Railway Company v. Dodd

• Decision Date: 23 June 1894
• Parties: RAILWAY COMPANY v. DODD
• Court: Arkansas Supreme Court

27 S.W. 227

59 Ark. 317

RAILWAY COMPANY v. DODD

Supreme Court of Arkansas

June 23, 1894

Appeal from Sebastian Circuit Court, Fort Smith District, EDGAR E BRYANT, Judge.

Judgment affirmed.

E. D Kenna and B. R. Davidson for appellant.

1. In an action of tort, if it is shown that the fire was started by the railway company, the burden shifts, and it devolves upon the railway company to show itself free from negligence. 49 Ark. 535. The rule is different in actions ex contractu. When a bill of lading exempts loss by fire, it must be proved that the fire resulted from negligence. 39 Ark. 523; 52 Ark 26; 44 id. 208. Where the liability is as a warehouseman, there is no presumption of negligence, and the burden is on plaintiff to show it. 20 Iowa 73; 11 Wend. 25; 29 Tex. 41; 46 N.Y. 271; 23 Cal. 268.

2. It was error to allow the amendment. It changed the character of the action. Mansf. Dig. secs. 5080; 5014; 3 Estee's Pl. & Pr. sec. 4445; 6 Col. 149; 79 Mo. 88; 84 N.Y. 420; 12 Wis. 378; 34 id. 378; 32 Ark. 244, 250.

3. The instruction as to a watchman was erroneous and prejudicial. An instruction that leads the jury to infer that the evidence tended to prove a certain state of facts is erroneous. 45 Ark. 256; 45 id. 492; 49 id. 147; 43 id. 289; 54 id. 336; 37 id. 593-8. The court has no right to tell the jury that importance should be attached to any circumstance, or what it tends to prove. 45 Ark. 165-172; 53 id. 381-386; 34 id. 696-702. The instruction assumed that there was no watchman. 52 Ark. 517-526; 14 id. 286-295; Ib. 530-537.

4. The stipulation that the carrier should not be liable for loss by fire inured to the benefit of subsequent carriers. 39 Ark. 148-158; 52 id. 26; 46 N.Y. 271; 145 Mass. 129.

5. There is no proof of negligence. Proof that the fire originated from sparks of an engine is not proof of negligence (in an action of this kind). 30 Ia. 420; 44 Ark. 208; 40 id. 375; 52 id. 26; 11 Wall. 129; 13 A. & E. R. Cas. 448; 2 id. p. 275 and note; 29 Barb. 226.

T. P. Winchester for appellee.

1. The evidence is ample to show negligence. Negligence may be imputed to a railroad company if it suffers combustible material to accummulate in such quantities, places and seasons as render it liable to ignition. 49 F. 812; Sh. & Redf. Negl. sec. 678; 5 S.W. 824; 26 Wis. 228-9; 37 N.W. 222; 4 Neb. 274; 41 F. 643; 17 L. R. A. 33; 5 id. 591, 593.

2. The amendment did not change the action. Defendant was liable as a warehouseman by contract. Mansf. Dig. sec. 5080; 42 Ark. 57.

3. Appellant is estopped to say that the instruction as to a watchman was error--they first asked a charge on that subject.

4. The presence of an unusually large quantity of cotton around the depot may not be negligence per se, but, when taken in connection with the running of trains, the dry season, the inflammable nature of the cotton, a finding of negligence by a jury, properly instructed, ought not to be disturbed.

OPINION

BATTLE, J.

On the 27th of October, 1887, C. H. Ferrell & Company delivered to the Louisville & Nashville Railroad Company, at Humboldt, in Tennessee, five boxes of fruit trees and plants, to be carried, delivered and forwarded to G. W. Dodd and W. W. Burnwath, at Hackett City, in this State, upon the following conditions: (1) The Louisville & Nashville Railroad Company, and the steamboats, railroad companies, and forwarding lines with which it is connected, and which received said property, should not be liable for loss by fire; (2) The contract of shipment should be executed, and the liabilities of "the companies," as common carriers thereunder, should terminate, "as to the forwarding carriers, respectively, on delivery to the next connecting carrier, and, as to the delivering carrier, on the arrival of the goods or property at the station or depot of delivery; and (3) the delivering company should be liable as a warehouseman thereafter;" and (4) it was "distinctly agreed and understood that the consignee or consignees should promptly receive and take away the fruit trees and plants as soon as the same were ready for delivery." The property was shipped under this agreement, and was received by the St. Louis & San Francisco Railway Company as a connecting carrier, and carried by it to Hackett City, and was stored in its warehouse for delivery to the consignees, on the 4th and 7th days of November, 1887; and while in the warehouse, and on the 13th day of the same month, between 6 and 7 o'clock p. m., were consumed by fire.

On the 24th of September, 1888, Dodd & Burnwath brought an action against the St. Louis & San Francisco Railroad Company to recover the damages sustained by the loss of the trees and plants. They alleged in their complaint that the trees and plants were delivered, as before stated, to be shipped to them at Hackett City, "a point on the railroad line of the defendant;" that "the Louisville & Nashville Railroad Company, and its connecting lines, which connected with the defendant under an operating arrangement for through shipment of freight, as common carriers, in due course of transit, after delivery as aforesaid, delivered the trees and plants to the defendant, * * * as a common carrier, to be by it transported thence on its line to Hackett City, Arkansas, and there delivered to the plaintiffs;" that the defendant received the trees and plants "from the Louisville & Nashville Railroad Company and its connecting line as aforesaid, and undertook to transmit them over its lines as a common carrier, and to deliver them to plaintiffs; and that it has never delivered them to plaintiffs, or any one for them, to their damage." The defendant, in its answer, specifically denied all these allegations.

In the trial of the issues the facts were proved as we have stated them; and evidence was adduced tending to prove the following: The trees and plants were the property of plaintiffs, and were of the value of $ 800. The defendant's depot at Hackett City, in which they were stored at the time they were consumed by fire, was very near its railway track. Two hundred bales of cotton, which had been received by the defendant for shipment, and for which it had issued bills of lading, were on the platform and piled around the depot, and were thirty to thirty-five feet from the track. A mixed train of the defendant arrived at the depot on the morning of the 13th of November, 1887, and remained there ten or fifteen minutes. At this time it was very dry, and the cotton was highly inflammable, and without any protection. About ten or fifteen minutes after the departure of the train a fire originated in the cotton, and spread thence rapidly to the depot, and in a short time destroyed it and its contents, among which were the trees of the plaintiffs.

Upon these facts the court instructed the jury, substantially, as follows:

"The determination of this case turns upon the single question as to whether defendant's employee or employees at Hackett City were guilty of negligence in the care of the trees, from which negligence the loss occurred."

"Before the plaintiffs can recover they must prove, by a fair preponderance of the evidence, negligence on the part of the defendant."

"Negligence is the want of ordinary care, that is, such care as an ordinarily prudent man would exercise in the place of, and under the same circumstances as, the party charged with negligence."

"The fact that the defendant had no watchman at the depot at the time of the burning is not necessarily negligence on its part; it is simply a circumstance for you to consider, for what it may be worth, in determining whether defendant was exercising ordinary care in preserving the trees from loss."

At the same time the defendant asked the court to instruct the jury, among other things, "that because the defendant did not keep a watchman is no evidence to charge neglect upon the defendant;" and the court refused to instruct in the form asked, but did in the manner we have stated.

While the jury were considering their verdict, the court, over the objection of the defendant, permitted the plaintiffs to amend their complaint as follows: "Plaintiffs further allege that said defendant company received fruit trees and plants at its depot at Hackett City, and so negligently and carelessly kept said goods that they were, by defendant's fault and negligence, wholly destroyed by fire in its depot building at Hackett City, and so wholly lost to these plaintiffs."

The jury returned a verdict in favor of plaintiffs against the defendant for $ 800.15 and six...