Carter v. Pennsylvania R. Co.
| Decision Date | 08 January 1903 |
| Docket Number | 45. |
| Citation | 120 F. 663 |
| Parties | CARTER V. PENNSYLVANIA R. CO. |
| Court | U.S. Court of Appeals — Second Circuit |
A Delos Kneeland, for plaintiff in error.
Henry Galbraith Ward, for defendant in error.
Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.
This is an action to recover damages for the loss of fourteen mules and one horse, worth $2,315, which were destroyed by fire while in the lawful possession and control of the defendant at or near Mantua station on the defendant's railroad in the city of Philadelphia. The defendant is a common carrier of freight and passengers. The live stock in question was loaded on one of the defendant's open rack stock cars at Marlboro, Md., to be transported to Oldtown, Me. The car with several others containing plaintiff's property, reached Philadelphia about 7 o'clock in the morning of May 24, 1899, and remained at the lower freight yard for about an hour and a half, when it was removed to the upper freight yard at Mantua. It remained there for over four hours, was shifted from place to place and, much of the time, was in close proximity to the main tracks of the defendant where locomotives were constantly passing. The fire occurred about 1 o'clock in the afternoon. At that time the car was between two others, also containing the plaintiff's property, and was 'about five tracks' distant from the main tracks. The live stock was in charge of three of plaintiff's servants whose duty it was to feed and care for the animals. The fire originated in the straw bedding and hay on the bottom of the car. It was first discovered near the center and spread rapidly towards the ends of the car. It was proven that trains were continually passing on the main line and cars were being shunted about by shifting engines in the yard. These engines, presumably the engines of the defendant, were throwing out smoke and sparks. Several trains passed on the main line within three quarters of an hour prior to the fire. One of these threw out 'great volumes of smoke and sparks' in the direction of the burned car. One of the plaintiff's men who, earlier in the day, was sitting on a car near the one that was destroyed, had his clothing burned from the cinders thrown out by a passing locomotive. The band was burned off his hat and holes were burned in his trousers. These sparks were bright and would carry a distance of 150 feet. They could be plainly seen while moving that distance and were bright all the time. There was also evidence tending to show that the fire could not have been started by the carelessness of the plaintiff's employes or by any other person. At the time of the fire the plaintiff's men were about three car lengths away, they had not been smoking pipes or cigars and saw no one else doing so.
The trial judge was of the opinion that the evidence failed to establish the relation of shipper and common carrier between the parties. In this view we concur. There was some testimony tending to show a written agreement, but the contract was not in evidence and the court was not at liberty to speculate as to its terms. Upon the other branch of the case the court though not entirely clear as to the correctness of the ruling, was inclined to the opinion that negligence was not sufficiently established and that in order to find negligence on the part of the defendant the jury would have to indulge in conjecture and guesswork. Accordingly a verdict was directed for the defendant and the plaintiff excepted. We think the...
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