Alabama Great Southern R. Co. v. Planters' Warehouse & Commission Co.

• Decision Date: 15 July 1907
• Citation: 45 So. 82,153 Ala. 241
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. PLANTERS' WAREHOUSE & COMMISSION CO.
• Court: Alabama Supreme Court

45 So. 82

153 Ala. 241

ALABAMA GREAT SOUTHERN R. CO. v. PLANTERS' WAREHOUSE & COMMISSION CO.

Supreme Court of Alabama

July 15, 1907

Rehearing Denied Dec. 19, 1907.

Appeal from Circuit Court, Greene County; Samuel H. Sprott, Judge.

Action by the Planters' Warehouse & Commission Company against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Simpson J., dissenting.

Count 1. The plaintiff claims of the defendant the sum of $10,000 damages, for that, heretofore, to wit, the 14th day of March 1901, the defendant, its agents, servants, or employés negligently set fire to and destroyed, to wit, a one story frame metal clad building, used as a warehouse, 187 sacks of cotton seed meal, 247 sacks of cotton seed meal, 52 sacks Mobile Standard guano, 53 sacks Armour Helmet Brand guano 120 sacks acid phosphate, 400 sacks corn meal, 2 cases Armour hams, 2 cases California ham, 13 50-pound cases shield lard 5 60-pound cases shield lard, 1,956 pounds bacon rib, 181 pounds dry salt ribs, 1 pair Robedeaux cotton scales, 4 pair cotton trucks, 2 bridging telephone, 2 bales of cotton, 3 bundles telephone wire, 96 barrels of flour, 1 1/2 barrels rubber roof paint, 1 pair Fairbanks' platform scales, 1 bank automatic check punch, 2 desks, 1 derrick for hoisting cotton, 150 feet platform--the property of plaintiff, located on the premises of the plaintiff, in the town of Eutaw, in Greene county. Count 2. The plaintiff claims of the defendant the further sum of $10,000 damages for that, heretofore, on, to wit, March 14, 1901, the defendant was engaged in running or operating a steam engine or locomotive on defendant's track in Greene county, Ala., and plaintiff owned to wit (here follows description of property set out in count 1), which said building and platform was situated on premises of plaintiff in the town of Eutaw, Greene county, Ala., and the other above-described personal property was situated or stored in the said warehouse building of the plaintiff, and which said building and platform and other personal property was damaged or destroyed by fire, which fire was communicated to certain bales of cotton which were on the platform adjoining the warehouse, and which platform was in possession of and used by the plaintiff, by sparks emitted from the engine or locomotive operated by the defendant; and plaintiff further alleges that said fire was communicated from said engine or locomotive to the cotton on said platform through the negligence of the defendant, its servants or agents, and that said fire spread to and destroyed or damaged the above-described property, to the great damage of the plaintiff, as aforesaid. The following demurrers were interposed to the first count: (1) Said count is indefinite and uncertain, in that it does not aver or show in what manner the defendant is alleged to have set fire to and destroyed the property of the plaintiff. (2) Said count does not sufficiently inform the defendant in what manner it is alleged that defendant set fire and destroyed the property of the plaintiff. (3) It is not averred or shown that defendant negligently operated its engine, and thereby proximately caused the fire and the destruction of the plaintiff's property. (4) It is not averred or shown that the engine of the defendant being operated was in a defective condition, and thus proximately caused the fire and the destruction of the plaintiff's property. (5) The negligence alleged is stated merely as a conclusion of the pleader. (6) It is not averred or shown that the engine of defendant was in a defective condition, or that it was negligently operated. It is averred in said count that the defendant was guilty of negligence, whereas the facts show that the defendant was not guilty of negligence. To the second count defendant assigns as grounds of demurrer to the second count of the complaint, separately and severally, each and every ground of demurrer hereinabove assigned to the first count of the complaint.

The defendant filed the following pleas: (1) The general issue. (2) That the burning and destruction of the property would not have occurred but for the negligence of plaintiff itself which proximately caused or contributed thereto, which said proximate contributory negligence consisted in this: That the plaintiff did stand or place cotton in bales on his platform near to and in dangerous proximity to the track of the defendant, where same was liable to be set afire by sparks from defendant's engine, when plaintiff knew, or by the exercise of reasonable diligence could have known, that it was dangerous to so store cotton on said platform which was uncovered. (3) Same as (2) down to the words "in this": That plaintiff did negligently stand or place cotton in bales on a platform near to and in dangerous proximity to the tracks of defendant, where the same was liable to be set on fire by sparks from defendant's engines passing backward and forward on said track. (4) Contains all of (2), with this additional averment: And that the said cotton was liable to be set fire to, as alleged, by an engine of the defendant passing on the tracks of the defendant, and that plaintiff, after the said cotton on said uncovered platform was burning, negligently failed to exercise reasonable diligence or to take reasonable precautions to prevent the said fire from spreading into said warehouse, thereby proximately contributing to the said burning and destruction, as averred. (5) Same as (4). The following demurrers were interposed to the defendant's pleas. To the second plea: (1) Because the same shows that the cotton was stored on the premises of the plaintiff at the time of its ignition, and that the storing or placing of said cotton, as averred in said plea, was not the proximate cause of its destruction, but a mere condition. (2) Because it is shown by said plea that the said cotton at the time of its ignition was on the premises of the plaintiff, and was destroyed by the negligence of the defendant, and that such negligence of the defendant was the direct and proximate cause of its destruction. (3) Because said plea shows that the negligence of the defendant, and not the placing of said cotton on said platform by the plaintiff, was the proximate cause of the loss and damage. (4) Because said plea shows that the placing of said cotton on the platform of plaintiff was not negligence, and did not proximately contribute to the loss or damage. (5) Because the plaintiff is not shown by said plea to have made any unlawful or negligent use of its property. (6) That the placing of the cotton on said platform was not the proximate cause of its being set on fire, but a mere condition. (7) Because the said plea shows that the cotton at the time of its destruction was situate on the premises of the plaintiff. (8) Because the said plea fails to aver or show that the cotton at the time of its destruction was situate on the premises or right of way of the defendant. (9) Because the plaintiff was not bound to anticipate the negligence of the defendant. (10) Because the plaintiff had a right to act on the presumption that the defendant would not be guilty of any negligence which would damage or destroy plaintiff's property when stored or placed on its (plaintiff's) premises. (11) Because said plea wholly fails to aver how or in what manner the placing of said cotton on the platform proximately contributed to the injury complained of in the complaint. (12) Because said plea avers facts that charge the defendant with knowledge of the presence of said cotton on said platform; which knowledge on the part of the defendant required it to exercise even greater care in order that no damage should be done to such cotton by the defendant, and totally fails to aver that defendant exercised such additional care or caution. (13) Because said plea fails to aver that said cotton was placed by the plaintiff in such close proximity to defendant's track as to incur the danger of being burned or fired by passing engines or locomotives equipped with appliances that are most in use and best approved, or that are in use on well-regulated railroads. (14) Because said plea fails to aver the said cotton was placed by plaintiff in such close proximity to defendant's railroad track as to be in danger of being ignited by sparks from an engine or engines of defendant, which were properly equipped with sparkarresting devices and properly handled. (15) Because the said plea in general terms charges the plaintiff with contributory negligence, yet the facts alleged in said plea show that the plaintiff was not guilty of negligence, and did only what it had a legal right to do. (16) Because the plea of contributory negligence is no answer to the complaint in this cause. (17) Because said plea fails to aver that said cotton was placed by the plaintiff in such close proximity to defendant's railroad track as to be in danger of being ignited by sparks from an engine or engines of the defendant, without the negligence of the defendant in equipping or handling such engine or engines. (18) Because said plea shows that the cotton so placed by the plaintiff would not have been ignited by sparks from an engine or engines of defendant which were properly equipped with spark-arresting devices, such as are used on well-regulated railroads. (19) Because said plea shows that the cotton so placed by the plaintiff would not have been ignited by sparks from an engine or engines of defendant properly and skillfully handled. (20) Because said plea shows that in placing cotton on the said platform, as averred in said plea, the plaintiff assumed the risk of accidental fires, but did not assume the risk of fire caused by the defendant's negligence. And the plaintiff...