340 OCTOBER TERM, 1913.

Statement of the Case. 232 U. S.

LeROY FIBRE COMPANY v. CHICAGO, MIL­&WAUKEE ST. PAUL RAILWAY.

CERTIFICATE THEFROM CIRCUIT OFCOURT APPEALS FOR

THE EIGHTH CIRCUIT.

January 19, February 24,No. 175. Submitted 1914. Decided 1914.

property subjectedOne’s lawful uses of his own cannot be to the servi-bywrongfulof thetude use another of the property.latter’s

by productIn an action at a soil,law the owner of natural of the such asstraw, lawfullyflax which he stored on his premisesown and whichdestroyed by by negligent operationwas fire caused the aof loco-

engine,motive to recover the value thereof-from the railroad com-pany operating engine, questionthe juryit is not a for the whether

negligentthe owner was also without other evidence than that thecompany precededrailroad the owner in the establishment of its

business, propertythat the was inflammable in character and thatright wayit was stored near the railroad of and track.

question juryIt is not a lawfullyfor the whether an owner who storesadjacentproperty premiseshis righton his own to a wayrailroad of

and track is protectheld to the exercise of reasonable care to it fromby negligencefire set of the companythe railroad resultingand not

reasonablyfrom or theunavoidable accident careful conduct of itsbusiness.respects liability byAs property lawfullyfor the destruction fire of held

private premises adjacent righton a way track,to railroad of anddischarges legal dutythe protectionowner his full itsfor if he exer-

reasonably prudentcises that care which a man would exerciseunderprotectlike dangerscircumstances to it from the op-incident to the

eration of railroadthe conducted with reasonable care.

The following questions are certified:"1. In an action at law by the owner of a natural prod-

soil,uct of the such straw,as flax which he lawfully storedon his own premises and which was destroyed by fire

by operationcaused the ofnegligent a locomotive engine,to the valuerecover thereof from the railroad company

is itoperating engine,the a forquestion jurythe whethernegligentthe owner was also without other evidence than

MIL,CHI.,LeROY FIBRE P.CO. v. & ST. RY. 341

■232 U. S. theStatement of Case.

that the inrailroad the ownercompany preceded theestablishment of business,its that the was in-property

in itflammable character and that was stored near theofrightrailroad and track?way

“2. itIs a for thequestion jury whether an owner wholawfully stores his on his ownproperty premises adjacentto a railroad ofright way and track is held to the exerciseof reasonable to itcare from fire setprotect by negli-thegence of the railroad and not from un-company resultingavoidable accident or the ofcareful conductreasonablyits business?

"3. As respects liability for the destruction fire ofbyproperty onheld to alawfully private premises adjacent

rightrailroad of track,and does theway dischargeownerhis full legal for its ifduty protection he exercises carethatwhich a reasonably prudent man would exercise underlike circumstances to it fromprotect dangersthe incidentto operationthe of the railroad conducted with reason-able care?”

The LeRoy Fibre in error willCompany, plaintiff (weitrefer to as plaintiff), an actionbrought against defend-

ant in (referred.toerror herein as indefendant) a statecourt of to'Minnesota recover the value of certain flaxstra^ir alleged to have been negligently burned de-andstroyed by defendant. The cause was to theremovedCircuit Court for the District of Minnesota, where it wastried. One of groundsthe of negligence set forth thatwasa enginelocomotive of defendant, while passing prem-theises of plaintiff, was so negligently managed and operatedby defendant’s employés that it emitted sparksand threwand coals of unusual size the ofupon stacks straw andflax

set fire tothereby and destroyed them.The evidence at the trial showed the withoutfollowing

dispute: "Some years after defendant had constructedand commenced operating its line of throughrailroad

Meadow,Grand Minnesota, the plaintiff established at

TERM,342 OCTOBER 1913.

S.Statement of the Case. 232 17.

that for of from flaxvillage factorya the manufacture towits factorystraw. The had toplaintiff adjacent premises,

a of railroad ofground abutting right waytract theuponand 250 400 feet inapproximately by dimension,uponwhich it it forstored flax straw in itspurchased use manu-

business. There were about 230 stacksfacturing arrangedin with ofparallel righttwo rows the Each stackway.

three,fromcontained to three and á half tons of straw.ofThe distance from the center the railroad track to the

the line of ofalong right way, fifty feet,fence the wasfrom fence to the row of stacks,the nearest ortwenty

and from totwenty-five feet, the fence the second rowof Athirty-fiveabout feet. road ran be-stacks, wagon

andtween the fence the first row. On April 2,1907, duringa a fire startedhigh wind, one of the stacks in theuponsecond androw, as a all were consumed. The fireresultdid throughnot reach the stack intervening growththeor refuse but first on ofappeared the side the stack abovethe Theground. flax straw was inflammable in character.It easily ignited easilywas and burned.

"There was substantial at tendingevidence the trialto that the.show fire was started aby enginelocomotiveof defendant which had just passed and that throughthe negligent of defendant’soperation charge,inemployésit emitted large quantities of sparks and live cinders whichwere carried to the straw by highstack a wind then pre-

Itvailiug. was contended at the trial by defendant, thatnegligentitself wasplaintiff negligenceand that its con-

tributed to ofthe destruction its noproperty. There wasplaintiffevidence that was negligent save that it had

its of anplaced property inflammable character upon itsown so near the railroadpremises tracks,- that is to say,

of stacks, seventythe first row or seventy-five feét andthe second row in which the fire started about eighty-five feet from the center of the railroad track. In otherwords, the character of the and itsproperty proximity

V. P.CO. & ST. RY. 343FIBRE CHI./MIL.LkROY

LeRoy Company.Argument FibreforS.232 U.

which plaintiffrailroad for was respon-to operatedanof plaintiff’s contributory neg-sole evidencewas thesible

ligence.jury thoughthe that the de-chargedtrial court“The

bywas caused defendant’s negli-of strawstruction theif in and twomaintainingtheyet plaintiff placinggence,

a hundredwithin feet of therows of stacks of flax strawfailed to exercise thatrailroad, ordinaryofcenter line the

its fromfiringof strawdanger sparkscare to avoid fromthat a ofperson ordinaryon the railroadengines passing

exercised, under likewould have circumstancesprudence,contributed to cause the accidentand that the failure

trialnot recover. The court also sub-the couldplaintiffto the as follows:jurymitted two questions

inFibre and twoCompany placing keeping“1. Did thehundred ofwithin one feet the centerrows of flax straw

the care to avoidrailroad, dangerfail to useline of theenginesof fromsparks operatingfrom fireto its straw

ordinarythat a ofrailroad, person prudenceon that2.circumstances? Didused under like thewould have

McDonald, degreefail to use that of care toengineerfiringfrom from the stacksenginehissparksprevent

1907,2,on that a ofthem, April personpassedas he,used underwould have like circum-ordinary prudence

stances?inboth the affirmativejury questions“The answered

for Judgmentverdict the defendant.generaland found afor The plaintiffentered defendant.accordinglywas

ofcharge regardingto the the courtexceptionssaveddulyto the submission of thecontributory negligence andits

assignedhas ofto the and the actionjury,first questionas error.”the court

F.Mr. E. P. and Mr.Fitzpatrick,F. SanbornMr. JohnRoy Company:for Le FibreM. Catlin

the of a naturalby productlaw ownerIn an action at

TERM,344 OCTOBER 1913.

LeRoyArgument Company.Fibre 232 U.for S.

straw, which lawfullyas flax storedof soil such hethewas destroyed byand which firepremiseson his ownof enginea locomotivenegligent operationthebycaused

from companythereof the railroadto the valuerecoverquestion juryit is not a forengine,the theoperating

evi-negligentowner was without otherthewhether alsothecompany precededthat the ownerthan railroaddence

business, the propertyof its thatin the establishmentthatin and it was stored nearcharacterwas inflammable

track.right wayof andrailroadtheto adja-hisright propertyhas same useThe owner the

anyfor forway purposeof lawfulrightrailroadcent to awas no rail-have if thereas he wouldadaptedwhich it is

limitation upon enjoy-use andThe theonlyroad there.it a mannerthat he use such ashis ispropertyment of in.

that of another.not to injureupon premiseshis own his own hestoring propertyInthat possible injuryFrom act noright.a lawfulexercises

it on his own even nearlocating premisesIncan come.dutyrailroad noway he the tocompanyofrightthe owes

to itinjury negligencefrom theguard againstoranticipateofthe breach somecompany.of railroadthe Without

can be no on hisnegligencethe owner therebydutypart.

and is of noduty guiltyno henceHe has violatedRichardson,Trunk R. R. Co. 91Grand v.negligence.

R.Cincinnati &c. R. South Fork454, 473;U. Co. v.S.530; Thompson Negligence,Coal 139 Fed. onCo., Rep.

on Negligence, 680;& Redfield2314; Shearman §§D. R. R. Co. Medley, Virginia, 499;Richmond & v. 75

Co.,R. Co. Lumber 125MarburyLouis. & Nash. R. v.Louis 87235; Co.,Patten v. St. &c. R. R.Alabama,

N. R. R.Missouri, 117; Co., Wisconsin,v. C. W. 26KelloggJ. L. L. R.Ry. Co., 5;v. 38 N. & N. R.223; Salmon Co.

Richardson, Indiana, 43;v. 66 &c. R. R. Co. v.PittsburghIndiana, Louisville & Co.496;86 N. R. R. v.Jones,

V. CHI.,LeROY FIBRE CO. MIL. & ST. RY.P. 345

LeRoyArgument Company.Fibre232 forU. S.

Cleveland, C. R.300;S.(Ky.), Rep.Beeler 103 W. R.St. L.1068; Phila.Rep.51 E. R.(Ind.),Co. Scantland N. R.v.

182;St. Reed v. Missouri P.Hendrickson,Co. 80 Pa. R.v.R. Texas P. R.Co., 504;50 Mo. v. & R.App. Rutherford

422; C. & S.Rep. Gulf,Co. S. R. R. Co.(Texas), 61 W.2 Kimball700;v. Civ. Cas. v.Fields, Texas App. Borden­

Island R.Long Co.,97 v. R.Virginia, 477; 102KalbfleischR.N. & N. R. v.520; Malone,Y. Louisville Co. 116

on 1228.Alabama, 600; Railroads,3 Elliott §the anIt for whether whojuryis not a ownerquestion

hishis on ownlawfully property premises adjacentstoresisto of and track held to theright waya railroad exercise

it from fire set theby negli-of care to protectreasonablenot fromgence company resultingand un-of the railroad

reasonably conduct ofor the careful itsavoidable accidentbusiness.

of thecontributory negligenceof ownerThe doctrineLouis. & Nash. R.in a R. Co.has no such case.application

620;A. Phila.Alabama, 235;v. 50 L. R.125Marbury,182; 13 Am. &Hendrickson, Eng.80 Pa. St.R. R. v.Co.

2314;on KendrickNegligence,482; 2Ency. Thompson §Ins. Co. v. Louis-363; MississippiTowle, Michigan,60v.

Louisville Co.119; R. R. v.Co., Mississippi,R. 70ville R.(N. S.)11 L. A. 930.R.(Ky.),Beeler

by of prop-for the destruction firerespects liabilityAsadjacent to a rail-private premisesonlawfully helderty

owner his fulldischargesand track theright wayofroadif that care whichprotectionits he exerciseslegal duty for

like cir-man would exercise underreasonably prudentadangersit from the incident to theprotectcumstances to

with care.railroad conducted reasonableof theoperation22R. Y. Cookv.Co., 209; ChamplainR. N.Fero v. Buffalo

Denio, 91.Co.,Trans. 1of is thecompany proxi-the railroadnegligenceThe

Mo. R. Mo.Co.,Reed v. Pac. 50of the loss.mate causeR. R.Nash. R. R. Co. v. East Tenn.504; Louis. &App.

346 TERM,OCTOBER 1913.

RailwayArgument Company'.for 232 U. S.

Co., Rep.60 Fed. 903; Inland Co. v. U.Tolson, 551,139 S.558.

Mr. H. H. Field Mr.and M. B. Webber for the- Rail-way Company:

plaintiffThe of incontention error no matter howthatone hismay uponconduct business own premises,hiscontributory negligence cannot be himurged against in a

himbrought bycase to damagesrecover caused to histheproperty by negligence of an that noadjacent owner;

of kindcase the can arise which thepresents question ofofnegligence as one for thatcontributory jury;fact a one

his inmay conduct own a adaptedbusiness manner best tovery perilinvite the which andovertakes neverthe-him,

less damages notwithstanding culpablerecover his care-because his actlessness, negligent uponwas committed

his own is unsound.premises, is,The question whetherprudentunder all the'circumstances an ordinarily man

would or not acted, questionswould have so and such areaeminently jury.for

When one conducts his in manner,business a and at aaplace, personsuch as ordinary prudencecare andof

would then henot, is not within the ofprotection the law■as uponin cases by'outlined relied opposing counsel.

Railway Co. 54 Fed.Johnson, Rep.v. Clark v.474; Railway129Co., Rep.Fed. 341.

■ voluntaryThe and needless ofaccumulation shavingsor other combustible uponmatter the land toclose a rail­road regardedhas and heldbeen constitute contributoryto.negligence. Such a case is.plainly distinguishable fromthose cases whichin combustible matter had accumulatedby the act of nature. Shearman on& Redfield Negligence,

Ry.v.679; Murphy Chicago &c. 45Co., Wisconsin, 222;§Ward Ry. Co.,v. Milwaukee 29 Wisconsin, 144; see alsoCollins Y. Ry. Co.,v. N. Cent. 5 Hun, C.,S. 71499; N. Y.

22Ry. Co.,Niskern v. Fed.609; 811;Chicago Rep. Railway

347FIBRE RY.CHI.,LeROY CO. V. & ST. P.MIL.

Argument Railway Company.232 U. S. for

M. & StC.,v.47Shanefelt, Illinois, 497;Co. v. HoffmanRy.P.Karsen M. & St.v. C.,Ry. Minnesota, 60;P. 40Co.,

Iron 31Works,Martin v. North Star12;29Co., Minnesota,14Bank,Schell v. Second NationalMinnesota, 407;

45 Wis­Ry. Co.,C. & N. W.Minnesota, 34; Murphy v.209;22 Y.Ry.Fero &c. N.Co.,v.consin, 222; Buffalo

320.Rep.N. W.Rzy.Co.,Omaha Fair Co. v. Mo. Pac. 60ofA or the trackbuildingshis on nearparty who erects

to the usedangersa incidentrailway company knows theto assumeof must be heldpower,steam as a motive and

• greatits use on thoseof the hazards connected withsomeLarmon,R. Co. 67Toledo, W. & W. R. v.thoroughfares.

94Pennell,& Alton R. R. Co. v.Illinois, 68; Chicago25Owen,Cityalso Kansas &c. R. R. v.Illinois, 448; see

380;17Bradey, Kansas,R. R. Co. v.Kansas, K. P.419;Co.Kansas, Ry.30 G. W.Ry. Cornell, 35;Mo. Pac. Co. v.

347.Haworth, Illinois,v. 39ofthe'partoncontributory negligenceThe rule that

onlyin inIllinois,isrecovery,will bar aplaintiff relaxedandslight,isnegligence plaintiffthe of thecases where

in Railroad Co.comparison gross.of defendantthat theHammer,Co. v.Illinois,72 Ill. Cent. R. R.Hillmar, 235;v.

Illinois,79Ry. Hatch,72 C. & N. W. Co. v.Illinois, 347;Q. Co.Ry.B. &Depew, Illinois, 119; C.,Kewanee 80v.137;

272.Illinois,v. 58Gregory,doesnegligencethe doctrine ofHowever, comparativeonlyin does obtainMinnesota,not and we believeprevail

does the last chanceGeorgia.in Illinois and Neithera in cases of con­in Minnesota. Such ruleprevaildoctrine

tocontributing injury,theproximatelynegligercecurrentdo doctrine of contribu­awaywould with thepractically

71 Min­City Ry. Co.,Fonda Paultory negligence. v. St.Keese v.Torts, 311,on see alsonesota, BigelowSee438.

v. RailwayCo.,78;& 30 GarrettRy. Co., Iowa,C. N. W.Iowa, 121; Slosson v. Railway Co.,36 60 Iowa, 215; BryantRailway Co., Vermont,56v. 710.

TERM, 1913.348 OCTOBER

232Opinion U. 8.of the Court.

limited to theMany by counsel,of the cases cited whendistinguishedtheir can beprecise points presented by facts,

Tolson,So to Inland Co.Coastingfrom case. as v.this91Richardson,Grand Trunk R. Co. v.551;139 U. S. R.S.)11 (N.U. Louisville v. L. A.Ry. Beeler,S. Co. R.454;

930.not be-of man doesspecial legislationIn athe absence

ofinleaving his a statewrongdoer by propertycome a5;Co., KelloggSalmon v. Railroad 38 N. J. L. v.nature.

Railroad 223.Co., Wisconsin,26negli-ofalways dutyIt is not a breaoh that constitutes

may negligentbe in owngence. using property,One hiscarefully.no his to handle itduty neighborand owe toyet

combined with that of hisnegligencewhen suchButdamage,one would not re-neighbor causes which have

ordinarilyhad he been he cannot saddlecareful,sultedneighbor.the hisuponloss

one to prop-The instant case is not involving damagefor timberstate, lot,left in its natural instance aerty —as

or the on hismeadow, grain field,a farmer’s stubble —butfromaffirmative act of in thebringingdoes involve the

of theproductthe most inflammableadjacent countryofrightit on a lot thestacking abuttingand vacantfield,

in iterror, likelyof the where was moreway defendantthan act nonot, ordinarilyto be burned prudent—an

would have done.personIf of for in error isplaintiffthe contention counsel

a thenlaw, ready profitabledeclared the and market willfor kinds of saleable.manybe made not otherwiseproperty

after theMcKenna, making foregoingMr. Justiceof the court.delivered thestatement, opinion

present (1)The certified two The.questions facts —railroad was the immediate cause of thenegligence of the

(2) The wasproperty. property placeddestruction of the

CHI., MIL. & ST. P. RY.v. 349CO.LeROY FIBRE

of Court.Opinion theS.232 U.

the railroad,of of but onwaythe rightnearby its ownerown land.the'owner’s

two whetherquestionsis made in the firstThe queryofof negligence theevidencethe latter fact constituted

observed,the It will be thejury.to tosubmittedowner bedidof use—it not inter-itself a properof land wasuse the

of the rail-the rightful operationnor embarrassfere withquestions certified,therefore,is themanifest,Itroad.

ofare but the broaderquestion, phasesthe thirdincludinglimited in the of property byis use one’sone, whether one

to limit torailroad; or, propositiona theits toproximityone in its use tosubjectisreview,the case under whether

of theas the road.operationas to carefulthe careless wellin thethat an immediaté answermight not doubtWe

for ofif it not the hesitationgiven werenegative should beandquestions,of itsAppeals byCircuit Court evincedthe

Thatin the affirmative.decisions of some courtsthetheto servitudesubjectof beproperty mayone’s uses his

anof his seemspropertyof use anotherwrongful bytheof law and take?It theanomaly. upsets presumptions

the comesassumptionhim and freedom whichfrom thelaw, notobeyfrom that the other will thethe assumption,

of usingnotduty onlyIt him theuponviolate it. caststobut so useinjure another,his own so as not toproperty

wrongsthat themay injured bynot bepropertyhis own itOr,carried?subjectionof How far this beanother. can

to what limits shall bequestion railroads,theconfiningwrongful"from theirupon their the result ofput immunity

isIn at property destroyedthe case theoperation? bar,ofare thatinflammable, degreesas but theredescribed

Inwrongful operation?how must be thequality; andthis of and “livecase, large quantities sparks cinders”

mayemitted from the Houses bepassing engine.wereandinflammable, may they been,to as setbe,said be have

and from orsparks carelesslyon fire cinders defectivebyAre wellto be as asthey subjecthandled locomotives.

TERM,350 OCTOBER 1913.

Opinion of the Court. 232 U. S.

of straw,stacks flax to such lawless Andoperation? is theuse of cultivation ofalso,farms the which buildingthe ofthe railroad has Or ispreceded? that a use which the

anticipatedrailroad must have and to which it hence owesa itduty, which does not owe to why?other uses? AndThe isquestion especially pertinent immediatelyandshows that the of inrights one man the use of his property

of,cannot be by wrongsthe another. Thelimited doctrine-of contributory negligence is ofentirely place. Departoutfrom the of thesimple requirement everythat onelaw,must use his so as not toproperty injure youandothers,

topass refinements and confusing considerations. Thereis no embarrassment in the toprinciple even the operationof a Such isoperation legitimaterailroad. a use of prop-

inpropertyother its suffererty; vicinity may incon-subjectveniences and be to risks by it, but a risk fromiswrongful operation not one of them.

conceptionThe oflegal property rights.is of Whenyou attempt byto limit them wrongs, you aventure

If you right subjectsolecism. declare a is to a wrong you.meaningthe of both. It is difficult toconfound deal with

the contention. There are someopposing principles thathave axiomatic character. The oftangibility propertyis in its uses and that bythe uses one owner of his property

limited themay by wrongfulbe use of another ofowneris a contradiction.his, passBut let us from toprinciple

authority.TrunkGrand Railroad Company Richardson,v. 91 U. S.

454, an for damageswas action for the of adestructionsawmill, lumber shed and buildingsother andvmanufac-

bytured firelumber, bycommunicated a locomotive en-gine of a ofraihoad. Some the buildings were erected inpart on the company’s land near its andtrack, the rail-road thecompany-requested chargecourt to the jury thatthe erection of the buildings storingor the of lumber sonear the company’s track, as the evidence anshowed, was

MIL. ST. P. RY.CHI.,v. & 351FIBRE CO.LbROY

ofOpinion the Court..232U. S.

that if such location con­act, andor carelessimprovidentensued,to which thenthe lossdegreein anytributed

thoügh the firerecover,not eventhe couldplaintiffsthe railroad locomotive.by company’s-was communicated

and its action was sustained.the requestThe court refusedacourt,for the “Suchsaid,Strong, speakingMr. Justiceabeingfor it not thenwas a licenselocation, there [itif

by plain­of its thepropertyusewas a lawfultrespass],toright compensationnot lose theirdidtheyandtiffs;

of theby negligencethe defend­for their loss occasioned1Co., Fero v.Den.Champlain Transp. 91;ant. Cook v.

Y. 215.”22Railroad, N.Co.,South Fork Coal&c. R. R. Co. v.In Cincinnati

of lum­530, there was the destructionRep.139 Fed. 528,ofway by permissionrailroad’s ofrightber on theplaced

throughoccurringfiredestroyed bythe railroad. It wasof the railroad’s trains. Con­operationthe negligent

of re­righttheurged againstwastributory negligencefor theAppealsof(CircuitThe court Courtcovery.bycited theon the casescommentingSixth Circuit),

go upon theopinionsin far as therailroad, said: “But socompensationlose his ofrighta plaintiffthattheory must

situatedpropertyof his ownfor destructionnegligentthetoexposedhad it dan­his heupon premisesown because

it the ofonly through negligencecome tocouldgers whichnot meet ourthey approval.”docompany,the railroad

rights ofcontinued, “Thethe courtciting cases,Afterof their ownenjoyment propertyandto the usepersons

this. The wouldprincipleno tenure asuponare held suchif inmanyfor suchpurposespropertyforbid ofthe use

dangersit toexposetrack as toto a railroadproximityof its business.”negligent managementto theattributable

inThey Thomp-are citedbe adduced.mightOther casesandand Shearman Redfield onNegligence, 2314,.son on §

offor the that an owner680, principleNegligence, §of his itslimited in the uses property byis notproperty

TERM,352 OCTOBER 1913.

Holmes, J., concurring. 232 ü. S.

subjectto a or to other risks than thoserailroad,proximityof orwhich come from the careful the roadoperation

unavoidable accident.second questions nega-The first and we answer in the

third in thetive, and the question affirmative.ordered.So

Justice Holmes partially concurring.Mr.

The first concern of conductquestionstwo a standardand therefore that which in its and isnature in atheoryquestion of In I allthis, althoughlaw. wegather, agree,the orproposition forgottenoften is denied. But while the

judgmentstandard is external to of con­partythe thebycerned and must be known and conformed to him

at his The U.peril, Germanic, 589, 596, by196 S. acourts-,practice sightthat seems at first an abdication of theirfunction where it is most needed but that I saydare isjustified inby good sense, nice cases leave the standard tothe as as the Injury questionswell facts. the us,before

the elements are andhowever, supposed few frequentlyIso that but-for what to I shouldrecurring, sayhave be

very findcontent to that we able to downlaywere theproper rule without a withjury’s Furthermore,aid.regard to what that should I agree,rule for thebe, pur­poses of argument, that as a general proposition peopleare entitled to neighborsassume that their will conform tothe law; that a tort is in as full anegligent unlawful senseas a malicious andone, theythat are entitled totherefore

neighborsassume that their not negligent.will beI not preparedNevertheless am to answer the first

ifquestion, it is to be answered atNo, all. We are boundto trialconsider that at a the case would be presented with

wa,smore facts —that this case presented with at least onemore bearing rightfact the toupon recover —I mean the

Ifdistance. a stacked his flax soman near railroadato.

MIL., P. RY. 353CHI.,FIBRE v. & ST.LeROY CO.

concurring^Holmes, J.,232 U. S.

to set to a well-obviously likely byit be firethat wasI not throw theshould that he couldmanaged train, say

ofoscillating inquiryresult anbyloss the road theuponI shouldhad due care.the whether the road usedby jury

flaxputto hisrightcourse he had asay althoughthat ofof theliabilitytheupon land,where he liked his own

uponconditioned therailroad for a fire .absolutelywasfrom the train.safe distancebeing reasonablystacks at a

ofI it rulescertainly some,'take that probably many,madearelaw on less than universal considerationsbased

limit over refinedabsolute and universal in order to thosewhere suchspeculations especiallythat we all deprecate,

physicaltheuponrules are based or affect continuousgiven toThe that isthings. rightrelations of material

bylandsupon neighboringinflict various inconveniencesofI theis becausebuilding given, presume,or digging,

itfree, yet gen-makinginpublic improvementinterestIt is notcommon law.is absolute theerally bymade

or maintain ato buildrightto let theworth whilethought,motives.of as tojurythe adepend upon speculationsbarn

ofin interestdeclared a defectA defect in the highway, thecan travel unattendedthatthe least travellerscompetent

' averageof theor in the interestlegal risks,takingwithoutcaseall. And as in thisI to defect as tobe aman, suppose

negligentthethe inevitable andthe distinction betweenIworld,in therefinedof is one of the mostsparksescape

in the caseto the lawfar,I be so asrightthink that must•supposed.

in deter-elementright far, very importantIf I am so aflaxthe plaintiff’sto is whethermining rightthe recover

as_to adangerin from evenbeto the trackwas so nearin aexceptcertainly,Heremanaged engine.prudently

supposeI notthe docall in jury.clear we shouldcase,fiveflax withintoprudentcall it stackthat one wouldany

ofado it at distancetoimprudentorenginesfeet of theif ulti-the lawbe absurdwopldit nothalf a andmile,

ccxxxix —23vol.

354 TERM,OCTOBER 1913.

Holmes, J., concurring. 232 ü. S.

mately should formulate an measure,exact as it has tendedto in instances; (Martinother v. District Columbia,of205 U. 135,S. but139;) presentat I take it that if thequestion I suggest be material we should the juryletdecide seventywhether feet was too near the criterionby

Ithat have proposed. whileTherefore, majoritytheanswer the first question, No, on the ground that therailroad uponis liable the facts stated of law,as matterI should Yes,answer it with provisothe that it was to beanswered inNo, case the foundjury that the althoughflaxnear, was not enoughnear to the iftrains to itendanger

enginesthe were prudently managed, or Ielse shouldtodecline questionanswer the because it fails to thestate

distance of the stacks.I do not think we need trouble ourselves with the

thought mythat depends uponview of degree.differencesThe law does so as soon as' it is See Nashwhole civilized.v. United States, 229 U. S. 373, 376, 377. Negligence is alldegree of the defendant degreehere of the nicest—that

andsort; between the variations toaccording thatdistanceI tosuppose exist and the simple universality of the rulesin the Twelve Tables or the Leges thereBarbarorum,

thelies culture of years.two thousand

am sayI authorized to Thethat Chief Justice concursopinionin Ithe that express.