212 F. 533 | D. Mont. | 1914
Plaintiff is lessee of' defendant of a part of the latter’s right of way. His property thereon, and on adjoin
“It is understood by both parties hereto that the leased premise’s 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, employés, 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 of 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.”
It is alleged the aforesaid combustibles were negligently permitted upon the right of way contrary to defendant’s statutory duty, and damages are sought in the sum of $14,778. Defendant demurs for insufficient facts to constitute a cause of action, contending the aforesaid lease furnishes to it a full defense. Plaintiff contends the causes of his loss are not within the lease, and that if they are, the lease is contrary to public policy, unlawful, and void.
Section 4310, Rev. Codes Montana, provides that it shall be the duty of all railroad operators to keep their right' of way free from dead' grass or combustible material, failing which they shall be liable for damages from fire from operating the road.
The situation invokes the rule that where damage follows acts of neglect for some of which the actor is not liable and for some of which .he is liable, he must respond by reason of the latter.
It cannot be maintained that the fire involved is of those naturally or usually following operation of a railroad, and so incident to or arisjng from such operation within the terms of the lease. For these reasons the plaintiff is entitled to invoke section 4310, supra, in respect to the
The complaint is sufficient for both, and the demurrer is overruled.