John C. Kupferle Foundry Co. v. St. Louis M. B. T. Ry. Co.

• Decision Date: 16 July 1918
• Docket Number: No. 19448.,19448.
• Citation: 275 Mo. 451,205 S.W. 57
• Parties: JOHN C. KUPFERLE FOUNDRY CO. v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.
• Court: Missouri Supreme Court

205 S.W. 57

275 Mo. 451

JOHN C. KUPFERLE FOUNDRY CO. v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.

No. 19448.

Supreme Court of Missouri, Division No. 2.

July 16, 1918.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Action by the John C. Kupferle Foundry Company, a corporation organized under and existing by authority of the laws of the state of Missouri, against the St. Louis Merchants' Bridge Terminal Railway Company, a corporation. From judgment for defendant, plaintiff appeals. Reversed, and cause remanded for further proceedings.

Plaintiff sued for damages caused by the alleged negligence of defendant in pushing a car off the end of a switch track against a car containing naphtha, demolishing the car and the box cover over it, causing the naphtha to take fire, and thus burning plaintiff's factory and contents. The trial court sustained a demurrer to the evidence, and plaintiff has appealed. The fire occurred on the morning of September 7, 1912, about 4 o'clock. Plaintiff's factory building abutted on the south side of Wright street between First and Hall streets. Wright street at that place was open and used, but it was not "made." It had no sidewalk. The defendant had a switch track on Wright street extending west a portion of the distance along the north side of plaintiff's factory. It was on a level with the street. Its south rail was 44 inches from the factory, and there was no bumping post at the end of that track. Almost against its building, and about 10 feet west of the west end of said track, plaintiff kept a 50-gallon iron tank containing naphtha for the purposes of its factory. That tank was covered with a wooden box painted red. There was no sign to indicate that naphtha was kept there. The evidence for the plaintiff indicates that defendant's employés negligently shoved a car along that track so as to run it off the end thereof against the tank, causing the fire. In its answer the defendant alleged the existence of two ordinances of the city, one of which prohibited obstructions in the street, and the other required that all buildings used for storing naphtha and other combustibles should have posted on the outside thereof, signs indicating the inflammable nature of the contents, and alleged that the plaintiff had violated both those ordinances by keeping said tank as it did. That portion of the man & Red. on Negligence (6th Ed.) § 28, says:

F. L. Cornwell, of St. Louis, Larger & Hicks, of Chicago, ill., and Clyde Gary, of St. Louis, for appellant. T. M. Pierce, S. P. McChesney, and J. L. Howell, all of St. Louis, for respondent.

ROY, C. (after stating the facts as above).

We will first consider the case as it involves the question of the liability of the defendant for damages because of the destruction of the tank and the box over it. The liability of defendant for damages caused by the fire involves other questions, which we will consider later.

I. The fact that the tank was in the street, and may have been an illegal obstruction thereof, does not, of itself, prevent a recovery by the plaintiff. Beach on Contrib. Neg. (3d Ed.) § 45, says:

"It is no defense to an action for negligence that the plaintiff was engaged in violating the law in a given particular at the time of the happening of the accident, unless the violation of law was a proximate and efficient cause of the injury. Some mere collateral wrongdoing by the plaintiff, that has no tendency to occasion the injury, cannot, of course, avail the defendant through whose negligence the injury has been suffered. Thus, for example, driving on the wrong side of the road will not, as a matter of law, prevent a recovery in case of a collision. It is a circumstance to go to the jury on the question of the plaintiff's negligence. So, also, one who places his wagon in the street for the purpose of loading it, in such a position as to violate a city ordinance, may, nevertheless, recover from one who negligently runs into it."

1 Thompson on Neg. § 204, says:

"In many cases the violation of law by the person injured is collateral to the accident; in other cases it does not contribute directly to it, but remotely. Thus, in the case first above stated, we can easily concur with the remit reached by the court, because the conduct of the two actors, the plaintiff and the defendant, was concurrent in point of time. But it the second case, the simple fact that the plaintiff, in violation of an ordinance, was standing his hack across the street, surely did not justify the defendant in driving upon it, and breaking it. The mere fact that a person unlawfully exposes his person or property to a negligent injury does not justify another person in subsequently injuring it, when he might have avoided doing so by the exercise of ordinary care; and the rule equally applies in the case where one unlawfully exposes his person to an injury."

In Weller v. Railroad, 120 Mo. 635, 23 S. W. 1061, 25 S. W. 532, it was held that the driving of a wagon at a rate of speed prohibited by a city ordinance at the time of a collision between the wagon and a railroad train on a highway crossing is such negligence as to prevent a recovery.

In Schoenlau v. Friese, 14 Mo. App. 436, both plaintiff and defendant, in violation of an ordinance, left their horses unhitched on the street. One ran away and killed the other in the middle of the street. It was held there could be no recovery.

In Blackburn v. Railroad, 180 Mo. App. 548, 167 S. W. 457, plaintiff, without the permit required by an ordinance, was moving a house along a street, and came in contact with an uninsulated electric wire negligently maintained by defendant. It was held that plaintiff could recover though he was at the time violating the ordinance; such violation not being the proximate cause of the injury. See, also, Reed v. Railway, 50 Mo. App. 504; Phelan v. Paving Co., 227 Mo. 666, 127 S. W. 318, 137 Am. St. Rep. 582; Adams v. Wiggins Ferry Co., 27 Mo. 95, 72 Am. Dec. 247.

We are of the opinion that, outside of the damage done by the fire, the plaintiff's evidence made a case for the jury for at least nominal damages for the injury to...