Note 226 — CULBERTSON v. CRESCENT CITY RAILROAD CO. Supreme Court, Louisiana, April 6, 1896. Reported in 48 Louisiana Annual Reports, Part 2, 1376.

Vaughan v. Taff Vale R. Co., 3 H. & N. 743; Leroy Fibre Co. v. Chicago R. Co., 232 U. S. 340; Flynn v. San Francisco R. Co., 40 Cal. 14; Fitch v. Pacific R. Co., 45 Mo. 322; Salmon v. Delaware R. Co., 38 N. J. Law, 5; Philadelphia R. Co. v. Schultz, 93 Pa. St. 341 Accord. But see Collins v. New York R. Co., 5 Hun, 499.

In Leroy Fibre Co. v. Chicago R. Co., supra, Holmes, J., (concurring in the result) said:

“If a man stacked his flax so near to a railroad that it obviously was likely to be set fire to by a well-managed train, I should say that he could not throw the loss upon the road by the oscillating result of an inquiry by the jury whether the road had used due care. I should say that although of course he had a right to put his flax where he liked upon his own land the liability of the railroad for a fire was absolutely conditioned upon the stacks being at a reasonably safe distance from the train. I take it that probably many, certainly some, rules of law based on less than universal considerations are made absolute and universal in order to limit those over-refined speculations that we all deprecate, especially where such rules are based upon or affect the continuous physical relations of material things. The right that is given to inflict various inconveniences upon neighboring lands by building or digging, is given, I presume, because of the public interest in making improvement free, yet it generally is made absolute by the common law. It is not thought worth while to let the right to build or maintain a barn depend upon the speculations of a jury as to motives. A defect in the highway, declared a defect in the interest of the least competent travellers that can travel unattended without taking legal risks, or in the interest of the average man, I suppose to be a defect as to all. And as in this case the distinction between the inevitable and the negligent escape of sparks is one of the most refined in the world, I think that I must be right so far, as to the law in the case supposed.

If I am right so far, a very important element in determining the right to recover is whether the plaintiff’s flax was so near to the track as to be in danger from even a prudently managed engine. Here certainly, except in a clear case, we should call in the jury. I do not suppose that any one would call it prudent to stack flax within five feet of the engines or imprudent to do it at a distance of half a mile, and it would not be absurd if the law ultimately should formulate an exact measure, as it has tended to in other instances; (Martin v. District of Columbia, 205 U. S. 135, 139) but at present I take it that if the question I suggest be material we should let the jury decide whether seventy feet was too near by the criterion that I have proposed. Therefore, while the majority answer the first question, No, on the ground that the railroad is liable upon the facts stated as matter of law, I should answer it Yes, with the proviso that it was to be answered No, in case the jury found that the flax, although near, was not near enough to the trains to endanger it if the engines were prudently managed, or else I should decline to answer the question because it fails to state the distance of the stacks.

I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized. See Nash v. United States, 229 U. S. 373, 376, 377. Negligence is all degree—that of the defendant here degree of the nicest sort; and between the variations according to distance that I suppose to exist and the simple universality of the rules in the Twelve Tables or the Leges Barbarorum, there lies the culture of two thousand years.”

Where inflammable matter is brought upon land and kept near the track, see Erickson v. Pennsylvania R. Co., (C. C. A.) 170 Fed. 572; Southern R. Co. v. Wilson, 138 Ala. 510; Railway Co. v. Fire Ass’n, 55 Ark. 163; Cleveland R. Co. v. Scantland, 151 Ind. 488; Boston Excelsior Co. v. Bangor, 93 Me. 52; Peter v. Chicago R. Co., 121 Mich. 324; Kalbfleisch v. Long Island R. Co., 102 N. Y. 520; Southern R. Co. v. Patterson, 105 Va. 6, in accord with the principal case. See also Ross v. Boston R. Co., 6 All. 87.

Macon R. Co. v. McConnell, 27 Ga. 481; Coates v. Missouri R. Co., 61 Mo. 38 (but see Mo. Rev. St. 1909, § 3151); Murphy v. Chicago R. Co., 45 Wis. 222 Contra.

Compare Alabama R. Co. v. Fried, 81 Miss. 314; Louisville R. Co. v. Short, 110 Tenn. 713; San Antonio R. Co. v. Home I. Co., (Tex. Civ. App.) 70 S. W. 999.