Cottonwood Fibre Co. v. Thompson

• Decision Date: 12 December 1949
• Docket Number: No. 41236,No. 1,41236,1
• Citation: 225 S.W.2d 702,359 Mo. 1062
• Parties: COTTONWOOD FIBRE CO. et al. v. THOMPSON et al
• Court: Missouri Supreme Court

Page 702

225 S.W.2d 702

359 Mo. 1062

COTTONWOOD FIBRE CO. et al. v. THOMPSON et al.

No. 41236.

Supreme Court of Missouri, Division No. 1.

Dec. 12, 1949.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 9, 1950.

Sievers & Reagan, A. K. Schwartz, St. Louis, J. Porter Henry, St. Louis, attorneys for appellants.

Thomas J. Cole and Oliver L. Salter, St. Louis, and Leon P. Embry, California, Mo., attorneys for respondents.

CONKLING, Judge.

Plaintiffs, Cottonwood Fibre Company and Petroleum Heat and Power Company, tenant in and owner respectively of a factory building, have appealed from an adverse judgment in their action to recover alleged combined actual damages of $102,713.93, and punitive damages of $50,000. Their petition alleged that on the morning of April 10, 1947 the defendant trustee's employees negligently operated a southbound freight train across the Fillmore Street crossing in St. Louis, Missouri, and thereby prevented city fire apparatus from expeditiously and promptly reaching plaintiffs' factory (then afire) and that because of such delay the building and contents were greatly damaged by fire.

The trial court submitted the case to the jury upon the theory of defendants' negligence in blocking the city's fire trucks from the fire, and also submitted the question of punitive damages. The jury's verdict was for the defendants. Plaintiffs assign as error the admission of certain evidence, the giving of an instruction for defendants, and portions of the argument of defendants' counsel to the jury. But in the view we take of the case we deem it unnecessary to discuss the assignments made by plaintiffs because, for reasons we hereinafter state, we rule that no case was made for the jury and the defendants' motion for a directed verdict should have been sustained.

Plaintiffs' factory was about 300 feet west of the Mississippi River, abutted on the north side of Fillmore Street and was immediately east of defendants' north and south double tracks. Fillmore, a public street, running substantially west from the river intersected the railroad tracks and Broadway (extending north and south) at a right angle. Broadway was about a half block west of the railroad tracks. Elwood Street, lying parallel with and not quite 300 feet north of Fillmore, likewise ran west from the river and intersected the railroad tracks and Broadway at a right angle. Plaintiffs' factory could be reached by the fire department only by approaching from the west over Fillmore or Elwood. There was no north and south street between plaintiffs' factory and the river. On the west side of (and as a part of) plaintiffs' factory there was a loading platform, abutting a switch track which lay east of the two main line railroad tracks. There was a fire-alarm hook on a telephone pole on the north side of Fillmore and just west of the railroad tracks. A fire hydrant was located east of the track on the north side of Fillmore and near the factory. The building was two stories high; in the factory Cottonwood Fibre Company processed waste rope, jute and sisal, some of which was oil soaked and greasy, and was highly inflammable and combustible. The building had wooden floors and roof.

There was a 55 gallon barrel of water with buckets near where the fire started on the second floor. On that floor there were fire extinguishers; and also a sprinkler system substantially directly above where the fire started, but which failed to work. There were also water faucets but no hose. An employee was sweeping loose jute and sweeping dust 'off the framework'. The dust burned very rapidly. The fire started on the floor in the loose jute and dust, a little north of the center of the building and about two feet away from some machinery. There was some loose material 8 or 10 feet away. 'It was a fast fire, flash fire I would say * * * it was just like you throwed a can of gasoline and put a match to it'. The company office was on the second floor but when the fire was discovered no one used the office telephone to call the fire department. The fire was fought by the employees but they lost control of the fire in a minute and a half or two minutes and all left the building. The fire was 'too great for us to handle'. After the employees had fought the fire for 'about a minute or so', the foreman sent one Lambert, an employee who had also been fighting the fire, to pull the fire alarm hook on Fillmore Street across the railroad tracks. He did so. Thereafter Lambert saw defendants' train 'just approaching Elwood Street' (a block north), so he then stood in the middle of the railroad track 'and pointed over and hollered 'fire". The freight train was moving 8 to 8 miles an hour but did not stop, so Lambert jumped off the track on the side toward Broadway. He did not see any fire department apparatus 'right away'. 'After I was there awhile I heard them (fire trucks) coming * * * they some on Broadway and turned in on Fillmore'.

After the fire was beyond control and it was unsafe to stay longer in the building the foreman 'ordered everybody out of the plant', and then went out onto the loading dock. He could not say definitely whether there was any smoke at that time. He then heard a fire department siren, and saw the moving southbound trail about 80 feet north from Fillmore and waved, 'but they evidently didn't know what I wanted, because I waved to them at times when they go by'. He testified: 'The fire department arrived on Broadway about the same time as the engine hit the crossing on Fillmore'. Both Lambert and Preston, the foreman, estimated it took the train 6 to 8 minutes to move over the crossing. After the train passed over the crossing the fire department moved east over the railroad tracks and started to fight the fire. The building and the contents were substantially destroyed by fire.

The Vice-President of Cottonwood Fibre, Mr. Sieving, testified he was in the office when he saw the fire. He ran downstairs, telephoned the president, ran back upstairs, and then ran down the steps out onto Fillmore Street. He then saw the moving train with the engine two car lengths south of Fillmore. He heard the sound of the sirens coming from the direction of Broadway. When he left the building shredded jute and other material and the roof and joists were burning. He estimated the damage at that time was about $500.00.

Defendants' testimony tended to establish that its train of 75 or 80 cars carried two cabooses, one just immediately behind the Diesel engine; that the train, more than half a mile long, moved over Fillmore Street at 15 or 20 miles per hour; that approaching Fillmore Street the engineer and fireman, looking out ahead, saw no smoke nor any sign of anything wrong at all until they had crossed Fillmore; that they saw no one on the track pointing or waving but a man ran across the track as the engine reached Fillmore; that no fire truck was on Fillmore, nor in sight to the west, as the engine crossed Fillmore, but when 15 or 20 car lengths south of Fillmore the engineer heard a siren; that when the train was 25 or 30 car lengths south of Fillmore a fire truck turned north onto Broadway from a street a quarter of a mile south of Fillmore; that the switch foreman (riding in the first caboose) looked out for 'hot boxes' when the train was 15 or 20 car lengths south of Fillmore, and saw what 'looked like an explosion', at Cottonwood Fibre; that the switch foreman then told the engineer and fireman about it and told them to spped up; the engineer then increased the speed; and that the train cleared the crossing in a total time of about a minute and a half.

Substantially, the only difference in the testimony of plaintiffs and of the defendants is that the plaintiffs' testimony places the speed of the train at 5 to 8 miles per hour, while the defendants' testimony places the speed of the train at 15 to 20 miles an hour; and the plaintiffs' testimony was that the traim consumed 6 to 8 minutes to cross the crossing, while the testimony of defendants was that the train used about a minute and a half to cross the crossing. The train was 75 or 80 cars in length, with an average length of 38 to 45 feet, making the total length of the train about 3177 feet. Mathematically computed upon plaintiffs' figures, the train consumed 5 minutes and 53 seconds to cross the Fillmore Street crossing. Mathematically computed on defendants' figures as to speed, the train took 2 minutes and 2 seconds to cross that crossing.

No contention is here made that the railroad started this fire or that the railroad was in any wise responsible for its origin. Nor do the instant facts bring this case within the rule of such cases as Hurley v. Missouri K. & T. R. Co., 170 Mo.App. 235, 156 S.W. 57; Little Rock Traction & Electric Co. v. McCaskill, 75 Ark. 133, 86 S.W. 997, 70 L.R.A. 680, 112 Am.St.Rep. 48; Erickson v. Great Northern R. Co., 117 Minn. 348, 135 N.W. 1129, 39 L.R.A.,N.S., 237, Ann.Cas.1913D, 763, and McAdoo v. Hanway, 135 Md. 656, 109 A. 446, where, in those cases, a fire was being successfully fought and the railroad ran over or caused the severance of the hose line in actual use fighting the fire, thus causing the fire to get out of control and the premises to be consumed.

But it is unquestionably true that railroads are under a duty to operate their trains with reasonable regard for the rights of public firemen and private citizens to use public crossings and streets to reach a fire to extinguish it. Under certain circumstances, interference with the rights of the public to fire protection violates a fundamental social duty and is a common law tort. Hurley v. Missouri, K. & T. R. Co., supra; American Sheet & Tin Plate Co. v. Pittsburgh & L. E. R....