Crissey & Fowler Lumber Co. v. Denver & R.G.R. Co.

• Decision Date: 10 February 1902
• Citation: 68 P. 670,17 Colo.App. 275
• Parties: CRISSEY & FOWLER LUMBER CO. et al. v. DENVER & R.G.R. CO. et al.
• Court: Colorado Court of Appeals

68 P. 670

17 Colo.App. 275

CRISSEY & FOWLER LUMBER CO. et al. v. DENVER & R.G.R. CO. et al.

Court of Appeals of Colorado

February 10, 1902

Appeal from district court, El Paso county.

Action by the Crissey & Fowler Lumber Company and others against the Denver & Rio Grande Railroad Company and others. From a judgment for defendants, plaintiffs appeal. Reversed.

Sylvester G. Williams, R.W. Barger, and George Gardner, for appellants.

Wolcott & Vaile and William W. Field, for appellee Denver & R.G.R Co.

WILSON P.J.

This suit grew out of a fire at Colorado Springs on October 1 1898, which destroyed a large amount of property. Among other victims was the Crissey & Fowler Lumber Company, who, it is alleged, lost a large amount of lumber and building materials then being in a lumber yard maintained by them, lying not far distant from the tracks of the defendant railroad company. It is claimed that the fire originated in the freight yards of the defendant railroad company at or about its freight depot, through the negligence of said defendant and the plaintiff seeks to make it liable for the loss incurred. The property of the lumber company was partially insured. The several amounts of this insurance having been paid, the insurers so paying claim to be subrogated to the extent of such payments to the rights and claims of the lumber company against the defendant railroad company, if any, and hence are made coplaintiffs with the lumber company, the owner of the property destroyed. The complaint sets out the cause or causes of action in four counts. The first count proceeds exclusively upon the theory of statutory liability. It charges a liability independent of any question of negligence, alleging that the fire which occasioned plaintiff's loss was set out or caused by the defendant railroad company in the operation of its line of railroad. It is predicated upon what is generally known as the "Railroad Fire Statute," which reads as follows: "Every railroad corporation operating its line of railroad or any part thereof shall be liable for all damages by fire that is set out or caused by operating its line or any part thereof, and such damages may be recovered by the party damaged by proper action in any court of competent jurisdiction." Mills' Ann.St. § 3706; Laws 1887, p. 368, § 1. In the second count, or for a second cause of action, the plaintiffs, after repeating the preliminary allegations as to the incorporation of the respective parties, and the description of the property destroyed, alleged as the cause of the loss that the defendant railroad company, its agents, servants, and employés, negligently caused and set out a fire in and upon said defendant's right of way, and in and about its platforms and freight depot, and that said fire was, by said defendant railroad company, its agents, servants, and employés, omitting and failing to exercise due care and caution in the premises, negligently permitted and caused to escape from said right of way, platforms, and freight depot, and to communicate with and ignite and destroy the property of the plaintiff lumber company; that the destruction of said property was the probable, direct, and natural result of the negligence of said defendant, its agents, servants, and employés, in negligently causing and setting out the fire, and in negligently causing and permitting it to escape. The third count charges a liability upon the defendant railroad company for the results of the fire caused in the operation of its line of railroad, and also charges that these various acts done in the said operation of its line were negligently done by the said defendant. These acts of negligence complained of are set out in considerable detail, and embrace, among other things, the alleged improper construction and maintenance of the freight depot and platforms, so that it constituted and became an unusual and dangerous receptacle for the accumulation of all manner of loose and readily combustible materials; that by reason of such negligence there had accumulated and were suffered to remain in and about such depot and platforms long prior to and at the time of such fire great quantities of loose papers, straw, dried weeds, unbaled excelsior packing, and so forth, where it was constantly exposed to immediate, great, and unusual danger from fire from the locomotives and engines of the defendant railroad company in the operation of its line of railroad; that such an accumulation of combustible material so negligently permitted constituted an unusually dangerous and constant exposure of said freight depot and platforms, cars, and other railroad property adjacent thereto, and the property of adjacent owners, to destruction by fire; that, despite such dangerous conditions and accumulations, the defendant railroad company negligently failed to provide or maintain suitable appliances or provisions for the extinguishment of fires; that it negligently permitted its platforms about the depot to become and remain saturated with oils and other inflammable fluids; that it negligently placed and kept for an unreasonable time upon its tracks in said yard, in a dangerous and improper place, in close and dangerous proximity to its depot and platforms and such accumulations of combustible and inflammable materials, a car load of gunpowder; that said defendant negligently failed to extinguish the fire, and after its commencement failing to remove the car of powder from its dangerously exposed position, as it was its duty to do, negligently permitted and caused the fire to communicate with the powder, whereby it was exploded, and large quantities of burning material, brands, sparks, and fire were cast upon the property of the plaintiff lumber company, causing its destruction. The fourth count or cause of action repeats the allegations in the third count as to the incorporation and character of the parties, description of the property destroyed, and also description of the alleged negligent and dangerous conditions existing in the yard at the time of the fire, and adds thereto a copy of an ordinance of the city of Colorado Springs, under which it was claimed that the keeping of the car of powder in the yards at the time was in violation of law, and adds also an allegation to the effect that, by reason of defendant railroad company's negligence in exposing said car of powder and explosives in its improper and dangerous condition, and in consequence of the rapid spread of the fire in the direction of the car, consequent upon the burning of the large quantity of combustible and inflammable materials negligently permitted by said defendant to have accumulated and remained upon its right of way, the firemen of the city fire department of Colorado Springs, having come upon the premises for the purpose of extinguishing the fire, were deterred and prevented by reason of the danger to their lives and limbs occasioned by the presence of said powder car in its dangerous exposure to the fire in their endeavors to extinguish the fire, and were compelled, in order to secure their personal safety, to cease their efforts, and withdraw from the premises. The defendant railroad company interposed a demurrer to the entire complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and that it was ambiguous, unintelligible, and uncertain; and also upon the same grounds demurred separately to each of the several alleged causes of action, separately set forth in the four several counts. These being overruled, the defendant railroad company answered separately the several causes of action, denying each and every allegation therein, except the allegations as to its incorporation and the ownership and operation by it of a line of railroad through the city of Colorado Springs at the date charged. At the trial, before any evidence was introduced, defendant railroad company moved the court to compel plaintiffs to elect upon which count of the complaint they would proceed. This motion was sustained, and the plaintiffs, reserving their exception, elected to stand upon the third count, which, however, by leave of the court, they were permitted to amend by interlineation, so as to allege more specifically that the fire was negligently set out by the defendant railroad company, and also that it was set out and caused in the operation of said company's road. The other counts were stricken out. Upon the conclusion of the testimony offered in behalf of the plaintiffs, defendant railroad company moved that the jury be instructed to return a verdict in its favor. This motion was sustained on the ground, as stated by the court, that the origin of the fire had not been satisfactorily proven.

1. In pleading at common law, a second count might embody a new cause of action, or be a statement in different form of a single cause already declared on. Under the code practice different causes of action must still be separately stated but it is generally required that the different statements or counts should contain causes of action different in fact, the Code requiring usually that a complaint shall contain a statement of the facts constituting the cause of action without repetition, or sometimes, as in the language of our Code, without unnecessary repetition. This rule, however, is by no means ironclad, and is subject to many exceptions, sometimes depending upon the nature of the statutory provisions. It may be said generally, however, that the code practice discourages, at least, the insertion in a complaint of a second count which contains the same cause of action and statement of facts set forth in a different cause. A duplicate statement of the same cause of action and of the same facts, in other words, is not usually good...