Fraser-Patterson Lumber Co. v. Southern Ry. Co.

• Decision Date: 03 September 1948
• Citation: 79 F. Supp. 424
• Court: U.S. District Court — District of South Carolina
• Parties: FRASER-PATTERSON LUMBER CO. v. SOUTHERN RY. CO.

79 F. Supp. 424

FRASER-PATTERSON LUMBER CO. v. SOUTHERN RY. CO.

Civ. A. 848.

District Court, W. D. South Carolina, Spartanburg Division.

September 3, 1948.

Hyatt & Gossett, and Johnson, Johnson & Foster, all of Spartanburg, S. C., for plaintiff.

Sam R. Watt, and Rufus M. Ward, both of Spartanburg, S. C., for defendant.

WYCHE, District Judge.

In this action plaintiff seeks to recover damages under the provisions of Section 8362, Code of Laws of South Carolina, 1942, upon allegations that certain property of the plaintiff was destroyed by fire communicated by defendant's locomotive engine on or about April 16, 1945. The defendant, by its answer, admits that certain property of the plaintiff was destroyed by fire, but denies that such fire resulted from any act on the part of the defendant, and sets up two affirmative defenses: (1) Contributory negligence and contributory wilfullness; and, (2) a written contract between plaintiff and defendant in which the defendant agreed to furnish certain facilities on an industrial track for the plaintiff in consideration of the plantiff agreeing to indemnify and save harmless the defendant against any and all claims accruing for loss of damage by fire communicated by locomotive engines or trains of the defendant to buildings used by the plaintiff in connection with the business served by the industrial track.

The case is before me upon motion of plaintiff to strike the affirmative defenses of the defendant upon the ground that the same are redundant, immaterial, impertinent, evidentiary and prejudicial to the plaintiff.

The statute upon which plaintiff bases its cause of action is as follows: "§ 8362. Responsible for damages by fire.—Every railroad corporation shall be responsible in damages to any person or corporation whose buildings or other property may be injured by fire communicated by its locomotive engines, or originating within the limits of the right of way of said road in consequence of the act of any of its authorized agents or employees, except in any case where property shall have been placed on the right of way of such corporation unlawfully or without its consent, and shall have an insurable interest in the property upon its route for which it may be so held responsible, and may procure insurance thereon in its own behalf."

The precise question as to whether contributory negligence and contributory wilfullness constitute a defense to a cause of action brought under the foregoing statute has not been decided by the Supreme Court of South Carolina, but it is well settled that in an action brought under this statute the question as to negligence, proximate cause or remote cause is eliminated, and the only inquiry is whether the case falls within the terms and provisions of the statute.¹

In the case of Thompson v. Richmond & D. R. Co., 24 S.C. 366, it was said: "An analysis of the terms of this section will show that the legislature intended to make a railroad company liable for property destroyed by fire communicated by its locomotive engines, or by a fire which originated within the limits of its right of way in consequences of any act of an authorized agent, unless the property destroyed was placed on the right of way of the company unlawfully or without its consent.

"Hence, in a case of this kind, the only questions would be whether the property was destroyed by fire communicated by its locomotive engines, or by fire which originated on its right of way in consequence of the act of some agent of the company, and the only defences would be either that the fire, though originating on the company's right of way, was not the result of any act of one of the company's agents or employees, or that the property destroyed had been placed on said right of way unlawfully or without the consent of the company. Nothing is said in the act about negligence, and the very fact of such omission shows that the object of the act was to eliminate any question of negligence, inasmuch as under the law as it previously stood the company would only be liable in case of negligence. We are, therefore, forced to conclude, that the purpose of the act was to dispense with any inquiry into that subject, for it declares the company liable for property destroyed by fire, originating on its right of way from any act of any of its agents, without any qualification whatsoever, either as to negligence or otherwise.

"So, too, under the terms of the act, there can be no necessity for an inquiry as to whether the fire caused by the act of the company or its agents was the proximate or remote cause of the destruction of the property in question, as would have been the case under the old law; for it declares in absolute terms, without any qualification, that the company shall be liable for the destruction of property by fire which originated within the limits of the right of way from some act of the company or its agent or employee, and this precludes any inquiry as to whether the fire so originating was the proximate or remote cause of the damage complained of."

In the more recent case of Mellette v. Atlantic Coast Line R. Co., 181 S.C. 62, at page 66, 186 S.E. 545, at page 547, the Supreme Court of South Carolina said: "The liability of a railroad company for the results of communicated fires is, under section 8362, 1932 Code, (1942 Code) absolute. No question of negligence or due care can arise. If it be established that the fire originated upon the right of way in consequence of the acts of any authorized agent or employee of the railroad company, or that it was communicated by its engines, the company is liable in damages for the subsequent injury."

Thus, the principle is laid down by the South Carolina decisions that where a statute imposes a liability under certain conditions therein prescribed the only question is whether such conditions are found to exist in a given case, and not whether, under the general law, apart from the provisions of the statute, liability would exist. Wragge v. South Carolina & G. R. Co., 47 S.C. 105 at page 111, 25 S.E. 76, at page 82, 33 L.R.A. 191, 58 Am.St.Rep. 870.

Under the South Carolina decisions, contributory negligence is the want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as the proximate cause thereof, without which the injury would not have occurred. Wilson v. Southern Ry., 73 S.C. 481, at page 500, 53 S.E. 968, at page 975; Lawrence v. Southern Ry., Carolina Division, 169 S.C. 1, 167 S.E. 839.

In the case of Wilson v. Southern Ry., 73 S.C. 481, at page 500, 53 S.E. 968, at page 975, the South Carolina Supreme Court said: "It is thus seen that contributory negligence by plaintiff can never exist except when the injury has resulted from the negligence of the defendant as a `concurring proximate cause.' In Bowen v. Southern Ry. Co., 58 S.C. 222, 228, 36 S.E. 590, this exact definition has been adopted by the Court. In Easler v. Southern Ry. Co., 59 S.C. 311, 322, 37 S.E. 938, 941, where the definition in the two previous cases of Cooper and Bowen was adopted, Chief Justice McIver remarked as follows: `From this as well as what is said in Farl...