296 S.W. 1049 | Mo. Ct. App. | 1927
Lead Opinion
The cause of action stated is that the Missouri Pacific Railroad Company carelessly and negligently switched a large box car over the private switch of plaintiff, and carelessly and negligently ran said box car into the "tipple" and loading chute of the plaintiff.
The answer after denying generally, alleged that in 1913 a sidetrack was constructed at the request and for the benefit of the plaintiff; that a contract was entered into under the terms of which *222 plaintiff should not locate at a distance nearer than six feet from the nearest rail track of the Railroad Company, any building, etc., except a platform for loading purposes which should not be less than four feet, six inches from the track; and that the plaintiff should not erect or permit any improvements or structure above said track at a height of less than twenty-two feet above the top of the rails of the track.
The answer then alleges a violation of the contract, in that plaintiff's structure was damaged by reason of being constructed at a less distance from the track than that provided in the contract.
Defendant further alleged that the contract provided that defendant should not be liable for any fire communicated to plaintiff's property, and further provided: "Said second party further agrees to release, and does hereby release the said railway company from any and all liability for damages for any injuries which may occur or be done to the property of said second party by the said railroad company while operating locomotives and cars upon said track."
The answer then pleads that if plaintiff's property was damaged, the defendant is released by the said contract by indemnity.
Reply in the form of a general denial was filed.
The case was tried before the court without the aid of a jury. The facts show that the defendant had erected for the convenience of plaintiff a spur track; that the contract mentioned in the pleadings was executed at the time this track was put in; that there had been some correspondence between plaintiff and defendant showing that both knew that the clearance of this "tipple" was not according to contract; that defendant in switching for its own convenience, switched a large furniture car on to the side track, the car striking the tipple and injuring it. No point is made as to the amount of damages.
No instructions were asked except the defendant at the close of the whole case requested the court to give a peremptory instruction. This the court declined to do and rendered judgment for the plaintiff in the sum of $500.
After an unsuccessful motion for a new trial defendant brings the case here on appeal.
In cases thus tried, the rule as said in Sutter v. Raeder,
The appellant relies for reversal on the provisions of the contract.
A contract very similar to this was before the court in Wabash Railroad Co. v. Ordelheide,
The principle upon which the cases rest is expressed in Insurance Co. v. Railroad,
Applying this principle to the case at bar, we do not see any distinction between the principle in Ordelheide v. Wabash R.R. Co., supra, and the case at bar.
In the case of Ordelheide v. Wabash R.R. Co., supra, the ground upon which the injured property was placed, belonged to the Railway Company. In the case at bar the property destroyed was not upon the railway right of way. We have examined those cases where the railway built a switch to property off its right of way and find the law as follows: Supreme Court of Texas in the case of Missouri, Kansas Texas Railway Co. of Texas v. Carter et al.,
The Supreme Court of the State of South Carolina in Mayfield v. Southern Ry. Co., Carolina Division,
The Supreme Court of Appeals of West Virginia in West Virginia Pulp Paper Co. v. Baltimore Ohio R. Co., 84 S.E. 334, having before it a contract providing for the construction of a sidetrack, partly upon the right of way and partly upon the adjacent land, and exempting the railroad company from loss or damage by fire, hold that the release covers fire from engines on the main lines as well as on the sidetrack and as in line with the other cases cited.
To the same effect is Keystone Mfg. Co. v. Hines, 102 S.E. 106.
The Supreme Court of the State of Illinois in Bartee Tie Co. v. Jackson, 117 N.E. 1007, l.c. 1009, upheld a contract releasing the railroad company for damages by fire "near, or by the premises aforesaid, whether said damage occurs on the premises hereby leased or on premises adjacent thereto." The point is made that the company was acting as a public warehouseman, and therefore liable. The court however state: "The use must concern the public as distinguished from an individual or a particular number of individuals. [State Public Utilities Com. v. Noble Telephone Co.,
The Supreme Judicial Court of Massachusetts in Porter v. New York, N.H. H.R. Co.,
The Supreme Court of the State of South Carolina in the case of Williams v. Hines,
The Supreme Court of the State of Michigan in an exhaustive opinion in Mann et al. v. Pere Marquette R. Co., 97 N.W. 721, l.c. 724, discusses contracts of this character and holds that when the railroad builds a sidetrack for the shippers' convenience, it is not acting as a common carrier. The court said: "The only purpose of such a contract was to avoid the consequences of its own negligence, and to avoid lawsuits growing out of alleged negligent acts. It had a perfect right, both in reason and authority, to contract against such liability. This is well settled both by our own decisions and those of other jurisdictions. [Coup v. W., St. L. P. Ry. Co.,
In Rhode Island, the Supreme Court in the case of Lorenzo D. Richmond v. N.Y., N.H. H.R.R. Co.,
"An agreement in writing was entered into stipulating that defendant should build a spur track from the main line to plaintiff's land; that plaintiff should pay for its costs and should cover the roof and sides of the buildings which were or should be erected on his premises with non-combustible material, and that he would assume all risk of damage to said buildings and the contents by fire communicated from locomotives of defendant by sparks or otherwise, and waived and released defendant from all claims that might arise for such damages; Held, that the agreement covered fires communicated by defendant's locomotives on all tracks, and was not confined to those originating from the spur track."
The Supreme Court of Iowa in Griswold et al. v. Illinois Cent. R. Co., 24 L.R.A. 647, upheld a contract very similar to the one in the case at bar.
The respondent makes the point that the cause of indemnity is ambiguous and therefore should be construed more strongly against the party making the contract, which in this case is the defendant, *226
In support of that contention, Grossenbacker v. Daley,
Under this record if there is any way in which we can affirm the judgment, it is our duty to do so.
The point is made that defendant cannot willfully destroy plaintiff's property in spite of the contract. There is no allegation in the petition that justifies such a finding. We think the judgment should be reversed. It is so ordered. Frank,C., concurs.
Addendum
The foregoing opinion by WILLIAMS, C., is adopted as the opinion of the court. Bland and Arnold, JJ., concur;Trimble, P.J., absent.