Central Vermont R. Co. v. Soper, 75.

• Decision Date: 12 January 1894
• Docket Number: 75.
• Citation: 59 F. 879
• Parties: CENTRAL VERMONT R. CO. v. SOPER et al.
• Court: U.S. Court of Appeals — First Circuit

59 F. 879

CENTRAL VERMONT R. CO. v. SOPER et al.

No. 75.

United States Court of Appeals, First Circuit.

January 12, 1894

The bill of exceptions was as follows:

This was an action for the loss of certain grain. The plaintiffs' declaration was in six counts. The defendant by its answer, denied generally the allegations of the plaintiffs, and also claimed that the grain was being transported under certain bills of lading and that, by the terms of said bills of lading, which were binding upon the plaintiffs, the defendant was not liable.

In the opening of their case, the plaintiffs introduced six bills of lading. The bills of lading were all dated August 11, 1890 except one, which was dated August 18, 1890. In all other respects, they were alike. A copy of one of them is attached to, and made a part of, this bill of exceptions.

It appeared that the grain in question was being transported from Chicago, in the state of Illinois, under these bills of lading, to Boston, in the state of Massachusetts. In the course of such transportation, the grain was brought by boat from Chicago to Ogdensburg, N. Y., where it was unloaded into the elevator of the defendant, and thence transferred to the cars. Henry B. Moore, one of the plaintiffs, testified that, at the time they bought the grain in suit, it was probably in the elevator of the defendant at Ogdensburg; that the indorsement, 'Hold at Ogdensburg for orders,' was made upon all the bills of lading by their instructions; that although the destination of the grain, as minuted upon the bills of lading, was Boston, the grain was intended for sale at New England points other than Boston; that the purpose of ordering the grain held at Ogdensburg was to enable them to change the destination, and order it forwarded to its proper destination, after it was sold; and that, in case of a bill of lading so stamped, the defendant, in the ordinary course of business, would have no right to load and forward the grain until so directed by them. He further testified that they had been extensive shippers of grain by the defendant's route for some years, and when grain was held at Ogdensburg by their direction, as this grain was, they were accustomed to insure it against loss by fire at their own expense. It also appeared that a portion of the grain sued for was covered by insurance which the plaintiffs had taken out, and on account of which they received a certain sum after the commencement of this suit, which the plaintiffs agreed should be credited on account of this claim in suit; but this became immaterial by the election of the plaintiffs to proceed upon the third count, as hereinafter stated.

It was conceded that the grain in question was destroyed by fire while in the defendant's elevator at Ogdensburg, and before the plaintiffs had given orders to forward the same. The plaintiffs claim that the defendant had been guilty of negligence in the management of its elevator in which the grain was stored, which contributed to the loss, for which the defendant was liable in this action. It appeared that the fire in question was first discovered a little before five o'clock in the morning of Tuesday, September 9, 1890. The elevator had been started at seven o'clock in the morning of the day previous, and had run, with an hour's intermission for noon, and another hour's intermission for supper, until between eight and nine o'clock in the evening, when it was shut down; and the entire crew left the building, and went to work in what was known as the 'New Elevator,' situated between two and three hundred feet from the elevator in question, which was known as the 'Old Elevator.' The plaintiffs claimed, in the opening of their case, that the fire originated at the foot of what was known as the 'lofting leg.' This lofting leg was a piece of machinery by which the grain was carried from the bottom to the top of the elevator. It consisted of an iron tube inside, which ran a belt upon which were fastened, at intervals of about two feet, buckets. This belt passed over a pulley at the top of the lofter, about three and one half feet in diameter, and over another at the foot of the lofter, about two feet in diameter. The grain was carried in these buckets from the bottom to the top of the building, and there discharged into spouts by which it was conveyed to the bins in different parts of the elevator. The pulley at the bottom of the lofting leg made about ninety-six revolutions per minute; and the claim of the plaintiffs was that the bearings at the sides of this pulley had become heated, and thereby ignited the dust which had accumulated upon them, from which the fire was communicated to the building. There was no direct evidence that the fire started at the foot of the lofting leg, nor as to the place or manner of its origin.

The plaintiffs introduced as a witness one Aaron Linton, who testified that he was for many years foreman in this elevator, and well acquainted with its construction and method of operation. The witness had ceased to be foreman August 14, 1887, and from that time had not been employed in or about the elevator. The witness testified, among other things, that the bearings of this pulley at the foot of the lofting leg were beneath the elevator floor, and were oiled by pouring oil into two pieces of pipe, about two feet long, which led from above the floor down into the bearings. He was allowed to testify, against the objection and exception of the defendant, that while he was foreman of the elevator these bearings frequently became heated, that there was a tendency for dust to accumulate at that point, and that there was also a tendency for the pipes to become clogged and filled with dust and grease. He further testified that there were plugs in the end of these pipes, which were removed when the oil was poured in. This evidence was admitted, as appears in the report of the evidence, upon the understanding that the plaintiffs would show that the condition of things at the foot of the lofting leg at the time of the fire was substantially the same as when the witness was in the defendant's employ.

The plaintiffs introduced the deposition of one Timothy O'Connor, who testified that he was at the time of the fire, and for some time previous had been, what was known as 'weighman' in the old elevator; that in that capacity he was assisted by another weighman, whose duties were the same as his own; that he was required to weigh the incoming grain for one hour, and then to lay off for one hour; that, as weighman, he stood about eight feet distant from the foot of the lofting leg; that, when not weighing, a part of his duty was to oil the bearings at the foot of this leg; and that he oiled them once an hour. Against the objection and exception of the defendant, this witness was allowed to testify as follows:

'Q. Did you ever know the bearings at the foot of the lofting leg to become heated? A. I do.

'Q. You have known it? A. Yes, sir.

'Q. How long prior to this time had you noticed it? A. I do not remember.

'Q. About how long before? A. I do not remember.

'Q. Was it a month? A. It might have been less.

'Q. You say it might have been a month. Would you say two weeks? A. I do not remember.

'Q. All I want to get at is your best understanding. A. I will say a month.

'Q. These bearings, you say, would become heated at this point? A. Yes, sir.

'Q. Would they ignite and dust or accumulations there? A. Yes, sir.

'Q. Have you ever known the dust to become ignited? A. Yes, sir.

'Q. Many times? A. Once.

'Q. Was this the time you were speaking of? A. No, sir.'

The same witness testified that on the day before the fire he had discharged his usual duties as weighman in the elevator, that he had oiled the bearings at the foot of the lofting leg at 6:30 o'clock in the evening, and that at no time during the day had he noticed any indications that the bearings were heated.

The plaintiffs also introduced one Robert H. Jenkins, who testified that he had had considerable exercise in the management of elevators, that the dust which accumulated in the operation of handling grain in the elevator was very combustible, and that if this dust was suffered to remain upon a bearing, and the box became sufficiently heated, it would burn. Having so testified, he was permitted to answer the following questions, against the objection and exception of the defendant:

'Q. Whether or not there is a tendency, in running an elevator, for the machinery to get hot? A. Yes, sir; there is.

'Q. What is necessary to prevent it? A. Well, a box may get heated from the shaft being out of line, or a box may get heated if no oil comes onto the spindle,--the arbor of the shaft. The oil tube may be clogged up, and the box get heated from friction, or the shaft may get heated from being out of line. Either case will produce a hot box.'

There was no direct evidence in the case tending to show that any shaft in the defendant's elevator was out of line, or that the oil tubes to the bearings at the foot of the lofting leg, or to any other bearings in the defendant's elevator, had become clogged. All the foregoing testimony was introduced by the plaintiffs in the opening of their case.

At the close of the plaintiffs' case, the defendant moved that the plaintiffs be required to elect upon which count in the declaration they would proceed, and the plaintiffs elected to proceed upon the third count. At the close of the case, and before the same was submitted to the jury, the defendant filed a motion that the court direct a verdict in its favor--First, for that the plaintiffs could not proceed against the defendant upon its common-law liability as a common carrier, as they were attempting to do by electing to...