John G. Kupferle Foundry Company v. St. Louis Merchants Bridge Terminal Railway Company

• Decision Date: 16 July 1918
• Citation: 205 S.W. 57,275 Mo. 451
• Parties: JOHN G. KUPFERLE FOUNDRY COMPANY, Appellant, v. ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY
• Court: Missouri Supreme Court

205 S.W. 57

275 Mo. 451

JOHN G. KUPFERLE FOUNDRY COMPANY, Appellant, v. ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY

Supreme Court of Missouri, Second Division

July 16, 1918

Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.

Reversed and remanded.

F. L Cornwell, Barger & Hicks & Clyde Gary for appellant.

(1) Whether plaintiff was negligent in placing the tank of naphtha where the evidence showed it was at the time of the accident is under all the circumstances, a fact that, in the judgment of sensible men, would lead to different conclusions. Plaintiff was not negligent as a matter of law for any of the reasons hereinafter specified; therefore, the case should have been submitted to the jury under appropriate instructions. Weber v. K. C. Cable Ry. Co., 100 Mo 201; Petty v. Hannibal & St. J. Ry. Co., 88 Mo. 316; Huhn v. Mo. Pac. Ry. Co., 92 Mo. 450; Mauerman v. Simerts, 71 Mo. 105. (2) The tank of naphtha was not a nuisance per se, in that it was an unlawful obstruction on the public highway. Robert v. Powell, 168 N.Y. 411, 85 Am. St. 673, 55 L. R. A. 755; People v. Park & O. Railroad Co., 76 Cal. 156; City of Richmond v. Lambert, 111 Va. 176, 28 L. R. A. (N. S.) 381; Wolf v. District of Columbia, 196 U.S. 156, 49 L.Ed. 428; Nutter v. Pearl, 71 N.H. 248; Graves v. Shattuck, 35 N.H. 265, 69 Am. Dec. 536; Blackburn v. Southwest Mo. Railroad, 180 Mo.App. 548; Schopp v. City of St. Louis, 117 Mo. 137; Corby v. C., R. I. & P. Ry., 150 Mo. 466. (3) The tank was not a nuisance in that it was used for storing naphtha, a volatile, inflammable substance. O'Hara v. Nelson, 71 N.J.Eq. 161; Heeg v. Licht, 80 N.Y. 579, 36 Am. Rep. 654; Rudder v. Koopman, 37 L. R. A. 489; Kleebauer v. Western Fuse & Explosive Co., 60 L. R. A. 377, 94 Am. St. Rep. 62, 138 Cal. 497; Barnes v. Zittlinger, 25 Tex.App. 468; Flynn v. Butler, 189 Mass. 377; Tuckashinsky v. Lehigh & W. Coal Co., 199 Pa. 515; People v. Sands, 1 Johns, 78, 3 Am. Dec. 296; Dumesnil v. Du Pont Co., 18 B. Mon. 800, 68 Am. Dec. 750, 57 Ky. 800; Wilson v. Phoenix Powder Manf. Co., 52 Am. St. 890, 40 W.Va. 413; Remsberg v. Cement Co., 73 Kan. 66, 84 P. 548; Harper v. Standard Oil Co., 78 Mo.App. 344; State ex rel. Hopkins v. Excelsior Powder Mfg. Co., 259 Mo. 254. (4) That plaintiff may have violated the law by placing the tank in the street does not preclude plaintiff from recovery for damages to its property in this case, unless such violation was a direct and contributory cause to the accident, which, under the evidence, was a question for the jury, under appropriate instructions. Huelsenkamp v. Citizens Ry. Co., 37 Mo. 550; Brown v. Hannibal & St. J. Railroad, 50 Mo. 468; Blackburn v. Southwest Mo. Railroad Co., 180 Mo.App. 548. (5) The proximate cause of the injury was the negligent manner in which defendant's employees shoved the car on the spur track. Holwerson v. St. L. Sub. Ry. Co., 157 Mo. 231; Railway Co. v. Kellogg, 94 U.S. 475, 24 L.Ed. 257; Graney v. St. L., I. M. Ry., 140 Mo. 98; Buckner v. Stockyards Horse & Mule Co., 221 Mo. 700; Dean v. Railroad, 199 Mo. 411; Phillips v. St. Louis & San Francisco, 211 Mo. 419; Greer v. St. L., I. M. & S. Ry. 173 Mo.App. 276; Zeis v. St. Louis Brewing Assn., 205 Mo. 651; Fishburn v. Railroad, 127 Iowa 492; Woodson v. Metropolitan Ry. Co., 224 Mo. 685; Strayer v. Quincy, O. & K. C. R. R., 170 Mo.App. 514; Driskell v. United States Health & Accident Ins., 117 Mo.App. 362; The Santa Rita, 176 F. 895; Insurance Co. v. Tweed, 7 Wall, 44, 19 L.Ed. 65; Washington & Georgetown R. v. Hickey, 166 U.S. 521, 41 L.Ed. 1101. (6) Plaintiff had a right to rely on the presumption that defendant's employees would use ordinary care in shoving cars on this spur track. Moberly v. K. C. St. J. and C., B. & Q. Ry., 17 Mo.App. 543; O'Connor v. The Mo. Pac. Ry., 94 Mo. 157; Clark v. C. & A. Ry. Co., 127 Mo. 213.

T. M. Pierce, S. P. McChesney, and J. L. Howell for respondent.

(1) Under the law, the violation of the ordinance is negligence per se. Sluder v. Transit Co., 189 Mo. 129. And irrespective of any ordinance requirements, the placing of an obstruction in a public thoroughfare, whatever the character of the structure might be, and done without lawful authority, constitutes a nuisance at common law, and this becomes peculiarly a nuisance when the character of the obstruction creates an added danger to the public by reason of its dangerous nature. (2) The explosion and instantaneous firing of the naphtha in the tank, which the appellant had placed within a short distance of the end of the rails of the switch track, was the proximate and contributory cause of the conflagration which destroyed the property of the appellant, and therefore the appellant cannot recover in this case. 21 Am. & Eng. Ency. Law, p. 493, Note 1; 1 Thomp. Neg., sec. 83, p. 84; Anderson v. Miller, 96 Tenn. 35; Packet Co. v. Vandergrift, 34 Mo. 55; Callahan v. Warne, 40 Mo. 132; Concoran v. Railroad, 105 Mo. 399; Dougherty v. Railroad, 97 Mo. 647. If the accident be caused by the joint and concurrent negligence of both appellant's and respondent's agents, and the negligence of neither without the concurring negligence of the other would have caused the injury, the appellant is not entitled to recover. Hornstein v. Railroad, 97 Mo.App. 271; Webber v. K. C. Cable Ry. Co., 100 Mo. 194; Hogan v. Citizens Ry. Co., 150 Mo. 36; Moore v. K. C. F. S. & M. Ry. Co., 146 Mo. 572; Corcoran v. St. L., I. M. & S., 105 Mo. 405.

ROY, C. White, C., concurs.

OPINION

ROY, C.

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 four 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 forty-four inches from the factory, and there was no bumping post at the end of that track. Almost against its building and about ten feet west of the west end of said track, plaintiff kept a fifty-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 employees 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 answer was stricken out on motion of plaintiff.

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. Negligence (3 Ed.), sec. 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 wrong-doing 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 Negligence, sec. 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 result reached by the court, because the conduct of the two actors, the plaintiff and the defendant, was concurrent in point of time. But in 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, it was held that the driving of a wagon at a rate of speed prohibited by a city...