120 Neb. 124 | Neb. | 1930
This action was brought to recover damages which the plaintiff claims resulted by reason of the negligence of the defendant in obstructing certain streets with a freight train and delaying the fire department in reaching the
The defendant sets up as an affirmative defense that the plaintiff, by written agreement, had assumed all risk of loss by fire to the property destroyed; that he had released the defendant from all such claims and had agreed to indemnify it for any loss. This fire was not started by the operation of defendant’s train. It was started by an explosion in the building which was burned, located 150 feet distant from the spur track and not on the right of way. The fire occurred about noon, September 13, 1924, and completely destroyed the building used in connection with a gasoline plant at Stanton, Nebraska.
The written agreement under which the defendant claims freedom from liability is one granting plaintiff the right to construct upon the right of way an unloading device to unload and convey by pipe line gasoline from the cars to the gasoline plant. The provision of this agreement under which exemption is claimed is this:
“The licensee assumes and agrees to pay for all loss or damage to property, and injury to or death of persons, including costs and expenses incident thereto, caused by the construction, installation, maintenance, presence or use of said pipe or pipes or said unloading device, or by reason of any failure to lock, maintain or remove the movable connections as hereinbefore provided or by their presence or use upon the property of the railway company, or by failure of the licensee or the officers, agents or employees of the -licensee to abide by or comply with any of the conditions of this license; and the licensee further assumes all loss and damage to said pipe or pipes or unloading device resulting from any act or default of the railway company, its officers, agents, servants or employees, or from the operation of said railroad, whether negligent or otherwise, together with the cost of all repairs and renewals to said pipe or pipes and unloading device; and the said licensee hereby forever indemnifies the railway company against and agrees
At the outset, it is necessary for us to determine whether the defendant is exempt from liability by the terms of this agreement. Similar questions have been frequently presented to the courts. The great weight of authority sustains the proposition that a railroad company, being under no legal obligation to grant to any one the privilege of constructing and operating a building or equipment upon its right of way, may grant the privilege by contract exempting it from damage resulting from its negligence associated with such construction and operation. James Quirk Milling Co. v. Minneapolis & St. L. R. Co., 98 Minn. 22; Checkley v. Illinois C. R. Co., 257 Ill. 491, 44 L. R. A. n. s. 1127. The right of way is the property of a railroad and the use of such property is within its control, except in a way incidental to its function as a common carrier in which the public has an interest. Missouri P. R. Co. v. Nebraska, 217 U. S. 196; Chicago, B. & Q. R. Co. v. State, 50 Neb. 399. In most of the cases cited, the property was located upon leased premises and the fire was started by the operation of the trains of the company. In this case, the property was not located on the leased premises, and the fire was not started by the defendant. We have not discovered any case directly in point and none has been cited by counsel. The plaintiff’s cause of action is based upon the negligence of the defendant, in that it negligently blocked a crossing and thereby delayed the fire department from reaching plaintiff’s burning building, which delay resulted in damage to the plaintiff. Does the contract between the parties, heretofore quoted, free the defendant from liability in this case? It has been held, where a spur was constructed under such a contract exempting the company from liability on account of its use, that the company was liable for damages resulting from negligence in running a train through an open switch into cars of gasoline and setting fire to them. The court distinguished this case from others in that the damage did not arise from the operation of the side-track for the benefit of the gasoline company, but was
Since the contract in this case does not free the railroad from liability for the alleged negligence, let us consider the rights and duties of the railroad in such a case. In this, state a railroad company may properly leave its cars standing on a highway crossing for short periods when necessary for the reasonable conduct of its business. But to-
But, aside from a violation of the ordinance, the question of negligence is to be determined from the circumstances of the case. In this case, the train was standing on the crossing, cut to permit traffic upon the street. The train crew knew about the fire. A chemical truck, which was useless at this fire, crossed the track, whereupon the crew closed the gap and stopped the hose truck, which was following it. This truck was delayed from 5 to 22 minutes, according to various witnesses. In Hanlon Drydock & Shipbuilding Co. v. Southern P. Co., 92 Cal. App. 230, it is said: “There is ample authority for the rule that the unexplained blockading of a street crossing by a railroad train is negligence on the part of the railroad company. Southern R. Co. v. Floyd, 99 Miss. 519; Central of Georgia R. Co. v.
Finally, the most serious question presented by this record is whether the plaintiff proved damages directly caused by the negligence of the defendant. Objection was made to the testimony of a volunteer fireman, in which he stated in his opinion what part of plaintiff’s property could have been saved, if the hose truck had not been delayed. The fire in this case seems to have been started by an explosion of dry gas. After the explosion, the fire in the building is not shown by the evidence to have been a gasoline fire. The defendant relies upon Eclipse Lumber Co. v. Davis, 196 Ia. 1349, and Hartford Fire Ins. Co. v. Mellon, 206 Ia. 182. In these cases the court held that the delay caused by the train blocking the crossing was not established as the proximate cause of the damage. As stated in these cases, the
We have examined the record and, in addition to the reasons heretofore stated, we find no prejudicial error. The judgment of the district court is
Affirmed.