Cox v. Vermont Cent. R. Co.

• Decision Date: 08 January 1898
• Citation: 49 N.E. 97,170 Mass. 129
• Parties: COX et al. v. VERMONT CENT. R. CO. (twelve cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 129

49 N.E. 97

COX et al. v. VERMONT CENT. R. CO. (twelve cases).

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1898

COUNSEL

R.M. Morse and W.M. Richardson, for plaintiffs.

C.A Prouty, for defendant.

OPINION

MORTON J.

These 12 actions were all tried together, and all relate to certain grain which was being transported from Chicago to various points in New England, and which was destroyed by fire while in the defendant's elevator at Ogdensburg on September 9 1890. The declarations are the same in all of the cases. Counts in contract were joined with counts in tort, the last count, which was the one relied on, being in tort, and charging the defendant with negligence as a warehouseman. In all of the cases except the last, verdicts were rendered for the plaintiffs. In the last a verdict was ordered by the court for the defendant, on the ground that the action was not brought within three months after the loss occurred, as provided in the bill of lading, or from the time when, by due diligence, the plaintiff might have discovered that fact. In nine of the cases, namely, Cox, Ambler, Burditt, Dennis, Prentiss, Crosby, Johnson, Train, and Landon, the grain was being transported under what were termed "yellow bills of lading," which provided, among other things, that "the said company shall not, nor shall any carrier, person, or party aforesaid, be liable in any case or event unless written claim for the loss or damage shall be made, to the person or party sought to be made liable, within thirty days, and the action in which said claim shall be sought to be enforced shall be brought within three months after the said loss or damage occurs." They also provided that neither the company, nor any carrier, person, or party in possession of said grain, "shall *** be liable for any loss or damage from *** fire while *** in store at any place of shipment or transshipment, *** nor shall there be any liability *** for any loss or damage, *** unless the same shall affirmatively, and without presumption, be proven to have been caused by the negligence of the defendant." In the cases of Whiting, Edgerly, and Chase the grain was being transported under what were termed "white bills of lading," which contained no limitations as to the time within which notice of the loss should be given, or the action should be brought, but which provided that "no carrier or the property of any shall be liable for *** any loss or damage arising from any of the following causes, viz. fire from any cause, on land or water," etc. In only two of the cases, namely, those of Dennis and Prentiss, was there any evidence tending to show that written notice of loss was given.

The exceptions state that "it was agreed between the parties that under the bills of lading, and in view of the situation of the property at the time of the loss, the liability of the defendant to the plaintiffs was that of warehouseman simply." It is well settled that in such a case the care required is ordinary care (Thomas v. Railroad Co., 10 Metc. [Mass.] 472), and the jury were so instructed. The plaintiffs contended, in substance, that the fire started at the foot of the lofting leg, in consequence of the heating of the bearings and the accumulation of dust and chaff; that the watchman was incompetent, and a proper watch was not kept; and that suitable appliances for extinguishing fire were not furnished. The defendant contended that there was no evidence that the fire was due to negligence on the part of the defendant, and this is the first question presented for consideration.

It is said in the exceptions that there was no direct evidence that the fire started at the foot of the lofting leg, nor of the place or manner of its origin; but we think that there was circumstantial evidence which justified the jury in finding, if they did so find, that the fire started at the foot of the lofting leg, and was due to negligence on the part of the defendant. The lofting leg, where it was claimed that the fire started, was on the west side of the elevator, and ran from the first floor to the cupola. Outside the main wall of the elevator, on the outside and about in the center, was a projection which began a short distance above the wharf, and which extended above the main roof, and which was used for stairways and for a part of the elevating machinery called the "marine leg." Beneath this was an opening in the main wall, through which ran ropes, which operated a steam shovel used in connection with the work of elevating the grain. The foot of the lofting leg was inside the elevator, about opposite this projection and opening, and a short distance from it. There were on the east side a similar projection and lofting leg, and in about the same relative positions to each other and to the main wall of the elevator. On the day previous to the fire the machinery on the west side had been in operation from 7 o'clock in the morning till between 8 and 9 o'clock in the evening, with an hour's intermission for dinner and another hour for supper. It appeared that, in operating an elevator, dust and chaff of a very inflammable nature are caused. There was testimony tending to show that it was usual to sweep out the elevator while grain was being elevated or after the work was finished, but that on the night of the fire this was not done; that the bearings at the foot of the lofting leg on the west side were liable to become heated from the operation of the machinery, and that dust and chaff were liable to accumulate about them, and that this was known to the foreman; that about four weeks before the fire in question fire had been discovered in the dust and chaff about one of the bearings at the foot of the lofting leg on the west side; that on the night of the fire the bearings were warm, and there was a smell of heated oil from them or from bearings near by, the testimony leaving it somewhat uncertain which was meant by the witness; that the pipes through which the bearings were oiled were liable to become choked up with dust and chaff, thereby increasing the tendency of the bearings to heat; and that the fire, when first discovered, appeared to be in the projection on the west side, just above the lower end of it. One witness, who went into the elevator a short time after the alarm had been given, testified that he saw fire on the west side, "thirty to thirty-five feet from the projection, and quite a ways from the lofting leg." The testimony also tended to show that after the fire the lofting leg on the east side was standing, or a part of it, but that the lofting leg on the west side was burnt up, and the timber and flooring around the foot of it were, as one witness said, "all burnt up," or, as another witness said, "burned *** more *** than any other part of the foundations." There was contradictory evidence in relation to some of these matters, and evidence tending to show that the fire could not have originated at the foot of the lofting leg. But the question before us is not as to the weight of the evidence, but whether there was any evidence which fairly justified the verdicts that were rendered for the plaintiffs. Forsyth v. Hooper, 11 Allen, 419. We think that the facts to which we have referred, if believed, and especially if taken in connection with the further fact that no other satisfactory explanation of the origin of the fire seems to have been offered, would have justified the jury in finding that it started at the foot of the lofting leg, and was due to defendant's negligence.

We cannot say that the jury were not justified in finding, if they did so find, that the watchman was incompetent, or that sufficient care was not exercised in watching; and that if the watchman had been competent, or more care had been taken in watching, the fire might have been discovered and prevented. Neither can we say, as matter of law, that the jury was not justified in finding, if they did so find, that the absence of automatic sprinklers in a building in which so much inflammable matter was present was not, considering the extent to which they had been introduced, negligence on the part of the defendant, or that, if the building had been equipped with them, they might not have checked the fire, and ultimately have been serviceable in extinguishing it.

The defendant objects that the jury should have been instructed, as requested, to return verdicts for the defendant, if they did not find that the fire originated at the foot of the lofting leg, on the ground that whether the fire originated anywhere else was pure speculation. But there was testimony from one witness tending to show that, on the night of the fire, he noticed a smell of hot oil, which came from the bearings of the steam shovels, which were near the lofting leg, and the fire might have originated there. It would not have been true, therefore, to say that whether the fire originated anywhere else was pure speculation. Moreover, the judge instructed the jury that the burden was on the plaintiffs to satisfy them that the fire was due to the defendant's negligence; that, in order to find this, they must be satisfied where and how it originated; and, unless they were, they should return a verdict for the defendant. These instructions excluded speculative possibilities, and required the jury, in order to render verdicts against the defendant, to determine the place where, and the manner in which, the fire originated; and it is to be presumed that the jury followed the instructions thus given. Certainly, there is nothing which tends to show that they did not, or that they did not find that the fire started at the foot of the lofting leg.

The defendant further contends that the rights and liabilities of the parties are...