Lehigh Valley R. Co. v. State of Russia

• Decision Date: 08 August 1927
• Docket Number: No. 318,319.,318
• Citation: 21 F.2d 406
• Parties: LEHIGH VALLEY R. CO. v. STATE OF RUSSIA.
• Court: U.S. Court of Appeals — Second Circuit

21 F.2d 406 (1927)

LEHIGH VALLEY R. CO. v. STATE OF RUSSIA.

Nos. 318, 319.

Circuit Court of Appeals, Second Circuit.

August 8, 1927.

Hornblower, Miller & Garrison, of New York City (Charles A. Boston, of New York City, George S. Hobart, of Newark, N. J., and Nash Rockwood, Edgar H. Boles, and Richard W. Barrett, all of New York City, of counsel), for plaintiff in error.

Coudert Bros., of New York City (Frederick R. Coudert, Hartwell Cabell, Mahlon B. Doing, and Blaine F. Sturgis, all of New York City, of counsel), for the State of Russia.

Charles Recht and Osmond K. Fraenkel, of amici curiæ.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

MANTON, Circuit Judge.

As a result of the fire referred to in action No. 1 between these parties, a decision in which is rendered to-day (21 F.2d 396), a warehouse in which aluminum, property of the defendant in error was stored, was destroyed. The jury, in answer to a special question, found the fire to have been caused by the sole proximate negligence of the plaintiff in error. On this writ the plaintiff in error has assigned 362 errors. We will not consider them all, but only briefly such as require discussion.

The questions of the jurisdiction of the court and the right of the defendant in error to maintain this action have been considered fully in action No. 1, and for the reasons there stated the errors assigned here in regard to those questions are overruled.

The warehouse in which the aluminum owned by the defendant in error was located was adjacent to the terminal of the railroad company, and it caught fire as the fire progressed in the railroad yards. The fire occurred under the circumstances disclosed in the opinion in action No. 1. The specific questions submitted to this jury are also referred to in that opinion. The jury assessed the damages in the sum of $3,000, concluding that plaintiff in error was guilty of negligence and its negligence was the sole proximate cause of the damage.

Unless there were errors committed in the admission or rejection of evidence, or in the charge of the trial court, we must affirm this judgment. The jury found in favor of the railroad company on claims as to shipments of munitions which were on barges and which were destroyed in this catastrophe.

We have pointed out in the opinion in action No. 1 that the Johnson Lighterage Company was an independent contractor, and for its acts, if it were guilty of a nuisance, this defendant in error was not responsible. The fact that this action is based upon a theory of liability for negligence, rather than the common-law liability of the carrier for failure to deliver, does not change the rule or the relationship between the Johnson Lighterage Company and the defendant in error.

Error is assigned in the court's refusal to charge that the Interstate Commerce Commission rules are the exclusive measure of duty which the railroad company owed in respect to the transportation of the explosives, and exceptions are taken to the refusal to charge that there is no proof of negligence on the part of the railroad company in collecting and accumulating explosives and inflammables in its railroad terminal. The Interstate Commerce Commission rules and regulations as to explosives did not supersede the common-law liability of the carrier, and they are not the sole measure of the railroad company's responsibility. There was evidence of negligence on the part of the railroad company which required the trial judge to submit questions to the jury for their determination. We cannot weigh the sufficiency of that evidence. Herencia v. Guzman, 219 U. S. 44, 31 S. Ct. 135, 55 L. Ed. 81; Humes v. United States, 170 U. S. 210, 18 S. Ct. 602, 42 L. Ed. 1011; Fidelity & Deposit Co. of Md. v. Lehigh Valley R. Co. (C. C. A.) 275 F. 922, 928.

The court properly charged that:

"The fact that there is a Jersey City fire department and the fact that the Jersey City fire department had jurisdiction — that is, the fact that this property was within the jurisdiction of the Jersey City fire department — does not permit the defendant to say: `Well, we have a city fire department here; we do not have to do anything' It is for you to say whether, in the exercise of reasonable care, in the light of this situation, this defendant could rely upon the Jersey City fire department altogether, or had to act itself and do...