Mississippi Home Insuarance Co. v. Louisville, New Orleans & Texas Railway Co.

• Citation: 12 So. 156,70 Miss. 119
• Parties: MISSISSIPPI HOME INSUARANCE Co. v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY Co
• Decision Date: 28 November 1892
• Court: United States State Supreme Court of Mississippi

12 So. 156

70 Miss. 119

MISSISSIPPI HOME INSUARANCE Co. v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY Co

Supreme Court of Mississippi

November 28, 1892

October 1892

FROM the circuit court of Warren county, HON. J. D. GILLAND Judge.

The facts are stated in the opinion.

Judgment reversed and new trial awarded.

Dabney & McCabe, for appellant.

The first instruction asked was correct. It is the one approved in Railway Co. v. Railroad Co., 67 Miss. 399. It was error for the court to burden it with a modification suggesting contributory negligence. It was error to modify the fifth instruction, which defines negligence, by requiring that the circumstances should be known to the defendant. It would have been amply sufficient if the defendant had reason to believe that these circumstances existed. Besides, if they did not know, they ought to have known.

The sixth instruction told the jury that the Spenglers might use their property as they had done before the railroad was built. It was error to modify it. Surely property owners have a right to continue to use their property in the same manner as before a railroad is built. They are not required to be deprived of the use of their property. The duty of the railroad company is to run its engines so as not to cause danger.

The modification of the seventh instruction is subject to the same objection, and the modification of the ninth is subject to the objection applicable to the change of the first.

It was error to refuse plaintiff's tenth instruction. Although one should, accidentally and without fault, put in motion that which may result in damage to others, it devolves upon him to make reasonable efforts to prevent such consequences. It was the duty of those in charge of the train, after discovering the fire, to stop the train and extinguish it. We admit that authorities, as to this, are not agreed, but the weight and reason is in accordance with our view. 73 Texas 117; 8 Am. & Eng. Enc. L., 3; M. & O. R. R. Co. v. Gray, 62 Miss. 383.

The defendant's sixth instruction undertakes to sum up the whole duty of the company under the circumstances. It ignores the fact that the degree of care must be proportionate to the danger. That is a matter for the jury. It ignores the fact that the wind was blowing from the locomotive toward combustible material; that the season was dry--all very material facts, throwing light on the question of negligence. See 77 Ind. 110.

The giving of the seventh instruction was erroneous. It was admitted that the fire was caused by the running of the locomotive. So the instruction is directly in the face of the law that negligence is presumed.

The tenth instruction was irrelevant and misleading. There was no evidence to justify the assumption by the court that if plaintiff had taken proper precaution the fire could have been extinguished. The evidence showed that no effort could prevent the spread of the fire, even if the employes of the mill did not use entire presence of mind. That could not have been expected of them under the circumstances. The best judgment is not to be expected in moments of sudden peril.

Anderson & Russell, on the same side.

It was the duty of the defendant to use the utmost care to prevent the emission of sparks and spreading of fire under the circumstances in evidence. The degree of care required is always proportioned to the danger. R'y Co. v. P. L. Co., 9 So. Rep., 661; 11 L. Rep., An., 506, note b. It was for the jury to say whether it was negligence not to shut off steam in passing the mill.

However carefully the company may have acted, after those in charge of the train saw the fire and had reason to believe it was from the engine, it was their duty to use due care to prevent its spreading. Although a railroad company may lawfully burn its right of way, it may not carelessly permit the fire to spread to the property of others. 11 L. Rep., A., 506; 5 Ib., 591; 110 Ind. 538; 124 Ib., 275; 115 N.Y. 579; 73 Texas, 117.

It was not incumbent on the Spenglers to change the location of their mill because the railroad was built near it, nor to change their usual course of business. They were not bound to watch passing trains, and prevent injury from flying sparks. We recognize that it was the duty of the mill employes to try to extinguish the fire, but we submit that there is no proof that they did not act with reasonable prudence under the sudden emergency and peril.

So far as the instructions for plaintiff, announcing the foregoing principles, were refused or modified, there was error.

Miller, Smith & Hirsh, for appellee.

The modification of the first instruction for plaintiff was correct. Without it, the instruction would have conflicted with others. Although an instruction in itself is abstractly correct, it should be made to harmonize with the others in the case. Railroad Company v. Kendrick, 40 Miss. 375. Besides this, the statute relied on to raise a presumption of negligence does not apply to a case such as this. Plaintiff, without relying on the presumption, has shown the facts tending to prove the negligence.

The attempted definition of negligence, in the tenth instruction, is erroneous. The court and counsel attempted to do what is next to impossible. No two definitions are alike. See 16 Am. & Eng. Enc. L., "Negligence." The one given by the court is rather a statement of what constitutes ordinary care, than a definition of negligence.

The sixth instruction was properly modified. One conducting a business extremely susceptible to fire, should be required to take additional precautions when a perfectly lawful business is established near him, increasing the hazard. He may use his property for the same purpose, but not in the same manner.

The insertion of the word "known" was proper, but, if not, the error was not prejudicial. No issue was raised by the evidence as to whether appellee knew or not of the dangerous condition of the premises.

The tenth instruction was rightly refused. It was not incumbent on the servants of the defendant to stop the train, and render any sort of assistance in putting out the fire. At the time, the train was moving at a rate of speed variously estimated from four to fifteen miles per hour. Before the train could have been stopped, the alarm had been responded to by all the employes.

Defendant's sixth instruction was based on Howard v. Railway Company, 66 Miss. 217, and the evidence made it proper.

The language of the seventh instruction is copied from the decision in Hoff v. Railroad Company, 45 N.J.L. 201. See also 30 Wis. 110; 39 Md. 251; 94 Ill. 448.

It was incumbent on the Spenglers to take precautions against the danger from sparks. They should not place inflammable material in dangerous proximity to the railroad. Ray on Neg. of Imposed Duties, 666; 61 Mo. 38; 29 Ga. 481; 5 Hum., 498; 29 F. 811; 94 Ill. 454; 45 Wis. 222; 22 N.Y. 209.

The case was tried with extraordinary care on the part of counsel and the court. The verdict is correct, and should be affirmed.

Mayes & Harris, on the same side.

There was no error in modifying appellant's instructions by inserting the qualification as to contributory negligence. It is claimed that undue prominence was thus given to the question of contributory negligence. But the evidence shows that there was contributory negligence, both in the management of the mill and in failing to extinguish the fire.

In the management of the mill, due care was not taken, in view of its location. The mill was on made soil, and the debris was very inflammable. Trains were run by it constantly, and ignitions were frequent, but no measures were taken to lessen the danger. The owners seemed satisfied with some small and ineffectual contrivances for putting out fires.

Again, if the employes of the mill had displayed any presence of mind or used even the appliances that had been prepared, the fire could easily have been extinguished. The fact that they forgot every thing, and became hysterical, is no excuse. It was for the jury to say whether they used due care.

The court might well have refused the fifth instruction, and it was not error to modify it by inserting the word "known." Abstract definitions should not be attempted. 16 Am. & Eng. Enc. L., 387. See Railroad Company v. Minor, 69 Miss. 710; 95 U.S. 439.

We submit that the modification of the sixth instruction was correct. The Spenglers were not required to abandon the purpose to which their mill was applied; but it did require them to alter their methods. There is a broad distinction between the rights of parties along the line of a railway in regard to natural deposits and those non-natural. They may not place the latter near the track, if dangerous. 45 Wis. 222. Moreover, it must be presumed that the necessity for altering methods was considered and allowed for when the right of way was condemned. 1 Greenl. on Ev., § 38; Isom v. Railroad Company, 36 Miss. 300; 6 Am. & Eng. Enc. L., 573.

There was no legal duty on the defendant to stop its train, and extinguish the fire, if not caused by its negligence. The indifference of its employes to a social duty merely, cannot render it liable. 26 Wis. 537; 70 Mo. 252; 39 Md. 251.

The sixth and seventh instructions for defendant are unobjectionable. They enumerate all the duties necessary to encounter ordinary risks. It was not necessary to shut off steam in passing the mill, nor to guard against an ordinary wind, nor to abstain from stoking the fire or lubricating the engine. All the elements going to fix a negative liability are adverted to in these instructions.

OPINION

COOPER, J.

This suit was instituted by the administrators of S. Spengler to recover against the appellee damages for the loss of certain mills and...