No. 2,351.

#### LAWRENCE FLYNN, Appellant, *v.*THE SAN FRANCISCO AND SAN JOSE RAILROAD COMPANY, Respondent.

Unavoidable Accident. — The ignition of combustible substance lying along the track of a railroad, by sparks dropped by a passing engine, is not an. unavoidable accident.

Contbikutaby Negligence.. — The rule releasing a defendant from responsibility for damages because of the negligence of the plaintiff, is limited to cases where the act or omission of the plaintiff is the proximate cause of the injury.

Idem. — -It is not negligence, in a legal sense, for a farmer to leave the grass and stubble standing on his pasture and grain field along the side of which, and separated therefrom by a fence, a railroad passes.

Idem. — The negligence, which was the proximate cause of the injury, where a fire was communicated to an adjacent grain field by the falling of sparks from a passing engine, which ignited the dry grass and weeds tying along the track, was the leaving of the combustible matter upon the railroad where it was liable to he so set on fire.

Appeal from tbe District Court of tbe Third District, Santa Clara County.

Action to recover damages for the destruction by fire of certain stacks of wheat and a quantity of wheat sacks belonging to plaintiff, through the *“*carelessness, negligence and unskillfulness of the defendants and their agents.”

The Court below found tbat tbe estimated amount of wheat in tbe stacks burned was six hundred sacks, the value of which, in sacks, was fifteen hundred and twenty-four dollars.

Judgment was for defendant, and plaintiff appealed.

The other facts are stated in the opinion.

*D. M. Delmas,*for Appellant.

*First*— The plaintiff, in allowing the grass to remain in its natural state, in his field, along *the line of the road, or the stubble around his wheat stacks, was not. at fault; because tbis was making a legitimate, though, it may be, hazardous use of his property. *(Ooo7cv. Hie Ohamplain &c. Go.*Denio, 91; Angelí on Water Courses, p. 192, *?¿*114; *Kenvhaclcer*v. *Cleveland &c. B. B. Go.*3 Ohio, St. 193; *Wyatt*v. *Harrison,**153 Bar. and. Ad. 871; *Fero*v. *The Buffalo dec. B. B. Co.*22 N. *Y.*209; *Vaughn*y. *Taaff Vale do.*3 Hurlst. and N. 743.)

*Second*— In tbe use of Ms property, plaintiff was under no obligation to guard against tbe effects of possible acts of negligence on defendants’ part; because tbe law authorized him to presume that tbe defendants would manage their business prudently and carefully. *(Newsom*v. *The N. Y. dc.*29 N. Y. 383; *Carroll*y. *The N. Y. and N. H. do.*1 Buer; *Harpel*y. *Curtis,*1 E. D. Smith,78; *Beeves*y. *The Delaware dc.*30 Penn. St.)

*Third*— Assuming, however, that the plaintiff was at fault, his negligence did not, in a legal sense, contribute to the injury. *(Biclimond*v. *Die Sacramento dc.*18 Oal. 357; *Tuff*y. *Warman,*5 0., B. N. S. 573; *Kenvhadcer*v. *The Cleveland, dec.*3 Ohio St. 172; *Davies*y. *Mann,*10 M. and *W.*545; *The C. C. dec.*v. *Elliott,*4 Ohio St. 474; *Carroll*,y. *The N.*Y. *and N. H. dec.*1 Duer; *Kline*v. *The Central, dc.*37 Oal.; *Needham*v. *2he S. F. and S. J. dc.*37 Cal.; *Claajard*y. *Dethiclc,*12 O. B. 445.)

*Moore, Laine d Silent,*and *C. T. Byland,*for Bespondent.

The Court in this case placed its findings and decision upon the ground that both plaintiff and defendants were guilty of negligence, and that, as the plaintiffs’ negligence contributed directly to the injury, he could not recover.

The findings fix it beyond the possibility of a doubt, that the Bailroad Company used every care and precaution possible, to prevent the escape of fire or sparks from its locomotive. The law is, that where a railroad company, operating steam cars, use the most approved apparatus for preventing the escape of sparks or fire, they are not liable for an escapo of the same. (18 Barb. 80; Bedfield on Bailways, vol. 1, pp. 45iU5; 2 Bailway Oases, 30 and 325.)

Up to this point, at least, the Company was freé from neg_ ligence or blame. _The escape of the sparks that ignited the fire was unavoidable accident, and not culpable negligence. The only negligence that can be attributed to the Company, was that of allowing the combustible material, mentioned *16in tbe findings, to remain on tbeir road. This, we submit, was not culpable negligence. Tbe material was tbe natural growth of tbe soil, over which tbeir road passed. It was not such material as endangered tbe operation of tbeir road; and they were not required by any statute to keep their roadway clear of dry grass or weeds. True, extreme caution might have directed^Ihem to do so, in order to protect the surrounding country. But this is doubtful, as they were furnished with the most approved ash-pans, fire-boxes, spark-arresters, &c., and the escape of sparks was not probable under such circumstances.

Again: if they should fire their road-bed, to clear it of this dry grass, it would greatly endanger the surrounding fields; and it was much easier for the adjoining farmer to plow some furrows along side of the railroad fence, so as to protect his grass and grain, which he did not do, but allowed his dry grass and dry stubble to grow full up to the railroad fences; nor did he ever plow or burn around his stacks of grain, but left them exposed.

It is a well settled doctrine of law, that one who is injured by the *mere negligence*of another cannot recover, at law or ■' in. equity, any compensation for his injury, if he, by his own : negligence, contributed to produce the injury of which he complains; so that without his concurring and co-operating li fault, the injury would not have happened. (Sherman and EEedfield on Negligence, p. 23, §25; 25Ind. 197; 28 Ind. 5288; 34 Cal. 163.

No one exercising ordinary prudence and care, would have left the dry grass and stubble growing up to the very line of the railroad, -over which he knew would pass several times per day an engine, bearing fire, and emitting sparks, and then stack large quantities of grain in this same grass and stubble, without adopting any of the common methods of protecting the same — clear no space, run no furrows, or anything of the kind. This was negligence on the part of the farmer. Negligence consists in the omitting to do something that a reasonable man would do, or in doing something that a reasonable man would not do. (Hillard on Torts,'voh, p'., 131, and note. )

*17Plaintiff was doubly negligent. No prudent man would bave neglected to bave back-fired, cleared off a space, or plowed some furrows, to protect bis pasture and grain; nor would a prudent man bave stacked bis grain in sucb a field, or in so exposed a position. ( Sberman and Eedfield on Negligence, p. 29, *\*29.)

In order to bar tbe plaintiff of bis recovery; in tbe case of negligence, it is not necessary that be should bave been in any degree tbe cause of tbe act by wbicb be was injured.'. It is sufficient, if tbe injury complained of might bave beeni avoided by bis exercise of ordinary care. Tbe question is not whether tbe plaintiff’s negligence caused tbe injury, but' whether it contributed to it, contributory negligence being enough. (Sberman and Eedfield on Negligence p. 34, § 34 ‘ and authorities there cited; Id. p. 38, § 37. Id. p. 382, § 335. *Ohio and Miss. B. B. Go.*v. *Shanifelt,*18 Ohio, *Smith*v. *Hannibal and St. Jo. B. B. Go.*37 Mo. 287.)

Appellant, in reply, contended:

It is not enough that tbe plaintiff, in leaving bis land uncleared was negligent, nor that bis neglect in that behalf was one without wbicb tbe injury could not bave happened. There must be something more. It must also appear that that negligence has immediately or proximately contributed to tbe injury. *(Kline*v. *Genital Pacific B. B. Go.*37 Cal. 400.)

Every injury is composed of two elements — one active, tbe other passive. Tbe immediate cause of every injury is an act- — mere passiveness produces nothing. Where tbe act is, therefore, there is tbe cause of tbe injury. If tbe act is negligent, be who is tbe author of it must bear tbe blame; for be is tbe author of tbe injury. From this principle there could be no difficulty in deducing two rules in cases of contributory negligence.

*First*— If tbe immediate act wbicb produces tbe injury is tbe act of tbe plaintiff, be shall not recover, though tbe previous neglect of tbe defendant bave produced a state of *18things without which the injury could not hare happened. ( *Butterfield*v. *Forrester,*11 East, 60.)

*Second*— On the other hand, if the immediate act which produced the injury was the act of the defendant, the plaintiff shall recover, though the defendant’s act became injurious only because of the existence of a state of things due to plaintiffs neglect: *(Wright*v. *Brown,*4 Ind. 98; *Tuff*v. *Wcorman,*5 C. B. n. s. 573; *Kerwhacher*v. *The Cleveland &c.*3 Ohio, 172; *Davis*v. *Mann,*10 M. and W. 545; *The C. C. &c.*v. *Elliott,*4 Ohio, 474; *Carroll*v. *N. Y. & N. H. &c.*1 Duer ; *Richmond*v. *Ihe Sacramento &c.*18 Oal. 357; *Clayards*v. *Dethich,*12 0. B. 45,

Even if it be assumed that the plaintiff was at fault, his negligence did not, in any legal sense, proximately contribute to the result; but the proximate cause of the injury, was defendant’s negligence in running its train upon the road in an improper condition,

Bhodes, 0. J.,

delivered the opinion of the Court,- Tem:-3?le, J., Wallace, *J.,*and Spbague, J., concurring:

The plaintiff was in possession of a tract of land, one por - tion of which was cultivated in wheat, and another portion was used for pasturage. At the time of the injury complained of, the wheat was in stacks, on the ground where it was harvested, and the stubble on that land and the grass on the pasture land were very dry. ‘ ‘ There were no furrows or cleared space inside the fence or around the wheat stacks.’’ The defendant’s railroad ran along the side of the plaintiff’s land. The grass and weeds along the railroad had been cut and left on the ground, and had become very combustible. The defendant’s engines were provided with the best and most approved apparatus for preventing the escape of sparks, but, as a construction train passed'along the plaintiff’s land, the engine dropped sparks, which ignited the grass and weeds along the track, and a high wind swept the fire through the fence, over the pasture land and stubble-field, to the grain stacks, and the stacks were entirely consumed by the fire.

*19The Court belcl that, “although the defendant was at fault in the condition of its road, the plaintiff himself was at fault in failing to take ordinary precautions to prevent fire, which might unavoidably break out, from spreading to his wheat stacks. And, as this neglect of the plaintiff contributed to the injury complained of, as much as the negligence of the defendant in omitting to clear its road of the weeds and grass which had been cut upon it, no recovery can be had.”

No one is required to take any precautions against unavoidable or inevitable accidents, for the precautions which could not avert the injury would be futile. Nor is the ignition of combustible material lying on the track of a railroad, by sparks dropped by a passing engine, unavoidable accident. The removal of the combustible matter from the road, is an obvious and sure precaution.

"We had occasion in *Needham*v. *San Francisco and San Jose Railroad Company*(37 Cal. 409), and in *Kline*v. *Central Pacific Railroad Company*(Id. 400), to consider the subject of contributory negligence, and we held that the rule releasing the defendant from responsibility for damages, because of the negligence of the plaintiff, was limited to cases where the act or omission of the plaintiff was the proximate cause of the injury. The negligence in this case, which was the proximate cause of the destruction of the plaintiff’s grain, was the leaving of the dry grass and weeds upon the railroad, where it was liable to be set on fire by sparks falling from passing engines. It was not negligence in a legal sense, for the plaintiff to leave the grass and stubble standing on his pasture and grain field. He was not required to destroy or remove either, in order to obviate the consequences of the possible or even probable negligence of the defendant.

Judgment reversed and cause remanded, with directions to render judgment for the plaintiff for $1,524.

Csogicett^ J., expressed no opinion.