St. Louis, I. M. & S. R. Co. v. Pape
| Decision Date | 03 July 1911 |
| Citation | 140 S.W. 265 |
| Parties | ST. LOUIS, I. M. & S. R. CO. et al. v. PAPE et al. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Miller County; Jacob M. Carter, Judge.
Consolidated action by C. W. Pape and others against the St. Louis, Iron Mountain & Southern Railway Company and another. Judgment for plaintiffs. Defendants appeal. Affirmed.
W. E. Hemingway, E. B. Kinsworthy, H. S. Powell, and Jas. H. Stevenson, for appellants. W. H. Arnold, for appellees.
These were six separate actions instituted by the appellees to recover the value of a lot of personal property which was destroyed by fire while being transported by appellants as a common carrier. The property consisted of a lot of household goods, wearing apparel, and some live stock, portions of which were owned by the several appellees, and all of which was shipped in the same car and destroyed on the same occasion. The property was carried under the same contract of shipment in the name of one of the appellees as consignee, but for the benefit of all of them, who paid their respective portions of the freight charges. The six actions were consolidated for trial.
On February 11, 1910, the property was delivered to the Louisville & Nashville Railroad Company at McLainsboro, in the state of Illinois, to be transported to Ogden, in the state of Arkansas, and a bill of lading was duly issued therefor by the initial carrier. At the same time, a contract, known as a "live stock contract," was executed, and also signed by the shipper, which provided that the "shipper or his agent or agents in charge of said animals shall ride upon the freight train upon which said animals are transported." The property was shipped in a box car, in which there was no opening, except sliding doors upon each side. The household goods were placed in one end of the car, and the stock was placed in the other, and between the two and the doors was placed a quantity of hay and other feed stuffs.
The shipper employed one Ed Denton to accompany the property, and he rode in the car with it. It appears that a boy named W. H. Rose, who was well acquainted with the shipper, desired to go to Arkansas, and, without the knowledge or consent of the shipper or Denton, stowed himself away in the car and traveled with the shipment. Denton took with him a coal oil lantern, which he fastened to studding upon the upper side of the car, and lighted same at certain hours, when it was dark, in order to feed the stock.
The car and property were duly transported over the line of railroad of the initial carrier to St. Louis, Mo., and were there delivered to the appellants as connecting carriers, who undertook to transport same over their own line from St. Louis to Ogden. The train left St. Louis about 6 o'clock p. m. of February 12th, and arrived at a point on appellants' railroad known as Gad's Hill about 5 o'clock a. m. of February 13th, when the car containing this property was discovered to be on fire, and the property was thereby destroyed. It appears from the testimony on the part of appellees that the train was quite long, consisting of some 60 cars, and was propelled by two engines. When the train arrived at the station of Vulcan, which is variously estimated by the witnesses to be from four to eight miles distant from Gad's Hill, the train was cut in two parts and placed upon side tracks, so as to permit other trains to pass upon the main track. During the time the train remained at Vulcan, a number of passenger trains passed, going at the rate of 40 miles per hour; and some switching was also done at this place. For the purpose of ventilation, the sliding door on the east side of this car was left partly open, and trains passed it at this station on both sides of the car.
The train then proceeded toward Gad's Hill with one engine in front and the other in the rear. It appears that the grade of the railroad track at Gad's Hill was very steep, and when the train arrived there an attempt was made to go up the grade with the entire train, and to effect this the engine used a great amount of steam; but sufficient power could not be secured to make the grade. Twelve of the cars were then cut loose from the train, and by the front engine were taken up the grade, leaving the other cars standing, amongst which was the car containing the property of appellees. It was about this time that this car was discovered to be on fire.
It appears that the agent, Ed Denton, had left this car at Vulcan, and gone to the caboose in the rear of the train, in order to warm himself, leaving Rose in the car, who went to sleep. The testimony on the part of the appellees tended further to prove that when the train "stalled" at Gad's Hill Rose was awakened by the stock and the fire. At that time the fire had enveloped the hay, and was sending up great flames from the interior of the car, so that Rose, with singed eyebrows and hair, was only able to escape through the door in his stockinged feet. No other car appears to have caught on fire.
The testimony on the part of appellees tended also to prove that neither Denton nor Rose smoked, and that they had lighted the lantern the last time before the fire some time prior to reaching Vulcan, and that it had been extinguished before reaching that station; that the lantern was securely fastened with nails turned back into the wood, so that it could not fall, and that each time the lantern was lighted the match was thrown outside, and that the fire was not caused by the lantern, or by any act done by them. And we are of the opinion that from the circumstances adduced in evidence —the manner in which the sliding door was left open, with the inflammable hay in between the doors, from the switching that was done at Vulcan, which, according to the testimony adduced by appellees, was from 20 to 30 minutes prior to the discovery of the fire, from the great amount of steam that was used, and the consequent expulsion of sparks from the locomotives at Gad's Hill just before the fire was discovered, and from the testimony of Denton and Rose that the fire was not caused by the lantern or any act on their part — the jury could have found therefrom that the fire was caused by sparks emitted from one of appellant's engines. Railway Company v. Dodd, 59 Ark. 317, 27 S. W. 227; St. L., I. M. & S. R. Co. v. Coombs, 76 Ark. 132, 88 S. W. 595; St. L., I. M. & S. R. Co. v. Dawson, 77 Ark. 434, 92 S. W. 27; St. L. S. W. R. Co. v. Trotter-Minnis, 89 Ark. 273, 116 S. W. 227.
On the other hand, the testimony on the part of the appellants tended to prove that the lantern was seen in the hands of Denton at various times from St. Louis to Bismark, which is about 42 miles distant from Gad's Hill, and that when in the car it was hung upon a pole running across the car. From these facts, and the circumstances of the fire, we think there was evidence which would have justified the jury in finding that the fire was caused by the lantern, which was in the sole use and control of appellees' agent.
At the request of the appellees, the court gave the following instructions, amongst others:
The appellants requested the court to give, amongst other instructions, the following, which was refused:
The jury returned a verdict in favor of appellees, and this appeal is taken by the appellants from the judgments rendered thereon.
1. In the bill of lading or contract of shipment, there was a provision limiting the liability of the carrier for the loss of the property while in transit to an amount therein stipulated. The lower court ruled that this provision of the contract was not binding, and that appellees were entitled to recover, if at all, the market value of the property destroyed, and thereupon permitted the introduction of testimony relative to the market value of each item of the property destroyed. This ruling of the court we think was correct. This was an interstate shipment, and this court has held that under the interstate commerce act (Act Feb. 14,...
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