57 Pa. Super. 432 | Pa. Super. Ct. | 1914
Opinion by
The plaintiff brought this action to recover damages for the destruction by fire of a building with its contents, alleging that said fire was caused by the negligence of the employees of the defendant company. He recovered a verdict and judgment in the court below and the defendant appeals.
The plaintiff averred in his statement that the building in question was located upon lands of the Erie Railroad Company, in the borough of Mansfield; that the defendant “has right of trackage for certain trains, cars and locomotives belonging to and operated by said defendant, over the railroad owned and controlled by the Erie Railroad Company,” and was then and there engaged in operating and running upon and over the tracks and lines of said Erie Railroad Company, locomotive engines, cars and trains; and so negligently operated its said locomotive engines that coals and fire escaped from one of its locomotive engines as it passed along and occupied the tracks and right of way of said railroad company immediately adjacent and contiguous to plaintiff’s building, that sparks, live coals and fire escaping from said locomotive engine communicated and set fire to the said building and wholly destroyed the same with its contents. The statement alleged the specific act of negligence which caused the fire as follows: “The burning of said warehouse and personal property being' due to negligence and carelessness of the defendant and the total disregard of its duty in operating said locomotives and engines and in failing properly to arrest the coals and fire escaping from its engines, by proper appliances and in a proper manner, and by negligently and carelessly dumping coals, fire and ashes from one of its engines so near to and under such circumstances as to endanger said warehouse of the plaintiff so destroyed and burned.”
The building of the plaintiff occupied a part of the right of way of the Erie Railroad Company, and stood
The plaintiff testified, upon cross-examination, that the fire was dumped from the engine about twenty feet from the south end of his barn, very close to the bam, about opposite the passageway between the two barns. That he saw there was danger of the fire being communicated to his building his cross-examination clearly disclosed. “Q. Mr. Decker, at the time you were there, at the time the fire was dumped, did you consider there was any danger either to your barn or Mr. Rose’s barn? A. I did. Q. What did you think the danger was from this pile of coal and ashes? A. I thought it might blow into the barn if the railroad company didn’t take care of it.”
The only explanation of his conduct, in going away and leaving that fire burning, with the ground between the fire and the buildings littered with hay, and a strong wind blowing in the direction of the barns, was in redirect examination: “Q. Mr. Decker, why did you go ‘away and leave this fire there, considering it dangerous?
Yet upon re-cross-examination he made this admission: “Q. Was there not a barrel of water right there handy? A. Clear at the further end of the depot? They keep water there most of the time — whether there was any water there then I do not know.”
This occurred about ten o’clock in the morning. The plaintiff left his building thus exposed to the peril of fire, taking no means to protect it, and paid no further attention to it until about two hours later when he heard an alarm of fire, as he was sitting down to his dinner at his residence, and going to the scene found that the barns were burning. The barn of Mr. Rose was first observed to be on fire some time between twelve and one o’clock. The defendant submitted a point praying for an instruction that the plaintiff must, upon his own showing be held guilty of contributory negligence, and that he was not entitled to recover. We are of opinion that this point should have been affirmed. The explanation of the plaintiff that he relied upon the railroad men to put out the fire is to be viewed in the light of the circumstances to which he testified. The engine of the defendant company having been thus at least partially disabled by the occurrence, that engine and train were backed away from the fire, the crew going with the train, and the train was subsequently run upon a siding on the other side of the track. The only railroad man left upon the scene, according to the testimony of this plaintiff, was Mr. Kinney, who, the plaintiff testified, “is the agent for the Erie Railroad;” and there is no evidence in this case tending to establish that Mr. Kinney was an employee of the defendant company. The plaintiff and Mr. Kinney, in company,
The defendant company produced evidence, which if believed, established that the amount of fire dumped upon the track was much less than that asserted by the plaintiff, that the fire was all subsequently carefully extinguished; that a number of engines of the Erie Railroad Company drawing trains had passed along the track and that two engines of the Erie Railroad Company had been on the side track immediately adjoining the barns, during the interval between the dumping of the fire from the New York Central train and the time when the barn of Mr. Rose was first discovered to be on fire, one of said engines having been on the side track only a short time before the fire was discovered on the building. There was testimony which would certainly have warranted a finding that the fire when first noticed was upon the roof of Mr. Rose’s barn and had not been communicated to the barn through the hay and litter upon the ground. This testimony certainly raised a question whether the fire had been communicated to the barns from the fire dropped from the New York Central train, through the hay and litter upon the ground, or the
The building of the plaintiff which was destroyed by fire had been erected upon the right of way of the Erie Railroad Company under a written agreement or lease between him and that company. The agreement provided that the building should be used only for storing hay and cement and the business properly pertaining thereto. Now when a building is to be used for storing hay there is certainly a possibility, if not a reasonable probability, that the ground about it may become littered with hay and other inflammable material, which do not conduce to the safety of property immediately adjoining the tracks of a railroad. This was no doubt the reason why the parties to this agreement included the following covenant: “Said lessee for himself, his heirs, executors, administrators, successors and assigns,
This contract did not relieve the railroad company from its duty as a common carrier or any other duty which it owed to the public. The plaintiff was acquiring the right to erect a building and use it for a purpose, which because of the location and circumstances, exposed it to destruction by fire. There is no rule of public policy which forbade the railroad company to enter into a covenant that it, its successors and assigns, should be exempted from liability for such loss by fire, even though that loss occurred through the negligence of some of its employees: Pittsburg, Cincinnati, Chicago & St. Louis Railroad Co. v. Mahoney, 40 L. R. A. 101, and also 29 L. R. A. 753. The plaintiff covenanted for himself, his heirs and assigns and with the Erie Railroad Company, its successors and assigns. These were positive covenants running with their estates, and
The judgment is reversed and the record is remitted to the court below with instruction to enter judgment in favor of the defendant non obstante veredicto.