146 Tenn. 389 | Tenn. | 1922
delivered the opinion of the Court.
This suit was brought by the administrator- of Prank Campagna, deceased, to recover damages for the death of the latter, which occurred at the plant of the plaintiff in error, Buckeye Cotton Oil Company. There was a judgment for the plaintiff below. On appeal this judgment was reversed by the court of civil appeals for errors in' the charge of the trial judge, and the case was remanded for
The plaintiff in error is a manufacturer of cotton seed oil, and has a large mill about two miles outside of the corporate limits of Memphis. The deceased was a member of the Memphis Fire Department, and met his death while he and his associates were fighting a fire on the premises of the plaintiff in error in September, 1918.
The fire was in a wooden seed house or shed. Projecting on either side of the main house was a shed roof, under which a railroad track was laid, and cars were run along this track and under the projecting shed to be loaded and unloaded. The exact width of this projecting shed does not appear, but it was wide enough to cover an ordinary box car and high enough from the ground to permit the passage under it of such a car. The seed house and projecting shed were about two hundred and fifty feet long. The projecting shed was constructed somewhat after the style of an awning. It had no supports from the ground along its outer edge. The timbers supporting the roof of the shed rested on the wall plate of the wall of the seed house, and extended into the seed house, and were nailed to the timbers which supported the roof'of the seed house. The timbers supporting the roof of the projecting shed were also supported by braces placed at an angle of 45 degrees with the upper ends of the braces against these timbers and the lower ends nailed to the upright studding of the wall of the seed house.
Prior to the accident there had been a smoldering fire in some cotton hulls in the seed house which was destroyed. Employees of the plaintiff in error had been watching this fire. During the night on which the accident occurred the fire got beyond control, and the night watchman at the mill telephoned to the Memphis Fire Department for help. This night watchman, Daniels, also aroused the superintendent of the mill, who lived on the premises, and the latter approved of Daniels’ act in calling the fire department.
Daniels assembled a crew of men, and he was joined by one Beasley with another crew of men. Beasley was a mechanic in the employ of plaintiff in error, and was engaged with several men that night in working on one of the boilers at the plant.
Two companies from the Memphis Fire Department came out along with Oapt. Burke and Capt. Sellas in charge. Chief Fitzmorris and Assistant Chief O’Feil also came out, and were present, directing the operation of the firemen. The firemen went under the shed heretofore described to better reach the fire inside the seed house, and while under this shed almost the entire shed fell, killing Frank Campagna and injuring several other firemen. As heretofore stated, the premises of plaintiff in error were located outside the corporate limits of Memphis. It was no part of the duty of the city fire department to look after fires outside the city limits. As a matter of custom, however, the Memphis Fire Department was in the habit of going to fires outside the corporate limits if their services were not at the time required within the city.
The negligence on which this action is predicated is the defective construction of these premises in not having better supports for the iron pipe mentioned, and a failure on the part of the representatives of plaintiff in error to warn the firemen of the dangerous condition of the shed, incident to the progress of the fire and the overhead pipe.
When firemen of policemen in the course of their duties go upon the premises of an individual, the latter owes no duty to them, except to refrain from inflicting upon them a willful or wanton injury. Under such circumstances,
The owner of property must use reasonable care to see that his place is safe for those whom he invites to come there, and if there are dangers on his premises not obvious to such persons of which he knows, or of which with reasonable care he should have known, it is his duty to give warning of such dangers. Chattanooga Warehouse, etc., Co. v. Anderson, 141 Tenn., 288, 210 S. W., 153; Clapp v. La Grill, 103 Tenn., 164, 52 S. W., 134; Rosenbaum v. Shoffner, 98 Tenn., 624, 40 S. W., 1086; Hines v. Willcox, 96 Tenn., 328, 34 S. W., 420.
There is a difference, however, between inviting a friend into one’s residence socially or inviting a customer into one’s place of business to trade, and in inviting experienced firemen to help put out a fire in a burning building.
A burning building is not a safe place, and entry into such a place is attended with known dangers. Such dangers are particularly within the knowledge of firemen; who for years have encountered them daily.
Under these circumstances, still leaving the pipe out of consideration, Ave find nothing unusual about the situation which made it necessary for the agents of plaintiff in error to give to these officers of the Memphis Fire Department and their men any warning of danger. The danger that existed was no doubt more obvious and better appreciated by these firemen of long experience than it could have been by an ordinary night watchman or a simple mechanic.
While there is proof in the record that the manner in which the iron pipe was supported was not good construction, nevertheless it does not appear that the pipe was not sufficiently supported to meet ordinary conditions. We think there is no evidence indicating that the pipe would have fallen had there been no fire.
The chief and other officers and members of the fire department present on this occasion testify that this pipe caused the shed to fall down. The employees of the plaintiff in error testify to the contrary, and say that the shed fell because the timbers which supported it were burned
While the firemen say that the pipe threw the shed down, they do not give satisfactory reasons for this opinion. In fact such statements from them appear to be merely expressions of opinion. Their evidence indicates that the shed came down with a crash, and afterwards the pipe was found to have fallen several feet and to be resting on the wall of the seed house. It is conjectural upon this record whether the fall of the shed let down the pipe or whether the fall of the pipe knocked down the shed, and a verdict cannot be based on a conjecture.
We do not think, however, that this is controlling. It is a common thing for weighty structures to be rested upon the roofs of factory buildings. Large water tanks are frequently so imposed. So are heavy advertising signs, powerful hoisting apparatus, monitor roofs for ventilation, and other things. Tile and slate roofs are of great weight. It seems, therefore, that experienced firemen should expect to encounter heavily burdened roofs in the ordinary pursuit of their calling. There was nothing latent about this pipe. A casual survey of the premises would have disclosed it, unless the smoke of the fire interfered. If the pipe was concealed by the smoke, still it was only such a superimposed burden as might have been expected on the roof, and, if they could not see, the situation demanded the more care from the firemen.
The employees of the plaintiff in error testify that they did warn the firemen that it was dangerous to go under the shed, but that the latter paid no attention whatever to
Reversed and dismissed.