Hill v. Southern Ry. Co.

• Court: South Carolina Supreme Court
• Writing for the Court: COTHRAN, J.
• Citation: Hill v. Southern Ry. Co., 131 S.C. 159, 126 S.E. 642 (S.C. 1925)
• Decision Date: 12 February 1925
• Docket Number: 11680.
• Parties: HILL v. SOUTHERN RY. CO.

126 S.E. 642

131 S.C. 159

HILL v. SOUTHERN RY. CO.

No. 11680.

Supreme Court of South Carolina

February 12, 1925

Appeal from Common Pleas Circuit Court of York County; Jas. H Peurifoy, Judge.

Action by W. L. Hill against the Southern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

W. W Lewis, of York, for appellant.

McDonald & McDonald, of Winnsboro, and Frank G. Tompkins, of Columbia for respondent.

COTHRAN J.

Action for $15,473.05 the net loss on 142 bales of cotton alleged to have been partially destroyed by fire communicated by sparks from the defendant's engine.

The defendant supplemented its plea of general denial by setting up a contract between the plaintiff and the railroad company whereby, in consideration of the defendant's permission to allow certain warehouses to be placed on its right of way, the plaintiff agreed to indemnify the defendant from all loss by fire, however resulting "arising by reason of the presence of said warehouses or either of them upon the right of way of the railroad company and the occupation and use by the licensee of the said right of way for the purposes aforesaid."

The situation can be best understood by a reproduction, on a reduced scale, of the blueprint in evidence, showing the locations of the different warehouses, which the reporter will append to his report of the case .

RPT.CC.1925103863.00010

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Briefly stated, the plaintiff entered into a written contract with the railway company by which he was permitted to locate and operate three warehouses, two of which were within the limits of the railway company's right of way, and the third partly so. For convenience they will be referred to as warehouses Nos. 1, 2, and 3. No. 1, was 25X100 feet, on the north side of the main line, entirely within the right of way; No. 2, was 20X100 feet, on the south side of the main line also entirely within the right of way; No. 3, was 20X50 feet, located partly (16 feet) within the right of way, and partly (34 feet) outside of it, at right angles with the main line of the right of way.

Warehouses Nos. 1 and 2 are not involved in this litigation and no further reference to them is necessary. On the west side of warehouse No. 3, there was a door, which, as expressed in the argument, "straddled" the line of the right of way; that is, to say the line of the right of way passed through the door. Between the door and the southwest corner of the warehouse and extending along the south end of the warehouse there was a platform 10 feet wide, used for the purposes of transferring cotton into the warehouse, of storing cotton when the warehouse was full, and of transferring cotton not intended to be stored in the warehouse, by means of skids and trucks, to the platform of warehouse No. 2, there to be loaded into cars for shipment. The portion of the platform on the west side of warehouse No. 3, between the door and the northwest corner, within the right of way, was not adapted to the placing of cotton. The entire platform on the west and south sides of warehouse No. 3, was outside of the line of the right of way, with the exception of the portion above referred to.

On October 1, 1920, the plaintiff had about 3 bales of cotton in warehouse No. 3, in that part of it outside the right of way; he had also a number of bales upon the platform on the west and south sides of that warehouse, and a number of bales on the ground near the warehouse, in all 142 bales, all of which were placed outside of the right of way. None of the cotton on the platform or on the ground was intended to be stored in the warehouse, but all of it was in process of being transferred from the ground to the platform of warehouse No. 3, and thence by skids and trucks to the platform of warehouse No. 2, to be loaded in cars for shipment. The entire lot of cotton consisted of 200 bales, 58 of which had been loaded in cars, and the remainder, 142 bales, were awaiting the same disposition.

Some time in the afternoon of October 1, 1920, a freight train of the defendant, passed the premises on which the warehouses were located, and stopped at the station of Sharon, a few hundred yards to the west. A very short time after the train passed, variously estimated at from three to six minutes, fire broke out. The precise point of its origin is not definitely determined. Witnesses for the plaintiff testify that it broke out in the cotton placed on the platform on the west side of warehouse No. 3, between the door and the southwest corner, outside of the right of way, and it appears to be assumed by the appellant's counsel that this was the point of origin. He says in his printed brief:

"A few moments after it (the train) had passed the warehouse in question, a fire commenced burning on a bale of cotton on the platform."

Witnesses for the defendant testify that the fire broke out near the door, and was running up the side of...