author: Minshall, J.

text:
    The Van Duzen Gas and Gasoline Engine Co. v. Schelies.

      Master and servant — Servant acting under immediate order of superior — Prudence required of servant — Law of contributary negligence — Question of care for decision of jury.

    1. A servant assumes only such risks incident to his employment as ■will happen in the ordinarily careful management of the business of the master; such as arise from the fault of the master are not assumed, and the servant may recover for injuries therefrom, unless his own fault contributed to the accident.
    2. One who, as a servant, does that in his employment which he is ordered to do by his master, and is injured by the culpable negligence of the latter, is not deprived of a right to recover for the injury by the fact that it was apparently dangerous, if a person of ordinary prudence would, under the circumstances, have obeyed the order, provided he used ordinary care in obeying it
    3. In such case the question is one of fact for the jury under proper instructions from the court.
    4. A servant was called by the foreman of a common master to assist him in the adjustment of a machine, and was ordered to do a certain thing in connection with the work; this, to the knowledge of the servant, was dangerous; but he had a short time before done substantially the same thing under the foreman’s order without accident; the danger arose from the proximity of a revolving saw that, by the culpable negligence of the master, was not protected; the servant obeyed the order, using ordinary care, but his clothing was caught by the saw and he was seriously injured. The court left it to the jury to say whether, under all the circumstances, the risk of injury was so great, that no ordinarily prudent man would have obeyed the order; and that if they found that it was, they should return a verdict for the defendant, and if not, they should return a verdict for the plaintiff Held, that the jury was properly instructed.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Hamilton County.
    The action below was for the recovery of damages, arising from a personal injury, averred to have been caused by the negligence of the defendant, the plaintiff at the time being in the employment of the defendant as a servant. The petition as amended was demurred to. After stating the corporate character of the defendant and the relation of the parties as employer and employe, the petition states:
    “That prior to September 27, 1891, defendant had built a machine known as a portable gasoline engine, with pump and circular saw attached, which said pump and circular saw were operated by a gasoline engine, being connected therewith by belting running from said engine to said pump and circular saw. That the defendants, disregarding their duty to furnish safe and secure machinery, conducted themselves so carelessly and negligently and unskillfully in this behalf that they did not provide a fender to, or shield for, said circular saw, but left said circular saw uncovered and unprotected, which said defendant well knew was unsafe and dangerous.
    Plaintiff further says that on said day he, the plaintiff, in the said capacity of machinist, was perempttorily ordered by the defendant, through Emil Bue, the foreman for the said defendant, who was then in charge of said work, and to and under whose orders and commands plaintiff was, and was subject thereto, to adjust the shafting of the said pump, which was next to, and close by said circular saw, and while said machinery was in action, and said circular saw was revolving rapidly.
    Plaintiff further says that he, in obedience to said orders of said defendant’s foreman, and without time or opportunity to reflect, or realize the danger of obeying said orders by reason of the proximity of the shafting to said circular saw, but in obedience to the peremptory order of the foreman to do the particular act which he was directed to do, proceeded to work on the said shafting of the pump; and, while so working, plaintiff’s clothing was caught by said circular saw; and plaintiff pulled over onto said circular saw; and said circular saw cut into plaintiff’s flesh, in front of his body, and cut off his thumb and forefinger, and otherwise so tore and mangled his left hand, of which the thumb and forefinger were part, as that a part of the palm of his left hand had to be removed by a surgeon.
    Plaintiff further says that said injuries were not caused by any fault or negligence on plaintiff’s part, but by reason of the carlessness and negligence of the defendant in not having a shield over, or fender to said circular saw, and in not stopping said machinery from running, and said circular saw from revolving (which might readily have been done) while plaintiff was in discharge of his duties under the peremptory order aforesaid., on the shafting of said pump; and in ordering and requiring the plaintiff to undertake said work while the machine was in motion.”
    It then concludes with a statement of the plaintiff’s injuries and the amount claimed as damages.
    The demurrer was overruled and the defendant answered denying all the inculpatory averments of the petition, and adding that the injury received by the plaintiff was solely due to his own negligence and carelessness.
    The case was tried to a jury; and at the close of the plaintiff’s evidence, a motion was made by the defendant to arrest the case from the jury on the ground that there was no evidence to support the allegations of the petition. This was overruled and exception taken.
    At the close of the evidence for both parties, the court charged the jury, to which exceptions were taken, by the defendant, as well as to its refusal to give certain instructions asked by it. The material parts of the charge affecting the right of the plaintiff to recover, and to which exceptions were taken, are as follows:
    “When the plaintiff entered into the employment of the defendant he took the risk of the obvious and known dangers, and the danger from this saw when running was obvious and known to him, and he cannot recover for injuries received by him on the saw simply because it could have been made less dangerous by being covered. It is claimed, however, that the plaintiff was in the employment of the defendant, a corporation, subject to the orders of the foreman, and that the plaintiff was ordered by the foreman to do certain work on a machine which was dangerous by reason of the place of the work being near a running saw; and that in proceeding to do the work under the order he received the injury.
    Now, if the plaintiff was subject to the orders of the foreman, and if the defendant, through its foreman, ordered the plaintiff to do the work on the machine at the place which was dangerous on account of its being near that running saw, and if the plaintiff obeyed, and was thereby injured by being cut on the saw, this act of the plaintiff in going so near the saw will not be contributory negligence on his part unless the danger was so glaring that no prudent man would have entered on the work so ordered even under orders from one having authority over him.
    • Now, the defendant claims that no such order was given to the plaintiff, and if you find that no such order was given to the plaintiff then he can not recover in this case, and your verdict must be for the defendant. If you find, however, that the-plaintiff was ordered by the foreman, or other superior officer, to do work on the machine at a place which was dangerous on account of being near the saw, and that he obeyed and was thereby injured, then the plaintiff can recover, and your verdict should be for the plaintiff unless you find that the danger of obeying the order and doing the work was so glaring that a prudent man, although an employe under orders of his employer, would not have entered on the work.”
    The instructions asked were inconsistent with the charge; so that, if the charge properly stated the law applicable to the case, the instructions were properly refused. Again, as the demurrer to the petition, and the motion to arrest the case from the jury, present substantially the same questions as arise upon the charge, the errors assigned thereon need not be separately noticed.
    The jury rendered a verdict for the plaintiff on which the court rendered judgment, after overruling a motion for a new trial; and this judgment has been affirmed by the circuit court.
    The reversal of both courts is asked on the ground that the jury was erroneously instructed as to' the law of the case; the contention of the defendant being that, if the danger was open and obvious, the plaintiff below could not recover, although he acted in obedience to the order of a superior.

      Follet & Kelley, for plaintiff in error.
    That the demurrer to the amended petition should have been sustained was decided by this court in the case of Coal and Car Co. v. Norman, 49 Ohio St., 598; Mad River R. R. Co. v. Barber, 5 Ohio St., 541; Engel, Guardian, v. The Standard Lighting Co., 12 C. C., 489; 5 C. D., 572; Beach Contributory Negligence, Section 16.
    The duty of a servant to protect himself against known danger stands upon the same footing and is equally as obligatory as is the duty of a master to protect him from danger. A servant who'exposes himself to a known and obvious danger can not throw the responsibility of injury received from such exposure upon his master, upon the alleged ground that he was ordered by his master to so expose himself.
    That the order of the employer or of one standing-in the place of the employer will not excuse the employe in exposing himself to a known and obvious danger or entitle him to recover of the employer for in-injuries received by such exposure, is distinctly decided in many cases to some of which we desire to direct the court’s attention. Platt v. R. R. Co., 84 Ia., 694; Russell v. Tillotson, 140, Mass., 201; Kean v. Detroit Copper Mills, 66 Mich., 277; Griffin v. Glen, Mfg. Co., (N. H.) 30 Atl. Rep., 344; Davis v. Western Railway, 107 Ala., 626; Stuart v. New Albany Mfg. Co., 15 Ind. App., 184; Jones v. R. R. Co., 11 Texas Civil App., 39, s. c. 31 S. W., 706; Railroad Company v. Jones, 95 U. S., 439; Bailey on Master’s Liability for Injuries to Servant, 159 et seq.; Texas & P. Ry. Co., v. Rogers, 6 C. C. A., 403; Illick, Admr., v. R. R. Co., 67 Mich., 632; Way v. R. R. Co., 40 Ia., 341; Walsh v. R. R. Co., 27 Minn., 367; Lothrop v. R. R. Co., 150 Mass., 423; Swoboda v. Ward, 40 Mich., 423; Balle v. Leather Co., 73 Id., 158; Melzer v. Car Co., 76 Mich., 94; Fisher, Admr., v. The C. & G. T. T. Co., 77 Mich., 546; Williams v. R. R. Co., 116 N. Y., 628; Railway Co. v. Leech, 41 Ohio St., 388; Tuttle v. Ry. Co., 122 U. S., 169; Sweeney v. Envelope Co., 101 N. Y., 520.
    The facts in this last case are analogous to the case at bar, and this decision, we submit, is exactly in point. Dougherty v. West Superior Co., 88 Wis., 343; Missouri Ry. Co. v. Spellman, (Tex. Civ. App.) 34 S. W., 298.
    In the case at bar, as we have seen from Schelies’ testimony, he knew the danger, and knowing it the order of the foreman to do the work does not change the rule. Wheeler v. Beery, 95 Mich., 251; Reed v. Stockmeyer, 20 C. C. A., 881; Hazen v. Lumber Co., 91 Wis., 208; Hazlehurst v. Brunswick Lumber Co., 94 Ga., 535; Thompson v. R. R. Co., 51 Neb., 527; Higgins Carpet Co. v. O’Keefe, 25 C. C. A., 220. See also Lovejoy v. R. R. Co., 125 Mass., 79; 2 Thompson on Negligence, 976; Wood on Master and Servant, Sec. 373 and notes; Bailey on Master’s Liability, 115 et seq.j Mississippi River Logging Co. v. Schneider, 20 C. C. A., 390; Kinsley v. Pratt, 148 N. Y., 372; Wood on Master and Servant, Sections 326, 328, 332, 335; Motey v. Pickle Marble & Granite Co., 20 C. C. A., 366; Stevenson v. Duncan, 73 Wis., 404; Atlas Engine Co. v. Randall, 100 Ind., 293; Foley v. Pettee Machine Works, 149 Mass., 294; Lindstrand v. Delta Lumber Co., 68 Mich., 261; Wilson v. Cotton Mills, 169 Mass., 67; Hettchen v. Chipman, 41 Atl. Rep. (Md.) 65; Ciriack v. Merchants’ Woolen Co., 146 Mass., 182; Roepcke v. Mich. Cent. R. R. Co., 100 Mich., 541; Way v. R. R. Co., 40 Ind., 341; Anderson v. R. R. Co., 39 Minn., 523; Palmer v. Harrison, 57 Mich., 182; Hickey v. Taffe, 105 N. Y., 26; Pitrowsky, Admr., v. Elevator Mfg. Co., 54 Ills. App., 253; Keets v. Machine Co., 33 C. C. A., 221.
    We think the decision in the case of Coal and Car Co. v. Norman, 49 Ohio St., 598, fully sustains us in this contention. We ave, however, equally sustained in this proposition by the decisions of the courts of last report in other states. Williams v. Churchill, 137 Mass., 342; Taylor v. Carew Mfg. Co., 140 Mass., 150; Warner v. Kendall (Colo. App.), 34 Pac. Rep., 1014; Writt v. Girard Lumber Co., 91 Wis., 496; Ruchinsky v. French, 168 Mass., 68.

      Kittredge & Wilby and F. D. Goodhue, for defendant in error.
    The relation ir which the parties stood to each other is settled in the case of Berea Stone Co. v. Kraft, 31 Ohio St., 287.
    The question, and, indeed, the only question that can be raised by the plaintiff in error, either upon its demurrer or the special charges which it asked, is: Was the plaintiff below guilty of contributory negligence? Was the law correctly applied upon that subject?
    The rule upon this subject is laid down by this court in Railway Co. v. Krouse, 30 Ohio St., 222.
    In connection with the question whether the plaintiff below was guilty of contributory negligence in attempting to obey the order of the master, we refer to the statement of the principle by this court contained in the third syllabus of the case of P. R. R. Co. v. Schneider, 55 Ohio St., 343.
    The proposition of law upon which we rely, that a servant obeying an express and peremptory order of his master to do a particular act, is not guilty of contributory negligence, unless the danger from obedience is so obvious and injury thereby is so inevitable, that a man of ordinary prudence would not obey, even if he was ordered by his employer to do it, is illustrated in its application by the recent decision of the Supreme Court of the United States in N. P. R. Co. v. Edgeland, 163 U. S., 93.
    Our adversaries seek to distinguish that case from the case at bar by saying that the danger from a buzz-saw was greater and more obvious than the danger of jumping from a moving train. Is that true? It will be remembered that Emil Bue, the foreman, a short time previous to the order and act in question here, had himself, in the presence of Schelies, loosened all the screws of the bed-plate of the pnmp. Schelies called his attention to the danger from the moving saw, and suggested that it should be stopped. The foreman assured him there was no danger; and the plaintiff, Schelies, in obedience to the order of the foreman, had taken a block and leaned over the wheel and knocked the base of the pump into place. When Schelies was again called from his work by the foreman, and expressly ordered to take the monkey-wrench, and, in the position which he was required to occupy by the foreman’s side, to lean' over and tighten the screw nearest to the saw, is it to be said, as matter of law, and in view of what had already been done, that in obeying this order calling for instantaneous action, he was guilty of contributory negligence, because he failed to choose the hazard of being discharged from his employment by refusing to obey the order?
    The cases which hold that such a question is proper to be submitted as a question of fact to the jury, are too numerous for citation. We refer the court to a number of them without endeavoring to analyze them, believing it will be much easier and more satisfactory for the court to examine these authorities for itself upon the point to which they are cited by us. Stephenson v. Hannibal R. R. Co., 86 Mo., 221; S. C., 96 Mo., 207; Shortell v. City of St. Joseph, 104 Mo., 114; Halliburton v. Wabash R. R. Co., 58 Mo. App., 27; Illinois Steel Co. v. Shymanowski, 162 Ill., 447, S. C., 59 Ill. App., 32; McKee v. Tourtelott, 167 Mass., 69; Chicago R. R. Co. v. McCarty, 49 Neb., 475; Taylor v. Evansville R. R. Co., 121 Ind., 124; Patterson v. Pitts. Ry. Co., 75 Pa. St., 389; Miller v. Union Pac. Ry. Co., 12 Fed. Rep., 600; Railway Co. v. Bayfield, 37 Mich, 205; Thompson on Neg., 974.
   Minshall, J.

It is well settled in the law governing the relation of master and servant, that the latter on entering the employment of the master assumes all risks incident to the employment ; in other words, as is sometimes said, the master is not an insurer of the safety of his servant. By this, however, is meant no more than that, the servant assumes all risks incident to the employment, that may happen in the ordinarily careful conduct of the business on the part of the master —injuries that result from the culpable negligence of the master are not assumed, and he may recover therefor, unless his own fault contributed to the accident. It therefore follows that the servant can have no relief against his master for injuries resulting from known and obvious dangers, avoidable by ordinary care, however culpable the master may be in the matter. All such injuries, together with such as happen where there is no fault on the part of the master, are, in the ordinary language of the law, assumed by the servant.

To this general statement of the law, applicable to the great majority of cases, there is what may be termed an exception, adapting it to a state of case that does sometimes, but not always, arise. Thus if the master or his representative has superior knowledge of a. given situation, and he assures the servant that he can safely undertake a given work, such assurance may justify the servant in undertaking the work, in reliance upon the superior knowledge of the master, without being liable to the charge of negligence in so doing, unless the danger is so imminent or manifest as to prevent a reasonably prudent man from risking it; and, for a much stronger reason, this is so, where the master, or one placed in authority over the servant, orders him into an apparently unsafe place, or to do apparently dangerous work. In Shortel v. City of St. Joseph, 104 Mo., 114, it is said: “Master and servant do not stand upon an equal footing even when they have equal knowledge of the danger. The- position of the servant is one of subordination and obedience to the master, and he has the right to rely upon the superior skill of the master, and is not entirely free to act upon his own suspicions of danger. If a servant is ordered into a place of danger, obeys and is injured, he will not be held to be guilty of contributory negligence, unless the danger is so glaring that a reasonably prudent person would not have entered into it.” In this case an employe of the city was directed by the city engineer to go into a trench excavated by the city and remove some supports to an arch, which being done, the arch fell and injured him. He was assured by the engineer that it was safe to do the work. The City of Lebanon v. McCoy, 12 Ind. App., 500 is a similar case," and in both a recovery was allowed the servant. In the latter case it is said: “When directed to do the act in the performance of which he was injured, he had a right to assume that the street commissioner, with- his superior knowledge of the facts, would not expose him to unnecessary peril.” In Patterson v. Railroad Co., 76 Pa. St., 391, 393, a like doctrine is expressed by Gordon, J., in this language: “The servant does not stand on the same footing with his master. His primary duty is obedience, and if, when in the discharge of that duty, he is damaged, through the neglect of the master, it is but meet that he should be recompensed.” And in Greenleaf v. Railroad Co., 29 Iowa, at p. 47, it is said: “Though decedent knew of the defective car, if he acted under instructions and directions of a superior, the action would by no means thereby be defeated. Under such circumstances, compelled as he necessarily would be to act with promptness and dispatch, it would be most unreasonable to demand of him the thought, care and scrutiny which might be exacted where there is more time for observation and deliberation.” See also, Railroad Co. v. Snyder, 55 Ohio St., 343. In Keegan v. Kavanaugh, 62 Mo., 230, it is said: “The law remembers that the respective situations of the master and servant are unequal, and excuses the servant for deferring to the superior judgment of the master. ' If, therefore, the master orders the servant into a situation of danger, and he obeys, and is thereby injured, the laws will not deny him a remedy against the master on the ground of contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even when, like the servant, he was not free to choose.”

The clear result of the best considered cases is, that where an order is given a servant by his superior to do something within his employment, apparently dangerous, and, in obeying, is injured from the culpable fault of the master, he may recover, unless obedience to the order involved such obvious danger, that no man of ordinary prudence would have obeyed it; and this is a question of fact for the jury to determine under proper instructions, and not of law for the court. Berea Stone Co. v. Kraft, 31 Ohio St., 287; Railway Co. v. Krouse, 30 Ohio St., 222; Coombs v. Cordage Co., 102 Mass., 572; Burgess v. Ore Company, 165 Mass, 71; Shortel v. City of St. Joseph, 104 Mo., 114; Illinois Steel Co. v. Schymanowski, 162 Ill., 447; McKee v. Tourtellotte, 167 Mass., 69; Patterson v. Railroad Co., 76 Penn. St., 389; Railway Co. v. Bayfield, 37 Mich., 205; Schlacker v. Mining Co., 89 Mich, 253; Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill., 573; Kain v. Smith, 89 N. Y., 375. In Northern Pacific Railroad v. Egeland, 163 U. S., 93, the plaintiff below was a common laborer in the employ of the company. When returning from his work on a train the conductor ordered him and others to jump off at a station -when the train was moving about four miles an hour. The platform was about a foot lower than the car step. His fellow7 laborers jumped and landed safely. He jumped and was seriously injured. Held, that the court below7 rightly left it to the jury to determine wrhether he was guilty of contributory negligence. In commenting on the circumstance of the case, Peckham, J., said: “The plaintiff wuuld naturally, therefore, be induced to obey the order of such superior, particularly if they were not of an obviously dangerous character.”

There is much reason in the rule that allows a favorable construction to be placed on the act of the servant done in obedience to the order of his superior, though involving danger. Obedience to orders given by a master becomes a habit wdth the servant. He obeys without much questioning the prudence of the order. It is expected that he will do so, and without such obedience the business of the master could not be successfully conducted. It is then both reasonable and proper that the master should be held to a reasonable responsibility for w7hat he orders his servants to do; and the conduct of a servant in obeying an order, under such circumstances, should not be too closely criticised by courts in administering the law. Whilst the law will not excuse the servant, w7here the thing ordered is plainly and manifestly perilous, it will do so w7here a man of ordinary prudence and care would, under the circumstances, have obeyed the order, although involving danger. A servant has the right, and is expected, to rely somewhat on the superior knowledge and skill of one placed in authority over Mm. So that, in this case, whether Schelies was, under the circumstances, guilty of contributory negligence, was a question of fact for the jury under proper instructions from the court; At the time the injury occurred he was in the employ of the defendant as a “vise-hand,” and had been called by the foreman to assist in the adjustment of a portable gasoline engine with pump and circular saw attached. The saw was in motion at the time and not properly protected; and he was ordered to adjust the shafting of the pump, which was close and next to the saw. He suggested that it was not safe to do so without stopping the saw. The foreman peremptorily renewed the order; he obeyed, his clothing was caught by the saw and he was seriously injured. It was in evidence, that he had been called a short time before to assist the foreman in the same way, and had done so without injury. The defendant asked the court to instruct the jury that: “If the master or one standing in the place of the master, as the foreman in this case, orders a servant to expose himself to a danger known and appreciated by the servant, and in executing such order the servant is injured, he cannot recover unless he shows that he was injured solely in consequence of such danger, and without fault or negligence on his part.”

This was refused, and the court instead instructed the jury: “That if the plaintiff was expressly ordered by the foreman to do the work that he undertook to do, the fact that it was dangerous would not preclude the plaintiff from recovery unless the danger was so obvious, and injury thereby was so inevitable, that a man of ordinary prudence would not obey if he was ordered by his employer to do it.” The case then was given to the jury under proper instructions as has been shown, and the instruction asked by the defendant was properly refused.

Counsel contend that the case should be- ruled by Coal Car Co. v. Norman, 49 Ohio St., 598. This we think is a mistake. It belongs to a different class of-cases. Tt turned on a question of pleading. He averred. that the injury to him occurred Avithout fault on. his part. It was held that this did not dispense with an averment required in that class of cases, that he was Avithout knowledge of the dangerous character of the place in which he received his injury; or, having such knoAvledge, had complained of it to his master. For if he had such knoAvledge and failed to inform his master, he assumed the risk by continuing in his service Avithout doing so.

Affirmed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Baltimore & Ohio Ry. Co. v. Kreager, et al. Cleveland, Lorain & Wheeling Ry. Co. v. Ringley. Lake Erie & Western Ry. Co. v. Falk, et al.

      Liability of railway company for loss by fire — Evidence of cause of fire — Presumption of negligence by railway company — • Petition alleging loss not subject to demurrer, when — Obligation of contracts — Constitutionality of act of April 26, 1894.

    1. The act of April 26, 1894 (91 O. L. 187), imposes upon every railroad company operating a railroad or part thereof in this state, anabsolute liability for loss or damage by fire, originating on its land, caused by operating the road; and the fact that the fire originated on the land of the company is made prima facie evidence that it was caused by operating the road. In an action for such loss or damage, it is not necessary to allege or prove negligence on the part of the company; nor is the absence of such negligence a defense.
    .2. A different rule of liability, and of evidence, is provided by the act, where the loss or damage is caused by fire originating on land adjacent to the land of the railroad company. In such cases the company is liable only when the fire was caused in whole, or in part, by sparks from an engine on or passing over the road ; and the fact that the fire was so caused is made prima facie evidence ■of negligence on the part of the company or person operating the road. But this prima facie case of negligence may be overcome by proof, under a proper pleading, that the company exercised due care, the burden being on the company to show that it was free from negligence.
    3. A petition which alleges that the plaintiff’s loss was caused by fire that originated on laud adjacent to the land of the railroad company, and- that the fire was caused in whole or in part by sparks from an engine upon or passing over the railroad while the defendant was operating it, is not subject to demurrer on the ground that it fails to charge the defendant with negligence. Though it does not in terms charge such negligence, it states facts which in law make a prima facie case of negligence, and show a complete cause of action.
    4. These provisions of the statute are constitutional. They neither impair the obligation of contracts, nor deprive railroad companies of property without due process of law, nor deny them the equal protection of the law; and they have uniform operation throughout the state. Whether section 3, of the act, which provides for taxing as part of the costs an attorney’s fee for the successful party on appeal, is constitutional, Quere ? But if not, it is severable from the remaining provisions, and does not affect their validity.
    5. The statute is applicable where the railroad company obtained its right of way or part of it by deed, as well as when it was acquired by legal appropriation, and to companies in existence when the statute was passed, as well as to those organized since.
    (Decided December 19, 1899.)
    These cases are here on error to the circuit court of Muskingum, Stark and Hancock counties, respectively. They are sufficiently stated in the opinion.

      J. H. Collins and F. A. Durban for the plaintiff in error in the Baltimore & Ohio Co’s, case; Ball & Swingle, and C. T. Marshall for defendants in error.

      J. M. Lessick, General Counsel for the Railway Co.. Austin Lynch, and Willison & Day, for the plaintiff in error in the Cleveland, Lorain & Wheeling Go’s, case; R. W. McCaughey, and Thayer, Webber & Turner, for defendant in error.

      John B. Cockrum, General Attorney for the Railway Co., Jason Blackford and A. Blackford for the plaintiff in error in the Lake Erie & Western Co.’s case.

      John Foe, for the defendants in error.
    Brief of J. H. Collins and F. A. Durban.

    After a review of the statute (91 O. L., 187-8), we claim:—
    1st. That the absolute liability provision does not apply to a case where the right to operate the railroad ivas secured by contract from the plaintiff or his privy in title, and if the act does apply to such a case, then that it is unconstitutional.
    2nd. That the act is unconstitutional because it applies one rule of liability to railroad companies and another rule of liability to an individual engaged in the same business, and, also, it is unconstitutional because its provisions applyonly'to railroads.
    3rd. That it is unconstitutional because it fixes a penalty on the right to appeal.
    1st. Does the act apply to the state of facts set up in the second defense, and if it does, is it unconstitutional? Our claim that it is unconstitutional if applied to those facts is upon the ground that it impairs the obligation of a contract. The matters stricken out from the answer show a right in the railroad company to operate its railroad over the land in question by contract. This contract was made with full knowledge of the fact that some sparks and fire would necessarily be emitted by operating the railroad. This statute seeks to make the railroad company liable to the land owner for damages resulting from fire caused by operating the railroad, without regard to whether or not the railroad company was negligent. In other words, it attempts to make the railroad company liable for the fire which its grantor knew when he granted the right,'would be a mere incident and a necessity of the operation of the railroad. 'It makes the railroad company liable to the person for the ordinary and natural and known results of an act which that person granted to the railroad company a right to do and was paid for granting it. This section of the statute is not a police regulation; it does not provide how the railroad shall be operated; it does not make any provisions for the safety of the public or provide against the dangers incident to the operation of a railroad, but it imposes or seeks to impose on the railroad company, liability for an act which it had lawfully acquired a right to do, and gives the benefit of that liability to the very person who made the grant and who was paid for it at the time he made it. Louisville Gas Co. v. Gas Co., 115 U. S., 683; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S., 650; New Orleans Water Co. v. Rivers, 115 U. S., 674.
    We desire again to call the attention of the court to the fact that this statute is not an exercise of the police power. The state may require, under the exercise of its police power, railroad companies to fence their tracks, to put in cattle guards, to erect danger signals, whistle at crossings, use spark arrestors, air brakes, safety couplers, etc., etc., and may make them liable for all damages resulting from their neglect to comply with such regulations. (13 Fed. R., 754.) But in all such laws the liability is conditioned upon the failure of the railroad company to comply with the regulations. The act of April 26, 1894, makes no regulations, imposes no duty, fixes no liability as a result or penalty for refusing to comly with any provision of law; but, on the contrary, it fixes a liability for doing just what the company, by contract with the persons seeking to enforce the liability had a right to do.

      Section one of this act does not relate to a rule of evidence, but fixes an absolute liability upon the railroad companies alone. In the case at bar the railroad company secured by contract the right to operate its railroad and thereby the right to emit so much fire as was absolutely necessary in the careful and prudent operation of the road. It got this right by contract from the plaintiffs in this case. This statute gives the plaintiffs the right to recover for the results necessarily flowing from the exercise of the right which the defendants secured from them. This statute therefore largely decrease the value of the contract right secured by defendant and in doing that, under the decisions, it impairs the obligation of the contract. Edwards v. Kearzey, 6 Otto, 595; Robinson v. McGee, 70 Am. Dec., 638; King v. Deddam, Bank, 8 Am. Dec., 112; Fletcher v. Peck, 5 Cranch, 87; People v. Platt, 8 Am. Dec., 382; Dash v. Van Kleeck, 5 Am. Dec., 291.
    ■Our first contention is that this statute does not apply to cases between grantor and grantee of the right to operate a railroad. This is analogy to the well known rule that where the land owner agrees to build the fence along the railroad and his cattle is injured for the want of a fence, he cannot recover, although the general statute makes it the duty of the railroad company to fence, and provides that they should be liable for all damages resulting from the want of a fence, and the courts have decided that they cannot escape that liability by farming out their obligation to fence to the land owner, but the rule is different where the action is brought by the very land owner who agreed to erect the fence. P. C. & St. L. R. R. v. Smith, 26 Ohio St., 124.
    In the case at bar is a statute making a railroad company liable for fire without regard to negligence and making it liable for just such fire as is necessarily incident to the operation of the road. The plaintiff has granted the right to operate and thereby granted the right to emit such fire as is absolutely necessary and incident to the proper and careful operation of the road. The railroad was carefully and properly operated. The defendant did only what it had a right to do by contract with the plaintiff and did it in a lawful and proper manner and in the manner the plaintiff contracted that it might be done. Upon what theory, then, can the plaintiff recover? We claim:—
    1st. This statute does not apply to such a case.
    2nd. If it does, It is unconstitutional. Railroad v. Gardner, 45 Ohio St., 309.
    2nd. Section 1 of this statute is unconstitutional for the further reason that it seeks to make railroad companies liable for all loss or damage by fires originating on lands adjacent to the company’s land caused in whole or in part by sparks from an engine passing over the railroad. Now this liability is without regard to negligence. This liability is fixed although the company may be exercising the highest degree of care and no fault whatever can be found with it, and only such sparks are emitted as are absolutely necessary. The statute does not declare that the operation of a railroad is wrongful and it is not wrong per se, but when the railroad is doing what it has a legal right to do by virtue of a contract with the land owner, doing the very thing which it had paid the land owner for the right to do, this statute makes it liable, not only for the damage its fire did, but for all damage by fire caused in whole or in part by the railroad company. It occurs to us that the legislature ought to have been content with attempting to fix an absolute liability upon the railroad company without making it liable for the damage that fire set out by somebody else might cause.
    3rd. Section 2 of this act applies both to railrpad companies and to individuals operating a railroad. It is important in this that the word “person” Is used in Section 2 and is omitted from Section 1. It therefore follows that the legislature meant that Section 1 should apply to railroad companies operating a railroad and to no other person or association. Section 2 is the portion, of the act which includes an individual such as a receiver or trustee in possession-operating a railroad. Therefore the. rule laid down in Section 1 of an absolute liability does not apply to a person who is operating a railroad and does not apply to a railroad company whose railroad is being operated by a receiver or trustee in possession. One rule of liability is provided for the railroad companies alone, while in the same act the legislature clearly shows that it was intended that Section 1 should not apply to a person other than a railroad company.
    Revised Statutes, Sec. 247a, 2494-2497, 3324-3331, 87 O. L., 99; all apply to persons operating a railroad as Avell as to corporations. 87 O. L., 270, shows persons may buy railroads.
    Section 2 deals Avith a rule of evidence, which rule applies to railroad companies and to individuals, while Section 1 fixing a liability without regard to negligence applies only to railroad companies. The legislature has a right to classify, but the difference or reasons for class legislation must be such as in the very nature of things make a reasonable ground or basis for separate laws and classification. State v. Loomis, 21 Lawyers’ Reports, Annotated, 789; Stratton v. Morris, 12 Lawyers’ Reports, Annotated, 70; Bels Gap R. R. v. Pennsylvania, 134 U. S., 232;
      North & South Alabama R. R. v. Norris, 65 Ala., 193; 13 Fed., 722; 1 Fed., 481.
    It will hardly be contended that corporations are not citizens within the protection of the constitution, and that the legislature may fix a rule of liability when a corporation does a given act and another rule when an individual does the same act. 13 Fed., 730; Santa Clara County v. Southern Pacific R. R., 118 U. S., 394; Missouri Pacific R. R. v. Mackey, 127 U. S., 205; Minn. & St. L. R. R. v. Beckwith, 129 U. S., 26.
    Section 3 of this act provides for the recovery of attorneys’ fees in cases of appeal. All cases where the attempt to impose such attorneys’ fees upon the railroad company alone have held the act unconstitutional. Coal Co. v. Rosser, 53 Ohio St., 12.
    Brief of Ball & Swingle and O. T. Marshall.
    A law will not be declared unconstitutional in case of doubt, but will be sustained unless clearly so. McCormick v. Alexander, 2 Ohio St., 65; Lewis v. McElvain, 16 Ohio St., 347; Cint. W. & Z. R. R. v. Clinton Co., 1 Ohio St., 77; Lehman v. McBride, 15 Ohio St., 573; State ex rel., v. Cincinnati, 20 Ohio St., 18; Walker v. Cincinnati, 21 Ohio St., 14; West. Union Tel. Co. v. Mayer, 28 Ohio St., 521; Kendle v. State, 52 Ohio St., 346.
    Section 2 of the statute is nothing more nor less than a rule of evidence putting upon the railroad company the burden of proof to show that when a fire is communicated by its locomotive engines, that the company or its agents and servants are not in fact negligent. There can be no reason why the burden should not be placed upon the company to free itself of the charge of negligence, after it has been proved that the fire was communicated by the locomotive. This rule prevails as a principle of the common law in Louisiana, and was laid down as the doctrine of that state by the U. S. C. C. A. in the case of the Missouri Pacific Ry. Co. v. Texas & P. R. R. Co., 41 Fed. Rep., 917.
    A statute similar to this portion of the act of 1894 is in force in Mississippi, and the validity of that act was recognized by the U. S. Circuit Court in the case of Jones v. Bond, 40 Fed Rep., 281.
    Iowa, Colorado, Massachusetts, Minnesota, New Hampshire, Connecticut, Vermont, Maine, South Carolina, Georgia and other states have enacted similar laws, and in every State they have been declared to be constitutional. Pratt v. Atlantic, etc., R. Co., 42 Me., 579; Denver, etc., R. Co. v. Henderson, 10 Colo., 1; Thorpe v. Rutland, etc., R. Co., 27 Vt., 140; Chapman v. Atlantic, etc., R. Co., 37 Me., 92; Hooksett v. Concord Railroad, 38 N. H., 242; Brady v. Des Moines R. R. Co., 57 Ia., 393; Gissell v. Housatonic, etc., R. Co., 54 Conn., 447; McCandless v. Richmond, etc., R. Co., 38 S. Car., 103; 18 L. R. A., 440; Thompson v. Richmond, etc., R. Co., 24 S. Car., 366; Hunter v. Columbiana, etc., R. Co., 41 S. Car., 86; 19 S. E. R., 197; Lipfield v. Charlotte etc., R. Co., 41. S. Car., 285; 19 S. E. R., 497; Martin v. New York, etc., R. Co., 62 Conn., 331; Rowell v. Railroad Co., 57 N. H., 132; Lowney v. New Brunswick, etc., R. Co., 78 Me., 479; Regan v. New York, etc., R. Co., 60 Conn., 124; Bean v. Atlantic, etc., R. Co., 63 Me., 293; Thatcher v. Maine Central R. Co., 85 Me., 502; Smith v. Boston, etc., R. Co., 63 N. H., 25; Adams v. St. Louis, etc., R. Co. (Mo.), 28 S. W. R., 496; St. Louis, etc., R. R. v. Mathews, 165 U. S., 1; 17 Sup. Ct., 243.
    The Connecticut statute gives railroad companies an insurable interest in the property, yet it was held in the case of Grissell v. Housatonic, etc., R. Co., 54 Conn., 447; 32 Am. & Eng. R. R. Cases, 349, that this does not limit recovery against it to such property as is usually regarded as insurable. See Lyman v. Boston & W. Ry. Co., 4 Cush, 288; Hooksett v. Concord Ry. Co., 38 N. H., 242; Pierce v. Worcester & N. Ry. Co., 105 Mass., 199; Perley v. Eastern Ry. Co., 98 Mass., 414; Thorpe v. Rutland & B. Ry. Co., 27 Vt., 140; Cooley on. Con. Lim., 573; Bank v. Bond, 1 Ohio St., 622.
    Brief of J. M. Lessick, Austin Lynch, and Willison & Day.
    We submit that in cases like this the statute1 is simply remedial, prescribing a rule of evidence and creating no new liability, that both sections should be read together and made to harmonize, if possible, and receive a reasonable construction, and that the clause in Section 1, applying to this case, which provides in substance, that the company shall be liable for causing a fire on adjacent lands, should be held to mean negligently causing such fire, otherwise there is an irreconcilable conflict betwen the two sections, and indeed the second section would be a nullity, for it would be utterly inconsistent to provide what should be1 “taken as prima facie evidence to charge with negligence the corporation” if the corporation was liable at any rate whether it was negligent or not. Fries v. Ry. Co., 56 Ohio St., 135; 16 Ohio St., 308; 17 Ohio St., 52; 2 Ohio St., 147; 3 Ohio St., 187; 1 Ohio St., 301.
    We submit that the law is invalid and void, in any event, under our construction, but especially so under the construction as claimed by defendant in error.
    It has been settled that a railway corporation is a person within the meaning of the 14th amendment to the United State Constitution. Smyth, Attorney Gen

      eral, Nebraska, et al., v. Ames et al., U. S. Sup. Ct. decided March. 7, 1898.
    It is also settled that the charter of a railroad company is a contract with the state granting it, which cannot be violated even by the state.
    If the construction, scope and effect of this statute is as claimed by defendant in error, it is clearly in plain violation of Section 1, Art. 14 of the United States Constitution in that it authorizes the taking of private property Avithout due process of law, impairs obligations of contracts and denies to certain persons within the states, the equal protection of the law. Bridge Company v. Gilmore, 8 C. C., 658; 4 C. D., 366; Shaver v. Pennsylvania Co., U. S. C. C. N. D. O., 35 Bull, 108; San Mateo v. Railroad Company, 13 Fed. Rep., 722. See also Chief Justice McIver’s dissenting opinion in McChandlers v. Railroad Company, 38 S. Car., 103; 14 Am. St. Rep., 534; 22 Am. St. Rep., 143; 58 Ala., 594.
    The act (if such an act is thought necessary at all) should be made to apply to all persons causing damage by fire in the same manner and under the same or similar circumstances. It deprives certain persons from acquiring, possessing, protecting and defending their property (Art. 1, Sec. 1, Const).
    It is retroactive and seeks to impair the obligations of contracts (Art. 2, Sec. 28, Const).
    It denies the inviolability of the private property of certain persons within the state and seeks to take it without just compensation (Art. 1. Sec. 19, Const).
    We submit the state itself cannot do this even for itself except under the power -of eminent domain in the manner marked out. Palmer & Crawford v. Tingle, 55 Ohio St., 423; Coal Company v. Rosser, 53 Ohio St., 23; Bridge Company v. Gilmore, 8 C. C., 658; 4 C. D., 366 (affirmed by the Supreme Court).

      Brief of R. W. McCaughey and A. A. Thayer.
    If it had been intended by this section to provide for prima facie cases of negligence, then the word liable would not have been used. To give this word its ordinary signification, or, indeed, any sense at all, it must create the absolute liability for which we contend. Being a remedial statute, possibly the facts stated therein as constituting the liability may be said to be, in law, negligencej but, whether they are considered as establishing negligence, or creating a liability otherwise, the result is the same.
    These statutes have been passed in several states, and have been uniformly upheld by the courts, on the ground that when parties employ a dangerous agency, such as fire, the legislature may provide a rule of liability in its use. Of this class of cases are the following: Grissell v. H. Ry. Co., 54 Conn., 447; U. P. Ry. Co. v. DeBusk, 3 L. R. A., 350; Mathews v. R. R. Co., 25 L. R. A., 161 and note; Campbell v. M. P. R. Co., 121 Mo., 340; Martz v. Ry. Co., 12 Cir. Ct., 145; 5 C. D., 451; L. E. W. R. R. Co. v. Falk, 14 Cir. Ct., 125; 7 C. D., 533.
    Brief of John B. Cockrum and Jason Blackford.
    As to the constitutionality of the act.
    The act has been considered three times by the Sixth Circuit Court. The cases are reported in 11 C. C., 371, 5 C. D., 168, 11 C. C., 378, 5 C. D., 171, 12 C. C., 144, and 5 C., D. 451. Our Circuit Court followed these decisions and considered as pertinent one in 54 Ohio St., 10, discussing another act. The 54 Ohio St., 10, we do not think at all like our case, and the cases in 11 C. C., 371, 5 C. D., 168, and 11 C. O., 378, 5 C. D., 171, and 12 C. C., 144, 5 C. D., 451, are by no means decisive or satisfactory. The tenor of these cases seem to be only to decide that the legislature has authority to prescribe a rule of evidence. See Griffin v. Commissioner, 20 Ohio St., 622; Cooley Gen. Prin. Con. Law, page 316, citing 1, Gray, 1 (Mass.); Titus v. Lewis, 33 Ohio St., 304; Elliot on Rail roads, sec. 666; 5How., 504; 94 U. S. Rep., 113; State v. Ferris, 53 Ohio St., 314; Coal Co. v. Rosser, 53 Ohio St., 12; Turnpike Co. v. Parks, 50 Ohio St., 568; Brill v. Humane Society, 4 C. C., 358, 2 C. D., 594; Palmer v. Tingle, 55 Ohio St., 423; Ruffner v. Railroad, 34 Ohio St., 96; 94 U. S., 113. Concerning proof of negligence as to railroads in action for damages. Railroad Co. v. McMillan, 34 Ohio St., 554; Railroad Co. v. Heiskell, 38 Ohio St., 666; 5 C. D., 168.
    Brief of John Poe considers constitutionality of the act
    and cites Toledo & O. C. Ry. Co. v. Woles, 11 C. C. Rep. 371, 5 C. D., 168; Railway Co. v. Wickenden, 11 C. C. Rep., 378; 5 C. D., 171; Martz v. C. H. & D. Ry. Co., 12 C. G. Rep., 144, 5 C. D., 451; San Francisco Ry Co. v. Mathews, 165 U. S., 1.
   Williams, J.

The actions below were brought by the respective defendants in error, to recover damages to their property by fire caused, it is alleged, in the operation by the plaintiffs in error of their railroads after April 26,1894.

In the first and last of the cases, the fire that caused the damages sued for, originated on the lands of the railroad company, and was thence communicated directly to the property of the plaintiffs. The court, in each of these cases, declined to instruct the jury that negligence of the company was necessary to a recovery by the plaintiff, and charged that, as the fire originated on the company’s land, the plaintiff might recover the loss he thereby sustained, without proof of negligence on the part of the company, if the fire was caused in its operation of the road.

In the other case the fire, did not originate on the company’s land, but was caused, it is claimed, - by sparks which were blown from an engine passing along the defendant’s road, over onto the plaintiff’s buildings situated on his own land. • The petition contains no charge of negligence; and, a demurrer to it on that ground, was overruled. The court also refused to give in its charge to the jury, instruction hereinafter mentioned which the defendant requested.

In each of the cases damages were recovered, and judgment therefor was affirmed. And, as in the disposition of the cases it becomes necessary to consider and determine like questions concerning the construction and constitutionality of the same statute, they were here argued and submitted together, and may be conveniently included in one report.

The statute in question is entitled: “An act making railroad companies liable for loss or damage by fire in certain cases and prescribing a rule of evidence in certain cases,” and was passed and took effect April 26, 1894 (91 O. L., 187). Its provisions are as follows: “S'ection 1. That every railroad company operating a railroad, or any part of a railroad, wholly or partially within the state of Ohio, shall be liable for all loss or damage by fire originating upon the land belonging to such railroad company, caused by operating such railroad. Such railroad company shall be further liable for all loss or damage by fires originating on lands adjacent to such railroad company’s land, caused in whole or in part by sparks from an engine passing over the line of such railroad, to be recovered before any court of competent jurisdiction within the county in which the lands on which such loss or damage occur are situated, and the existence of such fires upon such railroad company’s lands shall be prima facie evidence that such fire was caused by operating such railroad.

“Section 2. That in all actions against any person or incorporated company for the recovery of damages on account of any injury to any property, whether real or personal, occasioned by fire communicated by any locomotive engine, while upon or passing along any railroad in this state, the fact that such fire was so communicated shall be taken as prima facie evidence to charge with negligence the corporation, or person or persons who shall, at the time of such injury by fire, be in the use and occupation of such railroad, either as owners, lessees or mortgagees, and also those who shall at such time have the care and management of such engine; and it shall not, in any case, be considered as negligence on the part of the owner or occupant of the property injured, that he has used the same in the manner, or permitted the same to be used or remained, had no railroad passed through or near the property so injured, except in cases of injury to personal property, which shall be at the time upon the property occupied by such railroad.

“Section 3. In case either party appeal from the judgment of the court in which an action under this act is originally begun, or may carry the case to a higher court on error, the party in whose favor judgment is finally rendered shall have included in his bill of costs against the adverse party an attoreny fee of fifty dollars ($50) in case the appeal or error is not carried beyond the circuit court, and in case such appeal or error is carried to the supreme court of this state, there shall be an attorney fee of one hundred dollars ($100) included in his said bill of cost.

“Section 4. Section two of this act shall apply to all cases now pending, as well as to those hereafter to be commenced.”

The question upon which counsel differ in the construction of the statute, is whether the liability created by it is absolute, in the sense that negligence of the defendant is unnecessary to a right of action under it. Without attempting a critical analysis of the statute, it is reasonably clear, we think, that it deals with two distinct classes of cases, and prescribes a rule of evidence, and of liability, in each, different from the other. One class embraces all cases where the loss or damage is caused by fire originating on the lands of the company operating the railroad. In cases of that class the company is made liable, when the fire is caused in operating the railroad, though the company be entirely free from negligence; and the existence of the fire on the company’s lands is made prima facie evidence that it was caused in operating the road. The facts essential to a right of action in a case of this kind, are (1) that the plaintiff’s loss resulted from a fire which originated on the land of the defendant company, and (2) that the fire was caused in operating the railroad. But, when the first of these facts is admitted or proved, the last is prima facie established also, and the burden is then upon the defendant to show that the fire was not caused in operating its road. And, while it is unquestionably competent for the defendant to put in issue either or both of these material facts, it is no defense that the company used due care in operating its road, and was otherwise free from negligence. A sufficient reason, if that was necessary, for imposing the rule of absolute liability which renders negligence of the railroad company, or its freedom from negligence immaterial, may be found in the fact that such company, having complete control of its right of way, may readily keep it clear of combustible substances, from which, if allowed to remain, there is, in the operation of the road, constant and imminent danger of fires Avhich others cannot prevent, and against which they may be unable to protect themselves. .

Cases of the other class provided for by the statute, are those where the loss or damage occurs from fire Avhich originates on land adjacent to that of the railroad company, and is caused in Avhole or in part by sparks from an engine passing over the line of railway. Actions of this kind may be maintained against the company or person operating the road either as owner, lessee or mortgagee; and, proof of the fact that the fire which caused the plaintiff’s loss was communicated by an engine while upon or passing along the railroad, it is declared by the statute, “shall be taken as prima facie evidence to charge with negligence the corporation or person or persons who shall, at the time of such injury by fire, be in the use and occupation of such railroad.” This provision of the statute would obviously become inoperative and without a purpose if it should be held that negligence of the defendant, as an element in cases of this kind, is wholly eliminated, and a rule of absolute liability applied which will not permit the absence of negligence to be shown in defense; for, as in all cases, merely prima facie evidence may be overcome by superior proof to the contrary, the plain import of this provision of the statute allows the defendant to disprove. the prima facie case of negligence, by proof of due care. The facts necessary for the plaintiff to establish in the first instance, if they are denied, are (1) that his loss occurred from fire that originated on land adjacent to the land of the railroad company, and (2) that the fire was caused, in whole or in part, by sparks from an engine upon or passing oyer or along the railroad while the defendant was operating it, or was in its use and occupation as owner, lessee or mortgagee. When these facts are not in issue, or are proved, the plaintiff is entitled to recover unless the defendant shows affirmatively that he was without any negligence that proximately contributed to the loss; and, as they make a case for the plaintiff which places the burden on the defendant of proving his freedom from such negligence, a petition which contains those facts is not obnoxious to a general demurrer. Such a petition, though it does not in terms charge the defendant with negligence, states facts which in law make a prima facie case of negligence, and show a complete cause of action. And it would seem to follow that, if the defendant relies on the absence of negligence on his part as a defense, he should plead it by answer.

The statute, so interpreted, is assailed as a violation of both the federal and the state constitution. The specific grounds on which its constitutionality is contested are, that (1) it impairs.the obligation of contracts, (2) it deprives railroad companies of their property without due process of law, (3) it denies them the equal protection of the law, and (4) it has not uniform operation throughout the state.

The validity of legislation of this nature, so far as it was supposed to conflict with the federal constitution, has been recently considered by the Supreme Court of the United States in the case of the St. Louis & San Francisco Railway Co. v. Mathews, 165 U. S., 1, where, in an opinion of great reseacrh, Mr. Justice Gray reviews the history of the law relating to the liability of persons for fire originating on their own premises, and the adjudications on that subject in England and this country, and answers and refutes all of the above mentioned objections, except the last one, to statutes of this character. The grounds on which the exercise of the legislative power in the enactment of such statutes is sustained, as announced in many cases, are concisely stated in the opinion of the learned Justice as follows: “The motives which have induced, and the reasons which justify, the legislation now in question, may be summed up thus: Fire, while necessary for many uses of civilized man,' is a dangerous, volatile and destructive element, which often escapes in the form of sparks, capable of being wafted afar through the air, and of destroying any combustible property on which they fall; and which, when it has once gained headway, can hardly be arrested or controlled. Railroad corporations, in order the better to carry out the public object of their creation, the sure and prompt transportation of passengers and goods, have been authorized by statute to use locomotive engines, propelled by steam generated by fires lighted upon those engines. It is within the authority of the legis-lature to make adequate provision for 'protecting the property of others against loss or injury from sparks from such engines. The right of the citizen not to have his property burned without compensation, is no less to be regarded than the right of the corporation to set it on fire. To require the utmost care and diligence of the railroad corporations in taking precautions against the escape of fire- from their engines might not afford sufficient protection to the owners of property in the neighborhood of the railroads. When both parties are equally faultless, the legislature may properly consider it to be just that the duty of insuring private property against loss or injury, caused by the use of dangerous instruments, should rest upon the railroad company, which employs the implements and creates the peril for its own profit, rather than upon the owner of the property, who has no control over or interest in those instruments.” And he concludes: “The statute is a constitutional and valid exercise of the legislative power of the state, and applies to all railroad corporations alike. Consequently, it neither violates any contract between the state and the railroad company, nor deprives the company of its property without due process of law, nor yet denies to it the equal protection of the laws.”

The application of the principle underlying such legislation is not affected by the fact that it does or does not expressly authorize the railroad company to insure property along the line of its road against fire caused in the operation of the road. Whether provision of that kind shall, or shall not be made, rests in the legislative discretion, and may involve other considerations. In Rodemacher v. Milwaukee & St. Paul Railway, 41 Iowa, 297, a statute which enacted that, “any corporation operating a railway shall be liable for all damages by-fire that is set out or caused by the operating of any such railway,” without any provision authorizing the company to take insurance against loss by such fires, was held constitutional; and that case is approvingly cited, and quotations made from the opinion, by Mr. Justice Gray, in the case referred to in 165 U. S., 1-16, And, in other cases there so cited, no notice is taken of, or importance attached to, the presence or absence of any provision for insurance. In Martin, Admx., v. N. Y. & N. E. R. R. Co., 62 Conn., 331, the court said: “The reasons underlying the legislation are not hard to find. The railroad companies were in possession of great powers and privileges granted by the state. The nse of such powers was necessarily attended with danger to property along the line of the road, and fires were of frequent occurrence. The legislature rightly judged that it was hard for individuals to bear all these losses, and that the railroad companies might well be required to make them good. Nor is such a requirement unjust. On the contrary it is substantially right and just. Railroad companies possess extensive powers and valuable franchises, by means of which they are able to collect large sums of money from the public. In using such powers and franchises they necessarily expose private property. They have a license from the public to carry on extensively dangerous business, from which they receive large profits. AVhy should they not be required to assume the risk rather than individuals?”

In many of the states, and probably a majority of them, statutes have been adopted, not materially different from the one we have before us, so far as the questions under consideration are concerned; and Mr. Justice Gray, in his opinion on page 22, of the case in 165 U. S., says: “The learning and diligence of counsel have failed to discover an instance in which a statute making railroad companies absolutely liable for damages by fire communicated from their locomotive engines to the property of others, has been adjudged to be unconstitutional as to companies incorporated before or since its enactment.”

The contract which it .is claimed is impaired by the statute, is that of the state with the railroad company, arising from the charter granted by the former to the latter. The contention is, that as by its incorporation the company obtained the right to use locomotive engines propelled by steam in the operation of its road, without liability for damages by fires caused thereby except where they resulted from the company’s negligence, there was an implied agreement that the state would impose upon the company no greater burden in that respect, which agreement is impaired and violated by the statute because it imposes a greater liability. And, on the same ground, is based the claim that the statute deprives the company of its property without due process of law, in that, a defense which it might formerly make in actions for such damages is wholly or partially taken away. In the Baltimore & Ohio Company’s case the further claim is made that, as the company’s right of way on which the fire originated that caused the damages for which the plaintiff sued, was obtained by deed, which conveyed the strip of land for all lawful uses of the railroad, one of which was the moving of locomotive engines along and over the road without liability for fires that did not result from its negligence, the statute in creating a liability where there is no negligence on the part of the company, impairs its contract with the grantor in the deed. It does not appear that the conveyance was other than the usual grant of a right of way for railroad purposes, nor that there was any covenant running with the land by which a successor to the title of the grantor in the adjacent land would be bound, nor that there was any special covenant in the deed which would estop the owner of the adjacent land from asserting any right he might otherwise have under the statute; so that, the rights acquired by the deed are not materially different from those obtained by the appropriation of a right of way for a railroad.

It seems clear that this statute does not impair any charter obligation of the state. Since the constitution of 1851, the only charters of railroad or other private corporations, are the general laws of the state which permit their creation, grant their franchises, define their powers, and regulate their conduct; and these laws, under power expressly reserved in the constitution, the general assembly may at any time alter or repeal. Such corporations, therefore, receive their existence, and hold their franchises, subject to the right of the legislative body, in the exercise of its reserved power, to impose upon them such new duties and obligations, conditions and regulations, from time to time, as the public welfare may seem to require. The charter of a corporation is no longer a contract of the state, unalterable without the consent of the corporation. This view of the subject may not be important, since, as was held in Railway Co. v. Mathews, supra, and cases there cited, statutes which impose upon railroad companies an absolute liability where before they were liable only when negligent, are not subject to the objection that they impair the obligation of contracts, though the power to alter or amend the charter of the company by legislation is not reserved in the constitution of the state.

And, such statutes are sustained when applicable to corporations created before, as .well as after their passage, and when the right of way of the company was acquired by deed, as well as when acquired by appropriation. This was held in Lyman v. Boston & Worcester R. R. Co., 4 Cush., 290, where Dewey, J., said: “It is contended, however, that the provisions of this statute do not apply to a case like the present, where the title of the plaintiff is derived from one who has himself, by his deed, granted the land embraced within the location of the railroad, and by the very terms of the grant has conveyed it for the purpose of being thus used for a railroad. The argument is, that the grantor having thus granted a certain definite parcel of land, for the purpose of a railroad, out of a much larger parcel retained by him, the grant is subject to all the consequences necessarily attendant upon such a use of the same, and particularly such as would result from the running of engines, and the exposure of property in his adjacent land to such injury and loss as would naturally result therefrom; and that the railroad corporation, while in the exercise of their appropriate business, are only responsible for ordinary care and diligence in the manner of’ using their road. It is not contended that the statute was not intended to embrace the case of those whose land has been taken under the provisions of the charter of the railroad; but the argument assumes a distinction between those who convey the right to appropriate a portion of their land to the proprietors of a railroad, by deed, and those who do no other act than suffer their land to be taken by such proprietors, under their authority to enter upon and take land for the purpose of their road, paying therefor for such damages as the county commissioners or a jury shall award. We can perceive of no sound distinction between the cases supposed. Each of these modes of acquiring the necessary real estate for the purpose of a railroad is authorized, both by the general laws and by the acts creating railroad corporations. In each, the land owner is supposed to receive full satisfaction for all the injuries necessarily resulting from the use of the same for a railroad. But with the use of locomotive engines, greater hazard to contiguous buildings and property owned by the adjacent land owners may arise, than was originally contemplated, or ought to be left to the ordinary common law remedies. We consider this provision of. the statute of 1840, c. 85, as one of those general remedial acts passed for the more effectual protection of property, against the hazards to which it has become subject by the introduction of the locomotive engine. The right to use the parcel of land appropriated to a railroad does not deprive the legislature of the power to enact such regulations, and impose such liabilities for injuries suffered from the mode of using the road, as the occasion and circumstances may reasonably justify. These provisions in the act referred to are of general import, and equally embrace the cases of those who have by deed granted to a railroad corporation the right to enter upon and use their land, or have given a title to the land itself included within the location, and those other persons whose land has been taken and held merely by the force of the location of the railroad under the charter authority.” This case was approved and followed in Pierce v. Railroad Company, 105 Mass., 199.

Certainly, unless there was some agreement or covenant in the grant of the right of way which would bind a subsequent purchaser from the grantor of the remainder of the land, the enforcement of the statute by such purchaser for damages to his buildings or property caused by fire originating on the right of way, could not amount to the impairment of the company’s contract with the grantor. In the absence of such agreement or covenant, so far as the purchaser is concerned, the company acquired no greater or different right under its grant than if the right of way had been obtained by legal appropriation.

If the statute is otherwise valid, there appears to be no substantial foundation for the claim of counsel that in its enforcement the railroad company is deprived of its property without due process of law, since the remedy it gives must be prosecuted in a court of competent jurisdiction, as actions are usually prosecuted. The plaintiff must file a petition containing a statement of the facts necessary to make a case against the company under the statute, proper process must he served, and the defendant allowed its day in court. It is entitled to plead, have process for witnesses, and to a trial with all the rights incident thereto that parties have in other like cases, including the right to have any judgment recovered against it reviewed in the appellate courts upon the same terms that remedy is allowed to other parties.

The basis of the contention that the statute denies to railroad companies the equal protection of the law is, that it subjects them to a different and more onerous rule of liability than is imposed on other corporations and individuals using steam engines similarly constructed and operated, such as steamboat, manufacturing and other like companies. This proposition has been advanced in many of the reported cases where the validity of such a statute was involved, and has been uniformly held untenable, upon what appears to be a substantial and sufficient ground, which is clearly stated in the case of Grissell v. Housatonic R. R. Co., 54 Conn., 447, where the court says: “There is no force in the objection that the statute under consideration unjustly selects only railroad corporations to bear the burden of an extraordinary risk. It is confined to them because they alone have the privilege of taking a narrow strip of land from each owner, without his consent, along the route selected for the track, and of traversing the same at all hours of the day and night, and at all seasons whether wet or dry, with locomotive engines that scatter fire along the margin of the land not taken, thereby subjecting all combustible property to extra- ” ordinary hazard of loss, and that, too, for the sole profit of the corporation. The argument for the defendant is fallacious in erroneously assuming that the statute denies to the defendant a good defense which at common law all others would have under similar circumstances.” This view of the question is fully sustained by the Supreme Court of the United States in Missouri Pacific Railway Co. v. Mackey, 127 U. S., 205, where that court upheld the constitutionality of a statute of Kansas imposing for the future, upon every railroad corporation organized or doing business in that state, a liability to which no person or corporation was before subject, for all damages done to any of its employes by the negligence or mismanagement of their fellow-servants. The court said: “The hazardous character of the business of operating a railway would seem to call for special legislation with respect to railroad corporations, having for its object the protection of their employes, as well as the safety of the public. The business of other corporations is not subject to similar dangers to their employes; and no objections, therefore, can be made to the legislation on the ground of its making an unjust discrimination. It meets a particular necessity, and all railroad corporations are, without distinction, made subject to the same liabilities. As said by the court below, it is simply a question of legislative discretion whether the same liabilities shall be applied to carriers by canal and stage coaches, and to persons and corporations using steam in manufactories.”

Considerations of this nature are equally applicable to, and seem no less decisive of, the objection that this statute is without uniform operation throughout the state. As has been already observed, railroad companies are unlike other corporations wi th respect to the character of their franchises, the nature and manner of carrying on their business, and the use of the agencies necessarily employed; and the danger from fires in the use of these agencies is more imminent, extensive and constant. And, since the statute is applicable to all railroad companies in the state, it operates uniformly throughout the state on all corporations of the same general class.

Whether any of the provisions of the statute are inapplicable to receivers operating railroads, is a question upon which we deem it unnecessary to express an opinion at this time. If they are not applicable, it must be because a receiver operating a road under the orders of a court occupies an exceptional position, and if so, the validity of the statute is unaffected. In determining that question the consideration of other legislation may become important.

Nor do we find it necessary to decide whether the third section of the act which provides for taxing as part of the costs, an attorney’s fee for the successful party on appeal, is valid, or not. No fee was allowed by the courts below, and none, is claimed here. And if that section should be held unconstitutional it is distinct and severable from the other provisions of the act, and could not affect their validity.

According to the view we take of the statute, the judgment in the Baltimore & Ohio Co’s, ease, and the judgment in the Lake Erie & Western Company’s case must be affirmed. And, we think, the judgment in the Cleveland, Lorain & Wheeling Company’s case must also be affirmed. We have already shown the demurrer to the petition was properly overuled. The only question of fact to which evidence was offered on the trial was whether the fire which destroyed the plaintiff’s property was caused by sparks from an engine of the defendant. The evidence was circumstantial; and an effort was made by the defendant to show that the fire might have been caused by sparks from an engine on the Lake Erie & Western road, which ran nearer to the plaintiff’s property than did the defendant’s road. No evidence was offered to show the defendant exercised due care, and the only instruction requested on the subject of negligence was: “That unless the jury find the injury complained of resulted from the carelessness and negligence of the defendant in running and operating its road, then the verdict should be for the defendant.” It was not error to refuse that instruction, because if the jury should find the fire was caused as alleged in the petition, the plaintiff would be entitled to recover, unless they should find the defendant was free from negligence; for, as has been noticed, it being established that the fire was caused by sparks from the defendant’s engine, the burden was then upon the defendant to show it was without negligence. No instruction to that effect was requested; nor was that defense made by answer. If the instruction requested means that the plaintiff must show such negligence as the law implied from the fact that the fire was caused by sparks from the defendant’s engine, it was given in the general charge; for the court was quite emphatic in its instructions that the plaintiff could not recover unless that fact was established by a preponderance of the evidence. The refusal of the instruction therefore worked no prejudice to the defendant unless it means more, and required of the plaintiff, proof of negligence beyond and in addition to that stated.' In that sense it no doubt would have been understood by the jury, and in that sense it is clearly erroneous.

Judgments accordingly.


author: Shauck, J.

text:
    Oskamp, Nolting & Co. v. The Southern Express Company.

      Common carrier of merchandise— Obligations of — Liable for delivery to wrong person.

    The obligation of a common carrier of merchandise is to carry to the destination and deliver to the consignee named in the address, unless prevented by the act of God or the public enemy; and delivery to a wrong person, not induced by some act or representation of the consignor, is not excused by any degree of care which the carrier may exercise.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Ross County.
    Plaintiffs brought suit in the court of common pleas to recover of the express company the value of a package of diamonds in its possession as a common carrier of merchandise consigned by them to T. M. Jones at Hopkinsville, Kentucky. Numerous defenses were interposed. Upon issues joined a jury was waived and the cause was submitted to the court. Upon request the court stated its conclusions of fact separately from its conclusions of law. The facts found, so far as they are material to the questions upon which it is thought necessary to report the case, are as follows:
    The said plaintiffs on and prior to the 14th day of March, 1895, were and ever since have been, a firm, formed for the purpose of, and doing business in Cincinnati, Ohio, and that said defendant, on and prior to the 14th day of March, 1895, was, and ever since has been, a corporation organized under the laws of the state of Georgia, engaged in the business of a common carrier of goods for hire, and having an office and an agent for that purpose in the town of Hopkinsville, Kentucky. That on or about said 14th day of March, 1895, the defendant was in possession of the personal property, for the alleged conversion of which this case was brought, at said town of Hopkinsville, Kentucky. The value of said property is $562.50. On the 14th day of March, 1895, there resided in the town of Hopkinsville, Kentucky, one T. M. Jones, engaged in general mercantile and dry goods business, whose financial rating in the mercantile agencies’ reports was from $20,000 to $30,000, with the highest credit rate allowed to that class; and that said Jones had been residing at Hopkinsville, Kentucky, for some years previous to said 14th day of March, 1895. On or about the 13th day of March, 1895, said plaintiffs received an order in writing through the mail purported to be signed by T. M. Jones, of Hopkinsville, Kentucky, for the shipment to said Jones of the goods in controversy in this case on memorandum, that is to say for selection. In said purported order from T. M. Jones, the plaintiffs were referred to the mercantile agencies’ reports for the commercial standing of said Jones. Upon receipt of said order, the plaintiffs consulted said agencies’ report and discovered the rating of said Jones to be as above found. Oskamp, Nolting & Company thereupon filled said memorandum order, by shipping the goods in controversy in a package directed to T. M. Jones, Hopkinsville, Kentucky, delivering same to the Adams Express Company at Cincinnati. Said goods were shipped by the plaintiffs to T. M. Jones, whom they believed to have ordered them, and relying upon mercantile agencies’ reports of the financial condition of said Jones. T. M. Jones had not ordered the said goods, but said order had been written and mailed by one, Abe Rothschild, who had been in Hopkinsville but two or three days prior to mailing the said order. One, Tibbs, the agent for the Southern Express Company, at Hopkinsville, delivered said goods to said Rothschild, upon the representation of said Rothschild that he was the T. M. Jones for whom the goods were intended; that said Rothschild was not identified as said T. M. Jones by any person other than himself, but that he showed to said agent a list of parties among whom was Oskamp, Nolting & Company, from whom he expected goods; also in the presence of said agent of said company opened a package addréssed to him from parties other than the plaintiffs, contents of which agreed with the list of same which he had in his possession. Tibbs was informed by said pretended T. M. Jones that he had rented a store in Hopkinsville for the purpose of establishing a jewelry store, said pretended Jones exhibited to him keys which he claimed fitted the door of said store; further that said pretended Jones at no time exhibited to said Tibbs any letter, order or paper signed by Oskamp, Nolting & Company for the delivery of said goods to said person. Tibbs well knew of the existence of the real T. M. Jones; that said package was never offered to him for acceptance, and that said Tibbs did not in any way communicate with Oskamp, Nolting & Company to ascertain for whom the package was intended. T. M. Jones, the dry goods merchant doing business in said town of Hopkinsville, Ky., as aforesaid, had not, at any time, ordered or requested of said plaintiffs to ship him by express or otherwise, to Hopkinsville, Kentucky, any jewelry or other property, nor had he ever, at any time prior or subsequent to said fourteenth day of March, 1895, had any business transaction or dealing with said plaintiffs; nor did said plaintiffs ever have any personal acquaintance with him, or with said person who assumed the name of T. M. Jones and who pretended to be a jeweler.
    As conclusions of law from the foregoing facts the court of common pleas found; first, that there was no negligence on the part of the express company; second, that said company was nevertheless liable to the plaintiffs for the .value of the merchandise and it rendered judgment accordingly. The express company filed a petition in error in the circuit court, where the judgment of the common pleas was reversed. The consignors filed a petition in error here for the reversal of the judgment of the circuit court, and we- are to determine the single question whether the judgment of the court of common pleas was appropriate to the facts which it found.

      J. H. Cabell, for plaintiff in error.
    The decisive question in this case is, in whom was the right of possession to the goods in question at the time of their delivery by the agent of the express company to the swindler; for, (a.) if the right of possession was in the swindler, there was no conversion by the carrier; (&.) if the right of possession was in any other than the swindler, the express company Avas guilty of conversion. The rule of property in such cases may be briefly stated as follows:
    If the false pretenses by which the goods are obtained are of such character as not to affect the question with what person the owner of the goods is dealing, a voidable contract is created and the property in the goods passes out of the owner to the person who obtained them, until the owner avoids the contract, but if the owner is deceived as to the person with Avhom he is dealing, and' supposes he is some one else —where the person who obtains the goods passes himself as another or as the agent of another for whom he professes to buy, in that case no property or right of possession passes out of the owner.

      By far the most instructive case upon the latter branch of this rule, which is the branch applicable court in Hamet v. Letcher, 37 Ohio St., 356.
    We take it that under this decision (Harriet v. Letch-er) had the swindler, Rothschild, disposed of the goods delivered to him by the express company to some person knoAvn to Oskamp, Nolting & Company, that firm could have replevied the goods or have recovered damages for their conversion, however ignorant the purchaser might have been of the fraud practiced by Rothschild. It might be urged, however: First, that notwithstanding these authorities as to inability of fraudulent.vendee to pass any property in the goods the case of fraud does not affect the relation of the common carrier and the consignee in that the common carrier is the agent of the consignee from the moment of shipment; or, secondly, the consignee Avould in any case receive right of possession upon the delivery of the goods to° him. Following this line of argument it is necessary for us to determine who is the consignee, and, (1) How may we determine the consignee; upon his own representations, or as indicated by the consignor? No one can constitute himself a consignee in a case of ordinary shipment. The common carrier may be responsible to the consignee as his agent, but it must of necessity, be at the instance and by the appointment of the consignor. The common carrier in this case, and ordinarily, has no dealings with, or knowledge of the consignee except through and as indicated by the consignor. (2) Having arrived at the conclusion, therefore, that the consignee in this case must be the one indicated or intended by the consignor (Oskamp, Nolting & Co.), the remaining question is, whom did Oskamp, Nolting & Co. indicate or intend to be the consignee?
    (a.) As to whom Oskamp, Nolting & Co. indicated there can be no donbt. The address read, T. M. Jones, Hopkinsville, Ky. This assuredly indicated T. M. Jones, the merchant and him alone, he being the only T. M. Jones in the town. It could not indicate Rothschild any more than Brown or Smith, as neither his nor their names were T. M. Jones.
    Had there been other or others of the name in Hopkinsville, the whole question of who was the consignee, would depend upon the question whom the consignor intended him to be, but in view of the facts found in this case, it must be conceded that whatsoever the intention of the consignor, at least the goods were not delivered to the consignee of his indication.
    (b.) 'As to whom Oskamp, Nolting & Co. intended should receive the goods, there are some grounds for argument, although there can be little doubt he intended as he indicated, T. M. Jones, the merchant.
    Those cases which hold the carrier to be an insurer and therefore -responsible for wrongful delivery whether negligent or not, proceed upon the theory that frauds of this character are among the perils insured against. They say in effect, if merchants, upon receipt of orders by mail, must learn the identity of the sender with the person whose name appears upon the letter at their peril, that would necessitate the sending of an agent as the only safe means to be employed in a majority of cases. Small orders would become things of the past, and the mercantile world would of necessity revert to the business methods of the middle ages.
    They say to the carrier: You base your existence upon the acceptance of offers held out by you to the world, to enable persons at a distance from one another to transact business. You receive remuneration for your service and you must protect your customer against the frauds which are made possible only through your employment. Railway v. O’Donnell, 49 Ohio St., 489; American Express Co. v. Fletcher et al., 25 Ind., 492; Sword et al. v. Young et al., 14 S. W. Rep. (Tenn.) 481; Pacific Express Company v. Shearer, 43 Cent., L. J., 35; Seinsheimer v. N. Y. Cent. & H. R. Ry. Co., 46 N. Y. Sup., 887; McEntee v. Steamboat Co., 45 N. Y., 34; The Gulf Ry. Co. v. Fowler, (Texas) 34, S. W. Rep., 661.
    Such a delivery as was made in the case at bar has long ago been decided to be gross negligence per se. Duff v. Budd, 3 Brod & Bing., 177; Guillaume v. Packet Company, 42 N. Y., 212.
    But the latest authority upon the question will be found in two cases decided by the court of civil appeals of Texas, and reported in 42 S. W., 795 and 1017. Pacific Express Co. v. Hertzberg, 42 S. W., 795; Pacific Express Co. v. Critzer, 42 S. W., 1017.

      A. B. Cole for defendant in error.
    We do not agree with counsel on the other side that “the decisive question in this case is, in whom was the right of possession to the goods at the timé of their delivery by the agent of the express company to the swindler?” Nor do we understand that the case of Hamet v. Letcher, 37 Ohio St., 356, or the case of Cundy v. Lindsay, 3 Ap. Ca., 459, which counsel quotes from so liberally, is in point in this case — the facts in these two cases differ materially from case at bar.
    We submit that the decisive question in this case is not in whom was the right of possession to the goods. But the real question is, was the agent of the Southern Express Company guilty of negligence in delivering the goods to the T. M. Jones who ordered them from said Oskamp, Nolting & Co., and upon which order said goods were shipped, addressed to T. M. Jones, Hopkinsville, Kentucky.
    Why did not Oskamp, Nolting & Co. wire the real T. M. Jones at Hopkinsville, Kentucky, and learn of him if he had ordered nearly $600 worth of diamonds or jewelry, before they shipped the goocjis, addressed to T. M. Jones, Hopkinsville, Kentucky? Had they taken this reasonable precaution, they would have discovered the imposition and avoided all loss and saved much annoyance to themselves and the express company.
    It will be borne in mind that Oskamp, Nolting & Co. shipped the goods on the order, addressed to “T. M. Jones, Hopkinsville, Kentucky,” and not to T. M. Jones, General Merchandise and Dry Goods Merchant, Hopkinsville, Kentucky, as in the mercantile agencies7 report, which had been consulted.
    The diamonds were shipped by plaintiffs in error as common freight, in a package that was calculated to induce the belief that it was of little value; and in this instance, did induce the agent to so believe. Samuel v. Cheney, 135 Mass., 281.
    Can it be the law of Ohio, that consignors or shippers being careless in their manner of shipping, and thereby lead the carrier into a snare, and causing him to deliver the goods to some one other than the party the consignor may have presumed he was consigning the goods to (although the goods are delivered by the agent of the carrier, to the party who has ordered them, and to whom — as in this instance — they were directed) and yet, the shipper or consignor recover of the common carrier, as for conversion, when the carrier is not guilty of fault or negligence? We certainly think such a conclusion too monstrous for rational belief and will appear unreasonable to a thinking and reflective mind. 2 Kent Com., p. 802, sec. 602.

      What could have been the object of Oskamp, Nolting & Co. in shipping the diamonds as the cheapest and most common freight, unless it was to prevent collection of proper, reasonable freight charges, and thereby perpetrate a fraud upon the carrier, and mislead as to the character and value of the goods shipped? Hutchinson on Carriers, p. 163, sec. 213, 214; Oppenheimer v. Express Company, 69 Ill., 62; Chicago R. R. v. Shea, 66 Ill. R., 471; Dispatch Line v. Glenny, 41 Ohio St., 176.
    We insist that the property was delivered to the consignee and party to whom it was addressed and to the person who ordered them, and delivered to the party entitled to receive them. McKean v. McIvor, L. R., 6 Ex., 36; 9 American State Reports, 514; note to Wegend v. Atchinson Ry. Co.; Ry. Co. v. Luce & Co., 11 C. C. R., 543, 6 C. D., 145.
    We submit that the case of Samuel v Cheney, 135 Mass. R., 278, and Edmunds, etc., v. Merchants’ Dispatch Transportation Company, 135 Mass. R., 283, as well as the case of the Railway Co. v. Luce & Co., 11 O. C. C. R., 543, 6 C. D., 145, are much more directly in point than any of the cases cited by counsel on the other side, and are more in harmony with sound reason and the business progress of the age.
    We would respectfully call the attention of the court, in this connection, to the circumstance, that in the case of the Pacific Express Company v. Shearer, 52 Am. St. Rep., 334, so much relied upon by opposite counsel, that opinion is by a divided court, and we submit, that the dissenting opinion by Judge Philips is the sounder law and more in harmony with enlightened judicial wisdom and the progress of the times. Edmunds, etc., v. M. S. D. T. Co., 135 Mass. R., 283; Dunbar v. B. D. R. R. Co., 110 Mass. R., 26; Vol. 14, O. C. C., 176; 7 C. D., 417; Thomas on Negligence, 1224, and note.
    We further contend that the legal principle, “When one of two innocent persons must suffer by the fraud of a third, he who first trusted such third person, and placed in his hands the means which enabled him to commit the wrong must suffer,” is applicable to the case at bar, and that the consignors placed it in the power of the pretended T. M. Jones to commit the wrong, and as between them and the express company, they should suffer the loss. Dean v. Yates et al., 22 Ohio St., 396; Hamet v. Letcher, 37 Ohio St., 359.
   Shauck, J.

In the view which Ave take of the case it does not seem necessary to consider when the title to goods passes from the consignor to the consignee, whether under the general law of sales or under the particular terms of the order which was received by the plaintiffs in this case. Nor would it be helpful to analyze the apparently conflicting decisions in Avhich cases bearing more or less resemblance to this have been resolved according to the law of negligence.

It is admitted that the carrier received from the plaintiffs merchandise which they had consigned to T. M. Jones at Hopkinsville, Kentucky, and that, instead of making delivery to him, the carrier deliverd it to one Abe Rothschild. Was this the performance of-its contract? The bill of lading upon which, as is admitted, the carriage was undertaken is in the record. In none of its terms having any relation to the delivery of the consignment is there any attempt to vary the duty of the carrier as it is defined by law, unless it be in the following stipulation: “It is further agreed that said company shall not in any event be liable for any loss, damage or detention caused by the acts of God, civil or military authority or by rebellion, piracy, insurrection or riot, or the dangers incident to a time of war or by any riotous or armed assemblage.” The duty which the law imposed upon the carrier was to transport the goods to Hopkinsville, and deliver them to the consignee named, unless prevented by the act of God or the public enemy. We need not consider whether the stipulation quoted is valid, nor whether it is more than an amplified statement of the legal exemption from liability, since no fact which would bring the case within the exemption of either the law or the stipulation is alleged or proved. This high obligation is imposed upon the carrier from considerations arising out of the fact that he has unqualified dominion of the goods for the purpose of carriage and delivery, and from the general course of business among consignors and consignees. The cases are numerous in which the carrier’s liability has been held to be upon contract, and that delivery to the wrong person is a conversion unless such wrong delivery is induced by the consignor. Many of the cases are collected by Mr. Hutchinson in his work on Carriers, sections 340 to 350, and notes.

The facts found by the trial court as to the order upon which the diamonds were forwarded by the plaintiffs, and the schemes by which Rothschild persuaded the carrier’s agent that he was the consignee, should not divert attention from the manifest breach of its undertaking. Rothschild’s imposition upon the plaintiffs did not induce them to consign the diamonds to him. It in no way affected their order to make delivery to T. M. Jones. The forged order upon which the consignment was made to Jones was a nullity. It established no contractual relations between the consignors and Jones. But if the plaintiffs had consigned the diamonds to Jones without having received any order whatever therefor, would it be supposed that the carrier could fill the measure of its obligation by delivering them to Rothschild? Rothschild did not gain possession of the diamonds by the misrepresentation which induced the plaintiffs to consign, them to Jones. The misrepresentation effective for that purpose was made to the carrier when he persuaded its agent that he was the consignee.

Judgment of the circuit reversed and that of the common pleas affirmed.