Between them, it was just that the corporation employing a dangerous agency should make compensation for all losses it occasioned, whether due to negligence or not. It was but a reestablishment of the beneficent common-law doctrine requiring the user of an extra-hazardous agency to keep it on his premises at his peril. Rowell v. Railroad, 57 N.H. 132, 136. But in the effort to do justice to the landowner, the legislature failed to consider the practical operation of the statute where the landowner carried insurance upon his property.

Is it a fair interpretation of this statute to hold that it expresses a legislative intent to compel railroads to pay for damage which they do not cause? There is a clear distinction between this case and Rowell v. Railroad, 57 N.H. 132, which is, that the New Hampshire statute does not make the liability in such cases to depend at all upon the question of care or negligence on the part of the railroad. No matter how free from fault, if their fire caused the mischief, they must pay; and no matter how careless, still all that can be required of them is to pay.

In Maine and in New Hampshire, statutes substantially like the statute of Massachusetts of 1840, making railroad corporations absolutely liable, without regard to negligence, for injuries to property by fire communicated from their locomotive engines, were enacted in 1842, and have been since continued in force, and their validity upheld by the highest courts of those States, as applied to corporations created either before or after their passage. Maine Stat. 1842, c. 9, § 5; Rev. Stat. of 1883, c. 51, § 64; Chapman v. Atlantic St. Lawrence Railroad, 37 Me. 92; Pratt v. Same, 42 Me. 579; Stevens v. Same, 46 Me. 95; Sherman v. Maine Central Railroad, 86 Me. 422; N.H. Rev. Stat. of 1842, c. 142, §§ 8, 9; Gen. Stat. of 1867, c. 148, §§ 8, 9; Gen. Laws of 1878, c. 162, §§ 8, 9; Hookset v. Concord Railroad, 38 N.H. 242; Rowell v. Railroad, 57 N.H. 132; Smith v. Boston Maine Railroad, 63 N.H. 25. In Connecticut, before any legislation towards holding railroad corporations liable for property burned by sparks from their locomotive engines, they were held not to be so liable, if their use of such engines was with due care and skill, and in conformity with their charters.

" By virtue of section 1 the defendant is liable as an insurer for such damages. Hooksett v. Concord Railroad, 38 N.H. 242, 245; Rowell v. Railroad, 57 N.H. 132; State v. Railroad, 99 N.H. 66, 72. "The extraordinary use of the element of fire, by which the property of individuals situated along the line of railroads becomes endangered beyond the usual and ordinary hazard to which it is exposed, no doubt caused the Legislature to interfere, and impose the liability which is fixed by the statute." Hooksett v. Concord Railroad, supra, 244.

The same considerations apply to the requested instruction that the contributory negligence of the town of Farmington in fighting the fire was an intervening cause of the fire extending into Rochester. Contributory negligence does not apply to this case. Rowell v. Railroad, 57 N.H. 132; 1 Shearman Redfield, Negligence (Rev. ed.) 209 note.

3. The defendant in substance asked the judge to rule that the burden was on the plaintiffs to show that they were in the exercise of due care, and that if they were guilty of contributory negligence they could not recover. The judge refused to rule as thus requested, and instructed the jury that the question of due care on the part of the plaintiffs, meaning manifestly ordinary care, did not enter into the case, but that negligence on their part in order to prevent a recovery must be gross, or such as to amount to fraud. We think that the ruling of the court was right. Wild v. Boston Maine Railroad, 171 Mass. 245. Wall v. Platt, 169 Mass. 398. Boston Excelsior Co. v. Bangor Aroostook Railroad, 98 Maine, 52. Rowell v. Railroad, 57 N.H. 132. Mathews v. St. Louis San Francisco Railway, 121 Mo. 298. West v. Chicago Northwestern Railroad, 77 Iowa, 654. In view of the danger of fire from locomotives, the Legislature, it seems to us, has imposed upon railroad corporations a liability which is almost that of insurers, — the idea being, we think, that the parties who are authorized to use so dangerous an agency, and who have the control of it and the power to adopt safeguards in regard to its use, should bear the loss that may ensue from fires that are caused by locomotives, rather than those who have nothing to do with the management and control of them, and who are in the lawful enjoyment and occupation of their property.

In such cases the liability of the proprietors of the road is made absolute. No question of care or negligence on their part is left open. Rowell v. Railroad, 57 N.H. 132. The statute has been understood to be limited to property, real and personal, along the line of a railroad and in the possession and control of the owner, and to have no application to property in the cars and storehouses of the corporation, and in the possession and control of the railroad proprietors as common carriers. Hence the provision in regard to insurance, which would be unnecessary if the statute was intended to apply to property in the possession of the railroad proprietors.

In the case of the somewhat similar statute, which imposes upon railroad companies absolute liability for injuries caused by fire from their locomotives, this court hold that the doctrine of contributory negligence does not apply. Rowell v. Railroad, 57 N.H. 132. Chase Streeter, for the defendant.

The law imposed no duty upon the defendants of warning the traveller of the existence of an object which, though managed with proper care, might frighten her horse. Norton v. E. Railroad Co., 113 Mass. 367; Favor v. B. L. Railroad, 114 Mass. 350. Negligence is a breach of duty which the law imposes, and no care was required by the defendants beyond that which the instruction admits they used. Rowell v. Railroad, 57 N.H. 132; Hall v. Brown, 54 N.H. 495; Coy v. Utica Railroad, 23 Barb. 643 Phila. Balt. Railroad v. Stinger, 78 Penn. St. 219; Sh. . R. Neg. 5, s. 4. The action is for negligence in the management of a locomotive steam engine, and in permitting it to blow off steam near the crossing; and the defendants were not bound to meet the charge of not warning the plaintiff that the locomotive was there.

If in the trial of a cause incompetent evidence is received upon a point that is subsequently admitted, or proved by the opposite party, it furnishes no ground for a new trial. CASE. The action is reported in 57 N.H. 132. Facts appear in the opinion. Verdict for the plaintiff.