A Burning Issue

A case in Cuba is a good example of this contest between tradition and industrialisation in this particular legal setting. Bear in mind that in 1881 Spain still controlled Cuba. The case involved a steam locomotive whose nickname was “the Burner” (“La Incendiaria”). The name makes it very clear that inhabitants of the area were well aware of its risks. When the spark risk of this locomotive came about, they could hardly be attributed to any other cause. Nevertheless, the trial court in La Havana and the Tribunal Supremo in Spain took the view that the negligent operation of the locomotive or its faulty maintenance could not be taken for granted and, accordingly, they had to be duly proved by the claimants. Thus the victims would have to prove that their crops were set on fire by that engine and not from any other cause. This would have been incredibly difficult to show.

This can be contrasted with the position in Prussia in 1838, then the leading state in what would become a unified Germany in 1871. Instead of Courts being left to use traditional principles to govern this new opportunity and risk, a specific piece of legislation was passed: the Prussian Railway Act. This Act came only three years after the first German railway line on German territory (Nürnbrg to Fürth), and four days after the first private railway line (Berlin to Potsdam). The Act took the position that to force those with land near railways to bear the costs of any escaping sparks would amount to taking the land away from them. Instead the state would decide the remedies. The Act required that even without an obvious act at fault, the railway company should bear the risk of damage to property, unless the victim had caused the event or it had been unavoidable.

Prussia was the first European state to have such a scheme: for instance, legislation to cover this problem in England did not happen until 1905. This legislative foresight was the brainchild of perhaps Germany’s leading lawyer of the time, and the man who was instrumental in the form of the German Civil Code of 1900, Friedrich Carl von Savigny. Even the mighty cared about the railroads and their sparks!

If you cant stand the heat, move your field to safe distance.