Denver, S.P. & P.R. Co. v. Conway

• Decision Date: 02 December 1884
• Parties: DENVER, S. P. & P. R. CO. v. CONWAY.
• Court: Colorado Supreme Court

5 P. 142

8 Colo. 1

DENVER, S. P. & P. R. CO. v. CONWAY.

Supreme Court of Colorado

December 2, 1884

Appeal from the district court of Park county.

Teller & Orahood, for appellant.

John W. Horner, for appellee.

BECK C.J.

The appeal is from a judgment rendered against the defendant below, the Denver, South Park & Pacific Railroad Company, for damages to the property and person of the plaintiff occasioned by the burning of a depot building belonging to the defendant, and the explosion of a quantity of giant cartridges therein contained. The complaint, as it remained after demurrer sustained thereto, contained three separate claims for damages alleged to have occurred to the plaintiff by reason of the negligence of the defendant. It alleges that on the fourteenth day of August, 1880, the defendant owned and operated a railroad from Denver to and through the town of Red Hill, in Park county, Colorado; that it also owned and used a certain depot building, in the latter place, which contained a defective flue; that a pipe from a stove in said building passed into and through this flue rendering the building extremely unsafe, and liable at any time to take fire. The complaint further alleges that the plaintiff owned a certain saloon building, together with the contents thereof, which was situated about 35 feet distant from the defendant's depot building; that the plaintiff also occupied, as proprietor thereof, a certain hotel building, situated about 45 feet from said depot building. The acts of negligence complained of are that the defendant, knowing that the flue in said building was in a very defective condition, which rendered the building extremely unsafe, and liable at any time to take fire, and well knowing that the property of the plaintiff was in close proximity thereto, carelessly, negligently, and wrongfully stored giant powder and explosive caps (the latter being used to explode the powder) in said building, and, while said explosives were so stored therein, caused a fire to be made in the store having the defective flue, by reason whereof the building was burned, resulting in an explosion which destroyed the plaintiff's property, and seriously injured him personally. Damages are claimed for the loss of saloon building and contents in the sum of $1,038, for chattels destroyed in the hotel in the sum of $63, and for injuries to the plaintiff's person in the sum of $5,000. Judgment is demanded for said several sums, together with interest thereon from the fourteenth day of August, 1880, (the time of the fire,) at the rate of 10 per cent. per annum.

The answer of the railroad company denies all the allegations of the complaint, including specific denials of the causes which led to the burning of the building and the disasters which followed. The cause was tried to a jury, who returned a verdict for the plaintiff of $2,250, upon which the court rendered judgment. The errors assigned and relied upon relate to instructions of the court to the jury, and to the allowance of interest upon the value of the property destroyed. The first and second errors assigned are upon the first instruction. That portion of the instruction assigned for error is in the following words:

'* * * That if they believe, from the evidence, that defendant had a depot building at Red Hill at and prior to August 14, 1880, and stored therein prior to said August 14 1880, and from thence until August 14, 1880, kept therein stored, a large quantity of Atlas powder commonly known as 'giant cartridges;' and that said depot building was near the property of the plaintiff, and during all the time said powder was therein said depot building was in a defective condition, and liable to take fire from a fire kept in a store in said building, of which defendant had notice; and that, by reason of the carelessness and negligence of defendant, said building was burned, and the burning of said building caused said powder to explode, and by fire or otherwise destroy the property of the plaintiff, they should find for the plaintiff.'

Counsel say:

'Our objections to the instruction are that it was a departure from the issue in the case, made by the pleadings, and allowed the jury to find a verdict on a state of case not at all presented by the pleadings, and to wander about through the evidence for some defect in the building itself, not relied on in the complaint, and found a verdict upon matter wholly foreign to the real issue made in the case by the parties to it.'

Counsel insist, throughout their entire argument, that the specific allegation of the complaint as to the origin and cause of the fire, namely, a defective flue, was abandoned on the trial; that there was no evidence to support the allegation, and that the court, by its instruction to the jury, permitted the plaintiff to depart from the issue presented by the pleadings, and to rest the claim for damages upon a wholly different element of liability, viz.; a defective condition of the depot building. This, they say, was a change of the cause of action after the introduction of the testimony, and was therefore prejudicial to the rights of the defendant. They characterize the action of the court as giving to the jury by its instructions a roving commission to wander about through the evidence and find a verdict upon matter wholly foreign to the case. A patient examination of the voluminous record in the case has satisfied us that these charges are specious and technical. The sum total of these objections is that the jury were told, if they believed from the evidence that the depot building was in a defective condition, and liable to take fire from a fire kept in a stove in the building, and, knowing the fact, the defendant stored a large quantity of giant cartridges therein, and that by the carelessness and negligence of the defendant the depot was burned, the powder exploded, and the plaintiff damaged, they should find a verdict in his favor; instead of being told that to warrant a verdict for the plaintiff they must find that the fire originated from a 'defective flue.'

The only foundation that we can discover for the objections so strenuously urged upon our attention lies in the definition of the word 'flue.' The complaint declares, in haec verba, 'that the depot building was extremely unsafe, and liable at any time to take fire.' But in a previous sentence the cause of its unsafe condition is attributed to a 'defective flue.' Now, if there was any variance in the proof from the allegations of the complaint, it was that the locus or thing referred to in the complaint as 'defective' was not, strictly speaking, a 'flue,' but an aperture not protected by a flue, through which the stove-pipe passed. Instead of there being a defective flue, in the technical sense of the term, the defective condition of the building was owing to the absence of a flue at the point referred to. But we think this point was described with reasonable certainty, and find nothing in the entire proceedings to indicate that any one was misled by the misapplication of the term. In support of this conclusion we cite the fact that the witnesses of both parties, including the agents and officers of the defendant company, referred to and denominated the alleged defective point as a flue, in their testimony. The complaint states that the pipe from the stove passed into and through it, and that a fire was made and kept in the stove, thereby rendering the building unsafe. The testimony showed conclusively that the fire originated in the apartment of the building called the 'office;' that the ceiling over this room was composed of dressed boards, of a single thickness, and that the pipe from the stove passed up through a hole in this board ceiling, and up through the roof. The only protection provided to prevent the pipe from coming in contact with the boards of the ceiling was a small sheet of tin or zinc, through which the pipe was passed, and which was placed on the upper surface of the ceiling boards. The same provision existed at the point where the pipe passed through the roof.

The testimony further shows that on the night of the disaster a hot fire was made in the office stove, in the presence of and with the knowledge of the defendant's station agent in charge of said station and building, who thereupon retired to bed in said office room. By reason of this fire and the so-called defective flue, the ceiling around the stove-pipe was ignited and fire communicated to the entire building, causing its total destruction, then explosion of the powder, and the damages to person and property sued for. Now, while it must be conceded that the phraseology of the complaint is liable to verbal criticism in the particular mentioned, yet the meaning is so apparent that no prejudice could have resulted therefrom, since no one could have been misled by the term employed. The evidence, also, abundantly shows that the defect in the building complained of was of the most dangerous character, and was the proximate cause of the fire. It is not contended in argument that the fire originated at any other point, or through other means, and if it was, we discover no evidence to support such a theory. It would seem, then, that the objections which we have been considering are pure technicalities which fairly fall within the class defined as 'curious and nice exceptions tending to the overthrow or delay of justice,' which, it has been well said, a proper construction of the law always disallows. Courts do not sit as literary critics, and therefore mere verbal inaccuracies, unless clearly shown to have been misleading, are not ground of reversal.

Portions of the second and third instructions are assigned for error, as follows:

' Second. If they

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