112 Mo. 622 | Mo. | 1892
Plaintiff, a corporation organized under the laws of the state of Massachusetts, brought this suit to recover damages for the loss of certain cotton delivered to defendant for shipment. It is alleged that the cotton was lost by the carelessness of defendant.
The answer sets up a clause in the bill of lading exempting defendant from liability in case of loss or damage by fire, and avers that the cotton was destroyed from such cause without fault or negligence on the part of the defendant.
The court, sitting as a jury,-found for the plaintiff, and assessed its damages at the agreed value of the cotton.
It was agreed on the trial that the plaintiff, through its agents, delivered to defendant at McKinney in the state of Texas one hundred bales of cotton to be shipped to Ware, in the state of Massachusetts, pursuant to a bill of lading which is made a part of the agreed facts; that defendant carried the cotton to Greenville in the state of Texas to have it compressed, and that sixty-two bales were destroyed by a fire, which occurred at the compress on the fourteenth of November, 1889.
The bill of lading provides that the cotton may pass through the custody of several carriers, and then follows this language: “Neither of said carriers, nor this company, shall be liable for loss or damage of any kind, occasioned by delays from any cause or by change of weather, or for loss or damage by fire, or for loss or damage on seas, lakes, canals or rivers, * * * The carriers reserve to themselves the privilege of compressing all cotton signed for on this bill of lading.”
The evidence discloses the following facts: The structure used by the compress company consisted of a large shed closed on the north, west and south sides, but open on the east side, and a platform three hundred feet long, running north and south, and extending out east from the open side of the shed for a width of forty-five feet to a railroad track. This compress track, as it is called, was full of cars loaded with cotton at the time of the fire. The narrow-gauge cars were open, and the cotton on them exposed. The standard-gauge cars, with one exception, were closed box cars. There were some two thousand bales in the shed and on the platform.
The evidence tends to establish these further facts: That there were five or six railroad tracks fifty or sixty feet east of the compress track, all in use; that two engines were used for switching purposes, one a standard and the other a narrow gauge, but both operated by defendant; and that these engines were often on these tracks and near the compress. The more specific evidence is that the compress track was not used for switching purposes; that standard-gauge cars were set in on the north end, and narrow-gauge cars at the south end; that both engines were supplied with good spark arresters, and would not throw sparks far enough to catch cotton fifteen feet distant, and that they had not been on the compress track for an hour or two before the fire.
The compress company had in its employ some twenty or thirty persons, mostly negroes. One or two witnesses say smoking was not allowed around the premises; but there is much evidence to the contrary. Mr. Downer, who was defendant’s freight agent at G-reenville at the time of the fire, testified: It was a common thing to see the superintendent and clerks smoking in the office located in one part of the shed.
The only difficulty on this branch of the case is to determine whether the trial court disregarded this.
It is singular the defendant did not ask a pointed instruction to the effect that the Texas statute pleaded did not apply to the bill of lading sued upon, instead of saying that the bill of lading should be construed by the laws of Missouri; for the contract was not made in this state, nor does it appear that it was to be performed in whole or in part in this state. As the defendant could limit its common-law liability by contract under the laws of this' state, it is fair to say that the refused instruction asserts the proposition that the Texas statute had no application to the case in hand. It should have been given. But from the instructions given at the request of the plaintiffs, it appears the court placed its finding for plaintiff on the ground that the cotton was lost by reason of the negligence of the defendant or of the cotton compress company. We understand counsel on both sides to agree that this was the ground on which the court rendered judgment for plaintiff. The judgment should, therefore, not be reversed for the error in refusing the defendant’s instruction before mentioned.
There is, in our opinion, no evidence of such negligence on the part of the defendant, as distinguished from negligence of the compress company. The negligence, if any there was on the part of defendant, must have been in so operating the engines, or in failing to supply them with proper spark arresters, that sparks from them caught in the bale of cotton and set it on fire. It is now well settled in this court that the sole fact of fire escaping from a passing engine and destroying the property of another is sufficient to warrant an inference of negligence, either in the equipment of the engine or in its management The proof of such a fact makes out a prima facie case for the plaintiff. Fitch v. Railroad, 45 Mo. 322; Kenney v. Railroad, 70 Mo. 243; Redmond v. Railroad, 76 Mo. 550; Wise v. Railroad, 85 Mo. 178.
But the cases just cited are all essentially different from the one in hand. Here there is no direct evidence that fire escaped from these engines. That the escape of fire may be shown by circumstantial as well as direct evidence must be conceded. But the circumstances in evidence do not justify such a conclusion. The engines had not been within one hundred feet of the shed for an hour before the fire; they had not during that time been nearer than sixty feet to the cotton in the cars standing on the track. At the time the fire broke out, one engine was a mile from the cotton shed,
There is, however, an abundance of evidence to. support a finding that the fire arose from negligence of the compress company. According to the testimony of Mr. Downer, the superintendent and checking clerk carried lighted cigars in the shed and on the platform, and smoked in the office. He saw one negro with matches behind his ear. Such conduct with combustible material on all hands and under the feet of these employes must be characterized as gross negligence. The evidence of this witness being true, the wonder is that this concern stood for six weeks; that was the epriod of its life.
But we are here met with the argument that there is no evidence to show that this fire originated from any particular negligent act of any of these servants of the compress company, and that there is no evidence of negligence causing this particular fire, save the mere fact that the fire occurred. Speaking of the maxim, that the affair speaks for itself, it is said by reliable authors: “It is not that, in any case, negligence can be assumed from the mere fact of the accident and an injury; but, in these cases, the surrounding circumstances which are necessarily brought into view, of showing how the accident occurred, contain, without further proof, sufficient evidence of the defendant’s duty, and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer, or that it is necessary to
The plaintiff’s case does not stand on mere proof that the cotton was destroyed by fire. To that fact is added proof of careless conduct in the use of fire by those who managed the affairs of the concern, and that too on the very day that the fire occurred. With such additional proof the conclusion that the fire occurred from negligence of the compress people is a natural, just and reasonable one.
It follows from what has been said that the judgment should be and-it is affirmed.