Cincinnati, N. O. & T. P. Ry. Co. v. Saulsbury

• Citation: 90 S.W. 624,115 Tenn. 402
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. SAULSBURY.
• Decision Date: 12 December 1905
• Court: Tennessee Supreme Court

90 S.W. 624

115 Tenn. 402

CINCINNATI, N. O. & T. P. RY. CO. v. SAULSBURY.

Supreme Court of Tennessee.

December 12, 1905

Appeal from Circuit Court, Scott County; G. McHenderson, Judge.

Action by E. G. Saulsbury against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

H. Clay James and Head & Anderson, for appellant.

Denton & Robinson and Baker & Keene, for appellee.

McALISTER J.

The plaintiff below recovered a verdict and judgment against the railroad company for the sum of $1,895.87 as damages for the destruction of a lot of staves by fire alleged to have been occasioned by the negligent operation of its trains.

Saulsbury & Co., it appears, had been granted a license by the railroad company to erect a stave mill on its right of way, under a written lease or contract which, among other conditions provided as follows:

"That they [meaning Saulsbury & Co.] will save and hold harmless the trustees of the Cincinnati Southern Railway and the said railway company, from all damages that may arise from the destruction or injury of said stave mill and contents by fire or from any cause whatever."

The theory of the plaintiff below is that defendant company is not protected from liability by the terms of said contract for the reason: First, that the fire was caused by the negligence of the company and its agents; and, second, that the staves destroyed were not a part of "the mill and its contents," which were alone exempted in said written lease.

It does not appear from the record that the mill itself and its immediate contents were destroyed, but the fire consumed about 34,398 staves which were stacked on the right of way near the mill, and 6,000 staves which had been loaded onto a freight car ready for shipment. A portion of the staves destroyed were undressed and had been stored on the right of way for use in the mill, while another portion of the staves destroyed had been dressed and were ready for shipment. It appears that the staves that were burned were lying between the mill and the railroad on the north side of the mill near the corner of the mill. The mill is described in the record as a shed open on three sides. The fire originated in the collision of two trains on the company's right of way near this mill, and as a result of the collision several tanks of oil burst, the oil caught fire, and was communicated to these staves. It further appears that, during the progress of the fire, the employés of the railroad company, for the purpose of preventing the destruction of the passenger track, diverted the flow of the burning oil to the staves of the plaintiff. The passenger track, it appears, was located on the opposite side of the premises of the plaintiff. It thus appears from the proof that the employés of the railroad, in order to save the property of the company, turned the contents of a tank of oil into these staves, which otherwise would not have flowed in that direction. It should be stated, however, that this phase of the case is not presented in the declaration.

It should be remarked that there is no direct evidence of negligence on the part of the company in bringing two of its trains into collision, except such as arose from the mere fact of the collision. It does appear, however, that this railroad company used what is known as the block system, and that the display of the red signal could have been seen by the engineer for a distance of half a mile. The block is illuminated in red by means of electricity transmitted through a wire along the rails. It is shown in the proof that a red block was displayed, and that, under the rules, it was the duty of the engineer to send a flagman ahead and wait five minutes. The company failed to introduce any proof explaining the cause of the collision, and the jury was warranted in drawing an inference of negligence on the part of the company as a matter of fact. We do not hold that negligence should be inferred as a presumption of law. Young v. Bransford, 12 Lea, 234.

This is a substantial statement of the facts attending the loss of plaintiff's property.

The assignments of error on behalf of the company are based upon the instructions of the trial judge to the jury and upon the refusal of the court to give certain supplemental requests.

The first assignment is that the court erred in giving the following instruction to the jury, viz.:

"While in this case the defendant railway company might make a contract that would exempt itself from liability for negligence as applicable to the mill building and contents, which it allowed the plaintiff to construct and operate upon its right of way, or ground belonging to the railroad company, *** the contract entered into would be construed strictly, because it is derogatory of the general law upon that subject, and the limitations of that contract would be construed most strongly against the railroad claiming the benefit of it, and so would be extended, by implication of law, to include anything not expressly included by the contract itself. So, in construing this paper, I instruct you that, while the defendant railway company might claim the benefits, and are entitled to the benefits secured to it under this contract entered into and signed by both parties, still the clause, 'They will save and hold harmless the trustees of the Cincinnati Southern Railway and the said railway company from all damage that may arise from the destruction or injury of said stave mill and contents by fire, or from any cause whatever,' could not be construed to extend beyond the limitation expressly stipulated for in that contract. If you should find that the damage resulting to the plaintiff from this accident was done to the stave mill and contents, then I instruct you, under the contract, your verdict would be in favor of the defendant. But, if you shall find that the damages sued for in this case were not for injury done to the stave mill and contents, but were for damage done to the plaintiff by the burning up of staves that had been manufactured in his mill and were in a car standing on its side track, and other staves that had been manufactured and placed alongside of the track to be shipped off on defendant's road, and were for staves burned up which had been shipped in there on defendant's train and unloaded to be worked and dressed and then to be shipped off, if you should find that sort of injury, according to this contract, would not limit the liability of the defendant as to that character of damage, *** I instruct you that he is entitled to recover."

Counsel for plaintiff in error, in order to present his contentions under a proper construction of the contract, submitted the following requests, which were declined by the trial judge, viz.:

"(1) If the plaintiff placed staves in the rough,

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