Greenwich Insurance v. L. & N. R. R., 112 Ky. 598

Greenwich Insurance v. L. & N. R. R.

112 Ky. 598

| Ky. Ct. App. | 1902

Opinion-or the court by

JUDGE O’REAR —

Arfikming.

The New South Brewing & Ice Company was granted the privilege by appellee, the Louisville & Nashville Railroad Company, to build a cold storage house upon the latter’» right of way near Lebanon Station. Among the conditions of the lease was the following: “And whereas, such use of the right of way or the lands of said railway company is solely at the instance of said brewing and ice company, and for its accommodation, and without charge on the part of said railroad company, and whereas, said railroad com*602pany would not give its permission or consent to the erection or use aforesaid on its said right of way or lands except upon the express condition: “That, in consideration of the premises, said railroad company, its officers, and agents, or other companies operating its railroad, be released and held harmless from, and indemnified against, all claims or demands of said New South, Brewing & Ice Company or others on account of any injury or loss whatever to said house or its contents, by reason of fire from locomotives, or from any cause whatsoever.” This contract was subsequently assigned by the consent of the railroad company to the Frank Fehr Brewing Company, who assumed it subject to the conditions above quoted. By the negligence of appellee railroad company’s employes, a fire is alleged to have occurred, caused by the sparks from its locomotives. The fire originated in a building not on appellee’s right of way, and owned by another not a party to the above contract nor to this suit. The cold storage house was burned in the same conflagration. It had been previously insured by appellant, who paid the owner for the loss, and brought this action against the railroad company, claiming it was entitled by subrogation to recover as the lessee, the owner of the cold storage touse, would have been. This last statement we .accept as true. The question is whether, under the contract above quoted, appellee railroad company ivas exempt froni damages to the ■building in question by reason of fire caused by its negligence. The circuit court held that it was.

It is argued for appellant, that the railroad company can not contract against the consequences of its own negligence, as to do so is not only against public policy, but prohibited by section 196 of the Constitution, which in part provides, “No common carrier shall be permitted to contract *603for relief from its common law liabilities.” The court is of opinion that appellee railroad company is not liable for (the destruction or damage to the building under the contract quoted, except for willful or wanton negligence of its servants. For mere carelessness, however gross, short of wantonness or willfulness, it will not be liable. It is-a matter of common knowledge, and from th:e language'’employed in this case we may assume was known to the parties herein, that by the aid of the best contrivances so far known and in use it is impossible to altogether prevent fire caused by sparks and cinders from locomotives. O'f course the nearer the railroad track a combustible object may be the greater is the danger to which it is subjected from this source. Railroad operators are held liable for damages to the public occasioned by their negligence in failing to .provide suitable spark arresters for their locomotives in so far as they reasonably can be had. The company is under no obligation as a common carrier to the public or any menu her of the' public to permit them to erect on its right of way any sort of structure, and if one shfbuld erect such building on the company’s right of way the company would owe no duty to its owner, save to refrain from willfully or wantonly destroying it. The doctrine upon which the law and the section of the Constitution above relied upon are based, prohibiting common carriers from contracting against their own negligence by their servants, is, as suggested, that to do so is against public policy. They can operate their trains only by the employment of servants. To permit employers to contract with their servants that they will not he liable for their negligence, by which an inducement would be offered for carelessness towards the lives of so many people, could not be and is not supported in the law. Common carriers are required to transport passengers *604and freight, the former with the utmost, the latter with -ordinary, care looking to their safety. So passengers art* compelled frequently to travel by railroad or not at all, and '■freight is required to be shipped by that means or.not at all. The common carriers, by th|e conditions under which they exist, and to some extent by operation of the law, have the practical monopoly of this business. They are not upon an equal footing with their customers in the matter of making such contracts, as where they undertake to secure in advance indemnity against the result of their own negligence. Such contracts are clearly against the public policy. But in the case at bar no such necessity exists to the owner of the building that he should erect it upon the company’s right of way, nor is the company compelled under any state of case to permit 'him to do so. It is under no obligation to extend its liabilities. It certainly could not be expected to voluntarily do so. Therefore the parties, when they come to contract with reference to the location of such a building, are dealing with reference to the location of such a building, are dealing at arm’s length, ■and upon an equal footing. The railroad company can well say, “While we are unwilling to assume any additional risks, we are willing to suffer you for your own convenience to build this house upon our right of way within the zone of •recognized and peculiar danger from fires; but it must be understood that if you accept the privileges of this grant, you alone must bear its burdens and casualties.” It is not so much that the railroad company contracts against its own negligence as that the brewing company agrees to alone bear all risks from fire. It' receives a- consideration for doing so. We can not see that the public are in any wise affected by such a contract, nor can they be. Hartford Fire Ins. Co. v. Chicago, M. & St. *605P. R. Co., 17 C. C. A. 62; 70 Fed., 201; 20 L. R. A., 193; Id., 175 U. S. 91; 20 Sup. Ct., 33; 44 L. Ed., 84; Griswold v. Railroad Co. (Iowa), 53 N. W., 295; Stephens v. Southern Pac. Co. (Cal.), 41 Pac., 783 ; 29 L. R. A., 751; 50 Am. St. Rep., 17; King v. Same (Cal.), 41 Pac., 786; 29 L. R. A., 755.

Plaintiff also joined the Frank Felir Brewing Company as a defendant, and by an amended petition claimed that de. fendant had misrepresented its title to the plaintiff, and that plaintiff had paid the insurance under a mistake of fact; that it did not know that the brewing company had executed a lease with the railroad company by whiah the brewing company assumed the dangers incident to the extraordinary risk of fire from the near exposure of the building to the passing locomotives. It appears that the brewing company had an insurable interest in the property, and it is not alleged that the mistake was mutual. We are of opinion that the demurrer to the petition should have been sustained.

The judgment'dismissing the case as to both of the defendants is affirmed;

the whole court sitting.

Modification of opinion by Judge O’Rear:

The brewing company entered a special appearance to the petition for the purpose of moving to quash the summons. This motion was sustained, and .a new summons was ordered to be issued. The trial court did not have the brewing company before it, and no judgment has been rendered. or can be rendered, on this branch of the case, and so no opinion is expressed thereon.