cause, and so stand opposed to the negligence of either servants or masters, and that they do not, consequently, protect persons from the ordinary common-law responsibility in respect of fires occasioned by negligence. (g) Thus, where the occupier of a meadow adjoining some cottages belonging to the plaintiff stacked a hay-rick on the extremity of the meadow in too green a condition, close to the plaintiff's cottages, and the hay smoked, and steamed, and exhibited unequivocal symptoms of approaching combustion, and the defendant was frequently warned of the danger of the stack's taking fire, and said that he would "chance it," but he ultimately caused a hole to be cut through the centre of the rick, which, unfortunately, hastened the catastrophe it was intended to avert, and the haystack caught fire, and the fire spread to the barn and stables of the defendant, and thence to the plaintiff's cottages, and totally consumed them, it was held that the defendant was responsible for the destruction of the cottages, and that, in cases of this sort, "it is for the jury to say whether or not, under the circumstances, the party has conducted himself with such a degree of care and caution as might be looked for in a prudent man." (k) It has been held, also, that these statutes respecting accidental fires do not apply where the fire originates in the use of a dangerous engine or instrument, knowingly used by the owner of the land or estate on which the fire breaks out; so that if the owners of manufactories and steam-engines are guilty of any negligence or carelessness in the management of their furnances and chimneys, and by reason thereof sparks escape and are blown on to the adjoining buildings, the owners of the furnace will be responsible for the damage done. It has been held, moreover, that a fire designedly lighted by the defendant or by his orders, on his own estate, and which afterwards spreads, and causes damage to the plaintiff, is not a fire which "accidently begins" within the meaning of the statute; so that if a person lights, or causes his servants to light, fires on his land, for the purpose of burning weeds and rubbish, and the fire spreads to and destroys the hedges and woods or (g) Filliter v. Phippard, 11 Q. B. 357. Canterbury (Visct.) v. Att.-Gea., I Phill. (h) Vaughan v. Menlove, 4 Sc. 251; 3 B. N. C. 468. cornfields of the adjoining landed proprietor, the lighter of the fire will be responsible for the damage. (i) But a fire may be knowingly and designedly lighted in the first instance, and yet may fairly be said to "accidentally begin" the moment that, through some sudden and unexpected wind, the fire spreads, or sparks and fragments of fire are blown into the air, and get beyond the control of the party who has lighted and watched the fire.' 355. Fire spreading from blast-furnaces and steam-engines.— Wherever it is practicable to adopt precautions that will render damage by fire from a furnace "next to impossible," a failure to adopt those precautions will be negligence. Where a spark of fire from the chimney of a locomotive engine on a railroad fell on the thatch of a cart-lodge, and set it on fire, and the fire communicated to several other farm-buildings, and totally destroyed them, it was held that the very occurrence of the disaster was prima facie proof of negligence on the part of the company and their servants having the management of their engine, rendering it incumbent on them to show that every possible precaution had been taken to prevent the escape of sparks. (j) 356. Fire spreading from railways to the adjoining property. --If railway companies allow quantities of long dead grass, or any other combustible material, dangerously to accumulate along their railway, and the combustible matter is ignited from lighted coals or sparks escaping from their locomotive engines, and the fire spreads from the railway to the adjoining coppices and fires them, the railway company will be responsible for the damage done, for such a fire is not a fire which accidentally begins. on their estate, but is a fire caused by their negligence in not keeping the railway free from combustible materials likely to be ignited by their furnaces, and to cause damage to their neighbors. And they will be liable, although they could not reasonably anticipate that such consequences would ensue from their (2) Filliter v. Phippard; Tubervil v. Stamp, supra. (1) Piggot v. Eastern Co. Rail Co., 3 C. B. 229. Aldridge v. Gt. West. Rail. Co., 3 M. & Gr. 515. Fremantle v. Conklin v. Thompson, 29 Barb. (N. Y.) 218; Johnson v. Barber, 10 Ill. 425; Ayer v. Starkie, 30 Conn. 304. negligence. (k) They may be expressly authorized by statute to use locomotive furnaces of a dangerous character, but no statute can exempt them from the consequences of negligence in the management of their railways, or the construction of their fire-boxes, chimneys or furnaces, whereby coals of fire are thrown on the adjoining property. If they neglect to avail themselves of all such contrivances as are in known practical use to prevent the emission of sparks from their engines, they will be responsible for such neglect. (1) And if they run locomotive engines without statuable authority, in that case they are responsible for any damage caused by such engines in setting fire to adjoining property or otherwise, although they have not been guilty of negligence. (m)1 357. Fires occasioned by the negligence of servants.-The 12 Geo. 3, c. 73, s. 35, imposes penalties upon servants who, through negligence or carelessness, fire any houses or buildings; but this enactment does not exempt the master from responsibility for the negligent acts of the servant whilst carrying into execution the master's orders, and doing something which the master has employed him to do. () If the work the servant is employed to execute does not require the use of fire, but the servant, nevertheless, kindles a fire for his own purposes, to cook his dinner or light his pipe, and carelessly throws burning material amongst combustibles, and destroys valuable property, the master is not responsible for the unauthorized act of his servant. (o) Where a maid-servant, in order to clear a chimney of soot, set fire to the soot with a quantity of furze, and burnt the house down, it was held that the master was not responsible for the damage, as it was no part of the servant's business to clean the chimney, or to use fire for the purpose. (p) (2) Smith v. Lond. & South-West. Rafl., L. R., 5 C. B. 98; 6 Id. 14. (7) Fermantle v. Lend. & North-West. Rail. Co., ut sup. Vaughan v. Taff Vale Rail. Co., 3 H. & N. 743; 28 Law J., Exch. 41; 29 Law J., Exch. 247; 5 H. & N. 679. (m) Jones v. Festiniog Rail Co., L. R., 3 Q. B. 733. (2) Vaughan v. Menlove, 3 B. N. C. 468. (0) Williams v. Jones,33 Law J., Exch. 297. (p) McKenzie v. McLeod, 10 Bing. 385; 3 Law J.. N. S. C. P. 75. In this country the legislature has not the power to authorize any act that would operate as a destruction of another's property, without proper compensation, and an act authorizing the use of engines that would destroy the property of others, would be void. King v. Morris & Essex R. R. Co., 19 N. J. Amongst the Romans, where fire was little used, and candles were unknown, it was considered that damage from fire seldom occurred without imprudence or negligence, and those through whose neglect, however slight, a fire occurred, were held answerable for the damage done by it. (q) 358. Injuries from gunpowder and explosive substances-Explosions of gas.-Whoever introduces gunpowder or explosive materials into a building is responsible for damage occasioned by the introduction of such dangerous substances. If a person mixes things together, which alone are perfectly innocent, but which are liable to explode on coming into contact, he is respon. sible for the consequences; and if an explosion ensues he must make good the damage. (r)1 Every tenant of a house is responsible for not taking care that the stop-cocks for regulating the supply of gas to a house are properly turned; and it these stop-cocks are negligently left open by the tenant or servants when the gas-lights are not burning, and an explosion ensues, and injures the house, the tenant will be responsible for the injury. But if a thief enters the house in the absence of the tenant, and cuts and carries away a gas-pipe without the knowledge of the tenant, or against his will, the latter is not then responsible for the resulting damage. When the entry of gas into a house is under the control of the occupants of the house, the gas company supplying the gas is not bound, on receiving notice that no more gas will be required, to stop the supply from the outside by putting on an outer stop-cock, or cutting off the communication between the gas-pipes in the interior of the house and the main in the street. (s) In supplying gas to a house, a gas company is bound to use every reasonable precaution to prevent injury during the operation of "tapping the main." (t) (9) Domat, liv. 2, tit. 8, s. 4. (2) Tindall, C. J., in Vaughan v. Menlove, 4. Sc. 252. (s) Holden v. Liv. Gas. Co., 3 C. B. 14; 15 Law. J., C. P. 304. (t) Blenkiron v. Gt. Central Gas Consumers' Co., 2 F. & F. 438. Myers v. Malcolm, 6 Hill (N. Y.) 590. SECTION II. REMEDIES AT COMMON LAW FOR INJURIES TO LANDS FROM WASTE, NEGLIGENCE, AND FIRE. 359. The writ of prohibition for waste was anciently a common-law remedy, grantable only at the instance of the person injured, but by the statute of Westminster the second (13 Ed. 1, c. 14), this writ is taken away, and a writ of summons'substituted in its place; "and although it is said by Lord COKE, when treating of prohibition at the common law, that it may be used at this day, those words, if true at all, can only apply to that very ineffectual writ directed to the sheriff, empowering him to take the posse comitatus to prevent the commission of intended waste." (u) 360. Actions for waste.-The real action for waste, in which the land or tenement itself was recovered, with thrice as much as the waste was taxed at, has been abolished by 3 & 4 Win. 4, c. 27, s. 36, and the remedy at common law is now by the ordinary action on the case, in which the actual damage sustained may be recovered, and an injunction obtained to prevent the continuance or repetition of the mischief. (x) 361. Actions by owners of insured premises.-The right of the owner of real property, which has been damaged or destroyed by fire, caused by rioters or by negligence, to sue the wrong-doer for damages, is not affected by the,fact of his having insured the property, and received from an insurance company full indemnity for his loss, (y) but he sues in the character of a trustee for his insurer, and is bound to hand over the damages he recovers to the latter. And an insurer, who has paid the loss, is entitled to sue in the name of the insured for the purpose of recovering full compensation from the wrong-doer. (z) 362. Parties to actions for waste.-An action for waste in houses and buildings must in general be brought by the person entitled to the immediate estate in remainder; but if the ten (u) Jefferson v. Bishop of Durham, I B. & P. 121. (x) Post, ch. 23, s. I. (y) Yates v. Whyte, 5 Sc. 640; 4 Bing N. C. 272. (2) Randal v. Cockran, I Ves. sen. 97; post, ch. 22, s. I. |