Marande v. Texas & Pacific Railway Co.

after making the foregoing statement, delivered the opinion of the court.

Questions involving the liability of the defendant for damage occasioned by the loss of other cotton by the fire which destroyed the cotton, the value of which is now sought to be recovered, have been previously decided by this court. Texas & Pacific Railway Co. v. Clayton, 173 U. S. 348 ; Same v. Reiss et al., 183 U. S. 621 ; and Same v. Callender, 183 U. S. 832 . Whilst in deciding these cases it was essential to refer to and in some respects consider the course of business at the terminal wharf at Westwego, the controversy which here arises for decision involves different considerations, and causes it to be necessary to more fully refer to the establishment of the wharf at Westwego and the course of business at that place prior to and at the time the fire occurred.

In the Circuit Court of Appeals there were a number of assignments of error; now, however, only"four of such assignments are pressed : the first, the twelfth, the thirteenth and the fourteenth. As the first of these only complains generally that the Circuit Court of Appeals erred in affirming the judgment, and the fourteenth is a mere reiteration of the first, the only assignments which we are called upon to consider , are the twelfth and the thirteenth. The one asserts that the case should have been allowed to go to the jury on the issue of de

In order to pass upon the issues arising on these assignments, the evidence must be considered. In taking it into view, however, we shall do so only to the extent necessary to enable us to decide the question of law which arises, that is, was the evidence sufficient on the subject of negligence and deviation to go to the jury ?

Approaching the city of New Orleans, on the opposite or right descending bank of the Mississippi River, the track of the Texas and Pacific Railroad terminated prior to 1873 at a. point called Gouldsboro. There the company had a railway yard, roundhouse, and other structures. ' It there also had a terminal wharf with an incline, by means of which its cars could be transferred directly across the river by boat to a depot and yard belonging to the company situated at the foot of Thalia street, at about the center of the river front of the city of New Orleans. At the Thalia street depot freight for New Orleans was delivered, and that intended for further transit by way of export or otherwise was also delivered in carload lots over connecting tracks, or, where this could not be done, was hauled and delivered at the expense of the railway to the steamship or other ’ carrier. Prior to' 1873 the proof tended to show, at a point some six or eight miles above Gouldsboro, a spur track left the main track of the Texas and Pacific road, and extended for about half a mile in length to Westwego on the bank of the river. Before 1873, however, the proof showed that none of the inbound traffic was carried on at Westwego, though at that point probably some outbound freight, intended for the purposes of the railroad, may have been received at Westwego. Some time in 1873 the company constructed a grain elevator at Westwego, and built a terminal wharf at the same point. The proof gives no description of the elevator wharf, except that it was below the freight wharf and connected with it, but the freight wharf is fully described, there being no material variation in the testimony on the subject.

Westwego was not within either the municipal limits of the city of New Orleans, or the limits of the port of New Orleans, as defined by statute. It was shown that the season of active cotton receipts in the city of New Orleans commences about

It appears that other railroads possessed terminal wharfs on , the river, some of them being outside of the municipal and port limits, and' that they were used as a depot for the shipment of through billed export cotton, under methods of business substantially similar to those at Westwego. The -export cotton intended for transhipment at the Westwego wharf was

During the cotton season of 1894 and 1895 (prior to November the 12th, 1894) labor troubles of a serious character occurred at the docks in the city of New Orleans. The disturbances, the proof tends to show, caused delay in the movement from the port of New Orleans of export cotton. Either because of this fact or because of an unusually large cotton crop, or an unexpectedly rapid movement of cotton to the seaboard by the Texas and Pacific lines, large quantities of export cotton accumulated in the sheds on the wharf at Westxvego. The cotton, which xvas all compressed, xvas stored in the folloxving manner: The bales were piled bet\\reen 15 and 20 feet high throughout the xvhole space of the Shed, but probably three, and certainly not more than four, narrow gangways being left in each shed, running from front to rear. There xvas no possible doubt from the evidence that'no gangways xvere left running lengthwise of the sheds. There xvas also proof tending to shoxv that these narroxv gangxvays, as the cotton accumulated, were obstructed by bales of cotton standing endwise. The proof also tended to shoxv that the accumulation of cotton became so great that on the river front of the sheds, in the open space towards the railroad track, cotton xvas also placed, approaching so close to the railroad ti’ack that as an engine moved along carrying or pushing cars containing freight intended for shipment there was not sufficient space betxveen the cotton and the track to enable a person to stand xvith perfect safety. It appeared that around the open space betxveen the upper end of the No. 1 and the lower end of the No. 2 shed cotton had been also piled. It was shown that most, if not all, of the cotton exposed as stated was

Westwego was remote from any town or village having a police force or a fire department. The wharf exclusively belonged to the railway company, and was under its control; property on it, therefore, had the benefit of no police protection except that afforded by the company, and in case of fire had nothing to rely upon except the men and appliances which the company furnished. The fire appliances were as follows: There was a tank near the grain elevator standing at such a height as to afford adequate pressure. This tank was supplied by a pump drawing its water from the river. From the tank a pipe ran to the wharf and passed under the floor of each of the sheds. In each shed there were three hydrants or water pipes, in the middle of the shed — about equidistant; they were by the side of the posts, and stood six feet above the floor. On each of the six posts by which the hydrants stood and connected to them there was a platform six or more feet above the floor, on which was placed a hundred feet of coiled hose. A witness testified that some months or more before the fire he had seen hose stretched along the front posts of the shed resting on pieces nailed to such posts, but there was other testimony tending to give rise to the-reasonable inference that no such hose was there at the time of the fire. The testimony on this subject, however, had no relation to the hose coiled on the platforms on or around the posts where the hydrants wrere situated. This is conclusively the case, since the witness who testified as to hose being stretched as above stated spoke only of the front, and said he had not observed the hydrants and their condition, and knew nothing of them. We say this in passing, because in the argument for the defendant in error it is suggested that the testimony of the witness in question related to the hose at the hydrants, and was all the testimony on the subject in the record, overlooking the clear and cumulative testimony that the hose, at the hydrants, was connected with them and coiled on a platform oh pr around the posts about six feet above the floor. The evidence left it

There was testimony tending to show that along the front and rear of the sheds there were barrels containing water with buckets hanging near. It was showm without contradiction that there were no chemical fine engines, although there was testimony tending to show that what were designated as chemical fire buckets had been bought at'about the time the wharf was built, and there was conflict in the testimony as to whether these buckets were on hand for use at the time of the fire. The evidence tended to show that no general directions as to handling or the use of the hose in case of fire had been given, that-no fire drill had ever taken place, nor had the men in- charge of the wharf been ever instructed in any wray as to the use of the apparatus which has just been described.

The wharf in the day time was under the direct authority of an employé designated as chief clerk; in the night time it was in the charge of one regular employé of the company and three watchmen, who were the members of a special private police force in the city of New Orleans, the railway company Contracting with the head of the special police organization for the services of the three men at the wharf, and a like number of men were on ■watch during the day time. In other- words, in the night time the wharf was in charge of but four men, one a regular employé of the company, and three special policemen

A short while prior to November 12, growing out of supposed danger resulting from fear of election disturbances, the force at the wharf was increased by a few men, whose duty it was to patrol the space under the wharf and prevent persons from entering by boats or otherwise. This force, prior to the ñre, had been reduced to the number previously stated.

It was shown that at a wharf in the city of New Orleans belonging to a steamship company where cotton had accumulated, the force of watchmen employed was largely in excess of the number at Westwego, and that at a terminal wharf of another railroad, where there was about half the quantity of cotton which Avas on the AAdiarf at WestAvego at the time of the fire, there were tAventy-five watchmen employed instead of four, the number at W estwego ; that there were Babcock fire extinguishers, hose placed on reels ready for use, and that this hose was used almost daily for the purpose of Avashing down' the Avharves, and to enable the men in control to be familiar with its use in case of emergency.

By about the middle of October, 1894, the accumulation of cotton at the Avharf of Westwego had been so great that the proof shoAved that the railroad officials had become solicitous on the subject, and deemed that they Avere in great risk of fire. It Avas also shoAvn that about that date a destructive fire had occurred in a Avharf where cotton Avas stored in the city of New Orleans, presumed to be the result of the labor disturbances, and that at WestAvego, during the daytime, Avithin a period not remote from the general conflagration Avhich ensued, subsequently, the longshoremen Avorking there had discovered a fire smouldering in a bale of compressed cotton which Avas in the tiers, and that it had been extinguished by throAving doAvn the cotton and removing the bale; and that this fact had been reported to the officers of the company. Prior to Monday, the 12th of November, 1894, cars loaded with cotton Avere being-brought in in the night time in the rear of the sheds, and for days prior to that date vessels had been loading in front of

There was evidence as to the direction of the wind on the 12th of November. The parties asserting that opposing inferences were to be deduced therefrom, but without undertaking to consider this controversy, we assume only for the purpóse of this opinion, that the result of this proof as to the direction of the wind tended alone to show that if a spark had been emitted from the locomotive operating on the front of the wharf, as above stated, the .wind would have carried it away from the No. 2 shed, where the fire subsequently broke out, as we shall hereafter state.

On Monday, the 12th of November, 1894, the accumulation of cotton was so great that 'there were stored in the sheds and on the wharf in the manner which we have indicated, about 20,000 bales of compressed cotton, and there were in cars, standing on tracks in the vicinity of the wharf and sheds, about 8000 bales more, awaiting storage room. The cotton sued for was among the latter. On the evening of the date above mentioned, shortly after the day force had ceased work and the four night watchmen had come on duty, the cotton was discovered to be on fire. The flames spread rapidly, and a disastrous conflagration followed, with the result that most of the

As the only witness who testified concerning the outbreak of the .fire, the alarm, and the efforts to extinguish it, was Eobean, and as therefore his testimony is of the utmost importance in determining whether the case should have been allowed to go to the jury, we excerpt in the margin* 1 the portions of his testimony which are material.

“ We are then limited to an inquiry whether the evidence is sufficient upon which a jury might be permitted to base an inference that Leetch had the necessary authority to act for the company in this business. If different inferences might fairly be drawn from the evidence by reasonable men, then the jury should be permitted to choose for themselves. But if only one inference could be drawn from the evidence, and that is a want of authority, then the question is a legal one for the court to decide.”

The court then reviewed the evidence on this branch of the case, and concluded as follows (p. 518):

“We are of opinion that the court erred in submitting to the

jury the question whether Leetch, in respect to the subject of the letters written by him to Brown, had authority to bind the company. The court should have directed a verdict for the corporation on the ground that there was an entire lack of evidence upon which to base a verdict against it.”

In Patton v. Texas A Pacific Railway Co., 179 U. S. 658 , the following facts appeared: The action was brought by Patton to recover damages for injuries sustained while in the employ of the railway company as a fireman. On a second trial a verdict was directed for the defendant, upon which judgment was rendered, and the Court of Appeals affirmed such judgment.

Answering the contention of the plaintiff in error that the trial court erred in directing a verdict and in failing to leave the question of negligence to the jury, the court said (p. 659):

“ That there are times when it is proper for a court to direct a verdict is clear. ‘ It is well settled that the court may withdraw a case from them altogether and direct a verdict for the plaintiff or the defendant, as the one or the other may be proper, where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. Phœnix Ins. Co. v. Poster, 106 U. S. 30 , 32; Griggs v. Huston, 104 U. S. 553 ; Randall v. Baltimore & Ohio Railroad, 109 U. S. 478 , 482; Anderson County Commissioners v. Beal, 113 U. S. 227 , 241; Schofield v. Chicago & St. Paul Railway Co., 114 U. S. 615 , 618; Delaware &c. Railroad v. Converse, 139 U. S. 469 , 472. See also Aerkfetz v. Humphreys, 145 U. S. 418 ; Elliott v. Chicago, Milwaukee &c. Railway, 150 U. S. 245 .’

“ It is undoubtedly true that eases are not to be lightly taken from the jury; that jurors are the recognized triers of questions of fact, and that ordinarily negligence is so far a question of fact’ as to be properly submitted to and determined by them. Richmond & Danville Railroad v. Powers, 149 U. S. 43 .”

We come, then, to an analysis of the evidence for the purpose of ascertaining whether it was correctly decided that it afforded no reasonable ground upon \yhich a jury, in the exercise of its

All the reasonable tendencies of the proof, if any, to show negligence, must arise from three propositions, which we shall proceed to consider in their oi’der.

First. The manner in which the cotton was stored and the operation of the locomotives in and dboitt the same so as to subject the cotton to danger of fire and to cause the prompt detection of afire to be so dijficult as to render it practically impossible in time to prevent a conflagration.

That the storage of such a great mass of cotton in the open sheds and on the wharf, with only a few narrow gangways from front to rear, with no passageways between the tiers running lengthwise of the sheds, so as to enable the cotton to be inspected and to be accessible upon an alarm of fire, with substantially no tarpaulins or other covering, and the operation of the locomotives in and around the open sheds arid in front of the wharf among the cotton so situated at least afforded sufficient proof to go to the jury, we think is too clear for discussion. This was not controverted by either the trial court or the Circuit Court of Appeals, but the proposition which those courts felt constrained to .uphold was, that as the proof did not in their opinion furnish any reasonable ground from which it could be inferred that the acts above enumerated had actually tended 'to produce the fire, therefore, even although there was negligence in the matters suggested, they furnished no reasonable ground upon which the jury could have given a verdict for the plaintiffs. This reasoning proceeded upon three assumptions, a, because the proof did. not show'that the locomotive

But each of these propositions either rests on premises of fact where no proof whatever existed or disregarded what the jury would have had the right to conclude was the reasonable tendency of the proof as made. There was no question that the proof showed, leaving aside the movement of the engine on the wharf on the morning of the 12th of November, that other locomotives had been moving in the rear of the wharf and in its vicinity probably on the night of the 11th, and certainly on the 10th, and previously; and the proof also unquestionably-showed that for days prior to the breaking out of the fire, except it may be Sunday, vessels had been loading at the wharf in front of the No. 2 shed, and the tendency of the proof was to show that the cargo which they took was carried on the wharf in front of the shed by locomotives. To hold then that there was no proof tending to show that the conflagration was the result of • the movement of locomotives about and among the piles of exposed cotton, ivas simply to say such must have been the case because the proof did not tend to show that the fire could have been caused by the locomotive which was on the wharf on the morning of the 12th. This, however, was only to find, in the absence of all proof as to any other origin of the fire, that it would have been unreasonable for the jury to deduce the conclusion that the fire was the result of other and previous proximity of the locomotives to the cotton. The obvious danger resulting from the use of the locomotives, as described, in and about so easily ignitible a material as cotton, particularly when stored and unprotected as this was, is to our mind so clear that we think the least that can be said is, when

Second. That the proof showed negligence in the care of the property inasmuch as the number of watchmen who were engaged were greatly inadequate for the service, and therefore the jury would home been reasonably justified in finding that the destruction of the cotton-was occasioned thereby.

Here also we think it was evident that the presence of only four watchmen to care for so vast an accumulation of cotton stored and exposed to the risks it was subjected to was sufficient to go the jury on the question of negligence. Both the courts below with reference to this ground substantially concluded, as they did as to the former one, that even although the number of watchmen was insufficient, nevertheless as the inadequate number of watchmen discovered the fire as soon as it broke out, a greater number of Avatcbmen could haAre done no moi’e,

Third. That the jury would have had reasonable ground to infer negligence from the inadequacy of the Jvre apparatus and from the want of instructions as to Us use or competent men to handle it.

This proposition, Ave think, is also Avell founded. The argument to the contrary is, that as it Avas shown that if the apparatus Avhich Avas there had been properly Avorked, the fire Avould have been extinguished ; therefore there Avas no negligence in respect to such appliances-. The proof Avas construed to be that Avhen Robeau heard the alarm of fire and rushed to the point Avhere Yalle stood, upon the cotton, and Avas ordered by Yalle to go down and open the valve, he found the valve open, because Yalle had previously opened it. But Ave have searched the record in vain for any dii’ect proof that Yalle had opened the valve before Robeau’s arrival. Non constat, therefore, that the valve had not been left open negligently some time previously, as it AAras hid from viéw by the cotton, and if the open valve therefore caused the tangling of the hose or

But this, it is argued, is of no consequence since, it is asserted, the proof showed that the cause of the destruction of the cotton was not the imperfect nature of the appliances, but an error of judgment in the use of them by the employés in the emergency of the moment. The proof, it is insisted, left no room .for any other inference than that Valle on the discovery of the fire had rushed to the spot, thrown the hose down from the platform, got down among the cotton and opened the valve, or had left the hose on the platform without unwinding it, and that the pressure of water had either so kinked or tangled the hose when thrown down or rendered it so difficult to move it, if left coiled on the platform, that the water would not flow, and the failure to extinguish the fire resulted. But all the elements contained in these propositions involve mere inferences from the evidence which it was the province of the jury to make. The only testimony in the case showing the actual condition of the hose at the time of the discovery of the fire was that of Robeau. That testimony showed that the cotton was piled up around the post where the hydrant was situated, above the platform on which the hose was coiled, to such an extent that neither the hydrant nor the hose could be seen from the gangway or from the top of the pile of cotton, that to get at the hose, if it was on the platform, required either reaching to or getting on the platform about six feet below, between the cotton, and to reach the valve necessitated squeezing down between the cotton to the floor. Under these circumstances and the difficulties which they necessarily created we think the proof was such as would have reasonably justified the jury in concluding that the negligent acts of stowing the cotton high up around the hose and the hydrant and the valve connected with it created a condition so conducing to error of judgment and misdirected efforts as to

This leaves for consideration only the question whether the case should have been allowed to go to the jury on the question of deviation. As the result of the conclusions to which we have come on the question of negligence is that a new trial must be granted, it follows that on the new trial the whole case will be open. Being so open, we cannot say that testimony may not be introduced at the new trial which may modify the aspect of this question as exhibited in the record now before us. Conducive, however, to the result that there may be an end to this litigation, we content ourselves on this branch of the case at this time with saying that we think the proof in this record fully justified the action of the trial court in respect to the question of deviation.

The judgments must he reversed and- the cause remanded to the Circuit Court of the United States for the Southern, District of New York with directions to set aside therverdict and grant a new trial, and- it is so ordered.