Louisville, New Orleans & Texas R. R. Co. v. Natchez, Jackson & Columbus R. R. Co

• Decision Date: 10 March 1890
• Citation: 7 So. 350,67 Miss. 399
• Parties: LOUISVILLE, NEW ORLEANS & TEXAS R. R. CO. v. NATCHEZ, JACKSON & COLUMBUS R. R. CO
• Court: Mississippi Supreme Court

7 So. 350

67 Miss. 399

LOUISVILLE, NEW ORLEANS & TEXAS R. R. CO. v. NATCHEZ, JACKSON & COLUMBUS R. R. CO

Supreme Court of Mississippi

March 10, 1890

October 1889

FROM the circuit court of Jefferson county, HON. RALPH NORTH Judge.

This is an action by the Natchez, Jackson & Columbus R. R. Co. for the use of the Phoenix Insurance Co. of New York to recover from the Louisville, New Orleans & Texas Ry. Co. the sum of $ 2805.60, the value of fifty-eight bales of cotton alleged to have been burned through the negligence of the last-named company, and which sum the said insurance company as insurers had been compelled to pay to the Natchez, Jackson & Columbus R. R. Co., the insured.

The record presents several questions arising upon the special pleas filed by the defendant, but the opinion of the court is limited to a consideration of the evidence and certain instructions. The evidence established that on November 21 1887, the two railroad companies above mentioned were joint owners of the station-house and platform at Harriston, where their railroads intersected, and that the said cotton was delivered by the L., N. O. & T. Ry. Co. to the N., J. & C. R R. Co. to be transported to Natchez; that while the cotton was in the possession of the last-named company, at said station, some of it stored on its flat cars and some on the platform, it was burned.

The evidence for plaintiff, although in a large measure circumstantial, tended to prove that the fire originated from sparks escaping from the locomotive of the L., N. O. & T. Ry Co., while negligently running its train by the station.

The defendant company introduced the employes of the train, which was supposed to have communicated the fire, all of whom testified that reasonable care and diligence were used in operating the engine, which was a new one and well supplied with equipments to prevent damage from sparks; that it was impossible for any train heavily loaded as in this case to pass without emitting sparks to some extent.

For the purpose of showing contributory negligence, defendant, after proving the situation of the cotton and its proximity to danger and its highly inflammable character, asked a witness whether the cotton would have been burned if it had been in box cars, or covered with tarpaulins. This question was objected to and the objection sustained, to which the defendant excepted.

The defendant asked the following instructions, which were refused: --

"3. Negligence is not to be presumed, but must be proved by the parties alleging in the manner pleaded, and the burden of proof is on the plaintiff to show that the defendant was entirely responsible for the injury complained of by reason of the defect pleaded, and although the jury may believe from the evidence that the cotton was set fire by sparks from the locomotive of the L., N. O. & T. Ry. Co., yet if the negligence of the N., J. & C. R. R. Co. contributed to the burning, plaintiff cannot recover, even though the negligence of the L., N. O. & T. Ry. Co. contributed thereto, but that all that is required of either party is the exercise of ordinary care and prudence to avoid the injury.

"4. In this action it is incumbent upon the plaintiff, not only to show that L., N. O. & T. Ry. Co. was guilty of negligence charged in the declaration, but it must also show that the N., J. & C. R. R. Co. was free from fault. If, therefore, by the fault or negligence of the N., J. & C. R. R. Co., after the cotton was delivered to it, it was left in an exposed condition, when, by the exercise of ordinary care, prudence and diligence it could have been placed beyond, or protected from, danger of the fire from passing trains, then the failure to do so is contributory negligence, and the plaintiff cannot recover."

The court at the instance of the plaintiff granted the following instruction: "If the jury are satisfied from the evidence in the cause that the cotton mentioned in the declaration was destroyed by the act of defendant or its employes in the running of its locomotives, the law presumes that said loss was occasioned by the want of reasonable care of defendant, and unless such presumption is rebutted by evidence in the cause, then the jury should find for the plaintiff."

There was a verdict and judgment for plaintiff, for the amount sued for and interest, and the defendant appeals.

Judgment affirmed.

W. P. & J. B. Harris, for appellant.

As the declaration alleges, the insurance company became subrogated to the right of the N., J. & C. R. R. Co.; nothing more or less, and any defense that could have been made against that company suing in its own right, could be made against it suing for the use of the insurance company. Sheldon on Subr., 1; 2 Rorer on Railroads, 810; 2 Wood on Fire Ins., 1080, et seq.

In such a suit the contributory negligence of the plaintiff would be a defense, and facts tending to show this were proper to be considered by the jury. 2 Rorer on Railroads, 791. The peculiar circumstances of this case make it one in which the jury should have been allowed to pass upon the question of the plaintiff's negligence. The evidence was not direct as to the origin of the fire, and the preponderance of the evidence is against the idea of negligence on the part of defendant.

A railway company being authorized to use steam is only held to ordinary care against fires, and is not liable for a purely accidental fire caused by sparks escaping from its engine. 2 Wood on Railway Law, 1343. If the engine is properly constructed, and provided with spark arresters, it is not negligence per se to use an excessive amount of steam whereby sparks escape. Such evidence may be competent, but is not conclusive. Ib., 1346; McCormick v. R. R. Co., 41 Iowa 193; 8 Hun, 599; Rorer on Railroads, 788, et seq.

It should have been submitted to the jury whether the plaintiff had taken reasonable precautions to protect the cotton, thus exposed in a bad condition for an indefinite time to a known danger....