ties under its track, and from thence spread through the defendant's premises and ran into the plaintiff's woodland adjoining, and burnt and damaged the wood and soil, the plaintiff was held to be entitled to recover for the damages sustained. Webb v. Rome, etc., R. R. Co., 3 Lans. (N. Y.) 453; S. C. affirmed, 49 N. Y. (4 Sick.) 420; 10 Am. Rep. 389. See, also, McCoun v. New York Central, etc., R. R. Co., 66 Barb. 338. So, the neglect to use a "spark-extinguisher" is held to be per se negligence. Anderson v. Cape Fear Steamboat Co., 64 N. C. 399. It has likewise been held that a railroad company is bound to keep its track and contiguous land clear of materials likely to be ignited from sparks issuing from its locomotive properly constructed and driven. Salmon v. Delaware, etc., R. R. Co., 9 Vroom (N. J.), 5 ; S. C., 20 Am. Rep. 356; Troxler v. Richmond, etc., R. R. Co., 74 N. C. 377. On the other hand, it has been ruled in Illinois, that the owners of lands contiguous to railroads are as much bound to keep their lands free from dry grass and weeds as the railroad company is on its roadway; and that unless it appears that the negligence of the company is greater than that of the land-owner, the latter cannot recover for injuries by fire thus arising. Illinois Central R. R. Co. v. Nunn, 51 Ill. 78; Ohio, etc., R. R. Co. v. Shanefelt, 47 id. 497. And that it is not negligence per se for a railway company to permit standing grass and weeds to remain on its right of way, see Kansas Pacific R. R. Co. v. Butts, 7 Kans. 308; Smith v. Hannibal, etc., R. R. Co., 37 Mo. 288; Henry v. Southern Pacific R. R. Co., 50 Cal. 176; Pittsburgh, etc., R. R. Co. v. Nelson, 51 Ind. 150. It is held by the supreme court of the United States that whether the destruction of property by fire communicated by a locomotive was the result of negligence on the part of a railroad company, depends upon the facts shown as to whether or not it used such caution and diligence as the circumstances of the case demanded, or prudent men ordinarily exercise, and not upon the usual conduct of other companies in the vicinity. Grand Trunk R. R. Co. v. Richardson, 1 Otto (U. S.), 454.

§ 13. Gas companies. A gas company, engaged in the business of manufacturing gas, and in supplying it to its customers, is bound to exercise a degree of care and skill proportioned to the danger incident to the business. Pottstown Gas Co. v. Murphy, 39 Penn. St. 257; Hipkins v. Birmingham Gas Co., 6 Hurlst. & N. 250. Thus, a gaslight company, in lighting a city, is bound to supply pipes of sufficient strength to stand all lawful uses which may be made of the public streets through which they pass, and is responsible for all damages resulting from the breaking of the pipes in consequence of such use. Brown v. New York Gas Light Co., Anth. N. P. (N. Y.) 351. So,

where pipes are broken by any cause and the company is notified and negligently delays repairing them, and damage ensues, the company is responsible. Id.; Mose v. Hastings, etc., Gas Co., 4 Fost. & F. 324. See Holly v. Boston Gas Light Co., 8 Gray, 123. A gas company is likewise answerable for injury arising from the escape of noxious smells in the process of manufacture and from the percolation of gas and refuse from the works through the ground into adjoining land or water (Pottstown Gas Co. v. Murphy, 39 Penn. St. 257); and it is no defense, in such case, to show that the injury was aggravated by other causes. Sherman v. Fall River Iron Co., 5 Allen, 213; Brown v. Illius, 27 Conn. 84. So, if there be a defect in the apparatus furnished by a gas company and an injury arises partly from that cause and partly from the negligence of a stranger, the company is, nevertheless, liable. Burrows v. March Gas and Coke Co., L. R., 5 Exch. 67; S. C., 1 Eng. Rep. 202; Schermerhorn v. Metropolitan Gas Light Co., 5 Daly (N. Y.), 144. But it is otherwise if the injury be the result of mismanagement by a stranger, provided the apparatus is sound. Flint v. Gloucester Gas Light Co., 9 Allen, 552.

A gas company is held liable for damages occasioned by the negligence of its servants in any work done by them with a view to the benefit of the company, although such negligent work be performed about property not belonging to the company. Thus, where the defendant (a gas company) being informed that gas. was escaping in the cellar of an occupied house, sends its employee to ascertain the location of the leak, and the person so sent, by lighting a match in the cellar, causes an explosion, by which the plaintiff is injured, such employee, although acting for the benefit of the occupants of the house as well as of the defendant, is the agent of the defendant only and the defendant is liable for his negligence. Lannen v. Albany Gas Light Co., 46 Barb. 264; S. C. affirmed, 44 N. Y. (5 Hand) 459.

§ 14. Highways. In England, a common law obligation to maintain and repair highways, enforceable by indictment, rests upon the parishes. See Rex v. Eastrington, 5 Ad. & El. 765; Rex v. Liverpool, 3 East, 86; Parsons v. St. Mathew's, etc., Vestry, L. R., 3 C. P. 56; Gibson v. Mayor of Preston, L. R., 5 Q. B. 218. And see Phillips v. Commonwealth, 44 Penn. St. 197. In this country, the obligation to construct and maintain highways is wholly statutory, and where no such obligation is imposed by statute, no remedy for its violation can be had at the suit of a private party. Thus, it is held that towns in this country do not succeed to the duty of repairing highways in consequence of any special correspondence between their nature, organization and functions, and those of parishes in England; VOL. IV.-85

but, if at all, it must be because by our statutes certain powers are given to, and certain duties imposed upon, towns or rather upon their officers, in regard to roads, and because the making and repairing of roads is, to a considerable extent, accomplished through town organizations. Morey v. Newfane, 8 Barb. 645. See, also, Chidsey v. Canton, 17 Conn. 475; People v. Commissioners of Highways, 7 Wend. 474; Oliver v. City of Worcester, 102 Mass. 490; S. C., 3 Am. Rep. 485. It has, however, been said in a case in New Hampshire, that by immemorial custom and independently of any statute that has been preserved, the towns in that State have been held liable to keep in repair the highways within their limits, and that for neglect of that duty common law remedies, both of a public and a private character, have existed, and those of a public character at least, put in force from a very early period. Wheeler v. Troy, 20 N. H. 77. And in a very recent case in that State it is held that the owner of land adjoining a highway may maintain an action at common law against the town to recover damage caused to his land by the fault or negligence of the town in not building and maintaining the road in a reasonably suitable and proper manner. Gilman v. Laconia, 55 N. H. 130; S. C., 20 Am. Rep. 175.

In the New England States, the general duty of building and keeping highways in repair is imposed by statute upon towns, and they are declared to be liable in damages to any one who suffers injury through their neglect of such duty. See Stanton v. Springfield, 12 Allen, 566; Providence v. Clapp, 17 How. (U. S.) 161; Peck v. Ellsworth, 36 Me. 393. Such is also the law in Wisconsin. See Kitredge v. Mil waukee, 26 Wis. 46; Draper v. Town of Ironton, 42 Wis. 696. But in the other States, the duty is usually imposed upon independent public officers, elected for that purpose, or the duty is voluntarily assumed by incorporated cities and villages, as one of their charter obligations. See ante, tit. Municipal Corporations. In some cases the duty is assumed by private parties as a condition of a grant of a franchise, such as turnpikes, plank-roads, toll-bridges, etc. In such case, the liability to pay tolls is a consideration for the undertaking on the part of the owners of the franchise to furnish a safe road for the use of the traveler, as an equivalent. Davis v. Lamoille County Plank Road Co., 27 Vt. 602; Stanton v. Proprietors of Haverhill Bridge, 47 id. 172; 181; Townsend v. Susquehanna Turnpike Co., 6 Johns. 90; Parnaby v. Lancaster Canal Co., 11 Ad. & El. 223, 243; Waterford, etc., Turnpike Co. v. People, 9 Barb. 161. In some of the States, turnpike companies are by statute made liable for all damages happening to travelers from want of repair of their roads. And under such a stat

ute, a turnpike company becomes an insurer of the safe condition of its road, and is liable for injuries even from latent defects therein. Yale v. Hampden, etc., Turnpike Co., 18 Pick. 357. But at common law, the proprietors of turnpikes, plank-roads, etc., are bound to exercise only ordinary care in the maintenance of their highways. Grigsby v. Chappell, 5 Rich. (S. C.) Law, 443; Bridge Company v. Williams, 9 Dana (Ky.), 403. So, in general, a municipal corporation is only bound to exercise ordinary care and vigilance in keeping the streets within its limits in a safe condition (McGinity v. Mayor, etc., of New York, 5 Duer [N. Y.], 674); and negligence must be affirmatively shown. Id.; Parker v. City of Cohoes, 10 Hun (N. Y.), 531. But where towns are, by statute, made absolutely liable in damages for all injuries occasioned by any want of repair, or by any obstructions or defects in their highways, it is only necessary, in an action to recover for injuries occasioned by the defective condition of a highway, to prove the existence of the defect, and that the injury was occasioned thereby. If there be a defect in the road, however small, which occasions an injury, the party injured using common and ordinary care, the town is liable. Merrill v. Hampden, 26 Me. 234; Horton v. Ipswich, 12 Cush. 488. What is a "defect or want of repair" within the meaning of the term as used in such a statute, is a question of fact to be determined by the jury, under the instructions of the court, upon the circumstances of each particular case. Hutchinson v. Concord, 41 Vt. 271; Washburn v. Town of Woodstock, 49 id. 503; Hixon v. Lowell, 13 Gray, 59; Howard v. Mendon, 117 Mass. 585; Winship v. Enfield, 42 N. H. 197; Draper v. Town of Ironton, 42 Wis. 696. In general, such a state of repair in a road as would free a town from exposure to an indictment and conviction, would protect it also against a claim for damages for an injury sustained by an individual, while traveling thereon. Merrill v. Ilampden, 26 Me. 234.

The duty of towns under the Maine statute, to keep their highways "safe and convenient" is not conditioned upon the performance or nonperformance by the highway surveyor of his duty, under the same statute, to keep the highways "passable." Rogers v. Newport, 62 Me. 101. And a city or town in Massachusetts is not exempted from liability for a defect in a highway occasioned by misconduct or negligence in the construction or repair of a street railway, notwithstanding the statute making the railway company liable for such negligent or unskillful conduct. Hawks v. Northampton, 116 Mass. 420.

In New Jersey, township authorities liable to indictment for neglect to keep highways in repair may file a bill in their own name, to restrain

a corporation from rendering such highways impassable. Easton, etc., R. R. Co. v. Greenwich, 25 N. J. Eq. 565.

In the absence of a statute making the liability absolute, a municipal corporation is liable only for a failure to remedy such defects in a sidewalk as may be detected and remedied by the use of ordinary care and diligence. Thus, mere knowledge on the part of a few private citizens of a latent defect in a sidewalk is not sufficient to charge the city with notice. Kenyon v. Indianapolis, 1 Wilson (Ind.), 129. And see Water Company v. Ware, 16 Wall. 566.

In New York it is well settled that, in the case of a village or city where the trustees, or common council, are made commissioners of highways, the corporation is liable for their negligence in not keeping the streets and sidewalks, within the corporation limits, in a condition safe for the use of passengers thereon. Thus, it is the duty of such municipal authorities to see that the sidewalks are kept reasonably clear of ice and snow, and when they permit such an accumulation thereof as to constitute an obstruction to remain an unreasonable length of time, to the danger of travelers, the corporation is chargeable with negligence without proof of actual notice. Todd v. City of Troy, 61 Barb. 580; S. C. affirmed, 61 N. Y. (16 Sick.) 506. See, also, Hume v. Mayor of New York, 9 Iun (N. Y.), 674. And see ante, tit. Municipal Corporations, under which head, the liability of such corporations for negligence in respect to streets and highways is fully discussed.

Towns are not generally obliged to make all the land that is laid out as a highway passable, but they are bound to keep the margins of their highways reasonably safe. And although the town will not be responsible, if a traveler voluntarily diverge from the traveled path, and injury result, yet, if he be forced into the ditch by accident, and injury ensue by reason of an obstruction placed there, the town will be liable. Willey v. Portsmouth, 35 N. II. 303; Cassedy v. Town of Stockbridge, 21 Vt. 391; Foshay v. Glenhaven, 25 Wis. 288; S. C., 3 Am. Rep. 73. So, if a town permits a turn-out to exist from the traveled part of its highway to a private way, over adjoining land, with all the characteristic marks of a highway, it will be bound to keep such part of the turn-out as is within the laid out limits of the highway in suitable repair for the travel usually passing over it. Stark v. Lancaster, 57 N. H. 88. And in general, whatever portion of the way a traveler, in the exercise of due care, understands to be designed for travel, must be so considered, and the town will be held liable for defects therein. Saltmarsh v. Bow, 56 id. 428.

Towns are not in general obliged to maintain fences merely to pre