Slocumb v. Raleigh, C. & L. Ry. Co.
| Decision Date | 08 April 1914 |
| Citation | 81 S.E. 335,165 N.C. 338 |
| Parties | SLOCUMB v. RALEIGH, C. & L. RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Cumberland County; Lyon, Judge.
Action by A. H. Slocumb against the Raleigh, Charlotte & Louisville Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Within the provision of a lease by a railroad of a strip of its right of way at the side of its track, exempting it from liability for "fire originating within" the strip the fire burning property on the strip, resulting from a spark from an engine on the track, outside the strip, being blown into it, originates within it; the spark not being the fire, but the cause of it.
Provision in a lease by a railroad of a strip of its right of way for a manufactory, exempting the railroad from liability to the lessee from fires originating within the strip, though through its negligence, is not against public policy; its contract not being in its capacity of carrier.
This is an action to recover damages for the destruction by fire of a turpentine distillery.
The jury returned the following verdict:
"(1) Was the property of the plaintiff burned by the negligence of the defendant, as alleged in the complaint? Answer: Yes.
(2) Was said property burned by the contributory negligence of the plaintiff? Answer: No.
(3) What damage, if any, has the plaintiff sustained? Answer $1,800.
(4) Did the plaintiff, Slocumb, execute the contract dated July 15, 1908, and go in possession of said land in pursuance thereof? Answer: Yes."
The contract referred to in the fourth issue is a lease of a lot of land belonging to the defendant for the purpose of erecting and maintaining the distillery thereon, in which it is stipulated, among other things, that the defendant would "lay for the benefit of the plaintiff a switch or siding upon the premises leased sufficient to accommodate two cars for the use and benefit of the plaintiff," and, further "that any fire originating within the boundaries hereby leased by the party of the first part to the party of the second part shall not be chargeable to the party of the first part, and the party of the first part will in no wise be answerable or responsible therefor."
The property leased is a parallelogram. It begins 28 feet from the center of the track of the defendant, and runs parallel with the track 160 feet, and at right angles with the track 400 feet.
The fire which destroyed the distillery resulted from a spark from an engine of the defendant on its track being blown into the inclosure.
His honor signed judgment upon the verdict in favor of the defendant, holding that the fire originated in the inclosure and that the defendant was relieved of liability by the contract; and the plaintiff excepted and appealed.
C. W. Broadfoot & H. L. Cook, both of Fayetteville, for appellant.
Robinson & Lyon, of Fayetteville, for appellee.
The construction of the language used in the lease, "fire originating within the boundaries hereby leased," is not free from difficulty.
If it means that the primal cause of the destruction by fire must be within the boundaries, the stipulation affords no protection to the defendant on the facts before us, because there would have been no fire but for the spark which came from beyond the boundaries, and, on the other hand, if the proper interpretation of the language is that it was intended thereby to locate the place of combustion with inflammable matter, and the stipulation is valid, there is no liability on the part of the defendant as the spark ignited the property of the plaintiff within the boundaries of the lease.
In the construction of contracts words are to be taken in the ordinary and popular sense, and, while a spark is fire, it is customary, when combustion ensues, to speak of it as a cause, rather than the fire itself.
Fire is defined in the Century Dictionary as "the visible heat or light evolved by the action of a high temperature on certain bodies which are in consequence styled inflammable or combustible--combustion, or the heat and light evolved during the process of combustion"--and according to this definition there was a cause outside of the boundaries which came in contact with inflammable matter within the boundaries, and resulted in a fire there.
That this is not an unreasonable construction is shown by the evidence of the plaintiff, who testified, among other things, "44 feet [81 S.E. 336] and 3 inches from main track to where fire started."
In Mitchell v. Insurance Co., 183 U.S. 42, 22 S.Ct. 22, 46 L.Ed. 74, the court had under consideration a clause in an insurance policy exempting the company from liability from explosions, unless there was also a fire; and it was held that a match lighted and coming in contact with vapor was not a fire.
In Insurance Co. v. Foote, 22 Ohio St. 340, 10 Am. Rep. 735, a similar provision was considered the explosion was caused by a burning gas jet; and the court says: "The gas jet, though burning, was not a destructive force, against the immediate effects of which the policy was intended as a protection; although it was a possible means of putting such destructive force in motion, it was no more the peril insured against than a friction match in the pocket of an incendiary."
These authorities are not conclusive; but they furnish some analogy, because in each the policy insured against...
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