172 Pa. 646 | Pa. | 1896
Opinion by
On May 1,1893, the Pearson Cordage Company of Boston, shipped to plaintiffs in Pittsburg, by rail, a car load of binding twine and rope; on the morning of May 10th, following the shipment, the car reached destination over defendant’s terminal and connecting road; this road has a large freight yard in the city, on one side of which runs Mulberry street or alley, twenty feet wide; from cars standing on tracks in this yard, goods are directly delivered into wagons; this car was run on a track three feet north of Mulberry alley about nine o’clock in the evening, to be ready for unloading early the next morning. About three o’clock in the morning, a fire broke out in a large warehouse directly across the alley from where the car was standing ; the fire was communicated to the car, partially destroying both it and contents. The whole would have been burned, if defendants had not, immediately after the fire broke out, run the car out of reach of the heat and sparks of the burning building, and put out the fire. The evidence showed the car door at the side was open for a space of about ten inches at the time the fire broke out, and probably through the opening the sparks from the burning building set fire to the car and lading. The facts were undisputed, that the fire originated on property other
The court, on the evidence, directed the jury to find specially on these two questions :
“1. Was defendant guilty of negligence in not exercising reasonable care, diligence and promptness in removing the car in question after the fire broke out, and by reason of which negligence the twine in the car was burned?
“ 2. Was defendant guilty of any negligence in leaving open the car door, whereby the twine was injured, when it would not have been damaged if the car door had been shut at the time of the fire ? ”
The court reserved the right to enter judgment for defendant, if the jury answered either or both questions affirmatively.
To the first question the jury answered, “ No ; ” to the second, “Yes.” The plaintiff’s damages, as to which there was no dispute, were assessed by the jury at $1,435.30. The court was of opinion, the cause of the fire being one over which defendant had no control, and which it was not bound to anticipate, on the authority of Railway Co. v. Trich, 117 Pa. 390, and Behling v. Pipe Line, 160 Pa. 359, entered judgment for defendant non obstante veredicto. Plaintiffs appeal, assigning for error the judgment on the point reserved.
Assuming the general rule as to common carriers to be, that they are insurers of goods against all but perils from inevitable accident, and that fire, except when caused by lightning, is not inevitable, yet here the carrier relieves himself from the stringency oE the common law rule by his contract with the shipper ; that is, under the legal construction of such contracts, he does not insure against fire, unless by reason of his own negligence the fire was the proximate cause of the destruction of the goods.
When the fife broke out, the degree of care arose according to the peril; the exigency then required, not only action and effort, but prompt action and extraordinary effort; under such circumstances, ordinary care would have been negligence, and
As is held in Morrison v. Davis & Co., 20 Pa. 171, common carriers “ are answerable for the ordinary and proximate consequences of their negligence, and not for those that are remote and extraordinary; and this liability includes all those consequences which may have arisen from the neglect to make provision for those damages which ordinary skill and foresight is bound to anticipate.”
If, while in transit, the car door being open, sparks had entered from passing locomotives and destroyed the property, the neglect to keep the door closed would doubtless have been the proximate cause of the damage; the originating cause would have been in control of defendant, and the omission to keep the door closed was leaving an open way for the inevitable locomotive sparks to reach the goods; the presumption under such circumstances would be, that defendant had full knowledge of the ordinary risks incident to so conducting its business,
But the facts here are entirely different from those supposed; the freight yard of a common carrier in a large city was a necessity to the transaction of its business as a carrier; its laden cars must stand at some point within it for the convenience of both itself and the public; the delivery from the car to the cart or wagon of the consignee was a necessity; for purpose of such delivery, it stood at this point; that a fire might break out somewhere in a large city could be anticipated and provided against by having on hand watchmen to detect fire, and sufficient motive power to quickly move the cars to a place of safety; but that a building on a street opposite this particular car should catch fire but a few hours before the car was to be unloaded, and that in less than twenty minutes, before, by the utmost promptness and exertion, the car could be moved, sparks should pass through an aperture ten inches wide in the car, and communicate fire to the goods, is now seen to have been possible, but, even after the event so remotely possible, that certainly no jury or court can say it might or ought to have been foreseen. To say so would be, in effect, to hold, that common carriers of freight destined to large cities must transport such freight in tightly closed fire-proof cars, for that is the only precaution which could, under the circumstances here proven, have given protection against destruction by fire. We deem the fact of the open door as unimportant, because, as against all that could be reasonably foreseen, or was within control of defendant, the goods were safe on an uninclosed car; the defendant had no reason to apprehend fire in that particular building, or that it would immediately be of such fierceness as to communicate itself to the car before the latter could be removed, therefore by what particular channel or means the fire immediately reached the combustible car and cargo has no weight in determining the proximate cause.
The proximate, dominant cause of this damage was a possible
“ But things or results which are only possible cannot be spoken of as either probable or natural. For the latter are those things or events which are likely to happen, and which for that reason should be foreseen. Things which are possible may never happen, but those which are natural or probable are those which do happen; and happen with such frequency or regularity as to become a matter of definite inference : ” Railway v. Trich, supra.
That fires would often occur in the city was highly probable ; that the conflagration might extend and reach this freight yard, though in a less degree, was also probable; for these probabilities ample provision was made; but that a building twenty-three feet off would take fire, and within twenty minutes would set the car on fire, was only remotely possible and therefore defendant was guilty of no negligence in not guarding against it.
As to the argument, that the question of proximate cause was for the jury, as a general proposition this is correct, but where as here there are no disputed facts, or inference to be drawn it is for the court: Hoag v. R. R. Co., supra; R. R. Co. v. Kerr, 62 Pa. 353.
The judgment is affirmed.