Logan v. Wabash Railroad Company
| Decision Date | 03 November 1902 |
| Citation | 70 S.W. 734,96 Mo.App. 461 |
| Parties | A. A. LOGAN, Appellant, v. WABASH RAILROAD COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Schuyler Circuit Court.--Hon. Nat M. Shelton, Judge.
AFFIRMED.
Judgment affirmed.
Smoot Fogle & Eason for appellant.
(1) The duty was imposed by law upon the property-owner to extinguish the fire if he could reasonably do so. Thompson on Negligence (Late Edition), sec. 2327; Tilley v. Railroad, 49 Ark. 535; 6 S.W. 8; Railroad v. McKay, 69 Miss. 139 12 So. 447; Hoyle v. Railroad, 28 Hun. 363; Douglas v. St. Johns, 18 Mo. 362; Railroad v Miller, 48 N.E. 663; Railroad v. Bailey, 46 N.E. 688. (2) The owner in protecting his property is rendering a service to the defendant. Page v. Bucksport, 18 American 239; Ingalls v. Bills, 9 Metcalf, 1; Stover v. Bluehill, 51 Me. 439; Stickney v. Madstone, 3 Ver. 738; Ryter v. Starin, 73 N.Y. 601; 99 N.Y. 158. (3) There was no break in the chain of causation by the intervention of a reasonable human agency in this case. See note and authorities cited. 36 Am. St. Rep. 840; Evans v. Railway, 11 Mo.App. 463; Page v. Bucksport, 64 Me. 510; 18 Am. Rep. 239; Rexter v. Starin, 73 N. Y. App. 601; Lowery v. M. R. Co., 99 N.Y. 158; Dietrich v. Railway, 89 Mo.App. 36; Ward v. Railroad, 29 Wis. 144. (4) Plaintiff in this case, after having become involved in the fight with the fire and put in a dangerous position, will not be held to that high degree of diligence and judgment. Quingly v. Railroad, 144 Penn. 388; 24 Am. St. Rep. 504; Lowery v. Railroad, 99 N.Y. 158; 36 Am. St. Rep., and note at page 347; Sweeney v. Car Co., 150 Mo. 385; Thompson on Negligence (Late Edition), sec. 2328. (5) The question whether the plaintiff acted reasonably prudent in his efforts to extinguish the fire and in his efforts to escape the danger, is a question for the jury to determine. Liming v. Railroad, 81 Iowa 246; Rexter v. Starin, 73 N. Y. App. 601. (6) It can not be said that the injury to plaintiff was not likely to occur from the negligence on the part of defendant in setting out the fire. Kellogg v. Railroad, 26 Wis. 223; Smith v. Railroad, 6 C. P. 21; Higgins v. Dewey, 107 Mass. 494; Miller v. Railroad, 90 Mo. 389.
Geo. S. Grover for respondent.
(1) The act of the plaintiff in attempting to put out the fire was the proximate cause of the injury here complained of, and not the act of defendant in permitting the fire to escape in the first instance. For that reason the plaintiff was not entitled to recover. Henry v. Railroad, 76 Mo. 288; Sira v. Railroad, 115 Mo. 127; Brown v. Railway, 20 Mo.App. 222; Hinchy v. Railway, 49 N.Y.S. 406; Cook v. Johnson, 58 Mich. 437; Seale v. Railway, 65 Texas 274; s. c., 57 Am. Rep. 602; Pike v. Railway, 39 F. 255; Ins. Co. v. Tweed, 7 Wallace (U.S.) 73; Fuch v. City, 67 S.W. 610; Roberts v. Tel. Co., 166 Mo. 370.
--The plaintiff, Logan, was in charge of a farm belonging to his brother, in which he had an interest in the growing crops and stock thereon. In July, 1900, an engine operated on defendant's railroad, which passed through said farm, by escaping sparks set out a fire near some hay which had been severed from the land and which was partly in ricks. There was also some standing hay. The plaintiff with the aid of another man succeeded in saving some of the hay, but while so doing, he became surrounded by the flames, and in seeking to escape, fell and was severely burned. The court sustained a demurrer to plaintiff's case as thus made and directed a verdict for the defendant, upon which judgment was rendered, from which plaintiff appealed. There was no controversy about the facts. The action is predicated upon the negligent act of the defendant in communicating fire to the premises in question. Defendant on the trial admitted the alleged negligence but denied its liability except for losses to crops by reason of the fire, but as they were not in issue, they have nothing to do with the case.
The plaintiff bases his right to recover upon the ground, that, after he had discovered the fire, it became his duty, a duty which he owed the defendant at common law, to extinguish the fire if he could, so as to save the defendant from loss, for which it would be responsible to him for the destruction of his property. His contention amounts to this, that, being in the performance of a duty, which the law imposed, and while performing that duty in the exercise of ordinary care, in order to save the defendant, the wrongdoer, from loss threatened from the consequences of its wrongful act in setting out the fire, he is entitled to compensation for the injuries received.
In Douglass v. Stephens, 18 Mo. 362, it was held that in case of a tort, if an injured party can protect himself from damage at a trifling expense, or by any reasonable exertions, he is bound to do so. And the rule is illustrated by supposable cases, viz.: Suppose a man should enter his neighbor's field unlawfully and leave the gate open; if before the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner sees the gate open, and passes it frequently, and willfully, and obstinately, or through gross negligence, leaves it open and cattle get in, it is his own folly. So if one throws a stone and breaks a window, the cost of repairing the window is the ordinary measure of damage. But if the owner suffers the window to remain without repairing a great length of time after notice of the fact, and his furniture and pictures, and other valuable articles sustain damage, or the rain beats in and rots the window, this damage would be too remote." There is no denying the soundness of this principle. It being conceded that it became the duty of plaintiff to use every reasonable effort to extinguish the fire and prevent loss to the defendant, does it necessarily follow that, if while in so doing, he is damaged in his person, the defendant becomes liable therefor? It may be conceded that for his service in that respect, he would be entitled to a reasonable compensation, because he was performing a lawful duty, one which defendant had a right to expect he would perform, for it was in contemplation of law that he should do so.
The rule of law in this State is, that unless the damages complained of were properly attributable to the wrongful act there can be no recovery. In other words, the wrongful act must be the proximate cause of the injury. Sira v. Railway, 115 Mo. 127; Henry v. Railway, 76 Mo. 288. In Brown v. Railway, 20 Mo.App. 222, it was held that ...
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