Alabama & Vicksburg Railway Company v. Rooks

• Decision Date: 29 October 1900
• Citation: 78 Miss. 91,28 So. 821
• Parties: ALABAMA & VICKSBURG RAILWAY COMPANY v. HEZEKIAH ROOKS
• Court: Mississippi Supreme Court

28 So. 821

78 Miss. 91

ALABAMA & VICKSBURG RAILWAY COMPANY v. HEZEKIAH ROOKS

Supreme Court of Mississippi

October 29, 1900

October 1900

FROM the circuit court of Warren county HON. WILLIAM K. MCLAURIN Judge.

Rooks the appellee, was the plaintiff and the railway company appellant, was the defendant in the court below. The plaintiff obtained judgment there, and the railway company appealed to the supreme court.

The suit was an action to recover the value of two cows killed by drinking cotton seed oil, which had escaped from the company's cars. The case was tried upon an agreed statement of facts, from which it appeared: (1) That one of the defendant's switch tracks extended several hundred yards through an open field, or pasture, near the city of Vicksburg, in which cattle were accustomed to range, and where plaintiff's cattle, to defendant's knowledge were accustomed, and had the right, to be. (2) That, while a train of defendant's cars, at the end of which were several tank cars filled with cottonseed oil, was being moved over the switch track, several tank cars broke loose from the train and ran back along the switch to the end thereof, where they struck a bumper, the contact breaking two of the tank cars and allowing the oil (10, 000 gallons) to escape. The oil ran across defendant's land and upon the land of others, and filled up water holes and low places for several hundred yards in the direction of its flow. (3) The oil so remained in the water holes and low places for four days, defendant being without knowledge thereof, having taken no steps, after the escape of the oil, to ascertain what became of it, and made no effort to remove it. (4) The plaintiff, not knowing of the escape of the oil, did not restrain his cattle, and two of his cows, worth $ 80, drank oil and died.

Reversed.

McWillie & Thompson, for appellant.

It will be observed that the case is not within § 1808, code of 1892, and proof of injury does not make out a prima facie case. The injury complained of was not inflicted by the running of the locomotives or cars of the railway company.

There is no pretense that the defendant's track was improperly constructed, or that any of its machinery, appliances, couplers, etc., were defective, or that the train was being improperly or negligently operated. The only fact stated, pertinent to this view of the case, is the bald one that several cars broke loose from the train. The appellee's case not being aided by the statute above cited, we must assume that the cars broke loose by a pure accident, without defendant's fault.

Appellant is not liable to appellee, for two distinct reasons: First, the railway company is not shown to have been negligent in allowing the oil to escape; and, second, the injuries complained of are too remote to justify a recovery, even if the railway company be regarded as negligent.

Up to the breaking of the tank cars and the escape of the oil, surely the defendant had done or omitted nothing which made it liable. What was it under legal obligation to do thereafter? It is not shown that the defendant, or any of its employes, knew or ever heard that cows would drink oil or that it would kill them if they drank it. It is not shown that the defendant or any of its employes knew there were water holes and low places in the lands adjoining defendant's premises which would receive and retain the oil. Without evidence of such knowledge, or reason to apprehend danger to cattle, theappellant was not guilty of negligence in failing to follow the oil and remove it from the low places and water holes.

The drinking of the oil was the only proximate cause of the death of the cows. The accumulation of the oil in water holes and low places was itself a remote cause. The escape of the oil was one link further back in the chain of causation, the bursting of the tanks another link further back, and the breaking loose of the cars yet another link further away. Illinois, etc., R. R. v. Woolley, 77 Miss. 927. Where oil, after escaping from railroad cars, became ignited, and flowing down a stream, set fire to a building three or four hundred feet away, it was held that the owner of the building could not recover of the railroad company, because his damage was too remote. Hoag v. Lake Shore, etc., R. R. Co., 85 Pa. St., 293, s.c. 27 Am. Rep., 653. The court, in the case just cited, treated the negligence of the railroad company causing the wreck of its cars, from which the oil escaped, as being established, and said, "It would be unreasonable to hold that the engineer of the train could have anticipated the burning of the plaintiff's property as a consequence likely to flow from his negligence in not looking out and seeing the landslide, " the obstruction which derailed the cars. "The obstruction itself was unexpected. . . . The probable consequences of the collision, such as the engineer would have a right to expect, would be the throwing of the engine and a portion of the train off the track. Was he to anticipate the bursting of the oil tanks, the oil taking fire, the burning oil running into and being carried down the stream, and the sudden rising of the waters of the stream, by means of which, in part at least, the burning oil set fire to plaintiff's building?" So in the present case we say it would be unreasonable to hold that the employes in charge of appellant's train could have anticipated the death of appellee's cows as a consequence likely to flow from the breaking loose of the cars of oil. The breaking loose of the cars was unexpected, and, as we have stated, must be assumed to have been purely accidental. Were they to anticipate the bursting of the oil tanks, the running down of the oil, its accumulation in low places and water holes, the drinking of the oil by the cows, and their death in consequence?

If this were a suit by the owner of the land for damage done to the soil by the oil, the railway company would not be liable, because not negligent in and about the escape; such damage to the soil would be the result of accident.

The escape of water from reservoirs, causing damage, has frequently been considered...