Adams v. Young.

the field of A., and spreads through his field to the adjoining field of B., A. may be reimbursed by the company, while B. must set down his loss to a remote cause, and suffer in silence;" thus answering Fent v. T. P. Ry. Co., 59 Ill. 362, 358; s. c., 14 Am. Rep. 13, infra.

And in that case the court held, "Sparks from defendants' engine fired a railroad tie, from which rubbish left by the defendants on their road was fired, communicated with plaintiff's fence next to the road and spread over two fields, burned another fence and standing timber six hundred feet distant from the road. Held, that the proximity of the cause was for the jury.

"In such case the jury must determine whether the facts constitute a continuous succession of events so linked as to be a natural whole, or whether the chain is so broken as to become independent, and the final result cannot be said to be the natural and probable consequence of the negligence of defendants."

In the opinion the chief justice says, page 378, "In determining this relation, it is obvious that we are not to be governed by abstractions, which in theory only cut off the succession. Abstractly each blade of grass or stock of grain is distinct from every other; so one field may be separated from another by an ideal boundary, or a different ownership, or it may be by a real but combustible division line. * * * It is at this point the province of the jury takes up the successive facts, and ascertains whether they are naturally and probably related to each other by a continuous sequence, or are broken off or separated by a new and independent cause." Some States, as Massachusetts and New Hampshire, have provided by statutes that railroad companies shall be liable for damage caused by fire communicated by its locomotive engines. And in Perley v. Eastern R. Co., 98 Mass. 414, damage was recovered for injury to property situated half a mile distant from the railroad.

دو

In the State of Kansas, damage has been recovered for injury to property situated many miles distant from the origin of the fire. Atchison, T. & Santa Fe R. Co. v. Stanford, 12 Kan. 354; s. C., 15 Am. Rep. 362. In case of Atchison, T. & Santa Fe R. Co. v. Bales, 16 Kan. 252, it was held: "Where fire, which is negligently permitted to escape from an engine of a railroad company, does not fall upon the plaintiff's property, but falls upon the property of another, setting it on fire, and then spreads by means of dry grass, stubble and other combustible materials, and passes over the land

Adams v. Young.

of several different persons, before it reaches the property of the plaintiff, and finally reaching the property of the plaintiff at a great distance from where the fire was first kindled, sets it on fire and consumes it, held, that the negligence of the railroad company, in such a case, is not too remote from the injury to the plaintiff's property to constitute the basis of a cause of action against the company."

In case of Poeppers v. M. K. & P. Ry. Co., 67 Mo. 715; s. c., 29 Am. Rep. 518, sparks from the locomotive set fire to the prairie. where the grass was rank. The wind was high and the fire extended three miles before night, then died down, and the next morning the wind rose and carried the fire five miles further, where the fire destroyed plaintiff's property. The court held, "that as the rise of the wind was a thing which a prudent man might reasonably have anticipated, it could not be regarded as the intervention of a new agency, so as to relieve the company from the consequences of its negligence in permitting the fire to escape; and that the fire was in fact one continuous conflagration, notwithstanding the lapse of time and the great distance over which it travelled before reaching plaintiff's property." In Missouri this may be correct.

In Del., Lack. & West. R. Co. v. Salmon, 39 N. J. Law, 300; s. c., 23 Am. Rep. 414, the court held, "Where one, by negligence or misconduct, occasions a fire on his own premises, or the premises of a third person, which spreads from thence to the plaintiff's property, and causes an injury, the injury is not, as a legal proposition, too far removed from his negligent act to involve him in legal liability." And Ryan v. New York Cent. R. Co., and Pennsylvania R. Co. v. Kerr, supra, are disapproved.

The case of Kellogg v. Chicago & N. W. Ry. Co., 26 Wis. 223; s. c., 7 Am. Rep. 69, was fully considered, and the court held, "The maxim, causa proxima non remota spectatur, is not controlled by time or distance, nor by the succession of events. An efficient adequate cause being found, must be deemed the true cause, unless some other cause, not incidental to it, but independent of it, is shown to have intervened between it and the result. The maxim includes liability for all actual injuries which were the natural and probable result of the wrongful act or omission complained of, or were likely to ensue from it under ordinary circumstances. And Ryan v. New York Cent. R. Co. and Pennsylvania R. Co. v. Kerr, supra, are disapproved.

VOL. LVIII- 100

Adams v. Young.

In the case of Fent v. Toledo, Peoria & Warsaw Ry. Co., 59 Ill. 349; s. c., 14 Am. Rep. 13, the opinion, delivered by Chief Justice LAWRENCE, disapproves of Ryan v. New York Cent. R. Co. and Pennsylvania R. Co. v. Kerr, supra, and deals at length with remote and proximate causes. The court there held, "If fire is communicated from a railway locomotive to the house of A., and thence to the house of B., it is not a conclusion of law that the fire sent forth by the locomotive is to be regarded as the remote, and not the proximate, cause of the injury to B., but that is a question of fact to be determined in each case by the jury under instructions of the court.

*

"If loss has been caused by the act, and it was, under the circumstances, a natural consequence which any reasonable person could have anticipated, then the act is a proximate cause, whether the house burned was the first or the tenth, the latter being so situated that its destruction is a consequence reasonably to be anticipated from setting the first on fire. If, on the other hand, the fire has spread beyond its natural limits by means of a new agency - if, for example, after its ignition, a high wind should arise, and carry burning brands to a great distance, by which a fire is caused in a place that would have been safe but for the wind - such a loss might fairly be set down as a remote consequence, for which the railroad company should not be held responsible.'

In Milwaukee and St. P. Ry. Co. v. Kellogg, 94 U. S. 4C9, the claim was that fire was negligently communicated from a steamboat of the company by sparks from the chimney to an elevator of the company built of pine lumber, and one hundred and twenty feet high, and standing on the bank of the river, and from the elevator to a saw-mill and lumber piles of Kellogg. The mill was five hundred and thirty-eight feet distant from the elevator, and the nearest pile of lumber was three hundred and eighty-eight feet distant from it.

When the steamboat went alongside the elevator, an unusually strong wind was blowing from the elevator toward the mill aud lumber. The case was from Iowa. The court held, "The question as to what is the proximate cause of an injury is ordinarily not one of science or of legal knowledge, but of fact for the jury to determine in view of the accompanying circumstances. A finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, is not warranted unless it appear that the injury was the natural and probable consequence of the negli

Adams v. Young.

gence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Where there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it."

In the case of Hoyt v. Jeffers, 30 Mich. 181, more than one building was burned by fire communicated by sparks from a mill chimney. As to the second building, the court held, "Even where such second building is at such a distance from the first that its taking fire from the first might not a priori, seem possible, yet if it be satisfactorily shown that it did in fact thus take fire without any negligence of the owner, or any fault on the part of any third party, which could be properly recognized as the proximate cause, and for which he could be held liable, the party through whose negligence the first building was burned cannot on principle be held exempt from equal liability for the burning of the second."

These numerous citations show many phases of this subject, and that each case must be determined by its peculiar facts, and so is largely within the province of the jury.

Here explosives are averred to have been in Crawford's house, but if they ever exploded it is not averred that any injury came from such explosion. There is shown no new cause operating after the fire was carried from the chimney of the mill on its destructive mission. The demurrer was rightly sustained, and the court did not err in affirming the judgment.

Judgment affirmed.

NOTE BY THE REPORTER.- See to the same effect, Johnson v. Chic., etc., Ry. Co., 31 Minn. 57; contra, Penn. Co., v. Whitlock, 99 Ind. 16; s. c., 50 Am. Rep. 71, and note, 81.

Judge Thompson (Neg., p. 169), says: "The opinion of Chief Justice LAWRENCE, in Fent v. Toledo, etc., Ry. Co., is an exhaustive and learned enunciation of the law as settled by the decisions in England and America." And of the Kerr and Ryan cases he says (p. 171): They are condemned in every subsequent case in which they have been cited, outside of those States, and have been so qualified in those States in which they have been decided as to be practically overruled."

Sherman & Redfield (Neg., § 327a), says: "We doubt whether any of this limitation of damages can be sustained. It does not seem to be accepted in England or Massachusetts. and is difficult to support upon any intelligible principle." Written in 1874.

Cooley says of the Ryan case (Torts, 76), that it was apparently decided more upon a consideration of the hardship of the opposite doctrine than upon a strict regard to the logic of cause and effect." The negligent fire is

Cummings v. Kent.

regarded as an unity, it reaches the last building as a direct and proximate result of the original negligence, just as a rolling stone put in motion down a hill, injuring several persons in succession, inflicts the last injury as a proximate result of the original force as directly as it does the first; though if it had been stopped on the way and started anew by another person, a new cause would thus have intervened back of which any subsequent injury could not have been traced. Proximity of cause has no necessary connection with contiguity of space or nearness in time. The slow match which causes an explosion after much time and at considerable distance from the ignition, and the libellous letter which is carried from place to place by different hands before publication, produces an injurious result which is as proximate to the cause and as direct a sequence as if in the one case the explosion had been instantaneous, and in the other the author had called his neighbors together and read to them his libel." No doubt the man who sets the stone rolling is liable for the direct injury to any number of different persons, but suppose the first person struck falls down the hill, and at the bottom strikes another, would the man who set the stone rolling be liable for the injury to the latter? That is a different question. Unless the doctrine of the Kerr and Ryan cases is law, the man who accidentally fired the cow-shed by tipping over the lamp in Chicago was liable for the conflagration of the whole city. Or suppose one should negligently keep a mad dog, which should bite another dog, and the virus should in like manner be communicated through six dogs to a man, would the keeper be liable to that man? Distance of space or time is nothing, it is true; but intervening and unexpected agencies of communication, through which space and time are bridged, are something to be taken into account.

CUMMINGS v. KENT.

(44 Ohio St. 92.)

Negotiable instrument — draft

parol evidence to vary liability.

Parol evidence of an agreement between payee and drawer that the drawer of a bill was not to be liable is inadmissible.

A

CTION on bills of exchange. The opinion states the facts. The plaintiff had judgment below.

John W. Herron, for plaintiff in error.

Jordan & Jordans, for defendant in error.

OWEN, C. J. If the trial court properly excluded the evidence offered by the defendant below to prove that it was agreed, at the time the bills of exchange in suit were drawn, that he was not to be liable thereon as drawer, the judgment below should be affirmed.