Julius Kessler & Co. v. Southern Ry. Co. in Kentucky

• Decision Date: 30 October 1923
• Citation: 255 S.W. 535,200 Ky. 713
• Parties: JULIUS KESSLER & CO. v. SOUTHERN RY. CO. IN KENTUCKY.
• Court: Kentucky Court of Appeals

255 S.W. 535

200 Ky. 713

JULIUS KESSLER & CO. v. SOUTHERN RY. CO. IN KENTUCKY.

Court of Appeals of Kentucky.

October 30, 1923

Appeal from Circuit Court, Jefferson County; Common Pleas Branch First Division.

Suit by Julius Kessler & Co. against the Southern Railway Company in Kentucky. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Bruce Bullitt & Gordon, Grover G. Sales, and Lawrence S. Leopold all of Louisville, for appellant.

Humphrey, Crawford & Middleton, of Louisville, for appellee.

McCANDLESS J.

This suit was brought to recover the value of a cargo of whisky consigned to the appellee at Tyrone, Ky. for transportation to Sacramento, Cal., on June 27, 1917, and which was destroyed by fire at East St. Louis, on the evening of July 2d. From a verdict and judgment for defendant this appeal is prosecuted.

The petition alleged a wrongful and negligent failure to transport and deliver such cargo. This was denied by the answer, which also pleaded a provision of the bill of lading exempting it and connecting carriers from liability, "for any loss of, damage or injury to the cargo resulting from riots or fire not due to negligence of the company."

A demurrer to this plea was overruled, and in a reply the plaintiff pleaded negligent delay in transportation between Tyrone and East St. Louis, and that but for this delay the shipment would have gone forward before the fire, and not have been injured; that this was negligence directly contributing to the result.

It is also pleaded that a riot was in progress in East St. Louis during the night of July 1, 1917, and that this was a matter of common notoriety in the city; that appellant had notice thereof, and thereafter negligently shipped the cargo into the city and thereby caused it to be destroyed.

A demurrer was sustained to the first of these paragraphs and overruled as to the second. It is now claimed by appellant that the court erred to its prejudice in ruling that the delay in shipment prior to the fire was not the proximate cause of the injury and denying to it the right to rely on same; (b) in ruling that after it was admitted that the fire which destroyed the property was occasioned by a mob, that it was essential to prove negligence on the part of the defendant, and in requiring plaintiff to assume the burden of proof in that respect; (c) error of court in permitting defendant to prove what occurred at a meeting of citizens and officers, including the commander of the military forces which was held at the Chamber of Commerce on the afternoon of July 2d; (d) error of court in refusing to permit the attorney for plaintiff to comment on the failure of defendant to introduce its superintendent as a witness; (e) erroneous instructions.

On the other hand, appellee contends that when it was shown that the fire that destroyed the property was set by a mob, it was absolved from liability, and that there was no evidence of any negligence upon its part, and the court should have given a peremptory instruction for it.

The case of So. Ry. Co. v. Barbee, 190 Ky. 63, 226 S.W. 378, 20 A.L.R. 257, involved a similar loss occurring at the same time, and the details are therein set out with particularity; but some of the questions here raised were not considered in that opinion.

It appears that prior to this shipment some friction had arisen in the city of East St. Louis between the white and colored races; that on the night of July 1st two policemen had been killed by negroes and several of the latter had been shot. The St. Louis morning papers printed sensational articles concerning it, carrying bold headlines styled "Race Riots," etc. These were circulated generally throughout the city, and great excitement prevailed. The bullet-ridden machines in which the officers were killed were on the street in front of police headquarters on the morning of July 2d. Crowds of curious people congregated in the vicinity and inspected these as early as 8 or 9 o'clock in the morning. These crowds developed coherency and by 10 o'clock had formed into parties traversing the principal streets, seeking vengeance upon such negroes as they found.

In the meantime the authorities had not been idle. During the preceding night, in response to a request of the mayor, the Governor dispatched several companies of militia to the city. Early in the morning the police undertook to arrest such as were guilty of disorderly conduct, but by 10 o'clock had lost control and ceased to do more, apparently relying on the militia, but the latter did not interfere until late in the afternoon.

At 1 p. m. the saloons were closed by executive order, and about half past 1 or 2 a meeting was called at the Chamber of Commerce attended by the colonel in command of the militia, the city officers, and other prominent citizens. At this meeting the colonel stated that he thought he had the situation in hand; that he had several hundred militia, with more coming, and felt that he could maintain control.

Notwithstanding this, after the meeting broke up, mobs varying in numbers from a few persons to as many as 500 continued to traverse the streets, killing negroes in the presence of officers and militia without a check; as many as 20 or more being killed during the afternoon. All this was accentuated by sensational articles appearing in different editions of the St. Louis afternoon papers.

During the larger part of the day the rioters confined their activities to seeking personal vengeance upon the negroes without injuring property, but rumors that such destruction was their intention were widely circulated, and about 5 o'clock in the afternoon fires broke out in at least two places in the business district, a short distance to the north of defendant's Sixth Street yard. These fires were extinguished without reaching its property, but this occurrence must have been known by its agents. It is in evidence that at about 6 in the afternoon, an engine under steam at the end of this yard was obstructed by a line of hose with which the fire company was fighting fire. At this point its yard tracks run east and west; there are eight of these including the lead track, and it appears that there were about 125 cars therein, including the one containing the shipment in question, it having been received in East St. Louis at 10:45 a. m. and delivered to that yard at 4:30 in the afternoon of that day. To the south of these tracks there were a number of colored residences. After the above events, these were ignited, and the flames spread rapidly to the railway tracks, burning a number of cars, including the one containing this shipment. The troops had interfered late in the afternoon, but without effect, and by 8 p. m. the city was practically given over to the rioters.

The superintendent of this yard telephoned the switchmen some time between 7:30 and 8 o'clock p. m. about the prevalence of these fires and directed them to go down and take care of the freight. Three engines responded promptly and went to the yards and did what they could to rescue the freight; but a number of cars, including the one in question were burned. It does not appear that any other precautions were taken during the afternoon or evening for its protection.

Assuming that the defendant's contention is correct as to its exemption under the bill of lading, we think this sufficient evidence of negligence to have submitted the case to the jury. It must have been evident that afternoon that the rioters were in a dangerous mood, and that incendiarism might develop at any time. It is true that at a meeting of the authorities control was promised, but it was clear that it did not materialize. From vague rumors and threats actual fires did develop by 5 o'clock in the afternoon.

All of these things taken together were circumstances from which a knowledge of danger upon the part of the defendant might be inferred, and it clearly appears that practically no precautions were taken to avert it; hence it was a question for the jury to say whether or not defendant was negligent.

At common law destruction of goods in transit, by a mob or in consequence of a riot, was not considered a vis major, and as a general rule no exemption for recovery could be had therefor, though the carrier was permitted in the absence of a statute to the contrary to contract for a reasonable limitation upon its liability not including negligence; but under our Constitution (section 196) the right to so contract for relief from its common-law liability is denied, and this provision was applied in the case of Lewis v. L. & N. R. R. Co., 135 Ky. 369, 122 S.W. 184, 25 L.R.A. (N. S.) 938, 21 Ann.Cas. 527.

However as an article of interstate commerce this shipment was controlled by the provisions of the Carmack amendment to the Hepburn Act as amended, and thereunder the exemptions relied on were valid. L. & N....