St. Louis, Iron Mountain & Southern Railway Co. v. Cooper & Ross

• Decision Date: 08 November 1915
• Docket Number: 215
• Citation: 180 S.W. 203,120 Ark. 595
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. COOPER & ROSS
• Court: Arkansas Supreme Court

180 S.W. 203

120 Ark. 595

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. COOPER & ROSS

No. 215

Supreme Court of Arkansas

November 8, 1915

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

Judgment affirmed.

E. B Kinsworthy, R. E. Wiley and T. D. Crawford, for appellant.

1. The court erred in excluding the amended answer and testimony offered in support thereof. The amendment, and the testimony offered in support of it, was material to appellant's defense, and could not have been prejudicial to appellees as a matter of surprise. Its exclusion was clearly an abuse of discretion. Kirby's Digest, § 6145; Act 141, Acts 1907, § 1.

The testimony offered tended to prove that appellees were trespassers in placing their property on appellant's platform without its consent and over its objections. If the liability of the railroad company for the destruction of property by fire be classed as that of an insurer, it would be unreasonable to hold that the statute contemplated that such liability should be created in favor of a trespasser even though the statute does not expressly exempt such a case. 3 Clifford 244; 19 Cyc. 381; 3 Elliott on Railroads § 1235; 52 So. 406.

The offered evidence may be considered as material for the reason also that there is an exception, recognized by this court, to the statute making railroads liable for damages caused by fires set out by their locomotives, namely, the contributory negligence of the owner which is so gross as to amount to fraud. 105 Ark. 374; 104 Ark. 88; 57 N.H. 132; 3 Col. App. 526; 61 N.E. 141.

It was material for the further reason that it is shown that when the company's rule was called to appellee's attention, and he was told that if he placed the cotton on appellant's platform, he would do so at his own risk, to which he replied that it would be as safe there as at his gin lot, and he would place it on the platform anyway. He therefore assumed the risk of the cotton being burned and agreed that the company should not be liable. 77 Vt. 334, 70 L. R. A. 930; 77 S.C. 464; 69 S.E. 291; 44 L. R. A. (N. S.) 1129, note; 75 S.W. 149.

2. The court erred in allowing an attorney's fee against the appellant. The statute under which the allowance was made, is unconstitutional, being a discrimination against railroad companies, and in depriving them of the equal protection of the laws in violation of the Fourteenth Amendment. 165 U.S. 150; 224 U.S. 354; 56 L.Ed. 799.

McMillan & McMillan, for appellees.

1. Appellant might have pleaded the defenses set up in the amended answer when it filed its original answer wherein it merely denied that the fire was caused by the train alleged in the complaint. Appellant knew of these other defenses at that time, and it was its duty to plead them then. Kirby's Digest, § 6098; 108 Ark. 246; 46 Ark. 136; 70 Am. Dec. 692-698.

The court did not abuse its discretion in refusing to permit the appellant to file the amended answer, attempting in this manner to raise new issues, after the case had gone to trial, and that trial was half over. 75 Ark. 468; 104 Ark. 286; 88 Ark. 185, 186.

2. The facts set up in the amendment do not constitute a defense. By the act, railroad companies are made absolutely liable for destruction or injury to property caused by fire from their locomotives, and it makes no exceptions. Act 141, Acts 1907; 89 Ark. 418; 165 U.S. 1; 104 Ark. 88.

3. Under the act there was no error in allowing an attorney's fee. This court has already sustained the constitutionality of the act in this respect. 112 Ark. 298. See, also, 92 Ark. 569.

OPINION

MCCULLOCH, C. J.

The plaintiffs, Cooper & Ross, are merchants at Okolona, Arkansas, 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 proffered 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 can not 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 puts 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 plaintiff's 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...