The New Hampshire cases have had some difficulty with this rescue doctrine. See Glines v. Maine Central R.R., 1947, 94 N.H. 299, 302-303, 52 A.2d 298. Whatever may be the New Hampshire law in the foregoing respect, the case at bar presents a quite different situation.
The owner or occupant is not liable to such volunteer for injuries growing out of a permanent or fixed condition of the premises. Hughes v. Shanafelt, 203 Okla. 80, 218 P.2d 350, 351; Glines v. Maine Cent. R.R., 94 N.H. 299, 52 A.2d 298, 300, 301; Mann v. Des Moines Ry. Co., 232 Iowa 1049, 7 N.W.2d 45, 53; 65 C.J.S., Negligence, § 62, p. 554; Sher v. State, 194 Misc. 172, 86 N.Y.S.2d 266, 268, 269; Lucas v. Kelley, 102 Vt. 173, 147 A. 281, 283; See also, Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182, 184. In Hughes v. Shanafelt, supra, the court said [ 203 Okla. 80, 218 P.2d 351]:
“While the stability of the law does not require the continuance of recognized error, it does call for settlement of principle and consistency of ruling when due consideration has been given and error is not clearly apparent.” Glines v. Railroad, 94 N.H. 299, 303, 52 A.2d 298 (1947) (quotation omitted). Several factors inform our judgment, including: (1) whether the rule has proven to be intolerable simply in defying practical workability; (2) whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling; (3) whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; and (4) whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification. Jacobs, 149 N.H. at 504; see Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854-55, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992).
Annos. 64 A.L.R. 515; 42 A.L.R. (2d) 494. The case of Glines v. Railroad, 94 N.H. 299, is not authority to the contrary. There the plaintiff, a volunteer, was injured in trying to rescue the property of a third person.
Gordon v. Railroad, 58 N.H. 396, 398; Bowdler v. Company, 90 N.H. 68, 72. There is nothing in Boston Ice Co. v. Railroad, supra, or in the statute which compels the conclusion that the latter was intended to eliminate a railroad's liability for damages by fire caused by its negligence to persons or property not intended to be benefited by the statute. Lowney v. Railway Co., 78 Me. 479; Dyer v. Railroad, 99 Me. 195; see Clark v. Railroad, 78 N.H. 428; Glines v. Railroad, 94 N.H. 299. To summarize, RSA ch. 380 makes a railroad absolutely liable for damages by fire caused by it to those persons and properties as to which its operation foreseeably constitutes an extra hazard of injury or destruction by fire.
The defendant dismisses this as a dictum which is no longer authority under present conditions. In doing so, it overlooks the fact that it was recognized as late as 1947 that sparks from a locomotive may start a fire even though standard precautions are taken. Glines v. Railroad, 94 N.H. 299, 301. It is true that there was evidence that overhauls, inspections and tests showed this locomotive's spark arrester and ash pan equipment to be in operating condition.
However, it was held in a situation similar to this one that the plaintiff's injuries may fairly be said to have resulted from a risk which he voluntarily encountered, and recovery was denied. Glines v. Marine Cent. R., 94 N.H. 299, 301 (1947). This rule was again recognized in Maxfield v. Maxfield, 102 N.H. 101, 104 (1959).
Although the cases defendants cite in their brief are not particularly persuasive, some decisions have not applied the doctrine to attempts to rescue another's property. See, e.g., Glines v. Me. Cent. R.R., 52 A.2d 298, 300-01 (N.H. 1947) (denying recovery where the plaintiff was a "mere volunteer" attending to property in which he had no "legal interest"); Johnson v. Terminal R.R. Ass'n. of St. Louis, 8 S.W.2d 891, 893 (Mo. 1928) ("doctrine only applies where it appears that the act was necessary to save life or limb" (citations omitted)). Defendants also argue that plaintiff relies on out-of-state cases in which the attempted rescue was of property with significant value or, like Estate of Newton, the circumstances posed a threat greater than mere injury to the property itself.