Alabama & V. Ry. Co. v. Aetna Ins. Co.

Decision Date23 November 1903
Citation82 Miss. 770,35 So. 304
PartiesALABAMA & VICKSBURG RAILWAY COMPANY v. AETNA INSURANCE COMPANY, AND ALABAMA & VICKSBURG RAILWAY COMPANY v. DAVID J. SCHLENKER. TWO CASES
CourtMississippi Supreme Court

FROM the circuit court of Warren county. HON. GEORGE ANDERSON Judge.

The Aetna Insurance Company, appellee, in one of the cases, was plaintiff therein in the court below; Schlenker, appellee in the other case, was the plaintiff therein in said court. The railway company, appellant in both cases, was defendant in them both in that court. From a judgment in each case in favor of the plaintiff therein, the defendant appealed to the supreme court.

In January, 1903, some cotton belonging to the Mayer Cotton Company and also some belonging to appellee Schlenker, was destroyed by fire. The cotton which belonged to the Mayer Cotton Company was insured by the Aetna Insurance Company and it paid the loss, and took an assignment of the owner's rights on account of the loss. The suits were brought by the respective plaintiffs to recover the value of the respective lots of cotton, each plaintiff alleging that the fire was caused by the negligent emission of sparks from defendant's locomotives. It was shown in evidence that the cotton was in the hands of a compress company, and was stored by it in a vacant lot on the east side of defendant's railroad tracks in Vicksburg, known as the "Hospital Lot," about 90 feet from the track; that the cotton was in rows, tier above tier, with a passage between the rows; that tarpaulins were spread over the cotton, which reached down nearly to the ground, but left part of the cotton near the ground unprotected by them; that the grade in the railroad track along by the lot is considerable; that just before the fire which destroyed the cotton, three of defendant's locomotives passed, going twelve or fifteen miles per hour; that there was a high wind blowing from west to east--towards the hospital lot from the railroad track--and it was very dry. There was some evidence introduced by plaintiff over objection of defendant, showing the emission of sparks just before and just after the fire by engines other than the ones claimed to have set out the fire. The court refused the following instructions asked for by defendant:

"Fourth The court instructs the jury for defendant that, as the compress company placed this cotton in an open lot in close proximity to the railroad track, extra care of said cotton was demanded, and it devolved upon the compress company to show increased vigilance, and, if the said compress company failed to exercise said extra care or show said increased vigilance, and if the engines of defendant were properly equipped and managed, then the loss, if any, must fall upon the plaintiff, and the jury must find for the defendant."

"Sixth The court instructs the jury for defendant, if the owner of property adjacent to a railroad has been careless or imprudent in the management of his property with reference to a possibility of a fire, the railroad company is not liable."

Affirmed.

McWillie & Thompson, for appellant in both cases.

The court below recognized the well-settled rule that those who place inflammable material so close to a railroad track as to be in danger of emission of sparks assume the risk of loss by fire, but refused to give any instruction as to the duty of the party assuming such risks which did not include the idea of complete freedom of negligence on the part of the railway company, and refused to give defendant's third instruction which did include that idea. This was a queer view to take of the doctrine of contributory negligence which has no operation disconnected with negligence on the part of the defendant. The very idea of contributory negligence of the owner assumes some negligence on the part of the railroad company. Collins v. Railroad Company, 5 Hun., 499; s. c., 71 N.Y. 609; Ross v. Railroad Company, 6 Allen (Mass.), 92; Smith v. Railroad Company, 37 Mo. 287; Railroad Co. v. Bartlett, 6 S.W. Rep., 549; Allibone v. Railroad Co., 2 Tex.App. (67 Cas.), 52; Railroad Co. v. Levi, 59 Tex. App., 674; s. c., 13 Am. & Eng. Railroad Cases, 464; Post v. Railroad Co., 108 Pa. St., 585; Railroad Co. v. Shamfelt, 47 Ill. 497; Coates v. Railroad Co., 61 Mo. 35; Ruse v. Railroad Co., 85 Ala. 497.

The court below also carried its erroneous idea of the law into the instructions for the plaintiff. While it is not negligence per se for one to store his baled cotton in a yard in close proximity to a railroad track, the question of whether or not the act in so doing is negligence is one for the jury under all the circumstances of the case. In a well considered case before us, the plaintiff asked and obtained the following instruction:

"You are instructed that the plaintiffs had a right to place their cotton upon their cotton yard, and in so doing they would not on this account alone be guilty of negligence, although said cotton yard was in close proximity to defendant's roadbed."

The judgment for plaintiff was reversed, the court after distinguishing the use of such a place for materials not inflammable as brick, etc., saying: "So in the use of a yard contiguous to a railway track for the purpose of storing baled cotton, which as a matter of common knowledge is inflammable and easily ignited, it necessarily results that the cotton will be subjected to some danger from fire, it might be doubtful if the storing of baled cotton in such a place was a prudent act and the question should be submitted to the jury." The court further mentions the "necessity of leaving the entire question of negligence to the jury, under all the evidence." Texas, etc., R. Co. v. Levi, 13 Am. & Eng. R. R. L. Cas., 464.

In the Fried Case, 81 Miss. 314, it was expressly decided by this court that while the placing of the cotton on the Hospital Lot was not negligence per se, the question of contributory negligence in placing it there was one to be submitted to the jury.

Little can be said of the prudence of any one who would put cotton on the lot in question if one-tenth of what plaintiff's witnesses say be true as to the exposure to sparks and frequency of fires. The instructions granted the plaintiff assume that there was an entire absence of negligence in the placing of the cotton on the lot in question by confining the consideration of the jury to the alleged negligence of the defendant.

The engines in the cases now before us are dearly identified as switch engine No. 419, which carried up the circus cars and the passenger engine operated by Lewis, engineer, the number of which could have readily been obtained if it was necessary to prove the identity of the same by number.

Witnesses for the plaintiff were allowed to testify over defendant's objection as to the emission of sparks and fires at other times and places without identifying the particular engine, and also to testify as to the emission of sparks by engines pulling up the steep incline leading down to the river, where the conditions were entirely dissimilar from those along Pearl street at the location of the hospital lot.

As the court will see the error of the court below was carried into the instructions given in favor of the plaintiff, the jury being allowed by plaintiff's fifth instruction to take into consideration the fact of the emission of sparks from any engine of the defendant at the date of the fire. On this subject we refer the court to the authorities cited in our brief in the Fried Case, as reported, 81 Miss., pp. 315-320.

McLaurin, Armistead & Brien and Catchings & Catchings, for appellee in both cases.

It will be observed that while the witnesses for appellee proved that three locomotives had passed the hospital lot shortly before the fire, they were not only unable to show which of the three locomotives set out the fire, but could not specifically identify the three locomotives themselves. They testified that one of them was a passenger and the other two switch engines, but they could not distinguish them from the other passenger and other switch engines in use by appellant. Under these circumstances, the courts are practically unanimous in holding that testimony as to the emission of sparks of undue size, or in excessive quantity, by locomotives generally, at or about the time of the fire, is competent as showing the habitual use by the defendant railroad of improper spark arresters.

In the case of Richardson v. Grand Trunk Ry. Co., 91 U.S. 454, the evidence of plaintiff "tended to show that the fire was communicated from one of the locomotive engines belonging to plaintiff in error," which passed shortly before the fire, but the court nevertheless held that "the particular engines not being identified," evidence of the throwing of sparks by the locomotives of defendant generally was competent.

From the very nature of the case, it is rarely possible to find persons who actually saw a locomotive or locomotives which passed the property destroyed emitting sparks of extra size, or in undue and unnecessary quantity.

"When a fire is started by a locomotive which cannot be identified, the plaintiff may introduce evidence showing the habitual use by the company of improper spark arresters. Gowan v. Glaser, 10 A. 417.

"But the evidence is properly confined to such as tends to show the prevalence of the habit at or about the time of the fire complained of." Davidson v. St. Paul R. R. Co., 34 Minn. 51.

"Evidence that at other times sparks from fire had been thrown from locomotives to a greater distance from the track than the buildings destroyed, such as were liable to set fire to objects, is admissible." Sheldon v. Hudson R. Co., 14 N.Y. 218, and cases.

"Evidence of the emission of sparks by the...

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