Texas & P. Ry. Co. v. Coutourie

• Decision Date: 20 December 1904
• Docket Number: 104.
• Citation: Texas & P. Ry. Co. v. Coutourie, 135 F. 465 (2nd Cir. 1904)
• Parties: TEXAS & P. RY. CO. v. COUTOURIE.
• Court: U.S. Court of Appeals — Second Circuit

135 F. 465

TEXAS & P. RY. CO. v. COUTOURIE.

No. 104.

United States Court of Appeals, Second Circuit.

December 20, 1904

Rush Taggart, for plaintiff in error.

Treadwell Cleveland, for defendant in error.

Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

TOWNSEND Circuit Judge.

This action is one of a series of cases arising out of a fire which occurred at Westwego, La., a point on the Mississippi river opposite the city of New Orleans, on November 12, 1894 and which destroyed a large amount of cotton there stored on defendant's wharf and in its cars.The defendant had undertaken to transport this cotton from points in Texas to Havre, France.By its bill of lading it was exempted from liability for destruction by fire.

Former decisions discussing the situation and covering various questions raised as to the liability of the defendant are reported as follows: Texas & Pacific Railway Company v Clayton,84 F. 305, 28 C.C.A. 141;Id., 173 U.S. 348, 19 Sup.Ct. 421, 43 L.Ed. 725;Reiss v. Texas & Pacific Railway Company,98 F. 533, 39 C.C.A. 149;Texas &amp P.R. Co. v. Reiss,99 F. 1006, 39 C.C.A. 680;Id., 183 U.S. 621, 22 Sup.Ct. 253, 46 L.Ed. 358;Texas & Pacific Railway Company v. Callendar,98 F. 538, 39 C.C.A. 154;Id., 183 U.S. 632, 22 Sup.Ct. 257, 46 L.Ed. 362;Marande v. Texas & Pacific Railway Company,102 F. 246, 42 C.C.A. 317;Id., 184 U.S. 173, 22 Sup.Ct. 340, 46 L.Ed. 487;Id., 124 F. 42, 59 C.C.A. 562.

The bill of exceptions challenges certain rulings, charges and refusals to charge, and specific portions of the charge of the court below.

For the purpose of a satisfactory understanding of the situation, it is necessary to first discuss the arrangement of the wharf and buildings at Westwego, the course of business there, and the condition of affairs at and prior to the time of the fire.The wharf extended along the bank of the river.On it were located two covered freight sheds, open at the ends and sides, each about 150 by 260 feet in size, known respectively as Nos. 1 and 2, and separated from each other by an open space, not planked, about 50 feet wide.There was one track in front of these sheds on the river side, and two tracks in the rear, situated at distance from the sheds of 15 feet in front and 10 feet in the rear, and prior to November 12, 1894, a great quantity of cotton had been accumulating for some weeks at the wharf and in cars in the rear of the sheds.On the 12th of November both sheds and a considerable part of the intervening space were filled with bales of cotton.There was evidence tending to show that there were over 20,000 bales of cotton at the wharf; that the bales were piled up as high as possible in the sheds; that the platform was crowded; that cotton was stowed beyond the sheds toward the river, close to the railroad track, and was unprotected by any covering; that the sheds were blocked; and that, while there were gangways across the sheds, there were no gangways lengthwise of the sheds and parallel with the river.There was also evidence to the effect that the only appliances provided for use in case of fire consisted of a tank connected with hydrants, three in each shed having a coil of hose, and a row of barrels with buckets, and some fire buckets, and that no instructions had been given to the men in charge of the dock as to their use, and no fire drill had ever taken place, and that on the night of the fire the hydrant nearest to the place where the fire broke out was blocked with cotton.Although the defendant has been notified of a fire smouldering in some bales of cotton a short time before, and of the increased danger of fire owing to labor troubles, and of the great accumulation of cotton at this point, it had reduced the number of its watchmen in charge so that on the night in question there were but four men in charge of this whole property.The head watchman had had no instructions or experience in the use of fire apparatus, and was confessedly incompetent for the duties of his position.

Upon the trial of a former case, Marande against this defendant(184 U.S. 192, 22 Sup.Ct. 340, 46 L.Ed. 487), the Supreme Court reversed the decision of this court, which had affirmed the action of the court below in directing a verdict for the defendant and refusing to permit the plaintiff to go to the jury on the question of the negligence of the defendant.The grounds on which the Supreme Court rested its opinion were as follows: (1) That the manner in which the cotton was stored, in connection with the operation of the locomotives in the immediate neighborhood of the cotton, which was unprotected by any covering, afforded sufficient proof to go to the jury that it was such as to prevent prompt detection of a fire in season to prevent conflagration.The Supreme Court took the view that, in view of the evidence, a fire might have smouldered for a considerable period prior to its breaking out into flames; that the jury would have been justified in drawing the inference that the sparks from the locomotives falling upon the unprotected cotton might have caused it to ignite; and that the manner in which the cotton was stored, without having gangways extending lengthwise through it, so that the presence of fire might be promptly detected, would afford ground for the jury to find that such negligent storage prevented the seasonable discovery of the fire, because of the absence of such gangways, through which it might have been properly inspected.(2) That the evidence as to the presence of three watchmen only to care for such a vast accumulation of cotton was sufficient to go to the jury on the question whether, if an adequate force of watchmen had been on hand, the fire might have been detected in time to save the cotton from destruction.(3) That the evidence that cotton was piled up around the posts where the hydrants were situated, and above the coil of hose, so that neither was visible nor accessible from the gangway, and that no systematic inspection of the fire apparatus and no rules for its use had ever been promulgated, furnished reasonable grounds from which the jury would be entitled to infer negligence, creating such a condition as to conduce to error of judgment, for which the defendant should be held responsible.

The first assignments of error argued relate to the admission of evidence as to the intemperate habits of one Wilkinson, who was the superintendent in charge of defendant's wharf at Westwego.It was his business to inspect the hydrants and hose daily, and to keep the gangways clear.One of his clerks testified as follows:

'Q.Did you notice how Wilkinson attended to his duties?A.Well, he was all right in the first part of the day, but in the latter part he was not so good.Used to booze a little too much.Q.Where did he booze?A.Well, that I could not say.He used to go off.Of course, I was attending to my duties.* * * Q.How early in the day did Wilkinson begin to booze, on the average?A.Well, about 11 o'clock he was pretty well loaded.Q.Youmean by that he drank heavily?A.Yes, sir.* * * Q.After 11 o'clock in the day, when you say he was pretty well loaded, did you see him about there attending to his duties?A.He would walk around sometimes, making a little fuss.That is about all.'

Another clerk testified as follows:

'Q.Do you know what Mr. Wilkinson's habits were as to drinking?A.Yes; I have seen him under the influence of liquor many times during the day.'

Other testimony to the same effect was admitted, to all of which defendant duly excepted.

It is unnecessary to discuss the general rule of law as stated by counsel for defendant, 'that evidence of past habits or occurrences is inadmissible to prove negligence on the part of the defendant. 'We are not here concerned with the class of cases where injury has resulted from a single specific act of negligence of a servant on a specified occasion, and where the sole question is as to the conduct of the servant on such occasion.Here the negligence complained of in this particular consisted, inter alia, not in a specific act or neglect, but in a course of business; not in anything done or left undone at the moment when the fire was discovered, but in a situation, claimed to have been produced by continuous negligent acts and omissions, involving a combination of blocked alleyways, hydrants obstructed by bales of cotton, unconnected hose, lack of proper supervision, incompetent servants, etc.The evidence as to Wilkinson's previous habits and condition does not relate to the question as to whether he was drunk when the fire broke out, but was introduced to show that the situation complained of, which prevented the use of proper means for seasonably discovering and extinguishing the fire, was due to his negligence.We think the admissibility of this evidence may be tested by a consideration of the question as to whether, in view of the existing facts, it would have been admissible to show that no one had been employed to superintend the wharf, or that the person employed as superintendent had been absent and had neglected his duties during a period prior to the fire, or that he was insane, infirm, or otherwise manifestly incapacitated for such position, or that he had in fact negligently caused or directed the care and stowage of the cotton, or had negligently supervised its location, and the means of discovering and extinguishing fires.'The question is, did the servant exercise ordinary care in the exercise of his duties? ' Barrows on Negligence, 100.And we think it was proper to submit to the jury the facts as to his condition during the time while such alleged improper stowage and blocking was going on, in order that they might determine whether his condition was such that he...