83 S.E. 600 | S.C. | 1914
July 17, 1914. The opinion of the Court was delivered by Action for tort, for the destruction by fire from a locomotive engine of a sawmill plant, brought under the statute (Civ. Code 1912, section 3226). The plaintiff had a verdict for $6,000, and the defendant appeals.
There are four exceptions, and several assignments of error in each. But the controlling issues are few and conspicuous. They may be stated under two heads: (1) Did *498 the defendant put out the fire? (2) What amount of care was due by the defendant, in view of the special contract denominated the spur contract agreement?
The plaintiff had a sawmill in Berkeley, not far north of St. Stephens station, on the west side of the defendant's railroad track. The mill was built on plaintiff's land, and a spur track was laid to it from defendant's main line. This spur track was built under a written contract betwixt the parties, the provisions of which are pleaded in defense, and to which reference will hereinafter be made.
The mill was idle and unoccupied at the time of the fire. The fire occurred August 6, 1912, midday betwixt 1 and 2 o'clock. On that day, between 11 and 12 o'clock, a through train of passenger cars running south, went dead on the track opposite the mill and 30 or 40 feet north of it, and there remained a half hour until a following local train from Florence came up behind it and pushed it into St. Stephens. Some of the defendant's witnesses testified: That the pushing engine "was laboring like it had a double load;" that "there was a lot of sawdust and waste lumber and stuff around there;" that "everything was dry;" that the wind was blowing 15 miles per hour from the engine towards the mill (weather bureau); that the engine had spark arresters in good repair; that there was no fire apparent about the mill about 1 o'clock; that the engine was within 30 yards of the mill.
It was a wise exercise of judgment by the Circuit Court to submit to the jury whether or not, under all the circumstances, the defendant's engine put out the fire. It would have been error to have granted a nonsuit or to have directed a verdict. Fires along railroad tracks are of such common occurrence that their origin may be safely left to proof by circumstances; and the rigid statute passed to stimulate railroad companies to the utmost endeavor to prevent such fires recognizes the fact that such fires occur with or without the exercise of due care. *499
The amount of care due by the defendant under the terms of the spur contract will be considered along with the defense which arises out of that contract. And that is the second real defense pleaded and relied upon by the defendant. When the mill was built and before the spur track was laid to it, the parties hereto made a remarkable agreement. It contains 18 paragraphs, and ought to be printed with the report of the case, and so also ought the correspondence betwixt the parties beginning March 20, 1912, and ending October 4, 1912, both inclusive.
The defendant relies upon the tenth and thirteenth paragraphs of that agreement, and the correspondence betwixt the parties, to reduce its liability from that fixed by the statute to that of slight care. But for the agreement, the defendant would be liable. Does the agreement relieve it? By the words of the agreement, it was operative only from November 10, 1910, to November 10, 1911. This fire occurred August, 1912, and at that time there was no agreement unless the parties had after November 10, 1911, "renewed and extended it for another year." The method for such renewal is prescribed by the thirteenth paragraph of the agreement, to wit, by the plaintiff "giving to the railroad company, at least thirty days before the expiration of the said one year, written notice of his intentions and desire for such renewal and extension." Confessedly that method was not pursued; nobody claims it was. If there was any renewal of it at all, it was dehors the agreement. The defendant relies on the correspondence betwixt the parties, before referred to, to evidence the renewal. There is none else.
The Court below left it to the jury to say whether the letters meant so much; and the defendant has excepted to that, upon the ground that it was the sole province of the Judge to construe the letters, and to tell the jury what they meant; and further, that they meant the contract was renewed and *500 extended for another year, to wit, until November 10, 1912; and that the Court ought so to have directed the jury.
The issue of law, therefore, is not the construction of the agreement of the parties, no part of it; but whether by the letter writings that agreement has been "renewed and extended" for a year after its expiration. It was not sought to explain the letters by parol testimony; they speak for themselves.
Granting that it was the province of the Court to construe the meaning of the letters, and that it was error to have left their meaning to the jury, which is not adjudged; yet, in our opinion, the letters plainly do not amount to "written notice of the plaintiff's intention or desire for such renewal or extension;" nor do they, by implication, suggest that the plaintiff desired a renewal or extension of the contract for a year after November 10, 1911.
The first letter was written five months after the contract had expired. Had the fire occurred within these five months, there would have been no proven act by plaintiff which defendant might claim as a renewal or extension of the contract. The utmost, therefore, which the defendant may contend for from the letters, is that from March 20, 1912 (the date of plaintiff's first letter), there was a renewal. But if so, for what length of time, a year from the date of that letter, or a year from the 10th of November, 1911?
There had been the exchange of six letters up to the time of the fire. By them the parties had not come to any conclusion about the operation of the plant or the spur track; the status was unsettled on August 6, 1912. The plaintiff suggested, in the letter of August 8, 1912, that he had a plan to sell out the plant; but the agreement prohibited an extension of spur track privileges to any other person (paragraph 6). The defendant, in the letter of 10th August, wanted to know if the business would justify a keeping of the track in. The pith and point of the correspondence was whether the switch *501 should be nailed down pending resumption of operations, or whether it should be taken out. The presence of the spur track did not add to defendant's fire risks. There was no causal connection betwixt the presence of a spur and the damage of fire from locomotive engines to the plant. The plaintiff had to agree to exempt defendant to get the use of a spur. At all events, five months after the agreement had expired by its own terms, the mill was idle, and the spur track was not in use; and, when the fire occurred, the parties had not yet by formal notice, or implication, agreed to continue the force and effect of its many covenants set out in the eighteen paragraphs. The agreement had expired, and there was no exemption for the defendant's liability.
The appellant makes one more issue, and that is the value of the burned property. That was a question for the jury. There was no wrong statement of the law.
The judgment of the Circuit Court is affirmed.
