _v._ Riley, 44 Misc. 260; McDermott _v._
Consolidated Ice Co., 44 Pa. Super. Ct. 445; Pfeiffer _v._ Aue, 53
Tex. Civ. App. 98; Waldy _v._ Preston Mill Co., 80 Wash. 25; Fahn _v._
Reichart, 8 Wis. 255 _Accord_.

_Fires set by locomotives._ As to liability for fires set by
locomotives, there is a conflict. One view is that the plaintiff must
establish negligence, as in other cases. Garrett _v._ Southern R. Co.,
(C. C. A.) 101 Fed. 102; Pittsburgh R. Co. _v._ Hixon, 110 Ind. 225
(changed by statute); Louisville R. Co. _v._ Haggard, 161 Ky. 317;
Wallace _v._ New York R. Co., 208 Mass. 16 (_res ipsa loquitur_
inapplicable); New England Box Co. _v._ New York R. Co., 210 Mass.
465; Fero _v._ Buffalo R. Co., 22 N. Y. 209; Peck _v._ New York R.
Co., 165 N. Y. 347; Campbell _v._ Baltimore R. Co., 58 Pa. Super. Ct.
241.

Another view is that proof that the fire was due to sparks or coals
from an engine makes a _prima facie_ case of negligence or even casts
upon the company the burden of disproving negligence. McCullen _v._
Chicago R. Co., (C. C. A.) 101 Fed. 66; Woodward _v._ Chicago R. Co.,
(C. C. A.) 145 Fed. 577 (statute); Erickson _v._ Pennsylvania R. Co.,
(C. C. A.) 170 Fed. 572 (statute); Alabama R. Co. _v._ Johnston, 128
Ala. 283; St. Louis R. Co. _v._ Trotter, 89 Ark. 273 (changed by
statute); Florida R. Co. _v._ Welch, 53 Fla. 145 (statute); Southern
R. Co. _v._ Thompson, 129 Ga. 367 (statute); Osburn _v._ Oregon R.
Co., 15 Idaho, 478; American Strawboard Co. _v._ Chicago R. Co., 177
Ill. 513; Kennedy _v._ Iowa Ins. Co., 119 Ia. 29 (statute); Atchison
R. Co. _v._ Geiser, 68 Kan. 281; Fuller _v._ Chicago R. Co., 137 La.
997; Dyer _v._ Maine R. Co., 99 Me. 195; Baltimore R. Co. _v._ Dorsey,
37 Md. 19; Continental Ins. Co. _v._ Chicago R. Co., 97 Minn. 467;
Alabama R. Co. _v._ Barrett, 78 Miss. 432; Miller _v._ St. Louis R.
Co., 90 Mo. 389; Rogers _v._ Kansas City R. Co., 52 Neb. 86; Laird
_v._ Connecticut R. Co., 62 N. H. 254 (statute); Goodman _v._ Lehigh
R. Co., 78 N. J. Law, 317 (statute); North Fork Lumber Co. _v._
Southern R. Co., 143 N. C. 324; Missouri R. Co. _v._ Gentry, 31 Okl.
579 (but changed by statute); Anderson _v._ Oregon R. Co., 45 Or. 211;
Hutto _v._ Seaboard Ry., 81 S. C. 567; Gulf R. Co. _v._ Johnson, 92
Tex. 591; Ide _v._ Boston R. Co., 83 Vt. 66 (statute); Norfolk R. Co.
_v._ Thomas, 110 Va. 622; Thorgrimson _v._ Northern R. Co., 64 Wash.
500; Jacobs _v._ Baltimore R. Co., 68 W. Va. 618; Moore _v._ Chicago
R. Co., 78 Wis. 120.

In other jurisdictions there is a statutory absolute liability for
such fires. St. Louis R. Co. _v._ Cooper, 120 Ark. 595; British Assur.
Co. _v._ Colorado R. Co., 52 Col. 589; Martin _v._ New York R. Co., 62
Conn. 331; Pittsburgh R. Co. _v._ Chappell, 183 Ind. 141; Stewart _v._
Iowa R. Co., 136 Ia. 182; Murphy _v._ St. Louis R. Co., 248 Mo. 28;
Baltimore R. Co. _v._ Kreager, 61 Ohio St. 312; Midland R. Co. _v._
Lynn, 38 Okl. 695; MacDonald _v._ New York R. Co., 23 R. I. 558;
Peoples Oil Co. _v._ Charleston R. Co., 83 S. C. 530; Jensen _v._
South Dakota R. Co., 25 S. D. 506.

Footnote 301:

State _v._ General Stevedoring Co., 213 Fed. 51; Kinney _v._ Koopman,
116 Ala. 310; Kleebauer _v._ Western Fuse Co., 138 Cal. 497; Simpson
_v._ Du Pont Powder Co., 143 Ga. 465; Barnes _v._ Zettlemoyer, 25 Tex.
Civ. App. 468 _Accord_.

French _v._ Center Creek Powder Co., 173 Mo. App. 220 _Contra_.

Compare Sloss-Sheffield Steel Co. _v._ Prosch, 190 Ala. 290; Flynn
_v._ Butler, 189 Mass. 377; Reilly _v._ Erie R. Co., 72 App. Div. 476.

Footnote 302:

Only part of case is given. Argument omitted.

Footnote 303:

Statement and arguments omitted.

Footnote 304:

Wright _v._ Malden R. Co., 4 All. 283; Nelson _v._ Burnham & Morrill
Co., 114 Me. 213; Fluker _v._ Ziegele Brewing Co., 201 N. Y. 40; Beck
_v._ Vancouver R. Co., 25 Or. 32 _Accord_. See also Newcomb _v._
Boston Protective Department, _ante_, p. 391; Bourne _v._ Whitman,
_ante_, p. 400, note 1.