Martin v. Railway Company

• Decision Date: 27 February 1892
• Citation: 19 S.W. 314,55 Ark. 510
• Parties: MARTIN v. RAILWAY COMPANY
• Court: Arkansas Supreme Court

19 S.W. 314

55 Ark. 510

MARTIN v. RAILWAY COMPANY

Supreme Court of Arkansas

February 27, 1892

APPEAL from Pulaski Circuit Court, JOSEPH W. MARTIN, Judge.

STATEMENT BY THE COURT.

This action was brought by C. F. Martin & Co. and thirteen insurance companies against the St. Louis, Iron Mountain & Southern Railway Company for the recovery of damages caused by a fire. They allege in their complaint "that, on November 14 1887, the plaintiffs, C. F. Martin & Co., were the owners of 1600 bales of cotton valued at $ 80,000, and of a certain building valued at $ 4500, and fixtures to the value of $ 1500, and all of the value of $ 84,500, the cotton being stored between Elm street and the river and between Main street and Cumberland street, and the building being situated on lot 1, block 1, in the city of Little Rock.

"That on the 14th day of November, 1887, the defendant was a common carrier of goods for hire, and operated a railroad at Little Rock, and had a large number of bales of cotton in its possession, which it negligently held and kept in and about the warehouse and sheds of the Union Compress Company, at the north end of Main street, in said city, in a most dangerous and hazardous place and manner, and close to the track of its said road, which cotton was on said day negligently destroyed by a fire which was caused by the defendant by reason of its carelessness and negligence in storing and keeping said cotton and operating its said road; which fire the defendant by the use of due care, could have prevented and stayed, but did not, and which fire, by the negligence of the defendant was carelessly communicated to said property of the plaintiffs, and by it negligently burned and destroyed, without any fault of the plaintiffs, or any of them."

They further allege that this cotton was insured, prior to the fire, by the thirteen insurance companies who are plaintiffs, to the aggregate amount of $ 61,227.73; that these companies had paid the various amounts for which they were severally liable on account of the insurance of the cotton destroyed, and had become subrogated to the rights of Martin & Co. to recover damages on account of the fire, to that extent.

The defendant answered, and, among other things, denied that the fire on the 14th of November, 1887, was caused by or through any acts of neglect or carelessness on its part, or on the part of any of its agents, servants or employees; that the cotton and building, or either of them, were burned or destroyed by reason of negligence or carelessness on its part; or that it had in its possession or control any cotton in or about the warehouse or sheds of the Union Compress Company at the north end of Main street, or on said street, in the city of Little Rock.

The evidence adduced by the plaintiffs at the trial tended to prove the following facts: On the 14th of November, 1887, and before that time, the Union Compress Company, mentioned in the complaint, had a warehouse and sheds at the foot of Main street, in the city of Little Rock. The warehouse and sheds were on both sides of Main street, lying close up to the track of the railroad. The compress company had laid a floor or platform over the end of Main street up to the railway track, and beneath this floor, a few feet higher than the railroad track, had another floor. In the upper floor over the end of Main street there was an opening, and from this opening a stairway led to the lower floor. On the 14th of November, 1887, cotton was stored in the warehouse and sheds from the east side and across Main street and many feet to the west. The upper platform over the end of Main street and the one beneath were both occupied by cotton. A narrow footway on the upper platform to the stairway was kept open, and bales of cotton were piled on each side. A narrow way from the stairway across the lower floor or platform was left open for persons to pass to the railway and river. Cotton was also piled on each side of this way and close up to the stairway. The cotton stored in the warehouse and sheds, including the platforms at the end of Main street, was about 3900 bales.

There were two railway tracks of the defendant north of the warehouse of the compress company, extending its entire length, being at the nearest point five feet from the warehouse and sheds and a few feet below the lower floor of the same. On this track many locomotives passed daily. On the 14th of November, 1887, one passed as late as 2:40 in the afternoon.

West of Main street and north of the railway track was a building known as the boat-house, which was used and occupied by the Athletic Association. At the north end of Main street was the Arkansas river, at which point there was a landing for skiffs plying between Little Rock on the south and Argenta on the north side of the river. The footways were left open and the stairway was built by the compress company for a way for persons to pass and repass in going to and from the railway, the boat-house and skiff landing. It was used for this purpose by many persons, and while passing along this way some of them smoked cigars or cigarettes.

On the 14th of November, 1887, Martin & Co. owned a building and about 1600 bales of cotton. The building was situated and the cotton was stored a short distance from the warehouses, sheds and platforms of the Union Compress Company.

On the day mentioned it was very dry, and it had not rained for sometime previous. The bagging on many of the bales which were stored with the compress company, if not all, had been cut in places for the purpose of inspection, and loose cotton protruded therefrom. It was not kept wet and there was nothing spread over it to protect it. In the afternoon of the 14th of November, 1887, between 4 and 5 o'clock, it caught fire. The fire spread rapidly and soon consumed the warehouse, sheds and platforms of the compress company and the cotton stored in and on the same, and in a short time extended to and destroyed the cotton and building of Martin & Co.

To show that defendant was responsible for the losses caused by the fire the plaintiffs introduced evidence tending to prove the following facts:

First--The Union Compress Company was engaged in compressing cotton for shipment. Its place for receiving cotton in Little Rock was at its warehouse, platform and sheds at the foot of Main street, where the fire in question occurred. Its machinery for compressing was across the river at Argenta. It was necessary to transport the cotton from the Main street warehouse, sheds and platforms to the compress at Argenta. To do this it made a contract with the defendant, by which the defendant undertook to furnish cars to transport the cotton, and when loaded to haul the the same to the compress in Argenta, the compress company paying therefor at the rate of $ 2 a car load. The compress company repeatedly demanded cars for transportation under its contract. On account of the unusual demand for cars for the transportation of cotton, the defendant failed to furnish the cars necessary to move the cotton, and on account of this failure the cotton accumulated to the extent it did. The compress company could have handled and safely stored all cotton at Main street if transportation had been furnished as demanded. But the cotton could not have been handled in Argenta, if it had been hauled to the Argenta compress from the foot of Main street, because it (the compress) was "blocked with cotton."

Second--The cotton stored at the foot of Main street was received for compression. When the owner or shipper stored it, the compress company would give a receipt stating therein that it was received for compression. When the owners wished to ship it, they would take these receipts to a railroad company, and the company would take them, holding them against the compress company, and issue its bill of lading to the owner. The railroad company would thereupon notify the compress company of this fact, with directions to insure, compress and load the cotton upon its cars for shipment. This was the custom of the Memphis & Little Rock and the St. Louis, Iron Mountain & Southern Railway Companies. When the defendant issued a bill of lading, it had the right to have the cotton compressed where and by whom it liked, or ship it as it was if it liked. It executed bills of lading for cotton which was burned while stored with the compress company as early as the 20th of October, and as late as the 14th of November, 1887, the day of the fire. Bills of lading for 410 bales were executed in October, and for 1050 in November. For the larger portion of the cotton, the bills were executed between the 7th and 14th of November. The Little Rock & Memphis Company had issued bills of lading for about 1200 bales of the cotton which was burned as before stated.

Before the defendant adduced any evidence, the plaintiffs offered to prove by Dorsey Allen that defendant's locomotives had set fire to cotton in the immediate vicinity in which the fire occurred on several occasions shortly before the 14th of November, 1887, and the defendant objecting, the court refused to allow them to do so, and they excepted.

Upon the evidence we have stated the plaintiffs asked and the court refused to instruct the jury as follows:

1. "If the jury find from the evidence that the defendant on the 14th day of November, 1887, was a common carrier of freight for hire, and operated a line of railroad in Little Rock, on the river front, between the warehouses and sheds of the Union Compress Company and the river, and held a large and unusual number of bales of cotton which had been split open, leaving cotton exposed, which it kept in a negligent and careless manner, in and about said warehouses and sheds on Main street, in...