U.S. Fire Ins. Co. v. Northern Pac. Ry. Co.

• Decision Date: 20 May 1948
• Docket Number: 30336.
• Citation: 30 Wn.2d 722,193 P.2d 868
• Parties: UNITED STATES FIRE INS. CO. et al. v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

193 P.2d 868

30 Wn.2d 722

UNITED STATES FIRE INS. CO. et al. v. NORTHERN PAC. RY. CO.

No. 30336.

Supreme Court of Washington

May 20, 1948

Department 1

Action by United States Fire Insurance Company and Franklin National Insurance Company against Northern Pacific Railway Company as subrogees of tenants of the defendant for damages resulting from negligence of defendant's employees which destroyed warehouse located on defendant's right of way. From a judgment for defendant, the plaintiffs appeal.

Judgment affirmed.

Appeal from Superior Court, Spokane County; Carl C. Quackenbush Judge.

Cashatt & Turner, of Spokane, for appellants.

Cannon McKevitt & Fraser, of Spokane, for respondent.

SCHWELLENBACH Justice.

This is an appeal from a judgment dismissing the action of plaintiffs, with prejudice, and granting judgment for costs to defendant.

March 1, 1923, the Northern Pacific Railway Company leased a portion of its right of way at Thiel, Washington, to Con Donovan. The subject matter of the lease was a grain warehouse of 40,000 bushels' capacity, owned by Donovan.

The lessee was to pay an annual rental of twenty dollars. Section 6 of the lease provided:

'No other railroad or transportation company or person engaged in transportation, shall be allowed to use any track now or hereafter upon or extending to the premises without permission in writing of the Railway Company, and the Railway Company shall have the exclusive right of carrying all grain to be transported by rail to or from said warehouse.'

Section 7 provided:

'It is understood by the parties that the leased premises are in dangerous proximity to the tracks of the Railway Company, and that persons and property on the leased premises will be in danger of injury or destruction by fire or other causes incident to the operation of a railway, and the lessee accepts this lease subject to such dangers. It is therefore agreed, as one of the material considerations of this lease without which the same would not be granted, that the lessee assumes all risk of personal injury to the lessee and to the officers, servants, employes or customers of the lessee while on said premises, and all risk of loss, damage or destruction to buildings or contents or to any other property brought upon or in proximity to the leased premises by the lessee, or by any other person with the consent or knowledge of the lessee, without regard to whether such loss be occasioned by fire or sparks from locomotive engines or other causes incident to or arising from the movement of locomotives, trains or cars, misplaced switches or in any respect from the operation of a railway, or to whether such loss or damage be the result of negligence or misconduct of any person in the employ or service of the Railway Company or of defective appliances, engines or machinery. And the lessee shall save and hold harmless the Railway Company from all such damage, claims and losses.'

On October 25, 1923, Donovan, with the consent of the railroad company, sold the warehouse and assigned his interests in the lease to H. E. Morrison and C. G. Eubanks, copartners, doing business under the trade name and style of Morrison Warehouse Company.

On June 20, 1944, the railroad company operated a weed burner in the vicinity of the warehouse in a negligent manner, permitting weeds along the right of way to catch fire; the employees operating the water car which followed the weed burner, and the members of the section crew, who were on foot, and followed the water car, were negligent in patrolling and in extinguishing the fires set by the weed burner, in that they left the vicinity of the warehouse without making certain that all fires had been extinguished. As a result, the fires spread along the right of way and the warehouse on the leased premises was destroyed.

Morrison and Eubanks commenced suit against the railroad company for damages in the amount of $6,190.00. The plaintiffs had, Before the fire, insured the warehouse with the appellants herein. Appellants had paid the plaintiffs the sum of $6,190.00 for the destruction of the warehouse, and, under the policies of insurance, became subrogated to the rights of plaintiffs in any cause of action they had for damages resulting from fire. By stipulation of the parties, appellants were substituted in this action as parties plaintiff.

The trial court found that the loss was occasioned by the negligence of the employees of the railroad company; that the amount of the damage was $6,190.00; but that Section 7 of the lease was a complete legal and valid defense to plaintiffs' cause of action.

Respondent admits the negligence of its employees, and the amount of the damage. Appellants admit that no question of public policy is involved, so our sole problem is to determine whether or not the acts complained of, which resulted in the loss of the warehouse, came within the provisions of Section 7 of the lease.

The trial court might have been influenced in its decision because, as was said in the Memorandum Opinion, 'A nominal annual rental fee of $20.00 is provided for in the lease.' However, that nominal rental fee could have been influenced by the fact that the railway company had the exclusive right of carrying all grain to be transported by rail to and from the warehouse.

The question of what constitutes 'operation of a railway' is a matter of first impression Before this court, and we must look to the decisions of other jurisdictions, to assist us in determining the problem Before us.

Connors v. Chicago & N.W. Ry. Co., 111 Iowa 384, 82 N.W. 953, was an action for damages occasioned by a fire alleged to have been set and negligently permitted to escape by defendant's employees when burning weeds and grass along its right of way. In reversing a verdict and judgment for plaintiffs, the court said:

'* * * The important inquiry, then, is, what is meant by 'operating a railway'? In none of the cases heretofore determined has the application of the statute gone beyond a fire set out or caused by an engine on the track. But under the co-employes' act (Code, § 2071), allowing recovery by an employe injured by negligence 'in any manner connected with the use and operation of any railway on or about which they shall be employed,' the clause 'use and operation of any railway' has been frequently considered and defined. Thus, in Stroble v. Chicago, M. & St. P. Ry. Co., 70 Iowa, [555], 560, 31 N.W. 63, the court, through Beck, J., said: 'What is the use and operation of a railway? It is constructed for the sole purpose of the movement of trains. That is its sole use. What is the operation of a railway? They can be operated in no other way than by the movement of trains.' In Nelson v. Chicago, M. & St. P. Ry. Co., 73 Iowa 576, 35 N.W. 611, the movement of steam ditching machines, and in Larson v. Illinois Cent. Ry. Co., 91 Iowa, 81, 58 N.W. 1076, that of a hand car, were held to be operating a railway. In Akeson v. Chicago B. & I. Ry. Co., 106 Iowa [54], 64, 75 N.W. 676, after reviewing the authorities, the court concluded that: 'The only dangers peculiar to railroading are those occasioned by the movement of the engines, cars, and machinery on the track, or directly connected therewith. It is evident that the statute contemplates such injuries only as are caused by the negligent acts of employes so engaged. In no other proper sense is a railway used and operated. * * * If, then, the injury is received by an employe whose work exposes him to the hazards of moving trains, cars, engines, or machinery on the track, and is caused by the negligence of a co-employe in the actual movement thereof, or in any manner directly connected therewith, the statute applies, and recovery may be had. Beyond this the statute affords no protection."

Missouri Pac. Ry. Co. v. Cady, 44 Kan. 633, 24 P. 1088, was an action to recover damages occasioned by a fire, negligently allowed to spread, which was started by employees of the railroad company, while burning off its right of way. The court said:

'The company assigns a number of errors based upon the rulings of the trial court. A careful examination of each one of the errors assigned, and a comparison of the same with the questions raised in the case of Missouri Pac. Ry. Co. v. Merrill, 40 Kan. 404, 19 P. 793, shows that each one and all of the errors assigned herein were considered by this court in that case, and decided against the theory of the plaintiff in this case. It is true that in the case above cited, the fire was alleged to have escaped from the locomotive while in the operation of its railroad, while in this case the allegation is that the railroad company, its agents and servants, while operating its railroad, negligently and carelessly set fire to the dry grass, weeds, and other combustible material along and upon its right of way, and negligently and carelessly permitted the fire to escape over and upon the farm of the plaintiff, where it continued to burn, and did the damage complained of; and it is claimed by the railroad company that the burning off of the right of way of the railroad company is not an act done in connection with the operation of the railroad, and therefore does not fall within the scope of the language of chapter 155 of the Laws of 1885.

'Upon this subject Justice Johnston, delivering the opinion in the case of Missouri Pac. Rly. v. Merrill, says:

"The statutes prescribe a rule in actions for damages by fire, caused by the operation of a railroad, and it is contended that caring for the right of way is not within the terms 'operating a railroad.' The claim is not tenable. The statute applies to all cases where the fire results from the operation of a railroad. It is not even confined to

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