Latta v. New Orleans & N.W. Ry. Co.

• Decision Date: 20 May 1912
• Docket Number: 19,310
• Citation: 131 La. 272,59 So. 250
• Parties: LATTA v. NEW ORLEANS & N.W. RY. CO. In re NEW ORLEANS & N.W. RY. CO
• Court: Louisiana Supreme Court

59 So. 250

131 La. 272

LATTA v. NEW ORLEANS & N.W. RY. CO.

In re NEW ORLEANS & N.W. RY. CO

No. 19,310

Supreme Court of Louisiana

May 20, 1912

Rehearing Denied June 29, 1912.

Certiorari to Court of Appeal, Parish of Ouachita.

Action by G. H. Latta against the New Orleans & Northwestern Railway Company. Application by the defendant for certiorari or writ of review to the court of appeal, parish of Ouachita. Judgment amended and affirmed.

Hudson Potts & Bernstein, for relator.

Ellis &amp Dorsett, for respondent.

OPINION

MONROE J.

Defendant prays for the review of a judgment rendered by the Court of Appeal, Second circuit, condemning it to pay plaintiff $ 422, with interest from judicial demand, as the value of certain staves belonging to him which were set on fire by two cars of burning cotton moved near them in order to get the cars away from, and prevent their setting fire to, more valuable property belonging to the defendant, or for which it may have been responsible. Plaintiff alleges that the setting fire to the cotton was --

"the direct result of the carelessness of the employes of said company and the defective construction of the grate, fire box, smoke stack, and other parts of the engine used at that time in transporting freight; that, owing to said defective construction and carelessness, sparks were allowed to escape, and fire was left in such position as to ignite certain bales of cotton left on open cars on the track, and said cars of cotton, being near the depot and other valuable property of said company, were removed to a point so near to petitioner's piles of staves as to set fire and destroy all of them except parts of the red oak staves which were taken by the employes of said company and sold for its account and benefit."

The case presented by the evidence is as follows: At the little village of Wisner, in the parish of Franklin, defendant's main track runs north and south; upon the east side of it stands the depot; to the northward of the depot, 25 or 30 feet distant, is an open platform upon which, on the night of the fire, there were a number of bales of cotton awaiting shipment; to the eastward of the depot, within 10 or 12 feet, there is a siding or "house track" which connects with the main track to the northward of the cotton platform and to the southward of the depot, the distance at the depot between it and the main track being 50 feet; the two cars that were burned were box cars which had been loaded and sealed during the day preceding the night of the fire and left standing on the house track alongside the depot; on the same track, about 100 feet below the depot, there was a seed house, and plaintiffs' staves, as also a lot of staves belonging to Mr. Humble, were piled on the right of way between the depot and the seed house, about 8 feet from the track -- the staves belonging to Mr. Humble constituting the north end of the pile. In the early part of the night a local train with a partly disabled engine, after switching some cars on the house track, including, probably, those containing the cotton, had left the station, and at 8:20 o'clock a freight train had arrived which departed about 9 o'clock; about midnight Mr. J. Johnson, living some 300 yards down the track, saw the light or blaze of the fire, and immediately proceeded to the scene, followed by his son, B. F. Johnson, and they at once aroused Mr. Rhodes, the agent, whose testimony as to the condition existing during the day and night prior to that time is, in substance, as follows, to wit: There were 30 or possibly 35 bales of cotton on the platform; he was at the station when the local train went down; they made one switch on the house track; he does not know whether they moved the cotton cars or whether the cars were moved by the men who loaded them, but they had been moved about a car length (meaning from where they stood before they were loaded); the cars were loaded in the forenoon or early part of the afternoon, and the doors were closed and sealed as soon as they were loaded, say about 3 o'clock in the afternoon; they were offered to the local train, but, on account of disabled engine, they could not handle them; thinks it more probable that a spark from a locomotive would have ignited the cotton on the open platform than that in the closed box car; was asked, "Do you think, Mr. Rhodes, that it is more likely the cotton was on fire when loaded in the car," and replied, "Well, I understand cotton will smolder a long time, but I have no idea as to how the cotton caught on fire."

He says further:

"When I got there Mr. Johnson and his son were there, and I saw that, unless something was done immediately, the depot would burn. I went to the toolhouse and got some pinch bars to shove the cars with, and, when we got back up there, both ends of the cars were burning considerably. I suppose from 2 to 4 feet down on the cars from the tops; we shoved the cars from 20 to 25 feet south. * * * Q. Would Mr. Latta's staves have burned if the cars had not been moved? A. I believe the north end of the staves would have been burned. I don't know just how many. * * * Q. Mr. Rhodes, do you know whether or not all those staves belonged to Mr. Latta? A.

I think part of them belonged to Mr. Humble; he had part of the staves placed on the right of way. Q. Do you know whether the staves nearest the cars when they first caught fire belonged to Mr. Latta or Mr. Humble? A. Mr. Humble, I think. Q. Then, if the cars had not been moved, do you think Mr. Latta's staves would have been burned? A. I think the north end of the staves would have burned. Q. Where were they when the cars first caught? A. The south end of the cars passed below the north end of the staves, say 10 feet. Q. Then, by removing a few staves, you might have saved them? A. I don't know; you might have done so."

Mr. J. Johnson testifies that the cars were pushed down the track, near plaintiff's staves, "to save the depot and cotton on the platform," by probably 7 or 8 persons, of whom all save the agent and the track foreman were citizens not employed by the defendant. He further says that "some" of the staves would have been burned if the cars had not been moved. B. F. Johnson's testimony is much to the same effect; he also, making the distinction between all of the staves and a portion of the staves by saying that "somebody's" staves would have been burned whether the cars were moved or not. He further testifies as follows:

"Q. When you got there, were the flames coming out? A. Yes, sir; the flames were coming out of one of them. * * * Q. Where were the flames coming out of the car; what part of it? A. Between the door and one end of the car; on the top and on part of the side."

Mr. Gilbert reached the scene in time to assist in moving the cars, and he says that, when the cars had about cleared the depot, he blocked their further progress with a stave in order to protect his seed house in which he had a great deal of freight. He further says:

"Mr. Rhodes was * * * doing all he could, of course, to save the depot and the cotton on the platform, and I do not suppose that he saw that he was pushing the cars into the seed house. * * * Mr. Rhodes was there working manfully to save the depot, and I suppose it was through his efforts that it was saved."

Mr. Latta arrived after the cars had been moved and had burned through and the roof or roofs had fallen. He testifies further (in part) as follows:

"I have been shipping staves on this road for a long time. I placed these staves there for shipment as soon as I could get a car, * * * and on the day of the night that the staves were burned I had (had) placed there for loading, or rather had asked for, a car, which was placed on the south end of the passing track, but the conductor was unable to place the car where I could load it on account of some cars which were being loaded with cotton. * * * Q. Did you have permission from the company to place these staves there? A. I did; I had permission from the agent. * * * Q. Had it been customary to place staves on the right of way of this road up to that time? A. Yes. * * * Q. If the cars had been allowed to remain where they were when they caught fire or when the fire was discovered, would your staves have been destroyed? A. No, sir; or, in other words, I could have saved them. * * * We did everything we could to save the depot and the other cotton on the platform, I don't know how many bales, but there were a number of bales on the platform; we did all we could to save it and the depot. * * * I heard a train after I came home, about 9 o'clock. * * * I suppose it was a freight, I did not see it. * * * We could not have saved the depot (if the cars had not been moved), and of course if the depot had caught fire I don't believe we could have saved the cotton on the platform. * * * The north end of the north car (after they were pushed down) was about two feet south of the south end of the depot. Q. Don't you think they exercised good judgment in pushing the cars away from the depot? A. No doubt they did. * * *"

It is not shown at what hour the local train did the switching on the house track and went down the road, nor is it shown that the engine of the freight train emitted sparks. It is shown that the citizens united with the agent and section foreman in their efforts to save the depot and the cotton on the platform. It is not shown that there was freight of any value in the depot, nor is there any evidence as to the value of the depot building or the cotton on the platform. Plaintiff has testified to the value and number of his staves.

Opinion.

The learned judge of the district court says in the written opinion filed by him:

"There is nothing in the evidence to show how...