McAdoo v. Hanway
| Decision Date | 16 January 1920 |
| Docket Number | 80. |
| Citation | 109 A. 446,135 Md. 656 |
| Parties | McADOO, Director General of Railroads, v. HANWAY et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Hartford County; Wm. H. Harlan, Judge.
"To be officially reported."
Action by T. Littleton Hanway and J. Harry Gibson, copartners trading as Hanway & Gibson, against William G. McAdoo Director General of Railroads. Judgment for plaintiffs, and defendant appeals. Affirmed.
Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.
Thomas H. Robinson, of Bel Air, for appellant.
John L G. Lee, of Baltimore (Septimus Davis, of Aberdeen, on the brief), for appellees.
The suit in this case was brought in the circuit court for Hartford county by the appellees to recover from the appellant, the Director General of Railroads, the value of their stock of goods in the storehouse at Aberdeen, in said county, that was destroyed by fire on the 5th of February 1918.
The plaintiffs alleged in their declaration that they were engaged in the general mercantile business, and had at the time of the fire a large stock of goods and merchandise in the storehouse occupied by them at the southwest corner of Front street and Bel Air avenue in said town and county; that said store was located about 350 feet from the track of the Philadelphia, Baltimore & Washington Railroad Company, which road runs through the town of Aberdeen, and at such time was managed and operated by the defendant. It further alleges:
That on said 5th day of February "there was a fire raging in said town of Aberdeen, and when said fire reached a point at the northwest corner of said Front street and Bel Air avenue, and was burning the building there located, the plaintiffs had secured a hose of the volunteer fire company of said town of Aberdeen, which they had connected with a fire plug which was part of the water system of said town of Aberdeen on the southeast side and across the tracks of the said railroad managed and operated by said defendant, as aforesaid, from the building of the plaintiffs, and that said hose was stretched across the tracks of said railroad, in the public street crossing said tracks, and the water had just begun to run through said hose from said fire plug onto the building in which was located the said store goods of the plaintiffs, which said water was sufficient in volume to extinguish the flames about then catching the said building, when a train managed and operated by the defendant, willfully, maliciously, and negligently driven by his servants, ran over and cut said hose and shut off from the plaintiffs their supply of water, that the plaintiffs at once spliced said hose, when a second time a train, managed and operated as aforesaid, and driven as aforesaid, ran over and cut said hose; that the plaintiffs were thereby deprived of the water to fight said fire, so that the said store and the contents belonging to said plaintiffs were burned to the ground and were a total loss; that the defendant and its servants were notified of said fire in time to stop the said trains, but willfully, maliciously, and negligently, as above set forth, and regardless of the rights of the plaintiffs, failed to stop the said trains; that if said hose had not been cut as aforesaid, and the defendant had used due care and diligence and stopped the said trains, the store goods of the plaintiffs, of great value, would not have been burned and lost to the plaintiffs."
The defendant demurred to the declaration. The demurrer was overruled, and the defendant filed his plea that he did not commit the wrong alleged.
The case was then heard by a jury in said court, which rendered a verdict in favor of the plaintiffs, and upon that verdict a judgment was entered. It is from that judgment this appeal is taken.
We will first consider the action of the court in its ruling on the demurrer.
In the case of the Metallic Compression Casting Co. v. Fitchburg R. R. Co., 109 Mass. 277, 12 Am. Rep. 689, the facts are quite similar to those in the case before us. It was necessary in that case to lay a hose across the railroad in order to obtain an available supply of water to throw upon the burning building. The water from the hose was applied to the fire, and it had diminished, and would probably have extinguished, it, but servants of the railroad company ran a train over the hose and severed it, and thereby cut off the water from the fire, which then consumed the building. They had notice about the hose, and might have stopped the train to permit the hose to be uncoupled.
In that case, quoting from the syllabus, which seems to state correctly what was decided therein, the court held, in an action brought by the owner of the building against the railroad corporation:
"That the firemen had a right at common law to lay the hose across the railroad; *** that the severing of the hose was the approximate cause of the destruction of the building; and that the defendants were liable for the negligence of their servants in severing the hose."
In Shearman & Redfield on Negligence, vol. 2, § 464, it is said that the railroad company is liable for injuries to property so caused, where it is seasonably warned to stop its train, but fails to do so.
In Concordia Fire Insurance Co. v. Simmons Co., 167 Wis. 541, 168 N.W. 199, where the defendant, a private corporation, in driving piles for a building, negligently pierced the intake pipe, thereby rendering useless the city's waterworks system, and building of the plaintiff was burned, because of a lack of water to extinguish the fire, is was said:
"If it shall appear from the evidence that defendant's negligence so interfered with or interrupted the service which the municipality had been rendering, and was ready and willing on its part to continue to render, to the householder whose house was destroyed by fire that it could properly be held the proximate cause of the loss of the dwelling, we see no reason why the defendant should not respond in damages."
In Louisville & Nashville R. R. Co. v. Scruggs, 161 Ala. 97, 49 South, 399, 23 L. R. A. (N. S.) 184, 135 Am. St. Rep. 114, the court said:
"If *** the fire hose had been laid from the hydrant, across the tracks of the defendant, to the fire, and the defendant's servants, with knowledge of the existing conditions as to the fire and the laying of the hose, had willfully or negligently run the train of cars over the hose, destroying it, and thereby prevented the extinguishing of the fire, a legal liability for such conduct would have arisen."
See also, the cases of The American Sheet & Tin Plate Co. v. Pittsburgh & Lake Erie R. R. Co., 75 C. C. A. 47, 143 F. 789, 12 L. R. A. (N. S.) 382, 6 Ann. Cas. 626; Little Rock Traction & Electric Co. v. McCaskill, 75 Ark. 133, 86 S.W. 997, 70 L. R. A. 680, 112 Am. St. Rep. 48; Atkinson v. Newcastle & Gateshead Waterworks Co., Ct. of Exchequer, 404.
Upon the principles contained in the authorities cited, the allegations in the plaintiffs' declaration, if true, are sufficient to render the defendant liable for the loss and injury complained of. Consequently the court acted properly in overruling the demurrer.
At the conclusion of the testimony, the court granted the plaintiff's second and fifth prayers as offered, and after modification granted their first prayer. The defendant offered six prayers. The first, second, third, fourth, and sixth were refused. His fifth prayer was granted, as modified.
We will next consider the action of the court in its rulings upon the prayers. The court was asked by defendant's first prayer to instruct the jury that under the pleadings in the case there was no evidence legally sufficient to entitle the plaintiffs to recover. The property of the plaintiffs was located in the storehouse occupied by them, situated at the corner of Bel Air avenue and Front street in the town of Aberdeen, and was about 300 feet on the northeast side of the defendant's road, which passed, as we have said, through the town. On the morning of February 5, 1918, it was extremely cold, the temperature being below zero. The fire, which started about 4:30 o'clock in the morning in a building to the north of the storehouse containing plaintiffs' property, soon became a general conflagration. There were a number of fire plugs, both on the north and south side of the tracks of the defendant's road. It was discovered that a number, if not all, of those on the north side of the tracks were frozen, and from which no water could be obtained until they were thawed out by building fires around them. It was because of this condition, as disclosed by the evidence in the case, that those managing the fire determined to cross to the south of the railroad to ascertain if water could be procured from the plugs on that side of the tracks with which to extinguish the fire. The first one, the one nearest to the tracks, was also found to be frozen. It was discovered, however, that the next one in point of distance from the tracks and from the storehouse of the plaintiffs was not frozen and the hose was attached to that plug which was known as the Adams' plug and carried across the tracks. It was this hose that was cut by the next south-bound train that reached Aberdeen at 5:33 in the morning. The cut portions of the hose were removed, and the hose again adjusted to the plug, when it was cut the second time by another south-bound train arriving at Aberdeen at 6:12 a. m.
It is claimed by the defendant that this case should not have been submitted to the jury because of a want of legally sufficient evidence to show: (1) That a sufficient quantity of water could have been obtained from the Adams plug to extinguish the fire in its advanced state at the...
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