Marande v. Tex. & Pac. Ry. Co. Ror to the Cir. Ct. of Appeals for the Second Cir., 184 U.S. 173 (1902)

Upon issue joined, a trial was had in the Circuit Court. After the plaintiffs had introduced their testimony and rested their case, the defendant requested the court to take the case from the jury by giving a peremptory instruction in its favor. 1 was asked on the ground that there was no proof sufficient to go to the jury either as to the alleged negligence or the assert deviation. The court granted the request, and exceptions were [p. 175] duly saved by the plaintiffs. From the judgment entered on the verdict the plaintiffs prosecuted error to the Circuit Court of Appeals for the Second Circuit, and in that court the judgment was affirmed.

In the Circuit Court of Appeals there were a number of asgnments of error; now, however, only four of such assignen s are pressed : the first, the twelfth, the thirteenth and the theV^611 ^rsto^ only complains generally that and +kCUjt °Urt Appeals erred in affirming the judgment, assio*n 6 °Ur^eenth is a mere reiteration of the first, the only twelfth*611 j we are called upon to consider are the should han thirteenth. The one asserts that the case ave been allowed to go to the jury on the issue of [p. 176] deviation, the other that error was moreover committed in not permitting the plaintiff to go the jury on- the general question of the loss of the cotton by the negligence of the defendant railway.

city of New°' G T nOt ^hii1 either the municipal limits of the as defined by statute’ S °f P°rt °f NeW Orleans’ cotton recpinta 4 • Was sbown that the season of active vol m n the Clty °f NeW Orleans commences about v°L. 0LXXXIV—12 [p. 178] the first of September and ends about May of each year, and that the Westwego wharf was completed in time to enable the railway company to avail of its facilities for, if not the whole, at least a portion of the business of the cotton season of 1893 and 1894. After the construction of the wharf in the season in question the great bulk of cotton handled by the Texas and Pacific Railroad under export bills of lading was deflected from its main track at the Westwego spur track, carried to the terminal wharf, and there unloaded and transhipped. This the proof showed was the course of business also as to all export cotton in the following season of 1894 and 1895, up to the time of the fire, except, perhaps, as to small lots of cotton intended for export, where the number of bales would not justify the coming of a steamer to the wharf at Westwego, in which case the cotton was carried to Gouldsboro, transferred, and delivered. In arranging to carry export cotton the course of business was this: The Texas Pacific Railway would contract with steamship lines for the carrying of a given quantity of cotton at a stated price, and under these contracts would then, through either itself or through other carriers at various points of original shipment, issue through bills of lading, embracing both railroad and water carriage. The method pursued by the railway to bring about the formal delivery to the steamship lines of the export cotton at the Westwego wharf after its arrival is fully stated in the case of Texas <& Pacific Railway v. Clayton, supra. It was shown that under the contracts made by the railway with the steamship companies there was always an understanding that the ships would not be obliged to suffer the expense of moving from their own docks, usually in t e city of New Orleans, to the Westwego wharf, for the purpose of loading cotton, unless a sufficient amount, variously stat at from 1000 to 2500 bales, was on hand for delivery.

It appears that other railroads possessed terminal whar s on the river, some of them being outside of the municipa an port limits, and that they were used as a depot for the s ip ment of through billed export cotton, under methods o ness substantially similar to those at Westwego. The ex^ cotton intended for transhipment at the Westwego w ar [p. 179] thus handled : On arriving in the vicinity, the cars were usually, in the night time, switched to the tracks running in the rear of the wharf beside the open sheds, and the cotton would then be unloaded and stored in the sheds, whence, when called for, it was delivered to the steamships. The track running the length of the wharf in front of the sheds was principally used for the bringing in of freight intended for shipment by water other than cotton. The cars containing it would be drawn or pushed by a locomotive along the track, and the freight would then be moved from the cars to the vessels.

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 Westwego. The cotton, which was all compressed, was stored in the following manner: The a es were piled between 15 and 20 feet high throughout the woe space of the shed, but probably three, and certainly not more than four, narrow gangways being left in each shed, running rom front to rear. There was no possible doubt from the X n° were left running lengthwise of the ere was a^so proof tending to show that these narrow g ngways, as the cotton accumulated, were obstructed by bales th,^" Standlll8 end«’ise- The proof also tended to show f 6 ac®n“ulation cotton became so great that on the trarlr 0 t e sheds, in the open space towards the railroad road alS° placed’ approaching so close to the railcars rnnf ■ T a° en^ne moved along carrying or pushing suffic’ aimng freight intended for shipment there was not person tn Sfac! bet'veen the cotton and the track to enable a the onen 1™ Pel^eot safety. It appeared that around lowe/end of th b^'Teen the DPP®P end of the No. 1 and the shown that. ™ ? w°’ 2 Shed Cotton had been als0 Piled- Jt was s , i not all, of the cotton exposed as stated was [p. 180] not covered with tarpaulins, and no other means were resorted to to protect it from the danger of fire arising from the operar tion of the locomotives in the rear and front of the sheds and among the cotton on the wharf.

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 were 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 on or aroun the posts about six feet above the floor. The evidence le 11 [p. 181] uncertain exactly where the valve was placed which opened the connection with the water. The proof tended to show that the valve was either under the floor with an opening to reach it, or just above it, at the base of the hydrant pipe. As the three hydrant pipes in each shed stood beside the posts, and the gangways running from front to rear, although very narrow, were shown not to be obstructed by the posts, it was therefore inferable from the proof that the posts where the hydrant pipes stood had cotton piled around them. Indeed, this inference was sustained by direct evidence tending to show that the posts near which the hydrants stood had cotton piled around them from twelve to fifteen feet high, and there was also proof tending to show that in some instances the cotton so piled had fallen over on the hose on the platform, and the bale which did so had to be removed.

The wharf in the day time was under the direct authority of an employé designated as chief clerk ; in the night time it was t e charge of one regular employé of the company and three wa c men, who were the members of a special private police orce in the city of New Orleans, the railway company conac ing with the head of the special police organization for the rvices of the three men at the wharf, and a like number of en were on watch during the day time. In other words, in retr 7° ^lme w^ar^ vvas in charge of but four men, one a u ar employé of the company, and three special policemen [p. 182] employed as just stated, and their duty extended over the whole surface of the wharf and sheds, as well as under the wharf.

of rntf °n a^’ e -^ovemher, 1894, the accumulation on thft011^^ S-° great that there were stored in the sheds and 20 non iTi manner which we have indicated, about ini nn eS]° ?omPressed cotton, and there were in cars, stand-8000 hd~ m the Vidnity of the wharf and sheds, about was amnn awaitln£ borage room. The cotton sued for tioned shn +1 ° 1TteP' °n the eveninS °f the date above menfour nie-hf t t^e day t°rce had ceased work and the covered to ° fl16*1 corae on duty, the cotton was distrous conflacr .°r The flaraes spread rapidly, and a disasgration followed, with the result that most of the [p. 184] cotton in the sheds and the sheds themselves, as well as cotton in the cars in the vicinity, among which was that sued for, was destroyed. What took place at the time of the discovery of the fire was testified to by only one witness, one of the night watchmen, Robeau, who was one of the three special officers of the private police agency. His statement of what occurred may be thus summarized : His place of duty was at the upper or No. 2 shed, and his business was to pass around and through the shed, and at designated intervals register his presence upon a watchman’s clock. After sending a telephone message to indicate his presence at his post, and whilst he was on the river side of shed No. 2, at the lower end, he heard a cry of fire. Running immediately to a gangway, he crossed to the rear or wood side of the shed. Not seeing the fire, he ran up the rear side and across by a gangway to the river front, thence running along the river front of the shed he turned into another gangway and hastened towards the rear of the shed. In going through there he discovered Vallé (the one of the four watchmen, who was the regular employé of the railroad company) standing on top of the piled cotton, about fifteen feet from the floor. Robeau joined Valle, who had the nozzle of a hose in his hand, from which no water was being thrown. From the place where the two stood on the piled cotton they saw a fire burning near the floor in the direction of the upper end of the shed. As they stood upon the pile of cotton they were above the hydrant pipe running up by the post, and about six eet above the platform around or upon the post, upon which was coiled the hundred feet of hose connected with the hy ran. From where they stood both the hydrant pipe and the plat or with the coiled hose on it were hidden from their view by t e piled cotton. Valle, holding the nozzle of the hose in his hand, from which no water was flowing, called upon Robeau to g down between the piles of cotton and open the water va Robeau squeezed himself through the space between t e co piled around the post to the floor, felt about for the va ve, p ceived water on the floor, declared the valve to be open, rejoined Valle. They both dragged at the hose, but no w flowed. The burning cotton flamed up, Valle called upon [p. 185] beau to get down on the platform around the post and uncoil or untangle the hose. He refused on account of the intensity of the fire, and both became alarmed and ran away. The destruction of the property ensued.

. ? [p. 189] cation of a libel, was presented for determination. In the course of the opinion, after observing that in the case no specific authority was pretended to have been given to the general manager on the subject, the court said (p. 545):

Danville Railroad v. Powers, 149 IT. S. 43.” of tben’ to an analysis of the evidence for the purpose no reasnn1^]11^ wbetber was correctly decided that it afforded a e ground upon which a jury, in the exercise of its [p. 192] functions, could have inferred that the destruction of the cotton by fire was occasioned by the negligence of the defendant. In doing so we shall, of course, be mindful, as was said in Patton n . Texas and Pacific Railway Company, supra, that as both courts below have held that the evidence had not the tendency stated, their decision is entitled to great respect—a respect, however, which cannot relieve us from the duty of securing the plaintiffs in the enjoyment of their constitutional right to trial by jury if, in our opinion, the case made by them was one proper to be decided as one of fact by the jury, and not to be concluded as a matter of law by the court.

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 and in front o the wharf among the cotton so situated at least afforded su cient proof to go to the jury, we think is too clear for discussion. This was not controverted by either the trial court or the ir cuit Court of Appeals, but the proposition which those cou felt constrained to uphold was, that as the proof die1 no in their opinion furnish any reasonable ground from w ic i could be inferred that the acts above enumerated had actua J tended to produce the fire, therefore, even although t ere was negligence in the matters suggested, they furnished no reason able ground upon which the jury could have given a ver ic the plaintiffs. This reasoning proceeded upon three assu™^ tions, a, because the proof did not show that the locomo [p. 193] operating along the front of the wharf, on the morning of the 12th of November, had traversed the track opposite to or in the immediate vicinity of the place in No. 2 shed, where the fire occurred; b, because there was no proof that the locomotive was emitting sparks or dropping fire from its firebox, and if there had been, because the proof as to the direction of the wind showed that such sparks, if emitted, would have been blown away from the direction of the upper part of No. 2 shed where the fire broke out; and, c, because the fire was immediately discovered on its outbreak.

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 o s ow that the cargo which they took was carried on the wharf in front of the shed by locomotives. To hold then that ere was no proof tending to show that the conflagration was e result of the movement of locomotives about and among e pi es of exposed cotton, was simply to say such must have Zn mT6 because the pro of did nofc te nd to sho w that the th* C°k £ aVe been caused by the locomotive which was on onlvT i°^ morn^n« the 12th. This, however, was of th n ’i-111 ^.be absen°e of all proof as to any other origin to ded n» it"W0ldd bave been unreasonable for the jury and * e COnclusion that the fire was the result of other ohvinneVjOUS proximit.y of the locomotives to the cotton. The described a.n^er resu^ting from the use of the locomotives, as Dartionin V11 ab°ut so easily ignitible a material as cotton, mind ro s^ored and unprotected as this was, is to our c ear at we think the least that can be said is, when yOL. CLXXXIV—13 [p. 194] the origin of the fire was otherwise unexplained, that the jury would have been reasonably justified in drawing the inference that the use of the locomotives caused the fire. And the general course of legislation, both in England and this country, demonstrates the soundness of this conclusion. St. Louis (& San Francisco Railroad n . Matthews, 165 U. S. 1. The only possible ground by which this can be met is the assumption that because there was no proof tending to show the operation of a locomotive in the rear of the sheds or on the front of No. 2 shed, for a considerable period of time before the fire, therefore sparks from the locomotive could not have caused the fire, because if they had the conflagration would have broken out sooner. But this assumes that compressed cotton, piled up as this was, if ignited by sparks, would necessarily at once break out into flame, and disregards the right to have the judgment of the jury as to whether the fibre of such cotton, when so situated, on being touched by a spark, might not have smouldered for a considerable time, until such headway had been gained as to cause the fire to break into flame. In other words, there being two inferences to be drawn from the testimony, one of a sudden outbreak of the fire and the other of a long continued smouldering, it was the province of the jury to pass upon the question. And this disposes of the assumption that the fire was discovered immediately on its breaking out. Such assumption, however, was a mere unreasonable inference from the facts in favor of the defendant and against the plaintiff, and rested on the predicate that there was nothing in theproo which would have justified a jury, although the cotton was compressed and piled up, in inferring that the fire might have smouldered for a considerable time before bursting into flame. It was certainly open to the plaintiff to direct the attention o the jury to the obvious natural law that any fibrous maten , like cotton, when tightly compressed and piled, as was the co ton in question, if ignited by a spark, may smoulder for an un certain period. The only proof on the subject of the discovery of the fire is that to which we have referred, giving an acc^n of the alarm of fire by Valle. The mere fact, however, he gave an alarm of fire when he discovered it does not [p. 195] support the inference that the fire had not been burning for a considerable period before he knew of it. Indeed, when the state of the fire, as described by the witness Robeau when he first saw it, is taken into consideration, and the natural tendency of a tightly compressed fibre to smoulder is borne in mind, the jury might have reasonably inferred, we think, from the condition of the fire when first seen by Robeau and the rapid and extensive conflagration which almost immediately resulted, that the discovery marked, not the time when the ignition of the cotton took place, but the breaking out of the cotton into a flame as a consequence of its prior burning, This also disposes of the view that although the cotton was negligently stored by leaving no gangways through the length of it, by which it could be inspected and the presence of fire be promptly detected, the proof did not tend to justify a recovery because the fire was discovered in the mass of cotton just as soon as it would have been if proper precautions had been taken in its storage. The description of the state of the fire, we hink, afforded ground for a jury to otherwise find, for the only proo on the subject was, that in order to discover the fire,

^^tlyi'nade^uat6 f°r th& service, and therefore the destruction reasona^y justified in f/nding that the f the cotton was occasioned thereby. four watrh° We was evident that the presence of only stored and Xen ° ^are for so vast an accumulation of cotton to ffo the inr^°Se i° t^e r*.SkS was subjected to was sufficient below with r 0U the question of negligence. Both the courts they did as tn tTT t0 thlS ground substantially concluded, as of watchman ° .ormer one> that even although the number number of lnsu®c^ent, nevertheless as the inadequate ^a ^tZt discovered the fire as soon as it broke umber of watchmen could have done no more, [p. 196] therefore the inference of negligence contributing to the loss was as a matter of law unwarranted. This, however, but rested on the assumption that the fire was immediately discovered. On the contrary, as we have said, not only the reasonable inference that cotton stored and piled like that here in question, when ignited, would smoulder, but the actual facts as to the conflagration in hand, we think, were sufficient to go to the jury so as to enable the jury to conclude whether, if an adequate force of watchmen had been on hand, the fire might have been sooner detected and the property saved from destruction. But the larger number of watchmen would have been efficient, not only in detecting the fire, but for the purpose, in such an emergency, of handling the cotton in. order that the fire might be gotten at and extinguished. That an adequate force might have so done was reasonable to infer, especially in view of the proof that in the daylight, when a larger body of men were at work, smouldering cotton was discovered in one of the lower bales, and by removing the others and getting at the ignited bale in a tier, a conflagration was prevented.

This proposition, we think, is also well founded. The argument to the contrary is, that as it was shown that if the apparatus which was there had been properly worked, the would have been extinguished ; therefore there was no neg i gence in respect to such appliances. The proof was constru to be that when Robeau heard the alarm of fire and rushe the point where Valle stood, upon the cotton, and was or er by Valle to go down and open the valve, he found thevave open, because Valle had previously opened it. But we ave searched the record in vain for any direct proof that a e a opened the valve before Robeau’s arrival. Non constat, ere fore, that the valve had not been left open negligent y time previously, as it was hid from view by the cotton, an the open valve therefore caused the tangling of the ose [p. 197] rendered it so that it could not be moved, the negligence in respect to the care of the hose would be that of the company. If it be that one inference from the testimony would have justified the conclusion that Valle had opened the valve, as such inference was not necessarily to be drawn, then it was the function of the jury and not of the court to draw the proper inference.

y created we think the proof was such as would have _ . 0Ifa J the jury in concluding that the negligent drant § co^on high UP around the hose and the hycondi an t e Va^ve connected with it created a condition so ucmg to error of judgment and misdirected efforts as to [p. 198] render the railway company responsible therefor. And this conclusion is greatly fortified when the uncontradicted proof is considered that no general rules for the use of the fire apparatus had ever been promulgated, that no systematic inspection thereof had been made, that no fire drill or instructions as to the use of the apparatus was had or given, and that the too few watchmen were left in case of an emergency to use an apparatus which, even if it were intrinsically adequate, was surrounded by the act of the company with such conditions that its favorable and efficient use was rendered practically impossible.