170 Mo. App. 235 | Mo. Ct. App. | 1913
Action for damages alleged to have been caused by defendant’s interferencé with firemen in their endeavor to extinguish a fire in plaintiff’s mill and elevator, combined in one building and standing on the east side of and immediately adjoining defendant’s railway track in the city of Clinton.
The south line of the building was forty feet north of the north line of Ohio street, which ran east and west. The fire originated near the ground on the south side not far from the southeast comer, and began about 8:30 p. m., February 17, 1909. Eesponding at once to the alarm, the city fire department ran two blocks from its headquarters to a water plug on the west side of the railroad, being the plug most convenient to the seat of the fire and from which it could be best reached and most effectively fought. Here a hose was attached and laid along Ohio street across defendant's track to the fire, and a. stream began play
Shortly after the laying of this first hose across the track, a freight train from the northeast entered the city, passed about a mile through its confines, and approached the fire at a speed of from four to six miles per hour.
It is plaintiff’s contention that the engineer was warned of the situation and of the hose across the track, and requested to stop, in plenty of time for him to have stopped before the train got near enough to the building to be in danger of the fire; but that he refused to heed said warning, or to stop as requested, but came on down till the engine was close to the fire and then by threats that, if the hose were not removed, he would run over it and cut it to pieces, compelled the fire chief to shut off the water, disconnect the hose and allow the train to go by; and that during this delay in fighting the fire, it got beyond control and ■caused much greater loss than would have happened ■otherwise.
Defendant’s claim is that the engineer had no warning to stop until he was so close to the building as to be in danger of the fire; that he stopped and •endeavored to back the train but was unable to do so because of the length and weight of his train and the fact that it extended back around a curve and up a steep grade; that when the trainmen found they could not back out of the danger, they told the fire chief
The petition is attacked as being insufficient. A demurrer thereto was overruled, and the defendant answered and went to trial. The basis of the attack is that the petition does not charge that the acts of defendant were done negligently or wilfully. It does not use those words, but it does state facts which on their face are sufficient to raise an inference of either. And when, in addition to these facts, it says the acts were done “deliberately” this makes a sufficient charge of wilfulness, since that word, when used in the connection in which it is in this case, connotes an intentional purpose to do a wrongful thing. If, on the facts, pleaded, the law raises an inference of negligence or wilfulness, it is unnecessary to formally charge the negligence or wilfulness. [Dyer v. Railroad, 34 Mo. 127; Keeton v. Railroad, 116 Mo. App. 281, 287; Rawson v. Railroad, 129 Mo. App. 613, 616.] But because it is so held is nqt a good reason for leaving out words which plainly charge either negligence or wilfulness according to whichever one is applicable to the facts. To put in either one that is applicable involves no time nor labor; while to leave it out invites attack and consumes much time and labor in both the trial and appellate courts in passing on the question raised. In this ease the petition was certainly sufficient after verdict to support the judgment, and hence the demurrer was waived by answering over. [Cunningham v. Wabash Ry. Co., 149 S. W. 1151; Hoffman v. Transit Co., 213 Mo. 445.]
In Metallic Compression Co. v. Railroad, 109 Mass. 227, a hose had been laid across a track, the water was, by means of the hose, being applied to the fire, and had diminished it, and would probably have extinguished it in a short time but for the acts of the defendant. At that time a freight train came along, and though its managers had sufficient notice and warning, and might have stopped, they carelessly ran over the hose and severed it. It was held that the firemen had a right at common law to lay the hose across the track, that the severing of the hose was the proximate cause of the destruction of the building, and that defendant was liable.
In Little Rock Traction Co. v. McCaskill, 75 Ark. 133, plaintiff’s house was burning in the night and three streams of water were playing on it, one from a hose lying across a street car track. There was no reason why the- motorman could not have seen it for a long distance. He denied seeing it but says he watched the fire as he came near. The car cut the hose, causing greater loss than would have been sustained had it not been cut. The defendant was held liable.
In American Sheet, etc., Co. v. Pittsburgh Ry., 12 L. R. A. (N. S.) 382, 1. c. 386 it is said: “It is not denied that a natural person, or a corporation by its corporate agencies, may so interfere with the rights
In Erickson v. Great Northern Ry., 117 Minn. 348, 39 L. R. A. 237, 135 N. W. 1129, a hotel caught fire in a frame addition built thereto. One hose was attached to a plug and used in the main entrance to the hotel where there was smoke only, another hose was then attached to another plug and laid across defendant’s track to the seat of the fire. The flames were being brought under control when defendant backed a locomotive over the hose and cut it. In replacing the cut section, ten to twenty minutes were lost during which time the fire gained such headway as to practically destroy the hotel. It was held, not only that the defend
In Phenix Ins. Co. v. New York Central Ry., 122 App. Div. 113, 106 N. Y. Sup. 696, the court “refused to disturb a verdict against a railway company, although it was a disputed question whether the engineer and fireman of a train were informed of the progress of the fire before arriving at the point where it was raging, it appearing that, as they approached the point where lines of fire hose were laid across the track, they failed to observe signals given them to stop the train, but ran over and cut the hose, and in consequence thereof, the operations of the firemen were delayed so that the fire which was then under control became unmanageable and extended to and destroyed property which otherwise would have been saved.” [20 L. R. A. (N. S.) 1110, note.]
In Cleveland, etc. Ry. v. Tauer, 96 N. E. 758, an Indiana case, a train, by blocking a crossing, delayed, for ten minutes, firemen in getting to a burning greenhouse, and it was held that such blocking after being notified to remove the obstruction, was negligence and that defendant was liable for whatever loss occurred which would not have been sustained had the firemen not been delayed. In Clark v. Grand Trunk Ry., 149 Mich. 400, 408, it was announced that if the persons in charge of a freight train had notice and warning of the presence of the hose on the track and could have stopped the train, but instead of doing so, carelessly ran over and cut the hose, thereby causing such delay
These cases also hold that the damage is not too remote from the interference to preclude recovery and that, if the interference caused the delay and the fire could have been controlled but for the interference, then such interference is to be regarded as an intervening and concurrent cause of the burning of the building, and in- law would, with the fire, form the proximate cause and render defendant liable. They also hold that while it is not possible to prove absolutely what the result of the firemen’s efforts would have been, had the progress of the men not been delayed, still, when there is evidence showing that the fire would have been controlled but for the interference and delay, this is a question for the jury. [Houren v. C. M. & St P. Ry., 236 Ill. 620, l. c. 627; Kiernan v. Metropolitan Co., 170 Mass. 378.] In Valentine v. Minneapolis Ry., 118 N. W. l. c. 974, it is said, “Even though the plaintiff’s chance to save his timber was, as alleged by defendant’s counsel, merely ‘a gambler’s chance,’ he has a right to take it, and the defendant has no right to destroy such chance and render certain the destruction of his timber.” And, “Where a certain result is alleged to be a necessary sequence of the operation of natural laws, a correct judgment must usually depend upon an exact knowledge of so many determining factors that such determination must generally be for the jury.”
It would seem from the foregoing that if, after notice of the situation and its exigencies, defendant either carelessly or wilfully interferes with the efforts of those engaged in extinguishing the fire, it will be held
This brings ns to the facts in the case, which as nsnal are disputed.
As hereinbefore stated, the plaintiff claims, and the evidence tends to show, that the engineer was informed of the fire and of the hose across the track in time to have stopped the train in a place of safety. According to the engineer’s admission he saw evidences of a fire when he passed the Cozart Hotel more than a quarter of a mile before reaching the fire; and he actually saw the fire and knew where it was, and its proximity to the track, as he left the curve and entered the straight piece of track, which point was, at least, more than 700 feet north of the fire.
In plaintiff’s behalf it was shown that a man on the track, not up in the engineer’s cab, before reaching this point could see the whole north side, of the elevator 114.5 feet away, and the fire was some eighty or one hundred feet further on. The train, however, held on its way, and as it came on down, Ed. Barn-hart, Jr., stood at the edge of the track on the side next to the engineer and signalled and hallooed at him to stop. This was at the Kyle building 653 feet or more north of the elevator. According to this witness the headlight shown in his face, the engineer said something which the witness could not understand, but the train continued on its way going about four miles per hour. Another witness, Massie, who had heard some one say, “Flag that train,” and who ran up the track for that purpose, met the train at Swift’s poultry house 352 feet north of the elevator, and after sig-nalling and yelling to the engineer to stop and getting no response, jumped on the engine as it passed and said to the engineer, ‘ ‘ Stop the train! They have got a hose on the side of the track there.” According to Massie, the engineer replied, “We have got to go through here. To hell with the hose! Let them get it
If there is substantial evidence to support plaintiff’s contention, then the character of the act causing the delay, the existence or nonexistence of notice and warning, the question of proximate cause, the amount of delay and whether damages resulted therefrom, are all questions for the jury. The weight of the evidence and the credibility of the witnesses are for the jury. [Hurst v. Scammon, 63 Mo. App. 634.] This is a well-recognized rule. And when there is conflicting evidence substantial in character to support both sides of a disputed issue, the verdict of a jury, receiving the approval of the trial judge, is, and ought to be, conclusive on appeal, unless the evidence supporting the verdict is wholly incredible by reason of being incon
In addition to the evidence hereinbefore outlined in support of plaintiff’s claim that the engineer wil-fully disregarded the warning and request to stop, there is also evidence which, in one view, may characterize the intention the engineer had in coming on down in spite of the warning and also hears on the question as to who really caused the hose to be disconnected. The fire chief testified that the train men told him the hose had to be removed or they would run over it; that one of the trainmen came a second time and said “they were going to go over the hose, or cut the hose, and I told them they better not cut it, and just let it go at that; and they come back again, and kept holloing; and the crowd kept holloing that they were going over the hose; going to cut it; so I went back over to the railroad and told them just to go ahead and cut it if they thought that would do; and this man says, we have got five cars of dynamite on here, and says, we will blow up the town if we don’t get through here. I said, ‘You didn’t have any business coming down here at all.’ He says, ‘Well, we are in here now; you know we can’t back up this grade, and we are going to go through, and going to cut that hose if you don’t get it out of the way.’ We talked back and forth for a time and finally he invited me to go back and look at the cars of dynamite; I told him I didn’t have time to go back and examine to see whether they had any dynamite there, I had the fire to fight. He says, ‘Well, we are going over that hose, if you don’t get it out of the road; we can’t stay here any longer; we’ve got to get out of here and save this train; ’ so I walked back thén and told one of the boys to cut the hose.”
“Q. Did you believe him? A. Yes, sir, I believed him, I certainly did.
“Q. State whether — which would take the most time, to take up that hose and let the train go by, or let them run across it and cut it, and then place it back again? A. It would have taken a great deal longer to put in a new section of hose, after the train had run over it, than it would be to uncouple the hose and let them go through. ’ ’
Ed Lemon testified the train man told the fire chief, “You cut that hose in two or I will cut it in two.”
W. H. Hurley testified he heard Osborne, the station agent, say if the hose weren’t removed the train would be run over it, and as he came around the engine, the engineer said, “I am going to cut that hose, you better get it out of the road.”
W. S. Steele, a witness for defendant, testified: “I heard the trainman tell Bolinger that he would have to cut that hose, and let him through, or he would have to run over it; that he had four carloads of explosives on there, and if it blew up it would kill everybody in town; and that they had some few words about that; and Bolinger hallooed to cut that hose; me and Mr. Hales Leonard cut the hose and let the train go through. ’ ’
“Q. You mean, by cutting the hose — disconnected it? A. We disconnected the hose, certainly — uncoupled it, rather; letting the train pass through; and coupled it up again.”
There was other testimony to the same effect.
In addition to this evidence, Osborne, defendant’s station agent, in giving his version of the way the hose was gotten off the track, testifies, to certain facts which would indicate that the hose was moved only when it became apparent that the engineer was preparing to run over it. He testified that he twice requested the
Did the enforced disconnecting of the hose cause any loss greater than would have occurred anyway?
According to the testimony, some six or ten minutes were lost in uncoupling the hose, letting the train through, and coupling up and turning the water on again. At the time the hose was laid the fire was in the east part of the south shed room aRd corn-crib. The plaintiff the Fire Chief Bolinger, Ex-mayor Barnhart, Jesse Cashman, a fireman, Docherty and Ed Lemon testified that the fire was dying out and, was being subdued at the time the hose was disconnected, but that by the time it was again connected the fire had gotten beyond control and had extended to the elevator proper. One of defendant’s witnesses testified that if the hose had not been disconnected they could not have saved all of the building but would have saved a part of it. Other witnesses testified that they could have saved the west part of the building and all of the north part and its contents. Ex-mayor Barnhart testified that the elevator would have been saved if the hose had not been interrupted and only the shed or annex would have burned. Oashman, a member of the fire department for four years and who had attended a great many fires, gave the conditions both before and after the interruption, and testified that at the time the hose was disconnected the fire was being “put out right along” and it would have been put out if the hose had not been shut off.
We have carefully gone through the entire record and the various briefs submitted and are of the opinion that we are not warranted in disturbing the' verdict. Therefore judgment affirmed.