Cincinnati, N.O. & T.P. Ry. Co. v. South Fork Coal Co.

• Citation: 139 F. 528
• Decision Date: 21 June 1905
• Docket Number: 1,394.
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: CINCINNATI, N.O. & T.P. RY. CO. v. SOUTH FORK COAL CO.

139 F. 528

CINCINNATI, N.O. & T.P. RY. CO. v. SOUTH FORK COAL CO.

No. 1,394.

United States Court of Appeals, Sixth Circuit.

June 21, 1905

This was an action by the South Fork Coal Company, a corporation which was operating a sawmill near Oneida, Tenn., for the loss by fire of a large quantity of lumber stacked upon the railway's right of way near its station at Oneida. The fire occurred October 23, 1902. The evidence tended to show that the lumber had been hauled from time to time from the mills of plaintiff and stacked on the right of way; several hundred feet from the station, but at a place customarily used for stacking lumber for shipment. On the night of October 23, 1902, there occurred a rear-end collision between two of the defendant company's freight trains at a point near this lumber. As a result certain cars containing tanks of oil were telescoped by the engine of the colliding train. The tanks were broken, and the escaping oil fired by fire from the engine. The fire thus started was communicated to the adjacent lumber. The defendant offered no evidence in explanation of the collision or upon any other matter, and at conclusion of plaintiff's evidence asked a peremptory instruction in its favor. This was denied, and the case submitted to the jury upon a charge found in the record who found for the plaintiff.

Edward Colston and Head & Anderson, for plaintiff in error.

James F. Baker and Jerome Templeton, for defendant in error.

Before LURTON and SEVERENS, Circuit Judges, and WANTY, District Judge.

LURTON Circuit Judge, after making the foregoing statement of the case, .

Under an exception to the refusal of the court to withdraw the case from the jury and an exception to the charge and for refusal to charge certain requests submitted, just two questions are made. The first is, would the railroad company be liable for a loss of the plaintiff's lumber by fire originating from a negligent collision between two of its trains? and, second if that be conceded, was there prima facie evidence that the collision was the result of negligence in the management of its trains? The gravamen of the plaintiff's case is negligence, for the essential thing which it must establish is that its lumber has been lost through a negligent act of the railroad company. It must show that the negligent act of which it complains was the breach of some duty which, under the circumstance, was due to the plaintiff. Standard Oil Co. v. Murray, 119 F. 572, 575, 57 C.C.A. 1. What was the duty or obligation of the railroad company in respect of this lumber burned upon its right of way? It had not been delivered to the railroad company for carriage. Carrier liability is therefore out of the case. But it is not essential that contract relations shall exist in order to give rise to a duty by one to another. A duty may arise to one who is nothing more than a trespasser to sue all reasonable exertion to avoid unnecessary injury after discovery of the peril. But, if the plaintiff was not a trespasser, the obligation of the railroad company to avoid injuring their property would stand upon a higher plane. There was evidence from which the jury might well find that the railroad company had consented that the plaintiff might stack its lumber upon its right of way, at the customary place for receiving lumber for shipment, and keep it there until it should desire or direct its shipment. The jury were told, if they found this to be so, that the railroad company would owe the plaintiff the duty of exercising reasonable care to avoid injury to its lumber by the operation of its trains. In contrast the defendant insisted that if the lumber was not placed upon the right of way for shipment, but to be kept there until the plaintiff could obtain a price satisfactory, the company would owe no duty 'other than not to wantonly or willfully destroy or injure its lumber. ' This ignores all distinction between a rightful and wrongful use of the right of way, and puts the duty of the railroad company upon the same plane that it would have been if the plaintiffs had placed their lumber upon the railway premises without its knowledge or consent.

But there was evidence from which the jury could find, and, as matters now stand, from which they have found, that the railroad company assented to the use which was made of its right of way. If the company had assented to this use upon condition that the plaintiff should assume the dangers from sparks emitted from its engines, negligently or not, or from dangers incident to fire resulting from collision or otherwise, we are not prepared to say that the agreement would not have been valid, inasmuch as it was under no obligation to permit its premises to be so used, and might be unwilling to assume the risk incident to the proximity of the property to its tracks. Hartford Ins. Co. v. Chicago, etc., Ry. Co., 91 U.S. 99; Id., 36 U.S. App. 152, 70 F. 201, 17 C.C.A. 62; and Griswold v. I.C. Rd. Co., 90 Iowa, 265, 57 N.W. 843, 24 L.R.A. 647. But there is no pretense of any such agreement. The learned counsel for the railroad company have insisted that the mere fact that the plaintiff placed its lumber in such proximity to the railway track with knowledge of the danger of fire is an implied assumption of the risk of fire communicated from the engines of the company, and they have cited the cases of Post v. Buffalo & Western R. Co., 108 Pa. 585, and Railway Co. v. Bartlett, 69 Tex. 79, 6 S.W. 549. The Post Case was decided upon the ground of contributory negligence, and the conclusion much influenced by the fact that the plaintiff was a naked trespasser in so far as it had stacked a part of its lumber upon the right of way of the railroad company without the company's knowledge or consent. But the ground of the decision was that one who voluntarily places combustible property in such proximity to a railway, in time of great dryness, and where fires were of daily occurrence along the line of the road, attributed to sparks, was so grossly negligent as to be debarred of an action, although the company might have been negligent in the matter of proper spark arresters. Railway v. Bartlett went off upon the same ground, namely, that if one voluntarily places property in a situation of great danger his own negligence will prevent a recovery, although there may have been negligence in not properly guarding against the emission of sparks. The facts in both cases tending to show contributory negligence were very strong, and somewhat peculiar. It might be sufficient to pass over these cases without comment as not applicable here, inasmuch as the defense of contributory negligence is one to be affirmatively set up. No such plea was filed, and no question of contributory negligence was touched in the charge, or by any request which was made. In so far as either opinion rests upon the ground that the plaintiffs had placed inflammable property upon the premises of the railway company without its knowledge or consent, at a time of great danger from engine sparks, we are not prepared to say that the plaintiff were so free from culpable negligence proximately contributory to the loss as to entitle them to recover for ordinary negligence. But in so far as the opinions go upon the theory that a plaintiff must lose his right of compensation for the negligent destruction of his own property situated upon his own premises because he had exposed it to dangers which could come to it only through the negligence of the railroad company, they do not meet our approval. Grand Trunk R. Co. v. Richardson, 91 U.S. 454, 23 L.Ed. 356; Kellogg v. R. Co., 26 Wis. 223, 7 Am.Rep. 69; Fero v. The Buffalo, etc., R. Co., 22 N.Y. 209, 215, 78 Am.Dec. 178; Burke v. R.R., 7 Heisk. 451, 464, 19 Am.Rep. 618. The rights of persons to the use and enjoyment of their own property are held upon no such tenure as this. The principle would forbid the use of property for many purposes if in such proximity to a railroad track as to expose it to dangers attributable to the negligent management of its business. Upon principle the case is not different if one places his property upon the premises of a railroad company without conditions, and with its assent. If he is not a trespasser, he is not beyond the protection of the law against injury due to the want of ordinary care. In Railroad Co. v. Richardson, 91 U.S. 454, 23 L.Ed. 356, the Supreme Court, and in Ann Arbor R. Co. v. Fox, 92 F. 494, 497, 34 C.C.A. 497, 500, this court, speaking by Judge Taft, held that the statutory liability of a railway company for fire communicated by sparks was not affected by the fact that the property burned was in part situated upon the railway right of way, by consent of the railway company. After saying that the risk of fire might be increased Judge Taft said:

'But the relation of the parties to the risk and danger is just the same. It is an additional risk for each, but the loss must fall just where it would have fallen had a greater distance between the lumber and track been maintained; for they voluntarily assumed the burden from the increased danger.'

By the ancient common law every man was obliged to keep his fire safe, and if one was started upon his premises by the act of himself or any one for whom he was responsible, and spread and injured his neighbor, except by some inevitable accident which could not have been foreseen, he was responsible without regard to the question of negligent origin. In 1 Bacon's Abridgment, title 'Action on the Case,' F, at page 85 (1st Am. Ed. of 1811), it is said:

'It was formerly holden that if a fire broke out accidentally in a man's house, and raged to that degree as to burn his neighbor's, that he in whose house the fire first happened was liable to an

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