St. Louis-San Francisco R. Co. v. Ginn, LOUIS-SAN

• Decision Date: 15 September 1953
• Docket Number: No. 35504,LOUIS-SAN,35504
• Citation: 42 A.L.R.2d 488,264 P.2d 351
• Parties: , 1953 OK 238 ST.FRANCISCO R. CO. v. GINN.
• Court: Oklahoma Supreme Court

Page 351

264 P.2d 351

42 A.L.R.2d 488, 1953 OK 238

ST. LOUIS-SAN FRANCISCO R. CO. v. GINN.

No. 35504.

Supreme Court of Oklahoma.

Sept. 15, 1953.

Rehearing Denied Dec. 22, 1953.

Syllabus by the Court

Where a railroad company negligently caused a fire, on its right of way, which endangered plaintiff's meadow and plaintiff took his tractor and plowed a fire guard around his meadow, in an attempt to minimize the damage from the fire and then, when taking the tractor to a place of safety, he ran over a root or branch which flew up, striking and injuring his eye, he can recover damages for the injury, from said railroad company, provided he did not act unreasonably or recklessly and was not guilty of contributory negligence.

E. G. Nahler, St. Louis Mo., Satterfield, Franklin & Harmon, Oklahoma City, for plaintiff in error.

Wallace & Wallace, Tom Wallace and Thomas A. Wallace, Sapulpa, for defendant in error.

DAVISON, Justice.

This is an action, brought by S. E. Ginn, as plaintiff, against the St. Louis-San Francisco Railroad Company, as defendant, for the recovery of damages to person and property, allegedly resulting from a fire, started by the defendant on its right of way, which spread to plaintiff's farm. The parties will be referred to as they appeared in the trial court.

A jury being waived, the case was tried to the court with most of the facts presented by stipulation. At about seven o'clock p.m. on the 28th of March, 1950, one of defendant's passing trains set fire to grass on the right of way adjacent to plaintiff's farm or meadow in Creek county, Oklahoma. The plaintiff, upon discovering the fire shortly after it was started, secured his tractor and plowed a furrow or fire guard along his property line in an attempt to prevent the spreading of the fire. He could just completed the last furrow and was driving the tractor to a safe place so that he could return and help extinguish the fire when he struck an object with his tractor machine or plow, either a root or a limb. It flew up and hit him in the face and eye. The injury to his eye was quite serious and he was taken immediately to the doctor. The following day he was sent to Tulsa. Oklahoma, for examination and treatment by a specialist. By reason of his refusal to submit to an operation his eye was not removed. For some seven or eight weeks he was treated and during that time he was forced to abandon his duties in connection with his dairy and cattle, at considerable financial loss.

This action was filed wherein plaintiff sought to recover $35 damage to his meadow, $150 doctor's bills, $600 loss of earnings and $2,050 for pain and suffering. Defendant's answer was a general denial and an allegation that any injury plaintiff suffered was the result of unavoidable casualty without negligence on the part of the defendant. After stipulation of facts and introduction of evidence by plaintiff, the defendant demurred thereto. The demurrer was overruled and, upon defendant's election not to produce further evidence, the court made findings of fact and conclusions of law and rendered judgment thereon for plaintiff in the amount of $1,894. Defendant has perfected this appeal therefrom.

The sole question for determination herein is the extent of liability of the defendant upon violation of that part of section 748 of Title 2, O.S.1941, which provides as follows:

'* * * Any railroad company operating any line in this State shall be liable for all damages sustained by fire originating from operating its road.'

The defendant admitted that the fire was started by one of its trains and that under the provisions of the above statute it was liable for the $35 damage to the meadow. It was further admitted that '* * * plaintiff sustained an injury to his eye after he had completed plowing a fire guard and was preparing to park his tractor at some safe place away from the fire; that in moving his tractor it ran over something, such as brush, sticks, or some other object, which was thrown up by the movement of the tractor, striking his eye.' The position and contention of defendant is that the accident and injury were not caused by the setting of the fire, and that such an incident could not have been foreseen by the defendant by any degree of care.

The question presented is one of first impression in this court. Indeed no case is cited by either party nor do we find any upon independent investigation where recovery was sought for injuries occurring under circumstances similar to those herein. There are two divergent views taken by the courts of the various states relative to personal injuries suffered by an owner while attempting to prevent destruction of his property by fire which was started from sparks emitted from a passing train. One of these, the minority view, was taken by the Texas court in the early case of Seale v. Gulf, C. & S. F. Ry. Co., 65 Tex. 274, 57 Am.Rep. 602. Therein, the owner of property endangered by fire negligently set out by defendant, was burned when attempting to extinguish the flame. The court held that the fire was not the proximate cause of the injury, but that there was a separate intervening cause to which the injury must be ascribed.

The other and majority view was taken by the Illinois court in the early case of Illinois Central Railroad Co. v. Siler, 229 Ill. 390, 82 N.E. 362, 15 L.R.A.,N.S., 819, 11 Ann.Cas. 368. There it was held that it was a question of fact as to whether or not the negligence of the defendant was the proximate cause when the party injured was attempting in a reasonable, prudent manner to extinguish the fire and was burned.

A very complete discussion of the proposition with extensive citation of authority supporting both views is found in the case of Wilson v. Northern Pacific Ry. Co., 30 N.D. 456, 153 N.W. 429, 436, L.R.A.1915E, 991. Therein, the following statement found in 13 Cyc. 71 was adopted as a part of the law in that case, to-wit:

'Where an injured party finds that a wrong has been perpetrated on him * * * he should use all reasonable means to arrest the loss. He cannot stand idly by and permit the loss to increase and then hold the wrongdoer liable for the loss which he might have prevented. It is only incumbent upon him, however, to use reasonable exertion and reasonable expenses, and the question in such cases is always whether the act was a reasonable one, having a regard to all of the circumstances in the case. The application of this rule some times has the effect of enhancing the damages rather than reducing them, and where a reasonable and bona fide attempt has been made on the part of the plaintiff to reduce the damages and provide for his own safety in case of a personal injury, it does not relieve the defendant from full recovery of the damages sustained.'

In the case before us there is no allegation or suggestion that plaintiff was guilty of contributory negligence to any degree. He was using a well recognized and adopted method of preventing the spread of the fire. Having plowed the last furrow, he was taking the tractor to a place of safety from the fire. He was not at the place of injury by his own volition. He was not engaged in an act of his own choosing. He was discharging a duty owed by him to the defendant to minimize the loss, and this by reason of defendant's own negligence. Equitably, plaintiff should not be required to bear the loss resulting from his personal injuries. Legally, the majority view is that the injuries flow from the fire rather than independently from the discharge of a duty imposed by the fire.

As was said in the case of Glanz v. Chicago, M. & St. P. Ry. Co., 119 Iowa 611, 93 N.W. 575, 577:

'In attempting to extinguish the fire in question, plaintiff was in the strict line of her duty; and, if she acted with ordinary care and prudence, there is no reason, in...