Louis Auguste Marande v. Texas Pacific Railway Company

• Decision Date: 24 February 1902
• Docket Number: No. 86,86
• Citation: 46 L.Ed. 487,22 S.Ct. 340,184 U.S. 173
• Parties: LOUIS AUGUSTE MARANDE et al., Plffs. in Err. , v. TEXAS & PACIFIC RAILWAY COMPANY
• Court: U.S. Supreme Court

184 U.S. 173

22 S.Ct. 340

46 L.Ed. 487

LOUIS AUGUSTE MARANDE et al., Plffs. in Err.,

v TEXAS & PACIFIC RAILWAY COMPANY.

No. 86.

Argued January 8, 9, 1902.

Decided February 24, 1902.

This action was commenced to recover from the Texas & Pacific Railway Company the value of 65 bales of cotton destroyed by fire on the night of the 12th of November, 1894, whilst the cotton was in the cars of the railway company standing on its tracks in the rear of or in close proximity to a terminal wharf of the corporation situated opposite the upper portion of the city of New Orleans, on the west bank of the Mississippi river, at a point called Westwego. The cotton formed part of 100 bales shipped from Greenville, Texas, on the 29th of October, 1894. An export bill of lading was given by the Sherman, Shreveport, & Southern Railway Company, that Company purporting to act, not only on its own, but also on behalf of the Texas & Pacific Railway, and of the Elder Dempster & Co. steamship lines. The bill of lading provided for the carriage of the cotton from the point of shipment 'to the port of New Orleans,' and thence by the steamship line to Havre, France, and contained numerous conditions and exceptions, one of which exempted the carrier from all loss occasioned by fire. Responsibility of the railway company for the value of the cotton destroyed by fire, although at time of its destrcution it was in the possession of the railway under the bill of lading, was based on the assumption, first, that the fire was due to the negligence of the corporation; and, second, that the carriage of the cotton to the terminal wharf at Westwego, for transhipment there to the steamship line, was a deviation, and hence the railway company was not entitled to avail itself of the exception against loss by fire.

Upon issue joined, a trial was had in the circuit court. After the plaintiffs had introduced their testimony and rested their case, the defendant requested the court to take the case from the jury by giving a peremptory instruction in its favor. This was asked on the ground that there was no proof sufficient to go to the jury, either as to the alleged negligence, or the asserted deviation. The court granted the request, and exceptions were duly saved by the plaintiffs. From the judgment entered on the verdict the plaintiffs prosecuted error to the circuit court of appeals for the second circuit, and in that court the judgment was affirmed.

The case being one depending not solely on diverse citizenship, the defendant corporation being chartered by an act of Congress, the plaintiffs prosecuted error to this court.

Messrs. Treadwell Cleveland, Frederick E. Mygatt, and George Richards for plaintiffs in error.

Messrs. Rush Taggart and Arthur H. Masten for defendant in error.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

Questions involving the liability of the defendant for damage occasioned by the loss of other cotton by the fire which destroyed the cotton, the value of which is now sought to be recovered, have been previously decided by this court. Texas & P. R. Co. v. Clayton, 173 U. S. 348, 43 L. ed. 725, 19 Sup. Ct. Rep. 421; Texas & P. R. Co. v. Reiss, 183 U. S. 621, ante, 253, 22 Sup. Ct. Rep. 253; and Texas & P. R. Co. v. Callender, 183 U. S. 632, ante, 257, 22 Sup. Ct. Rep. 257. Whilst in deciding these cases it was essential to refer to, and in some respects consider, the course of business at the terminal wharf at Westwego, the controversy which here arises for decision involves different considerations, and causes it to be necessary to more fully refer to the establishment of the wharf at Westwego and the course of business at that place prior to and at the time the fire occurred.

In the circuit court of appeals there were a number of assignments of error; now, however, only four of such assignments are pressed; the 1st, the 12th, the 13th and the 14th. As the 1st of these only complains generally that the circuit court of appeals erred in affirming the judgment, and the 14th is a mere reiteration of the 1st, the only assignments which we are called upon to consider are the 12th and the 13th. The one asserts that the case should have been allowed to go to the jury on the issue of de- viation, the other that error was moreover committed in not permitting the plaintiff to go to the jury on the general question of the loss of the cotton by the negligence of the defendant railway.

In order to pass upon the issues arising on these assignments, the evidence must be considered. In taking it into view, however, we shall do so only to the extent necessary to enable us to decide the question of law which arises, that is, Was the evidence sufficient on the subject of negligence and deviation to go to the jury?

Approaching the city of New Orleans, on the opposite or right descending bank of the Mississippi river, the track of the Texas & Pacific Railroad terminated prior to 1873 at a point called Gouldsboro. There the company had a railway yard, roundhouse, and other structures. It there also had a terminal wharf with an incline, by means of which its cars could be transferred directly across the river by boat to a depot and yard belonging to the company situated at the foot of Thalia street, at about the center of the river front of the city of New Orleans. At the Thalia street depot freight for New Orleans was delivered, and that intended for further transit by way of export or otherwise was also delivered in carload lots over connecting tracks, or, where this could not be done, was hauled and delivered at the expense of the railway to the steamship or other carrier. Prior to 1873 the proof tended to show, at a point some 6 or 8 miles above Gouldsboro, a spur track left the main track of the Texas & Pacific road, and extended for about 1/2 mile in length to Westwego, on the bank of the river. Before 1873, however, the proof showed that none of the inbound traffic was carried on at Westwego, though at that point probably some outbound freight, intended for the purposes of the railroad, may have been received at Westwego. Some time in 1873 the company constructed a grain elevator at Westwego, and built a terminal wharf at the same point. The proof gives no description of the elevator wharf, except that it was below the freight wharf and connected with it, but the freight wharf is fully described, there being no material variation in the testimony on the subject.

The wharf was built on the bank of the river. It was constructed on piles and stood above the water, the piling having placed on it beams and joists upon which planks were nailed, constituting a flooring which had very narrow spaces between the planks, as they were not tongued and grooved. The wharf was about 800 feet, stretching up and down the river front, and was somewhere between 350 to 400 feet in depth, that is, running back from the river front to where it rested against the bank. On this wharf were constructed two freight sheds, the one designated as No. 1 began same short distance above the lower end of the wharf, and extended up for a length of between 250 to 300 feet. At a short distance, above the upper end of this shed, the flooring on the wharf ceased, and there was an open space about 50 feet, extending up the wharf, and which was near about the width of the shed; in this place the piling had been driven and the joists and beams placed, but no flooring was laid. Beyond this open space there was built shed known as No. 2, of the same dimensions as the lower one. Both of these sheds were wooden structures raised on posts placed in the wharf, entirely open at each end and at each side. The roof commenced at about 20 feet above the flooring of the wharf, and was surmounted by a cupola running the entire length of each shed, which was covered with a lattice or wooden work like a wooden shutter. The number of the rows of posts in each shed is not made clear in the proof, but it tended to show that the posts were somewhere between 20 and 30 feet apart. About 8 to 10 feet in front of both of these sheds along the wharf was a railroad track, which entered the wharf from the lower end, and extended to and beyond the extreme upper end of shed No. 2. Between the outer rail of this track and the river front there was a space on the wharf of about 30 feet. Behind the sheds were two railroad tracks running the entire length, and extending above the upper end of No. 2 shed, somewhere between 50 and 100 feet.

Westwego was not within either the municipal limits of the city of New Orleans, or the limits of the port of New Orleans, as defined by statute. It was shown that the season of active cotton receipts in the city of New Orleans commences about the 1st of September and ends about May of each year, and that the Westwego wharf was completed in time to enable the railway company to avail of its facilities for, if not the whole, at least a portion, of the business of the cotton season of 1893 and 1894. After the construction of the wharf in the season in question the great bulk of cotton handled by the Texas & Pacific Railroad under export bills of lading was deflected from its main track at the Westwego spur track, carried to the terminal wharf, and there unloaded and transhipped. This the proof showed was the course of business also as to all export cotton in the following season of 1894 and 1895, up to the time of the fire, except, perhaps, as to small lots of cotton intended for export, where the number of bales would not justify the coming of a steamer to the wharf at Westwego, in which case the cotton was carried to Gouldsboro, transferred, and delivered. In arranging to carry export cotton the course of business was this: The Texas Pacific Railway would contract with steamship lines for the carrying of a given quantity of cotton at a stated price, and under these contracts would then, through either itself or through other...