Greenwich Ins. Co. v. Louisville & N.R. Co.

• Decision Date: 04 February 1902
• Parties: GREENWICH INS. CO. v. LOUISVILLE & N. R. CO. et al. [1]
• Court: Kentucky Court of Appeals

66 S.W. 411

112 Ky. 598

GREENWICH INS. CO. v. LOUISVILLE & N. R. CO. et al. ^[1]

Court of Appeals of Kentucky.

February 4, 1902

Appeal from circuit court, Marion county.

"To be officially reported."

Action by the Greenwich Insurance Company against the Louisville &amp Nashville Railroad Company and the Frank Fehr Brewing Company to recover damages for loss by fire. Judgment for defendants and plaintiff appeals. Affirmed.

Lafe S Pence, for appellant.

John McChord, for appellee Frank Fehr Brewing Co. W. C. McChord, Lisle & McChord, and Edward W. Hines, for appellee Louisville & N. R. Co.

O'REAR J.

The New South Brewing & Ice Company was granted the privilege by appellee the Louisville & Nashville Railroad Company to build a cold storage house upon the latter's right of way near Lebanon Station. Among the conditions of the lease was the following: "And whereas, such use of the right of way or the lands of said railroad company is solely at the instance of said brewing and ice company, and for its accommodation, and without charge on the part of said railroad company; and whereas, said railroad company would not give its permission or consent to the erection or use aforesaid on its said right of way or lands except upon the express condition that: That, in consideration of the premises, said railroad company, its officers, and agents, or other companies operating its railroad, be released and held harmless from, and indemnified against, all claim or demands of said New South Brewing & Ice Company or others on account of any injury or loss whatever to said house or its contents, by reason of fire from locomotives, or from any cause whatsoever." This contract was subsequently assigned by the consent of the railroad company to the Frank Fehr Brewing Company, who assumed it subject to the conditions above quoted. By the negligence of appellee railroad company's employés a fire is alleged to have occurred, caused by sparks from its locomotives. The fire originated in a building not on appellee's right of way, and owned by another not a party to the above contract nor to this suit. The cold storage house was burned in the same conflagration. It had been previously insured by appellant, who paid the owner for the loss, and brought this action against the railroad company, claiming it was entitled by subrogation to recover as the lessee, the owner of the cold storage house, would have been. This last statement we accept as true. The question is whether under the contract above quoted appellee railroad company was exempt from damages to the building in question by reason of fire caused by its negligence. The circuit court held that it was.

It is argued for appellant that the railroad company cannot contract against the consequences of its own negligence, as to do so is not only against public policy, but prohibited by section 196 of the constitution, which in part provides "No common carrier shall be permitted to contract for relief from its common law liabilities." The court is of opinion that appellee railroad company is not liable for the destruction or damage to the building under the contract quoted, except for willful or wanton negligence of its servants. For mere carelessness, however gross, short of wantonness or willfulness, it will not be liable. It is a matter of common knowledge, and from the language employed in this case we may assume was known to the parties herein, that by the aid of the best contrivances so far known and in use it is impossible to altogether prevent fire caused by sparks and cinders from locomotives. Of course the nearer the railroad track a conbustible object may be the greater is the danger to which it is subjected from this source. Railroad operators are held liable for damages to the public...