Excelsior Products Manufacturing Company v. Kansas City Southern Railway Company

• Decision Date: 31 December 1914
• Citation: 172 S.W. 359,263 Mo. 142
• Parties: EXCELSIOR PRODUCTS MANUFACTURING COMPANY v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

172 S.W. 359

263 Mo. 142

EXCELSIOR PRODUCTS MANUFACTURING COMPANY v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

December 31, 1914

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed.

Cyrus Crane and George J. Mersereau for appellant.

(1) On the whole case plaintiff was not entitled to recover. (a) Defendant is not liable for fire set out by its employees in furtherance of their own personal business. 26 Cyc. 1536 1539-D; 20 Am. & Eng. Ency. Law, p. 526; Morrier v Railroad, 31 Minn. 351, 47 Am. Rep. 793; Railroad v Fuel Co., 152 F. 920; Railroad v. Shields, 47 Ohio 387; Slater v. Thrasher Co., 97 Minn. 305; Railroad v. Harvey, 144 F. 806; Garretson v. Duenckel, 50 Mo. 104; Snider v. Railroad, 60 Mo. 419; Walker v. Railroad, 121 Mo. 584; Farber v. Railroad, 32 Mo.App. 378; Cousins v. Railroad, 66 Mo. 577; Hartman v. Muehlebach, 64 Mo.App. 574; Milton v. Railroad, 193 Mo. 56; Stringer v. Railroad, 96 Mo. 299; Sherman v. Railroad, 72 Mo. 62; Farber v. Railroad, 116 Mo. 81. (b) Defendant was not guilty of negligence after the fire was started on the right of way in failing to extinguish it. Kenney v. Railroad, 70 Mo. 252. (c) The charges of negligence contained in the petition considered in detail, under none of them is defendant liable. (2) (a) The court erroneously submitted this case to the jury on an instruction as to the measure of damages only. (b) The court erred in refusing defendant's instructions withdrawing from the jury's consideration each separate charge of negligence. (c) The court erred in refusing defendant's instruction 8-D. The evidence was not sufficient to make out a statutory fire case much less one at common law. Manning v. Railroad, 137 Mo.App. 631; Gibbs v. Railroad, 104 Mo.App. 276; Markt v. Railroad, 139 Mo.App. 456; Foster v. Railroad, 143 Mo.App. 547.

Joseph P. Fontron and Fyke & Snyder for respondent.

(1) The placing and maintaining, without necessity, in an open and sparsely settled country territory, of the string of bunk or living cars in immediate and close proximity to plaintiff's property, inflammable and combustible, at a point where rubbish, trash, loose bark, sticks and scraps of wood were collected or were likely to accumulate, in which bunk cars these irresponsible employees were kept and maintained, as a part of the consideration of their employment, as is disclosed in evidence, where they carried on the ordinary, customary and usual activities and work connected with daily living, such as cooking, washing, with the necessary and constant building of fires therefor, whether in, around or about said cars, with the continuing menace of the danger of escaping and flying sparks in the face of customary and usual south winds which generally prevail during the month of April in each year in this climate, whether said sparks be blown from smokestack or from fires built on the adjacent right of way, constitutes a nuisance, for the maintenance of which defendant was negligent, and for resulting damages occurring by reason of its existence, the defendant is justly liable. Scalpino v. Smith, 154 Mo.App. 534; Berger v. Gas Light Co., 60 Minn. 296. While no such case exactly like this one has been pleaded or proved that we know of, yet on principle other cases sustain us in the above contention. Vaughan v. Menlove, 3 Bing. N. Cas. 468, 32 E. C. L. 208; Railroad v. McGrath, 160 S.W. 444; Rolfe v. Railroad, 69 N.H. 476; Harrington v. Railroad, 143 Mo.App. 418; Marine Ins. Co. v. Railroad, 41 F. 643; Pratt v. Railroad, 139 Mo.App. 502. The fact is, the proximate cause of the setting out of the fire was the placing of the dangerous agent in close proximity to plaintiff's property in the first place. If the cars and those in them had not been thus constituted a nuisance to plaintiff's property, manifestly the little camp fire never would have been set out at that place. Ross v. Traction Co., 224 Pa. 86; Pratt v. Railroad, 139 Mo.App. 502. Counsel for appellant asserts that defendant is not liable for fire set out by its employees in furtherance of their own personal business, and we take no exceptions to what they have to say with regard to the general law upon that proposition, but say that the cases cited by them under that head are not in point or decisive of this case in the light of the evidence. (2) After these negro laborers had started the fire and the danger from said fire was apparent, and after defendant's conductor Courtway had seen the fire, and while Stiles was there at the line of bunk cars, no one representing the Railroad Company attempted to put the fire out. Elliott on Railroads, sec. 1229. It has been held, however, that though the servants and agents of a railroad company may have been acting without the scope of their employment in kindling the fire, the company may yet be liable, if under the circumstances negligence in failing to prevent the spread of a fire can be imputed to it. Railroad v. Ford, 65 Ark. 96; Morier v. Railroad, 31 Minn. 351; 13 Am. & Eng. Ency. Law, p. 440. (3) We think that under the evidence in this case it was proper to submit to the jury the question as to whether or not the fire was set out by the men under the permission, sanction or understanding or general custom of the defendant. Railroad v. Nitsche, 126 Ind. 229; Grant v. Railroad, 94 Mo.App. 312; Lewis v. Schultz, 98 La. 341.

BLAIR, C. Brown, C., concurs.

OPINION

BLAIR, C. --

This appeal is from a judgment for $ 35,000 for damages by fire to plaintiff's factory and raw material.

Plaintiff manufactured excelsior, and on its lot adjoining defendant's right of way had its factory and had collected a large quantity of cottonwood which was stacked north of and near plaintiff's private switch track which was on the south part of its lot. South of this was the north line of defendant's right of way and near that line defendant had a switch track on which it had placed some "bunk" cars in which were housed some laborers who were engaged in constructing for defendant a concrete subway some hundreds of yards west of these cars. One Sunday morning, in April, one of these laborers built a fire on the right of way south of the "bunk" cars for the purpose of heating water to wash clothing. A south wind was blowing and soon plaintiff's wood was discovered to be on fire and in a short time the wood and factory were in flames.

The specific allegations of negligence are as follows:

"Plaintiff further states that at said time one of two alternatives was true, and plaintiff is ignorant of which alternative was true, viz: that either said employees or concrete men were under the direct charge, care, protection and direction of a foreman, Oscar Carrington, and a subforeman or straw boss whose name was Frank Stiles, whose general duties were to care for, oversee and watch over said cars and said employees, and to see that nothing was done by said employees in the ordinary acts of living in or about said cars that would endanger the property of this plaintiff and others having property along the right of way of defendant; or said employees were carelessly and negligently permitted by defendant to be and remain and live in and about said cars without being placed in charge of any foreman, overseer or guard; that on said 11th day of April, 1909, said string of cars was yet standing in said place on said side track south of the cord-wood piled along on plaintiff's ground some thirty feet west of the factory of the plaintiff; that said day was Sunday, and the wind at said time was blowing at a high velocity from the south -- from the direction in which said cars stood, toward the property and cordwood of this plaintiff; that at said time the said cars were occupied and used by the said employees of the defendant aforesaid, and said cars and employees were then and there in the charge and care of the defendant's said foreman, or straw boss, Frank Stiles, as aforesaid, or were carelessly and negligently permitted by defendant to be and remain in and about said cars without being placed in charge of a foreman, overseer or guard.

"Plaintiff further states that on said day and at about 10 o'clock a. m. of said day, one or more of the said employees or concrete men, the agents and servants of the defendant, whose names are now unknown to plaintiff, while in the employ of defendant and while in the pursuit of the ordinary duties of living in and about the said bunk cars, as provided for by defendant, carelessly and negligently built and caused to be built a fire upon the ground along the side of the east car of said string of cars belonging to defendant, for the purpose of heating some water over said fire, and built said fire within a small circle of a single tier of bricks, making said fire of wood; that said place was a dangerous place in which to build a fire as said Frank Stiles and said employees knew or in the exercise of care and caution should have known; that the water was heated by placing a bucket of water and resting same upon said bricks and the blaze of said fire arose at said time high about said bucket; that the defendant had carelessly and negligently permitted an accumulation of straw and debris on said right of way under said car and over to the property of the plaintiff; that at said time said fire blazed up fiercely and the said high wind catching said flame and sparks, caused said sparks to be passed and carried and communicated across and to the said trash and debris and through the air across the intervening distance between said car to plaintiff's property, causing plaintiff's property to become ignited and burned; that the said employees of the defendant at no time after building said fire and when they saw said fire threatening...