Manchester Marble Company v. Rutland Railroad Co.

• Decision Date: 26 February 1927
• Parties: MANCHESTER MARBLE COMPANY v. RUTLAND RAILROAD COMPANY
• Court: Vermont Supreme Court

136 A. 394

100 Vt. 232

MANCHESTER MARBLE COMPANY v. RUTLAND RAILROAD COMPANY

Supreme Court of Vermont

February 26, 1927

May Term, 1926.

ACTION IN TORT for negligence brought under G. L. 5256. Pleas general denial and affirmative defense that plaintiff, by written agreement, had assumed all risk of loss by fire to property destroyed, released defendant from all claims of damage therefor, and agreed to indemnify and save it harmless. Replication, denying affirmative defense. Trial by jury at the September Term, 1924, Rutland County, Moulton J., presiding. Verdict directed for defendant, and judgment thereon. The plaintiff excepted. The opinion states the case.

Reversed and remanded.

Justice TAYLOR sat in the case when originally heard, but deceased before it was decided. It was at first assigned to Justice BUTLER and later re-assigned to Justice FISH.

Webber & Leamy and Jones & Jones for the plaintiff.

Lawrence Stafford & Bloomer for the defendant.

Present: WATSON, C. J., POWERS, SLACK, BUTLER, and FISH, JJ.

OPINION

FISH

This is an action brought under G. L. 5256 with a count in negligence. The defendant answered in general denial and set up the affirmative defense that the plaintiff, by written agreement, had assumed all risk of loss by fire to the property destroyed, and had released the defendant from all claims for such loss and agreed to indemnify and save it harmless.

The plaintiff claimed damages for destruction by fire of its marble mill and property, situated alongside the main line of the defendant railroad in the hamlet of Freedleyville in the town of Dorset in Bennington County, which it claimed was set fire to by a spark or cinder emitted by one of the locomotive engines of the defendant. The fire occurred in the early morning of October 28, 1923, resulting in a total loss of the plaintiff's plant.

The written agreement under which the defendant claims freedom from liability is a lease dated April 12, 1921, executed on the part of the defendant by Geo. T. Jarvis, vice-president and general manager of the Rutland Railroad Company, and on the part of the plaintiff by P. R. Eaton, president of the Manchester Marble Company. The premises conveyed are a part of the defendant's right of way 251 feet long and 4.5 feet wide, situated westerly of its side track to the plaintiff's plant. In the conveyance the right and privilege is given the Manchester Marble Company to maintain 5 guy wires over the right of way and tracks of the railroad and a 3-inch water supply pipe across the right of way and through a culvert of the railroad. The lease was originally given for one year with provision for an annual rental of $ 30.10, payable in advance. The purpose for which the premises were to be let and used are expressed in the lease as being a "location for a loading dock and guy wires and 3-inch water supply pipe." The provision under which exemption is claimed is this:

"The said Lessee assumes all risk of loss, damage or injury, by fire or otherwise, to person or property by reason of the condition of said demised premises or of the location of same adjoining or near the tracks of said railroad or by reason of the management or operation of said railroad, and all damage to the property of said Lessee by reason of the operation of said railroad; and releases the Lessor, its successors and assigns, from all claim for such loss, damage or injury sustained by said Lessee, or by any agent or employee of said Lessee, or by any person whomsoever, whether caused by the negligence of said Lessor, its agents or employees or otherwise. An the said Lessee agrees to indemnify and save harmless said Lessor, its successors and assigns, from all claim for such loss, damage or injury sustained by said Lessee, or by any agent or employee, of said Lessee, or by any person whomsoever, whether the same be caused by the negligence of the said Lessor, or of its officers, agents, employees or otherwise."

It is stipulated in the lease that the lessor may terminate it on giving thirty days' notice in writing, at the expiration of which time the lessor is given the right to re-enter and take possession of the premises. It is also provided that if the lessee, with the consent of the lessor, holds over and remains in possession after the expiration of the lease it shall be considered as renewed and shall continue in effect from year to year, subject however to be terminated as provided in the lease, until terminated by the lessor by giving thirty days' notice of its intention so to do. The plaintiff was occupying the premises at the time of the fire under the renewal agreement in the lease, and had made three annual payments of rent under its terms for renewal.

The plaintiff's mill consisted of two structures, a finishing mill with shed attached, and a gang mill with boiler room attached. The former was the only building that occupied any part of the defendant's right of way. It was 75 feet long and 42 feet wide at the northerly end, and 30 feet wide at the southerly end, its longer dimension being in the direction of the defendant's tracks. There was a jog in the building at the southeast corner, 40 feet long and 12 feet wide, which was filled by a shed which had a covered platform and boxing room. This extended southerly along the right of way 60 feet, then westerly parallel with the south side of the finishing mill 36 feet, then northerly 18 feet to the finishing mill. This shed extended onto the right of way 4 feet and 6 inches, and in its widest part stood on the land of the plaintiff to the depth of 31 feet and 6 inches. The finishing mill proper stood on the right of way for the length of 35 feet and the width of 3 feet and 8 inches, and on the land of the plaintiff to the depth of 38 feet and 6 inches. To the westward of the finishing mill and 15 feet from it was the gang mill. This building, which was 53 feet from the right of way, was 132 feet long and 49 feet wide. It was separated from the finishing mill by a deep railway of the plaintiff. The boiler room, which was attached, was 64 feet long, thus making the whole structure 196 feet in length. The boiler room attachment stood farther from the track than the main gang mill. The part of the leased premises, not occupied by the finishing mill and shed, consisted of a loading dock made of dirt and stones and sustained by a wall standing in front of the track. The dock and finishing mill with shed stood on the right of way at the time of the execution of the lease, and had stood there for a considerable time prior thereto. There was no connection between the finishing mill and the gang mill except a boardway 6 feet by 4 feet and 10 feet from the ground, which protected the belt carrying power from the gang mill to the finishing mill. The gang mill was built of marble and covered with a slate roof. The finishing mill was made of wood and covered with wooden shingles. The plaintiff claimed that the fire was set out in the finishing mill at a place on the plaintiff's land. The defendant denied liability for the fire and made the claim and introduced evidence to show that the fire started in the boiler room on plaintiff's land.

At the close of the evidence the defendant moved for a verdict, on the ground that the evidence did not show negligence on its part, and that the lease released it from liability. The motion was denied when at first made and the case submitted on four special questions to the jury. They were unable to agree; whereupon the motion made at the close of the evidence was stricken off, and being brought forward, the court directed a verdict for the defendant, which was based entirely upon the stipulation of indemnity in the lease. This it held to be valid and a bar to the action. To this ruling, and to the admission of the lease in evidence, the plaintiff excepted.

G. L. 5256, under which the suit is brought, is as follows:

"A person or corporation owning or operating a railroad shall be responsible in damages for injury to a building or other property caused by fire communicated by a locomotive engine on such road, unless due caution and diligence are used and suitable expedients employed to prevent such injury. Said person or corporation shall have an insurable interest in the property along its route, and may procure insurance thereon."

The principal question in the case is whether the defendant is saved from liability by reason of the stipulation for indemnity in the lease. Similar questions have often been before the courts, and they have generally been decided in favor of agreements of the kind covering property within the right of way, and against such agreements as are designed to exempt property situated outside the right of way. The rule for contracts of the kind first mentioned is stated in a note to Checkley v. Illinois C. R. R. Co., 257 Ill. 491, 100 N.E. 942, Ann. Cas. 1914A, 1202, reported in 44 L.R.A. (N.S.) 1127, as follows:

"It is settled law that a railroad company may by contract exempt itself from liability for burning a building upon its right of way, although such burning be due to negligence." In support of this statement of the law the following cases are cited: Hartford F. Ins. Co. v. Chicago, M. & St. P. R. R. Co., 175 U.S. 91, 44 L.Ed. 84, 20 S.Ct. 33; Southern R. R. Co. v. Blunt (C. C.), 165 F. 258; Stephens v. Southern P. Co., 109 Cal. 86, 41 P. 783, 29 L.R.A. 751, 50 Am. St. Rep. 17; Griswold v. Illinois C. R. R. Co., 90 Iowa 265, 57 N.W. 843, 24 L.R.A. 647; Kennedy Bros. v. Iowa State Ins. Co., 119 Iowa 29, 91 N.W. 831; Greenwich Ins. Co. v. Louisville & N. R. R. Co., 112 Ky. 598, 66 S.W. 411, 67 S.W. 16, 56 L.R.A. 477, 99 Am. St. Rep. 313; James Quirk Milling Co. v. Minneapolis & St. L. R. R. Co., 98 Minn. 22, 107...