123 Minn. 423 | Minn. | 1913
The action is for damages on account of the destruction of 3,000 railroad ties by a fire attributed to defendant’s negligence. Verdict for plaintiff, and appeal by defendant from the order denying its. alternative motion for judgment or a new trial.
The main facts are these: Dedham is a small station on defendant’s railway line in Wisconsin, near Superior. The usual side track facilities for loading and unloading shipments are there. In the fall of 1907 W. E. Culligan made a contract with one L. R. Martin to sell and deliver f. o. b. cars at Dedham a quantity of railroad ties. Pursuant thereto and prior to March, 1908, Culligan piled the ties in question along the side track at Dedham. The piles extended at one place to within 30 feet of the main track. Defendant claims that Culligan was notified by it that he could not pile the ties there without a permit. This was disputed. On March 6, 1908, defendant by letter notified L. R. Martin that the ties would have to be removed or else a permit obtained for their remaining. The terms of the permits usually issued by defendant are not disclosed. Martin replied that he would take up the matter of permit as soon as he ascertained the space required for all the ties. However nothing was. done, by either Martin or defendant, and in May, 1908, Martin sold the ties to plaintiff. The ties burned March 23, 1910. It was claimed that defendant negligently suffered dry grass and rubbish to accumulate on its right of way; that it was negligent in the matter of spark arresters on its locomotives; that fire was allowed to escape from one of its locomotives setting fire to the dry grass which spread to, and consumed the ties. The answer, and contention of defendant upon the trial, was that in piling and keeping the ties on its right of way plaintiff and its predecessors in interest were trespassers, that defendant was guilty of no negligence, and that plaintiff by its own-negligence contributed to the loss.
The defendant claims that it is entitled to judgment because plaintiff was a trespasser, for to such a one it is not liable for any but
The court charged the jury that if it was found that the keeping of the ties on defendant’s right of way was a trespass no recovery could be had. The testimony of defendant that Culligan and his teamster had been forbidden to pile on the railroad grounds was denied to such an extent that the claim of trespass in placing the ties there became a fair question for the jury. And we must now assume, unless the evidence is compelling to the contrary, that plaintiff was not a trespasser. But it is insisted that the written evidence, namely: The two letters above referred to, show conclusively that after March, 1908, the owner of the ties was a trespasser upon defendant’s right of way. We do not regard the two letters, nor the failure of L. R. Martin to at once obtain a permit, as necessarily conclusive upon the status of the occupancy of the plaintiff of the right of way since it became owner of the ties. Although L. R. Martin was not the legal owner of the ties when the correspondence took place we may concede that he was bound to take notice of the wishes of defendant in the matter. However nothing came of the correspondence and shortly thereafter Mr. Martin became incapacitated for business. In May, 1908, the present plaintiff was organized to take over his affairs and acquired these ties. L. R. Martin was never an officer or agent of the corporation. Between that time and their destruction defendant suffered them to remain without a word of protest. It also appears that, because of the panic in the fall of 1907, there was no demand for ties until sometime in 1909 or 1910. Hence the failure to ship them out before the fire. It is true that the president of the plaintiff, G. W. Martin, knew all the time that defendant generally requires shippers who pile forest products on the right of way except for immediate shipment to obtain permits, but he also testified that to his knowledge this rule was not inflexible. We are not prepared to hold that, under this long acquiescence in the location of ties, with full knowledge of the actual situation and defendant’s practice to
But it is insisted that, even so, defendant could not be held liable unless the destruction of the ties was caused by its wilful or wanton negligence. The contention is important and vital. A long line of decisions are cited showing the application of this rule in personal injury actions brought by licensees, among them the following from this court: Schreiner v. Great Northern Ry. Co. 86 Minn. 245, 90 N. W. 400, 58 L.R.A. 75; Fredenburg v. Baer, 89 Minn. 241, 94 N. W. 683, and Klugherz v. Chicago, M. & St. P. Ry. Co. 90 Minn. 17, 95 N. W. 586, 101 Am. St. 384. It is however true that all licensees cannot be placed in one class. Some are denominated mere licensees, others are licensees upon the invitation express or implied •of the licensor. Where it is evident that the use of the license is intended not only for the benefit of the licensee but of the licensor as well, there arises some duty of care upon the part of the latter towards the former other than the one owing to a mere licensee. Bail-ways have stations; stopping places and sidetracks for the purpose of receiving goods and property for transportation. Those persons who bring upon the premises of the railway, at the customary places, property intended for shipment, and leave' it there for such purpose in the usual manner are not to be placed in the class of mere licensees. The benefit of the use of the railway premises for this purpose is shared by the railway. After permission, express or implied, to make use of a railway right of way for piling products intended for future shipment, the owner of property so piled in suits for its negligent destruction by fire has, under some authorities, been held to be in the same position with respect to the railway company’s negligence and his own as if he were an adjacent landowner with the destroyed property thereon.
In Wilson Bros. v. Bush, 70 W. Va. 26, 73 S. E. 59, parties had been allowed to erect and maintain on the land of the railway a shed and platform used in piling, storing and shipping .lumber and, when these structures together with a large quantity of lumber were destroyed by fire set by the defendant’s locomotive, the contention was
See also Boston Excelsior Co. v. Bangor & A. Ry. Co. 93 Me. 52, 44 Atl. 138, 47 L.R.A. 82; Grand Trunk R. Co. v. Richardson, 91 U. S. 454, 23 L. ed. 356.
The syllabus to the well-considered decision written by Judge Burton in the case of Cincinnati, N. O. & T. P. Ry. Co. v. South Fork Coal Co. 139 Fed. 528, 71 C. C. A. 316, 1 L.R.A.(N.S.) 533, in our opinion, expresses the true rule, viz. “A railroad company is liable to the owner of lumber piled on its right of way with its consent for the loss of such lumber by fire occurring through its negligence in the operation of its trains, the measure of its obligation to avoid a negligent fire causing the destruction of the lumber being precisely the same as it would have been had the lumber been stacked near to, but off, its premises.”
This seems to be the reasonable rule unless there should be read into every license a release of the licensor for subsequent negligence. It is doubtful whether such a rule should obtain even in the case of a bare licensee. Suppose the owner of a private way tacitly permits another to drive over it and, while so doing, the owner negligently drives against him causing damage, would it be a defense that the injured one was a mere licensee ? We doubt it. We do not think such a release is within the contemplation of the parties as a condition upon which a railroad company by express or implied consent allows ship
It is said plaintiff was guilty of contributory negligence beyond question in suffering these dry ties to remain under the conditions -existing. The cases relied on by defendant are: Paris, M. & S. P. Ry. Co. v. Nesbit, 11 Tex. Civ. App. 608, 33 S. W. 280; Post v. Buffalo, P. & W. R. Co. 108 Pa. St. 585, and Chicago, B. & Q. R. Co. v. Cook, 18 Wyo. 43, 102 Pac. 657. We, however, deem the question of contributory negligence upon this record to have been for the jury. The duty of keeping its right of way reasonably free from inflammable material and debris was laid by statute upon defendant. There is no evidence that plaintiff, its officers or agents, knew that defendant was. negligent in this respect. Until plaintiff knew to the contrary it might assume that defendant kept its right of way in the manner required
No reversible error was made in receiving over defendant’s objection testimony to the effect that the place where the ties were piled had been used during many years for such purpose. It bore on the-question of the proper place and defendant’s acquiescence, notwithstanding the two letters mentioned, and even if such use had been, confined to cases of permits, which however does not appear to have-been uniformly so.
Error is assigned upon this instruction to the jury':
Order affirmed.