Pettit Grain & Potato Co. v. Northern Pac. Ry. Co.
| Decision Date | 03 December 1948 |
| Docket Number | 34704. |
| Parties | PETTIT GRAIN & POTATO CO. v. NORTHERN PAC. RY. CO. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. A building situated upon a railroad right of way at the time of the execution of a lease between the railroad company and the owner of the building is covered by a clause in the lease reciting that it was understood by the parties that the leased premises were in dangerous proximity to the railroad tracks, and that the property thereon would be in danger of injury or destruction by fire, and providing that the lessee accepted the lease subject to such dangers, and not only assumed all risk of, but also agreed to indemnify the lessor for, loss, damage, or destruction of buildings or contents or to any other property brought upon or in proximity to the leased premises by the lessee, whether such loss was occioned by fire or sparks from locomotives or other causes incident to or arising from the movement of the railroad's trains or in any respect from the operation of the railroad, or whether such loss or damage was the result of the negligence or misconduct of any of the railroad's employees or of defective appliances, engines, or machinery.
2. A provision in a lease of part of a railroad right of way is valid which exempts the railroad company as lessor from liability for damage to or destruction by fire of the lessee's property on the leased premises, whether caused by negligence or misconduct of the railroad company's servants or by defective appliances, engines, or machinery where by statute requiring railroad companies to equip locomotives with good and efficient spark arresters a railroad company is subject to a penalty for violation thereof and the employe responsible for the violation is guilty of a misdemeanor.
3. Statutes amending and supplementing prior statutes so as to provide for a more severe penalty against railroad companies for violation thereof, for more drastic criminal liabilities against certain railroad employes in such cases, for making railroad companies also criminally liable in such cases, for absolute civil liability on the part of railroad companies for fires set by their locomotives instead of liability for negligence, and for authority to railroad companies to procure insurance to protect themselves against liability for such fires do not evince a public policy rendering invalid a bargain for such exemption from liability.
Appeal from District Court, Wadena County; Byron R. Wilson Judge.
Bradford & Kennedy, of Wadena, for appellant.
L B. daPonte and Reginald Ames, both of St. Paul, and Hugh G Parker, of Wadena, for respondent.
This action was brought to recover the value of plaintiff's warehouse and contents destroyed on March 28, 1946, by a fire caused by sparks emitted from one of defendant's locomotives while it was hauling a freight train.
The questions for decision are:
(1) Whether a building situated upon a railroad right of way at the time of the execution of a lease between the railroad company and the owner of the building is covered by a clause in the lease reciting that it was understood by the parties that the leased premises were in dangerous proximity to the railroad tracks, and that the property thereon would be in danger of injury or destruction by fire, and providing that the lessee accepted the lease subject to such dangers, and not only assumed all risk of, but also agreed to indemnify the lessor for, loss, damage, or destruction of 'buildings or contents or to any other property brought upon or in proximity to the leased premises by the lessee,' whether such loss was occasioned by fire or sparks from locomotives or other causes incident to or arising from the movement of the railroad's trains or in any respect from the operation of the railroad, or whether such loss or damage was the result of the negligence or misconduct of any of the railroad's employes or 'of defective appliances, engines or machinery';
(2) Whether a provision in a lease of part of a railroad right of way is valid which exempts the railroad company as lessor from liability for damage to or destruction by fire of the lessee's property on the leased premises, whether caused by negligence or misconduct of the railroad company's servants or by defective appliances, engines, or machinery, where by statute requiring railroad companies to equip locomotives with good and efficient spark arresters a railroad company is subject to a penalty for violation thereof and the employe responsible for the violation is guilty of a misdemeanor.
(3) Whether statutes amending and supplementing prior statutes so as to provide for a more severe penalty against railroad companies for violation thereof, for more drastic criminal liabilities against certain railroad employes in such cases, for making railroad companies also criminally liable in such cases, for absolute civil liability on the part of railroad companies for fires set by their locomotives instead of liability for negligence, and for authority to railroad companies to procure insurance to protect themselves against liability for such fires evince a public policy rendering invalid a bargain for such exemption from liability.
In 1919, defendant leased to plaintiff a part of its right of way upon which plaintiff's warehouse was then situated for the purpose of maintaining a potato warehouse. The clause here pertinent reads as follows:
'It is understood by the parties that the leased premises are in dangerous proximity to the tracks of the Railroad Company and that * * * property on the leased premises will be in danger of injury or destruction by fire or other causes incident to the operation of a railway, and the lessee accepts this lease subject to such dangers. It is therefore agreed, as one of the material considerations of this lease without which the same would not be granted, that the lessee assumes * * * all risk of loss, damage or destruction to buildings or contents or to any other property brought upon or in proximity to the leased premises by the lessee, or by any other person with the consent or knowledge of the lessee, without regard to whether such loss be occasioned by fire or sparks from locomotive engines or other causes incident to or arising from the movement of locomotives, trains or cars, misplaced switches or in any respect from the operation of a railway, or to whether such loss or damage be the result of negligence or misconduct of any person in the employ or service of the Railway Company, or the Director General of Railroads, or of defective appliances, engines or machinery. And the lessee shall save and hold harmless the Railway Company and the Director General of Railroads from all such damage, claims and losses.?
There was evidence to show that plaintiff's warehouse and the contents thereof were destroyed by fire set by sparks emitted by one of defendant's locomotives while it was hauling an eastbound freight train of 60 to 80 cars; that in traversing a distance of about 90 miles before reaching plaintiff's warehouse some 10 or 12 grass fires had been set by sparks emitted by the locomotive; that the locomotive was equipped with a so-called 'Cyclone' spark arrester, which had been installed about a year before the fire; that inspection immediately before and after the fire failed to reveal any defect therein; that a spark arrester of the type in question, if in good working order, complied with the requirements of the statute requiring locomotives to be equipped with a practical and efficient arrester; and that, if the spark arrester had been in good and efficient working condition, the locomotive would not have emitted sparks which caused the fires.
At the close of the testimony the trial court directed a verdict for defendant for the reasons that the warehouse was covered by the clause exempting defendant from liability for destruction thereof by fire and that thereunder defendant was exonerated from liability therefor.
1. A lease, the same as any other instrument, should be construed so as to ascertain and to give effect to the intention of the parties as expressed in the language used. Ordinarily, the language used should be given its commonly accepted meaning. No reason has been suggested why it should be otherwise here. Where, as here, the word 'or' is used in separating the members of an enumeration, its effect is disjunctive and manifests a meaning that each member is separate and distinct. State ex rel. Shenk v. State Board of Examiners, 189 Minn. 1, 250 N.W. 353. Where, as here, the word 'other' is used at the end of an enumeration to refer to another member thereof, it ordinarily means 'in addition to and different from those (already) mentioned.' Orme v. Atlas Gas & Oil Co., 217 Minn. 27, 13 N.W.2d 757, 763; State ex rel. Smith v. Chicago M. & St. P. Ry. Co., 128 Minn. 25, 150 N.W. 172.
It is clear here that it was the intention of the parties to exempt defendant from liability to plaintiff for loss or damage to or destruction of the latter's property caused by the operation of the former's trains. That the word 'buildings' includes those on the premises when the lease was executed is plain from the recital that 'property on the leased premises' will be in danger of destruction by fire. The reference is to property thereon, regardless of when it was placed there. The other language confirms this meaning. The disjunctive 'or' in the phrase 'all risk of loss, damage or destruction to buildings or contents or to any other property brought upon' the premises plainly refers disjunctively to each kind of property it separates as being distinct from the others. The words 'any other' in the phrase 'any other property' refer...
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