Kahn v. Southern Ry. Co.

• Decision Date: 16 March 1953
• Docket Number: No. 6521.,6521.
• Parties: KAHN et al. v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

202 F.2d 875 (1953)

KAHN et al. v. SOUTHERN RY. CO.

No. 6521.

United States Court of Appeals Fourth Circuit.

Argued January 12, 1953.

Decided March 16, 1953.

Robert R. Williams, Jr., and R. R. Williams, Asheville, N. C., for appellants.

George H. Ward, Asheville, N. C. (W. T. Joyner, Raleigh, N. C., and Harold K. Bennett, Asheville, N. C., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

These are appeals from directed verdicts entered by the District Court at the close of all the evidence in three civil actions consolidated for trial against the Southern Railway Company for damages caused by alleged negligence in blocking a street crossing in Asheville, North Carolina, and thereby delaying the arrival of fire apparatus of the city's Fire Department at a fire in a building owned by Mortimer I. Kahn and leased and occupied by the Kahn Company, Inc. and Broad River Processing Company, Inc. Several fire insurance companies were made additional parties plaintiff in each case on account of subrogation rights arising out of payments on the fire loss exceeding $75,000.

The tracks of the Southern Railway run parallel to and several hundred feet east of the French Broad River through the City of Asheville from Biltmore on the south to the northern limits of the city, a distance of several miles. Riverside Drive runs north and south between the tracks and the river; and on the east side of this street a number of buildings, including the Kahn building, have been constructed and occupied for business purposes. The most readily accessible approach to this business section is Lyman Street, which crosses the tracks of the Southern Railway within its railroad yards, three or four blocks north of the Kahn Building. The nearest street crossing the railroad south of Lyman Street is at Biltmore, a distance of three miles, and the nearest street crossing the railroad north of Lyman Street is at the old Smith Bridge, a distance of nearly a mile.

The major part of the area bounded by Lyman Street on the north, Riverside Drive on the west, and the main line of the Southern Railway on the east is used for railroad purposes. Here are located the yards of the railway, where interstate trains are made up, and also its round house, car repair shops, main lines and side tracks.

The Kahn Building is situated on the east side of Riverside Drive about 400 feet west of the main track and about three or four blocks south of Lyman Street crossing. Almost directly across the tracks and to the east of the Kahn Building is situated a Fire Department Station of the city known as the Bartlett Street Station. Leaving this fire station a fire engine bound for the Kahn Building by the shortest route could travel three or four blocks north on Depot Street (which runs parallel to Riverside Drive) to Lyman Street, west on Lyman Street about one block and then three or four blocks south on Riverside Drive.

About 11 a. m. on January 27, 1951, R. B. Taylor was working on the third floor of the Kahn Building. He smelled smoke, found that it was coming from the second floor, and called the owner Kahn, who was in his office on the first floor. Kahn went to the second floor, saw the smoke, and called the fire department. This call was made from six to eight minutes after discovery of the fire.

At about the same time a freight train of the Southern Railway, moving south into the Asheville yards from Knoxville, Tennessee, halted just north of Lyman Street crossing in order to receive track instructions. The train consisted of a four-unit Diesel locomotive, 133 cars and a caboose, and was about one and a third miles in length. After standing at Lyman Street for two minutes, it began to proceed slowly over the crossing at from four to six miles per hour, gradually picking up speed.

The first alarm phoned in by Kahn was recorded at the Central Fire Station. The Bartlett Street apparatus was immediately ordered out and promptly proceeded to the fire, but was stopped at the Lyman Street crossing by the train moving into the yards.

The delay was reported by radio to the Central Station and fire apparatus from both Biltmore and West Asheville Stations was ordered out. Biltmore Station is located on the same side of the track as the Kahn Building and is about three miles, and five minutes drive away. West Asheville Station is located across the river from the Kahn Building, about two miles from Lyman Street by the shortest route. When its equipment reached the blocked crossing, it was ordered to go back to the bridge crossing the track, about a mile from Lyman Street, and proceed thence to the burning building. This maneuver covered a distance less than three miles and consumed less than five minutes.

The train was in motion when the first firemen reached the Lyman Street crossing, and according to the plaintiffs' testimony the fire apparatus was delayed twenty minutes at this point by the passing train. There was no watchman at the crossing which was protected by automatic signals and the evidence shows that the men on the train had no knowledge of the fire while the train was crossing the street.

The theory of the plaintiff's case is that the Railway was negligent in blocking the street by the passage of its lengthy train and preventing the fire apparatus from reaching the site of the fire for a substantial period of time, during which the fire gained headway and much property was destroyed which would have been saved if access to the fire had not been delayed.

To sustain this theory the plaintiffs offered evidence, which was excluded by the trial judge, to the effect that a few months before the fire the Railway had been notified by business men of the locality that Lyman Street had been blocked by it for a substantial period of time on the occasion of a previous fire and that the obstruction of the street by passing trains involved danger of increased loss in case of fire, as well as danger of loss or injury in case of other emergencies.

In addition the plaintiffs offered in evidence the opinion of Mortimer I. Kahn, the owner of the building, that if the Bartlett Street fire company had arrived at the fire within a minute or two after it left its fire house the damage would have been negligible. This evidence was excluded, seemingly on the ground that the witness was not qualified as an expert to express an opinion on the subject. Certain experienced firemen, however, were allowed to testify that in their opinion the fire, which originated in bales of rags stowed in the building, must have been burning for several hours before it was discovered, and that the delay in reaching the building caused by the train did not materially add to the fire loss. The attention of the witnesses does not seem to have been called to the fact that the delay caused by the train would not have exceeded three to four minutes if the Bartlett Street firemen had gone back and crossed the tracks on the Smith Bridge as soon as they found that the Lyman Street crossing was blocked.

Two ordinances of the City of Asheville were received in evidence which related to the obstruction of streets by steam railroads, and to the rate of speed of trains within the city limits. They are as follows:

"Ordinance No. 537.

"Blocking Street Crossing. Any corporation, conductor, engineer, or other employee of any steam railroad company having tracks running across the public streets of this city, who shall obstruct the same, or prevent the free passage of vehicles and pedestrians longer than three minutes at one time, shall be subject to a penalty of Fifty Dollars for each and every offense."

"Ordinance No. 533.

"Rate of Speed for Steam Railroads. No steam railroad company shall run or operate its engines or trains, along, through, or across any street in the City of Asheville at a greater rate of speed than four miles per hour, or at any other place within the City of Asheville at a greater rate of speed than six miles per hour; and any such railroad company violating any of the provisions of this section shall be subject to a penalty of Twenty-Five Dollars for each and every such offense."

The plaintiffs also offered in evidence...