Bates Coal Mining & Mercantile Co. v. Missouri Pacific Railroad Co.

• Decision Date: 27 June 1927
• Citation: 296 S.W. 1049,222 Mo.App. 221
• Parties: BATES COAL MINING & MERCANTILE COMPANY, RESPONDENTS, v. MISSOURI PACIFIC RAILROAD COMPANY, APPELLANT. [*]
• Court: Kansas Court of Appeals

296 S.W. 1049

222 Mo.App. 221

BATES COAL MINING & MERCANTILE COMPANY, RESPONDENTS, v. MISSOURI PACIFIC RAILROAD COMPANY, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

June 27, 1927

Appeal from the Circuit Court of Bates County.--Hon. C. A. Calvird Judge.

Judgment reversed.

H. E Sheppard for respondent.

James F. Green, D. C. Chastain and W. M. Bowker for appellant.

WILLIAMS C. Frank, C., concurs. Bland and Arnold, JJ., concur. Trimble, P. J., absent.

OPINION

WILLIAMS, C.

This cause is appealed from the circuit court of Bates county, Missouri.

The cause of action stated is that the Missouri Pacific Railroad Company carelessly and negligently switched a large box car over the private switch of plaintiff, and carelessly and negligently ran said box car into the "tipple" and loading chute of the plaintiff.

The answer after denying generally, alleged that in 1913 a sidetrack was constructed at the request and for the benefit of the plaintiff; that a contract was entered into under the terms of which plaintiff should not locate at a distance nearer than six feet from the nearest rail track of the Railroad Company, any building, etc., except a platform for loading purposes which should not be less than four feet, six inches from the track; and that the plaintiff should not erect or permit any improvements or structure above said track at a height of less than twenty-two feet above the top of the rails of the track.

The answer then alleges a violation of the contract, in that plaintiff's structure was damaged by reason of being constructed at a less distance from the track than that provided in the contract.

Defendant further alleged that the contract provided that defendant should not be liable for any fire communicated to plaintiff's property, and further provided: "Said second party further agrees to release, and does hereby release the said railway company from any and all liability for damages for any injuries which may occur or be done to the property of said second party by the said railroad company while operating locomotives and cars upon said track."

The answer then pleads that if plaintiff's property was damaged, the defendant is released by the said contract by indemnity.

Reply in the form of a general denial was filed.

The case was tried before the court without the aid of a jury. The facts show that the defendant had erected for the convenience of plaintiff a spur track; that the contract mentioned in the pleadings was executed at the time this track was put in; that there had been some correspondence between plaintiff and defendant showing that both knew that the clearance of this "tipple" was not according to contract; that defendant in switching for its own convenience, switched a large furniture car on to the side track, the car striking the tipple and injuring it. No point is made as to the amount of damages.

No instructions were asked except the defendant at the close of the whole case requested the court to give a peremptory instruction. This the court declined to do and rendered judgment for the plaintiff in the sum of $ 500.

After an unsuccessful motion for a new trial defendant brings the case here on appeal.

In cases thus tried, the rule as said in Sutter v. Raeder, 149 Mo. 297, l. c. 307, should be applied. That rule is as follows: "This being an action at law and no instructions having been asked, refused or given, except the demurrer to the evidence, there is no question open here for review except errors apparent upon the face of the record proper, and the question whether under the issues the plaintiff made out a prima-facie case."

The appellant relies for reversal on the provisions of the contract.

A contract very similar to this was before the court in Wabash Railroad Co. v. Ordelheide, 172 Mo. 436, 72 S.W. 684. This case was certified to the court, in Banc, and it was there held that the contract was one of indemnity against loss arising from fire set out by the engines of defendant, and it was not against public policy to allow the railroad to make such a contract with plaintiff. A similar contract was sustained in Rutherford v. Railroad, 147 Mo. 441. Both of the above cases were cited with approval in Ordelheide v. Wabash Railroad Company, 175 Mo. 337, 75 S.W. 149. The respondent attempts to distinguish between the cases so cited and the case at bar by reason of the fact that in Ordelheide v. Wabash Railroad Co., the question arose as to the property destroyed by fire, and contends that by reason of the fact that fire cases do not stand on the same basis as other cases, the same rule does not apply.

The principle upon which the cases rest is expressed in Insurance Co. v. Railroad, 74 Mo.App. 89, and approved by the Supreme Court in Ordelheide v. Wabash Railroad Co., supra, l. c. 345, where the court says: "The elevator and warehouse and the property in it bore the same relation to the carrying business of the defendant that the store and contents of any merchant or commission man would bear to it. Neither the lease nor the relation of the property to the defendant arose out of the discharge of any duty imposed upon it by its position as a common carrier or by its character of a quasi-public corporation. The fact that defendant is a common carrier has no place in this case."

Applying this principle to the case at bar, we do not see any distinction between the principle in Ordelheide v. Wabash R. R. Co., supra, and the case at bar.

In the case of Ordelheide v. Wabash R. R. Co., supra, the ground upon which the injured property was placed, belonged to the Railway Company. In the case at bar the property destroyed was not upon the railway right of way. We have examined those cases where the railway built a switch to property off its right of way and find the law as follows: Supreme Court of Texas in the case of Missouri, Kansas & Texas Railway Co. of Texas v. Carter et al., 68 S.W. 159, l. c. 165, in discussing a contract whereby a sidetrack was built and maintained for the convenience of a saw mill owner, and in the contract the company was released from damages for the injuring or killing of any stock or cattle or injury or destruction of property by fire, the court said: "This contract does not provide that the appellees may carry on business upon the right of way, but has in view the establishment of a convenience by which the appellee would be enabled to use their adjacent property to advantage, and also to enable them to ship lumber manufactured at that point over the said railroad to other points in the State. We can see no reason why the contract in this case should be forbidden that does not apply with equal force to the cases cited."

The Supreme Court of the State of South Carolina in Mayfield v. Southern Ry. Co., Carolina Division, 67 S.E. 132, l. c. 133, in holding the provisions of a contract exempting a railroad company from liability for loss or damage by fire communicated by defendant's locomotives as valid. It appears in this case that the property served by the sidetrack was not on the railroad right of way. The court says: ". . . and therefore this contract must be held valid without respect to the location of the plant. The precise point was decided in accordance with this conclusion by the Supreme Court of Texas in M. K. & T. Ry. Co. v. Carter, 95 Tex. 461, 68 S.W. 159."

The Supreme Court of Appeals of West Virginia in West Virginia Pulp & Paper Co. v. Baltimore & Ohio R. Co., 84 S.E. 334, having before it a contract providing for the construction of a sidetrack, partly upon the right of way and partly upon the adjacent land, and exempting the railroad company from loss or damage by fire, hold that the release covers fire from engines on the main lines as well as on the sidetrack and as in line with the other cases cited.

To the same effect is Keystone Mfg. Co. v. Hines, 102 S.E. 106.

The Supreme Court of the State of Illinois in Bartee Tie Co v. Jackson, 117 N.E. 1007, l. c. 1009, upheld a contract releasing the railroad company for damages by fire "near, or by...