St. Louis, Iron Mountain & Southern Railway Company v. Pape

• Decision Date: 03 July 1911
• Citation: 140 S.W. 265,100 Ark. 269
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. PAPE
• Court: Arkansas Supreme Court

140 S.W. 265

100 Ark. 269

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. PAPE

Supreme Court of Arkansas

July 3, 1911

Appeal from Miller Circuit Court; Jacob M. Carter, Judge; affirmed.

Judgment affirmed.

W. E Hemingway, E. B. Kinsworthy, H. S. Powell and James H Stevenson, for appellee.

1. In so far as the verdict was based on the theory that the fire was started by a spark or sparks from one of the locomotives it is wholly unsupported by the evidence and contrary to the physical probabilities.

2. When the shipper or his agent accompanies the goods, and fire breaks out under circumstances not reasonably attributable to any act of the carrier, its insurance liability ceases with the cessation of the reason thereof, and the burden devolves upon the shipper, upon the presumption that his agent in charge has more knowledge of how it occurred than any one else, casting the burden upon him to explain, by a preponderance of the evidence, that it arose out of a cause not traceable to the act of the agent. 52 N.H. 355, 13 Am. Rep. 42; 3 Cliff. 184.

Notwithstanding the carrier's liability as an insurer, it cannot be held liable if the negligence of the shipper or his agent caused or contributed to the fire. 1 Hutchinson on Carriers, § 265; Id. §§ 328, 333; 8 Carr. & P. 207; 26 Ark. 3, 7; 50 Ark. 397, 415; 68 Ark. 218; 56 Ark. 425; 83 S.W. 253; 22 S.W. 347; 4 O. St. 741; 60 S.E. 1018; 69 Iowa 485, 487; 134 S.W. 613, 617; 129 S.W. 762, 763.

On the question of the burden and presumption where the shipper or his agent accompanies the goods, see, in addition to authorities cited above, 104 Iowa 659, 74 N.W. 192; 128 N.W. 663, 667.

3. The testimony of the witness Hobby, as to statements made to him in the caboose by Rose, shortly after the discovery of the fire, and also as to similar statements made by the latter to Denton and the conversation between them, ought not to have been limited to the impeachment of Rose. Under the facts, conditions and circumstances, these statements were a part of the res gestae, and should have been admitted for whatever they might be worth as explaining the cause. The fact that Rose denied making the statements did not detract from their admissibility. 18 Col. App. 170; 32 P. 63; 76 N.E. 551; 89 S.W. 158; 94 S.W. 345; 93 S.W. 1089; 77 Ark. 599; 85 Ark. 479; 109 S.W. 430; 43 Ark. 104; 123 Ga. 205, 51 S.E. 328; 53 Neb. 674; 69 Neb. 456, 95 N.W. 1057; 54 Neb. 299; 74 Neb. 627; 104 N.W. 1056; 108 P. 593; 67 S.E. 899; 110 P. 20; 109 P. 10; 16 Cyc. 1241, 1248, 1251, 1254; 14 Ark. 86; 104 P. 736; 133 Ind. 243, 31 N.E. 180, 19 L. R. A. 723; 127 N.W. 272.

4. The first and fourth instructions given for appellees were erroneous in that they misstate the law as to the presumption of negligence and burden of proof, and they make the shipper's responsibility depend upon the negligent quality of the acts of those accompanying the car, instead of upon the question of whether or not, regardless of their negligence, their acts caused the loss. See authorities cited above, particularly 26 Ark. 3, 7; 50 Ark. 397; 74 N.W. 192; 128 N.W.663.

William H. Arnold, for appellees.

1. The shipper's attention was not called to the statement stamped on the face of the bill of lading, that "the value of the shipment covered by this contract is fixed by the shipper at $ 5.00 per cwt.;" he had no contract or agreement with the railway company. The papers were prepared by the agent and delivered to the son of the shipper who had only forty minutes in which to load the stock, and in the rush the papers were signed as prepared. Appellees are not bound by that stipulation. 91 Ark. 97.

2. Rose was not in the car by permission either of the plaintiffs or of Denton; but the proof is that he slipped into the car without the knowledge or consent of the plaintiff, and that Denton did not discover him in the car until during the night after the day of shipment. The proof is further that he remained in the car and did not interfere with anything; that he had no matches, did not smoke, but was asleep during all the night preceding the fire and awoke after the car was afire, and had to run through the flames in order to escape.

The lantern was securely fastened in the ceiling of the car with two nails, the heads thereof bent back to the ceiling so that the lantern could not fall or be taken down. It was lit only for the purpose of feeding the stock, and always turned out when that was done. Under the testimony of appellant's own witness it is clear that the lantern did not cause the fire, because, while he testifies that the lantern was sitting on a bale of hay, he states that he does not know whether it was lit or not, and that the bale of hay on which it sat was not on fire.

3. The testimony of Hobby relative to statements of Rose was not admissible except for the purpose of impeaching Rose. It was certainly not admissible as res gestae. 50 Ark. 397.

4. The evidence justifies the conclusion that the fire was caused by sparks emitted from some one of the passing locomotives of appellant. 59 Ark. 317; 77 Ark. 434; 76 Ark. 132; 89 Ark. 273; 92 Ark. 569. The only exception to appellant's liability insisted on by it is that provision in the bill of lading exempting it in case of loss or damage occasioned by the act or default of the shipper or owner, and it is conclusively shown by the testimony both of Denton, appellee's agent, and of Rose, that there was nothing done by either of them that caused the fire, and this testimony was uncontradicted. If there was any burden resting upon plaintiffs to show that Denton did not set the car on fire, that burden was discharged by this testimony. And appellant was not prejudiced by the court's holding that the burden was on it to show that the loss of the car was due to the negligence of Denton or Rose. Moreover, under its liability as an insurer the burden was upon appellant to maintain its defense. 94 Ark. 407; Id. 103; 91 Ark. 97; 89 Ark. 154; 127 S.W. 464; 123 S.W. 775; 130 S.W. 562.

Where, as in this case, the carrier in its answer alleges negligence against the shipper and relies upon it as an exception to its liability, the burden of proving that allegation is upon the carrier. Hutchinson on Carriers (3 ed.), § § 449, 1354.

OPINION

FRAUENTHAL, J.

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 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 McLeansboro, 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 through 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 travelled 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, Missouri, 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 12, and arrived at a point on appellant's railroad known as Gad's Hill, about 5 o'clock A. M. of February 13, 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 sixty 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 sidetracks, 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 forty 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...