REMIGIO RODRIGUEZA ET AL., PLAINTIFFS AND APPELLEES, VS. THE MANILA RAILROAD COMPANY, DEFENDANT AND APPELLANT.

This action was instituted jointly by Remigio
Rodrigueza and three others in the Court of First Instance of the
Province of Albay to recover a sum of money of the Manila Railroad
Company as damages resulting from a fire kindled by sparks from a
locomotive engine under the circumstances set out below. Upon hearing
the cause upon the complaint, answer and an agreed statement of facts,
the trial judge rendered judgment against the defendant company in
favor of the plaintiffs and awarded to them the following sums
respectively as damages, to wit, (1) to Remigio Rodrigueza, P3,000; (2)
to Domingo Gonzaga, P400; (3) to Cristina Luna, P300; and (4) to
Perfecta Losantas, P150; all with lawful interest from March 21, 1919.
From this judgment the defendant appealed.

The facts as appearing from the agreed statement, in relation
with the complaint, are to the effect that the defendant Railroad
Company operates a line through the district of Daraga in the
municipality of Albay; that on January 29, 1918, as one of its trains
passed over said line, a great quantity of sparks were emitted from the
smokestack of the locomotive, and fire was thereby communicated to four
houses nearby belonging to the four plaintiffs respectively, and the
same were entirely consumed. All of these houses were of light
construction with the exception of the house of Remigio Rodrigueza,
which was of strong materials, though the roof was covered with nipa
and cogon. The fire occurred immediately after the passage of the
train, and a strong wind was blowing at the time. It does not appear
either in the complaint or in the agreed statement whose house caught
fire first, though it is stated in the appellant’s brief that the fire
was first communicated to the house of Remigio Rodrigueza, from whence
it spread to the others.

In the fourth paragraph of the complaint—which is admitted to be
true—it is alleged that the defendant Railroad Company was
conspicuously negligent in relation to the origin of said fire, in the
following respects, namely, first, in failing to exercise proper
supervision over the employees in charge of the locomotive; secondly,
in allowing the locomotive which emitted these sparks to be operated
without having the smokestack protected by some device for arresting
sparks; thirdly, in using in its locomotive upon this occasion Bataan
coal, a fuel of known inferior quality which, upon combustion, produces
sparks in great quantity.

The sole ground upon which the defense is rested is that the house
of Remigio Rodrigueza stood partly within the limits of the land owned
by the defendant company, though exactly how far away from the
company’s track does not appear. It further appears that, after the
railroad track was laid, the company notified Rodrigueza to get his
house off the land of the company and to remove it from its exposed
position. Rodrigueza did not comply with this suggestion, though he
promised to put an iron roof on his house, which he never did. Instead,
he changed the materials of the main roof to nipa, leaving the kitchen
and media-aguas covered with cogon. Upon this fact it is
contended for the defense that there was contributory negligence on the
part of Remigio Rodrigueza in having his house partly on the premises
of the Railroad Company, and that for this reason the company is not
liable. This position is in our opinion untenable for the reasons which
we shall proceed to state.

In the first place, it will be noted that the fact suggested as
constituting a defense to this action could not in any view of the case
operate as a bar to a recovery by the three plaintiffs other than
Remigio Rodrigueza, even assuming that the fire was first communicated
to his house; for said three plaintiffs are in nowise implicated in the
act which supposedly constitutes the defense. In this connection it
will be observed that the right of action of each of these plaintiffs
is totally distinct from that of his coplaintiff, so much so that each
might have sued separately, and the defendant, if it had seen fit to do
so, might in this case have demurred successfully to the complaint for
misjoinder of parties plaintiff. The fact that the several rights of
action of the different plaintiffs arose simultaneously out of one act
of the defendant is not sufficient of itself to require, or even
permit, the joinder of such parties as coplaintiffs in a single action
(30 Cyc, 114) if objection had been made thereto. Domingo Gonzaga,
Cristina Luna, and Perfecta Losantas are therefore entitled to recover
upon the admitted fact that this fire originated in the negligent acts
of the defendant; and the circumstance that the fire may have been
communicated to their houses through the house of Remigio Rodrigueza,
instead of having been directly communicated from the locomotive, is
immaterial. (See 38 Am. Dec, 64, 77;^[1] 11 R. C. L., 968-971; Kansas City, etc. Railroad Co. vs. Blaker, 64 L. R. A., 81; Pennsylvania Railroad Co. vs. Hope, 80 Pa. St., 373; 21 Am. Rep., 100.)

With respect to the case of Remigio Rodrigueza it is to be inferred
that his house stood upon this ground before the Railroad Company laid
its line over this course; and at any rate there is no proof that this
plaintiff had unlawfully intruded upon the railroad’s property in the
act of building his house. What really occurred undoubtedly is that the
company, upon making this extension, had acquired the land only,
leaving the owner of the house free to remove it. Hence he cannot be
considered to have been a trespasser in the beginning. Rather, he was
there at the sufferance of the defendant company, and so long as his
house remained in this exposed position, he undoubtedly assumed the
risk of any loss that might have resulted from fires occasioned by the
defendant’s locomotives if operated and managed with ordinary care. But
he cannot be held to have assumed the risk of any damage that might
result from the unlawful negligent acts of the defendant. Nobody is
bound to anticipate and defend himself against the possible negligence
of another. Rather he has a right to assume that the other will use the
care of the ordinarily prudent man. (Philadelphia & Reading
Railroad Co. vs. Hendrickson, 80 Pa. St., 182; 21 Am. Rep., 97.)

In the situation now under consideration the proximate and only
cause of the damage that occurred was the negligent act of the
defendant in causing this fire. The circumstance that Remigio
Rodrigueza’s house was partly on the property of the defendant company
and therefore in dangerous proximity to passing locomotives was an
antecedent condition that may in fact have made the disaster possible,
but that circumstance cannot be imputed to him as contributory
negligence destructive of his right of action, because, first, that
condition was not created by himself; secondly, because his house
remained on this ground by the toleration, and therefore with the
consent of the Railroad Company; and thirdly, because even supposing
the house to be improperly there, this fact would not justify the
defendant in negligently destroying it. (Grand Trunk Railway of Canada vs. Richardson, 91 U. S., 454; 23 L. ed., 356; Norfolk etc. Ry. Co. vs. Perrow, 101 Va., 345, 350.)

The circumstance that the defendant company, upon planting its line
near Remigio Rodrigueza’s house, had requested or directed him to
remove it, did not convert his occupancy into a trespass, or impose
upon him any additional responsibility over and above what the law
itself imposes in such situation. In this connection it must be
remembered that the company could at any time have removed said house
in the exercise of the power of eminent domain, but it elected not to
do so.

Questions similar to that now before us have been under the
consideration of American courts many times, and their decisions are
found to be uniformly favorable to recovery where the property
destroyed has been placed in whole or in part on the right of way of
the railroad company with its express or implied consent. (L. R. Martin
Timber Co. vs. Great Northern Railway Co., 123 Minn., 423; Ann. Cas., 1915A, p. 496, note; Burroughs vs. Housatonic R. R. Co., 15 Conn., 124; 38 Am. Dec, 64, 74; Southern Ry. Co. vs.
Patterson, 105 Va., 6; 8 Ann. Cas., 44.) And the case for the plaintiff
is apparently stronger where the company constructs its line in
proximity to a house already built and fails to condemn it and remove
it from its right of way.

From what has been said it is apparent that the judgment appealed
from is in all respects in conformity with the law, and the same is
accordingly affirmed, with costs. So ordered.

Johnson, Araullo, Avancena, and Villamor, JJ., concur.

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^[1] Burroughs vs. Housatonic R. R. Co.