St. Louis, I. M. & S. Ry. Co. v. Cooper & Ross

• Decision Date: 08 November 1915
• Docket Number: (No. 215.)
• Citation: 180 S.W. 203
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. COOPER & ROSS.
• Court: Arkansas Supreme Court

180 S.W. 203

ST. LOUIS, I. M. & S. RY. CO. v. COOPER & ROSS.

(No. 215.)

Supreme Court of Arkansas.

November 8, 1915.

Appeal from Circuit Court, Clark County; George R. Haynie, Judge.

Action by Cooper & Ross against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

E. B. Kinsworthy, R. E. Wiley, and T. D. Crawford, all of Little Rock, for appellant. McMillan & McMillan, of Arkadelphia, for appellees.

McCULLOCH, C. J.

The plaintiffs, Cooper & Ross, are merchants at Okolona, Ark., and they instituted this action against the defendant railway company to recover damages on account of the injury by fire to a certain number of bales of cotton on the station platform at Okolona, it being alleged that the fire was communicated to the cotton by sparks escaping from the engine. The cotton was not totally destroyed, but was considerably burned, and the evidence is sufficient to establish damages to the extent indicated by the verdict. The evidence is also sufficient to warrant the inference that the fire was caused by sparks from a passing engine. Indeed, it is not contended in the argument here that the evidence is insufficient on that issue, or that the verdict is unsupported with respect to the amount of the recovery.

The contention now is that the court erred in excluding the proferred defense that the plaintiffs wrongfully put their cotton on the station platform, contrary to the rules of the company and over the protest of the company's agent, and that the plaintiffs were trespassers in so doing, and cannot recover for the damage done to the property on account of the fire. It is alleged in the complaint that plaintiffs had placed the cotton "on the defendant's platform at Okolona and along and near defendant's tracks, for shipment over its railroad," and that while the cotton was upon the platform it was set fire by sparks emitted from the engine. The answer contains denials that the plaintiffs were the owners of the cotton described in the complaint, or that it was of the weight and value mentioned in the complaint, "or that plaintiffs had placed the same on defendant's platform at Okolona for shipment over defendant's road." The answer contains a further denial that sparks or cinders escaped from the engine, or that the fire was communicated to the bales of cotton in that way.

In opening the case before the jury, counsel for the defendant stated that the evidence in the case would show that plaintiff's cotton was put upon defendant's platform without the latter's consent and without any order for shipment, and without any bill of lading, and that plaintiffs had been notified at the time and before the cotton was placed on the platform not to put it there until it was ready for shipment and until they were ready to give orders for shipment, and that if they put it there it would be at their own risk. Counsel for plaintiffs objected to that argument for the reason stated that such proof would be immaterial, and also that no such defense was pleaded in the answer. The court overruled the objection to the argument, and the trial proceeded.

In the midst of the trial, counsel for defendant asked leave to file an amendment to the answer, expressly and specifically setting up as a defense to the action that plaintiff put the bales of cotton on the platform before they were ready to ship them and without giving the company's agent shipping orders; that the company had a rule, of which the plaintiffs were apprised, that delivery of cotton at the station was not permitted unless, at the time of the delivery, shipping orders were given, and that "all persons delivering cotton without shipping directions would do so at their own risk," and that the company would not be responsible for any loss or damage to the cotton from whatever cause arising while at or about the station. The amendment also contained an allegation that the plaintiffs were especially warned by the company's agent that if the cotton was put on the platform it would be at their own risk, and were warned not to put it there. The court refused to permit the amendment to be filed, and exceptions were duly saved. Defendant thereupon offered proof in support of the matters set up in the amendment to the answer, but the court refused to permit the testimony to be introduced; and, in submitting the case to the jury, refused to give instructions requested by defendant covering that defense.

It is insisted by counsel for plaintiffs that the matters set up in the amended answer and the proof in support thereof do not constitute a defense to this action, and that for that reason, if for no other, the court was correct in refusing to admit the same when offered. We are unable to agree with counsel on that proposition, for we are of the opinion that those matters, if established, would have constituted a defense. The substance of the plea, which the proffered evidence tended to support, was that the property of the plaintiffs was placed on the premises of the railway company without the latter's consent and in violation of its rules and over the protest and warning of the company's station agent. Under those circumstances the company was not responsible for injuries inflicted by reason of fire communicated from the engine. Our statute on the subject in terms makes a railroad company in this state liable "for the destruction of or injury to, any property, real or personal, which may be caused by fire, or result from any locomotive, engine, machinery, train, car, or other things used upon said railroad, or in the operation thereof," etc. But it would be an unreasonable construction to place upon the statute to hold that it created a liability which arose from the wrongful act of the owner in putting the property on the company's premises without the latter's consent. The statute was intended to protect the property of persons while proceeding within their rights and keeping their property where they have the lawful right to keep it. It was not intended to protect one who has exceeded his rights and who is a trespasser upon the premises of the railway company. The authorities on the subject sustain the view that where property is placed upon the right of way of a railway company without the company's consent, or solely upon the condition that the company shall not be liable for injury by fire, then there is no liability on the part of the company for such injury.

Mr. Elliott states the law on the subject as follows:

"It frequently happens that property of third persons located on the railway right of way is destroyed by fire communicated by locomotives of the company using the right of way. In cases of this kind the railway company is sometimes liable and sometimes not. The test of liability is generally whether or not the property situated on the right of way was rightfully there. If the owner of the property is a mere trespasser and placed his property on the right of way without the consent of the railway company he cannot recover for its negligent destruction by fire." 3 Elliott on Railroads, §...