Opinion
No. 37510.
May 22, 1950.
1. Railroads — blocking street crossing — damage by fire — proximate cause.
In an action by the owner for the value of a house and its contents destroyed by fire alleged to have been the proximate consequence of the wrongful conduct of the railroad in blocking a street crossing thereby preventing the fire department from reaching the fire until too late, the following questions under substantial evidence, substantially disputed, were for the jury: —
(a) Whether the crossing was actually blocked for more than five minutes after the fire trucks reached the crossing;
(b) Whether there was a causal connection between the negligence and the damage including the extent of the damage affected by the causal connection.
2. Railroads — blocking street crossing — damage by fire — knowledge of train crew.
In the situation above stated if knowledge by the train crew that there was a fire and that the blocking of the crossing was preventing the fire trucks from proceeding to the scene thereof was essential to liability (which point was not decided) knowledge by a flagman, the yard clerk, and the yardmaster was the knowledge of their employer, the railroad.
3. Damages — evidence — household articles destroyed by fire — list thereof.
Where two members of the family had from their own personal knowledge prepared a detailed list of each article in the family residence destroyed by fire and the value of each, it was not error to allow them to testify by the use of the list when they were confined as to each article to their personal knowledge both as to the contents and correctness of the list and as to the market value of each article, aside from that given on the list, even if as to some of the articles the estimates of the values given by the witnesses were indefinite and uncertain, the weight of such testimony being for the jury.
4. Railroads — blocking street crossing — statutes — municipal ordinances — theory of trial — instructions.
Although Sec. 7780 Code 1942 prohibiting the stopping of a train for more than five minutes where the railroad crosses a public highway has no application to a municipal street, yet when a municipal ordinance, expressly so prohibiting is introduced and invoked and the case is tried on the theory that the municipal ordinance is an efficient factor and that actionable negligence may be based upon its violation, an instruction which tells the jury that the cited statute applies will not work a reversal.
5. Trial — argument of counsel — appeal — no bill of exceptions.
Complaint of the argument of counsel cannot be considered on appeal, when there is disagreement as to what was said and there is no disclosing bill of exceptions.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Forrest County; F.B. COLLINS, Judge.
Heidelberg Roberts, for appellant.
There must be some causal connection between alleged negligence and loss before recovery can be had. It surely cannot be claimed here that the immediate arrival of the fire trucks would have saved the home, or any part of it. There is no testimony to show when the fire department was notified of the fire as compared with when it began. The only testimony in the record is that from the fire department, to the effect that within five minutes of the time the signal was given the fire fighting equipment was present and at work, but at that time the house was covered with flames. There is some testimony of the plaintiff that some fifteen or twenty minutes passed from the beginning of the fire to the arrival of the first fire truck, but this adds up with the other testimony to mean that no one turned in a fire alarm for some ten or fifteen minutes. The burden is on the plaintiffs to show that the conduct of the railroad company was the proximate cause of the loss. New Orleans N.E.R.R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825; Bufkin v. L. N.R.R. Co., 161 Miss. 594, 137 So. 517; Thompson v. Miss. Central R.R. Co., 175 Miss. 547, 166 So. 353; Miss. City Lines, Inc. v. Bullock, et al, 194 Miss. 630, 13 So.2d 34.
The law seems to be generally recognized that a railroad cannot be held liable unless the engine crew had notice of fire situation before locomotive enters the crossing. In the case now before the Court, the engine crew never knew of the fire or of the presence of the fire fighting equipment on the crossing until after the crossing was cleared. Kirstein v. Phila. Reading Ry. Co., 257 P. 192, 101 A. 338. And see particularly Cottonwood Fibre Co., et al. v. Thompson, et al., (Missouri), 225 S.W.2d 702.
The trial court committed reversible error in admitting incompetent testimony (as to values) for plaintiff over objections of the defendant and in excluding competent testimony for defendant over objection of plaintiff. A. V. Railroad Co. v. Searles, 171 Miss. 744, 16 So. 255; Illinois Central R.R. Co., et al. v. R.E. LeBlanc, 74 Miss. 626, 21 So. 748; O.B. Crittenden Co. v. North British Mercantile Ins. Co. of London, England,
31 F.2d 711; State Highway Commission v. Johnson, 186 Miss. 889, 191 So. 820.
The trial court was in error in granting many instructions to plaintiff and in refusing a number of instructions requested for the defendant. Boutte v. M.L. T.R. S.S. Co., 157 La. 799, 103 So. 158; Anderson v. A. V. Railroad Company, 81 Miss. 587, 33 So. 840.
On the trial the argument was made by attorney for plaintiffs which was very prejudicial. We tried to get a special bill of exceptions of that which occurred. The court refused to sign this bill of exceptions, but the plaintiff filed a reply thereto which sets forth enough of facts to show that the agument was improper, and that the court refused to do anything about it. The court did write something for himself in the nature of a bill of exceptions and this bill of exceptions by the court is enough to require a reversal of this cause. It is true that the court could not remember and did not remember apparently what occurred. We had no way to protect ourselves in the premises, but we do desire that the Court give consideration to that which occurred.
C.F. Homer W. Pittman, for appellees.
We submit the following authorities for the Court's consideration: "Railroad Company blocking highway crossing with freight cars for most of night and part of next day held negligent." Southern Railroad Company v. Floyd, 99 Miss. 519, 55 So. 287.
"Railroad Company habitually parking cars so as to block crossing held guilt of negligence per se." Jarrell v. New Orleans N.E. Railroad Company, 109 Miss. 49, 67 So. 659.
"Where train was left standing for about an hour with a part of it extending three and one-half (3 1/2) feet into the street at a crossing, railroad was liable for any damage directly traceable to such wrongful obstruction." Vicksburg M. Railroad Co. v. Alexander, 62 Miss. 496.
"Traveler may recover damages sustained by reason of crossing being blocked by trains for forty-five minutes." Illinois Central R.R. Co. v. Engle, 102 Miss. 878, 60 So. 1.
"To recover damages because of an obstruction of travel in violation of statute, the plaintiff should show:
(A) That the road obstructed was a highway, a public road;
(B) That plaintiff himself was detained by the train for more than five minutes. Anderson v. Alabama V.R. Co., 81 Miss. 587, 33 So. 840; Owen v. Anderson, 119 Miss. 66, 80 So. 386.
"Negligence of plaintiff injured by stepping in hole while walking around cars unlawfully blocking crossing, held for jury." Southern Railroad Co. v. Floyd, 99 Miss. 519, 55 So. 287.
"Whether plaintiff sustained additional injury because physician visiting her was delayed for train blocking crossing was for the jury." Terry v. New Orleans Great Northern Railroad Co., 103 Miss. 679, 60 So. 729.
We submit therefore, that the overwhelming proof shows that the defendant railroad company not only violated city ordinance No. 302 in its refusal to uncouple its cars and clear the Market Street crossing to permit the fire trucks to pass, but that it violated Sec. 7780 Code 1942 and city ordinance No. 458 in blocking the crossing and restraining, obstructing, and holding up the fire trucks for a period of more than five minutes, and as a result of its unlawful acts and negligence the only fire truck that had sufficient equipment to control the fire was thereby delayed to such an extent that by the time it reached the scene of the fire, the same was out of control and the plaintiffs received their losses and damages as aforesaid.
The appellant further complains that it should not be held liable for the appellees' losses and damages if any, for the reason that those in charge of the train did not know of the fire and of the movement of the fire fighting equipment.
The Court will recall that the defendant's witness Gray, the flagman on the caboose, testified that he heard the fire alarm, the sirens blow, the bells ringing and actually saw the fire trucks when the train passed the Main Street crossing, and that he saw the fire trucks being held up at the Market Street crossing. This is the same man who finally gave the engineer the go-ahead signal, and since he was in contact with the engineer, he had authority, and it was his duty to break or uncouple that long freight train in order to clear the crossing to permit the fire trucks to pass.
Even if the train crew did not know that the fire trucks were being held up, we contend that this would be no excuse for them to violate the law.
"If an actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred, does not prevent him from being liable." Sec. 435, Restatement, Law of Torts.
The list of the personal property destroyed by fire and complained of by the attorney for the appellant was exhibited with the declaration, and when we attempted to introduce it, the attorney objected thereto, and we were required to and did offer proof of the market value of all the items listed therein that were destroyed by the fire. Indeed, the witness, Miss Joan Hall, was qualified in every respect, to testify as to the market value of the said property that was destroyed, in view of the fact that she was a saleswoman and had had considerable experience in selling merchandise, and that she had actually priced some of the property that was destroyed, and had observed and priced other property similar to the property destroyed by fire, and her testimony was competent.
From the reading of the appellant's brief one would readily see that counsel objected to practically all of the plaintiffs' testimony, and indeed the court was very liberal in its ruling in sustaining some of the objections. He points out, that the court permitted the witness Creel, after he had testified that there was no fire truck at the scene of the fire for about fifteen minutes, to testify that if a fire truck had arrived in five or ten minutes, the house could have been saved. He said that this testimony went into the record when it is apparent that no notice of the fire had been given to the fire department within five or ten minutes of the time the fire began. The overwhelming proof is, that notice was given the fire department immediately after smoke was observed coming from the back part of the house, and that the witnesses, Mrs. George Mordica and Allen Orr testified that it was ten to twelve minutes after they called the fire department before a fire truck arrived on the scene. The court will remember that the witness Creel was one of the first men to arrive on the scene, and he had actual knowledge of the smoke and fire, and was in a position to determine whether or not if the fire trucks had arrived within five or ten minutes as testified, the fire could have been controlled. His testimony was competent in every respect.
The appellant's theory of the law is confusing; his entire brief deals with the proposition that the defendant railroad company did not violate Sec. 7780 Code 1942 for the reason that Market Street was not a public highway, and that the instructions granted the plaintiffs were erroneous because they deal with public streets. He fails to remind the Court that our declaration charges that the railroad company not only violated Sec. 7780 Code 1942, but that it violated city ordinances No. 458 and No. 302, and our instructions follow the facts and the law with reference to the statute and the city ordinances, and they were rightfully granted by the court. Moreover, the court was within its rights in refusing the defendant's instructions because the said instructions complained of completely ignored the facts and the law with reference to the city ordinances.
The appellant says that the argument made by attorney for plaintiffs was prejudicial, and that he tried to get a special bill of exceptions, but the court refused to sign his bill of exceptions. There is no merit in this complaint. The argument was not prejudicial, and was in keeping with the facts and the law in this case; moreover, this assignment of error and complaint should be stricken from the record anyway, because the appellant did not comply with the law in taking a special bill of exceptions to whatever was said. The defendant's attorney did not submit to the judge a bill of exceptions during the argument of the case, nor did he get the signature of two attorneys at a later date when the bill of exceptions was submitted to the judge, and the judge was within his rights in refusing the same.
Appellees, in this action, seek to recover of appellant Railroad the sum of $2,932.31, claimed by them to be the value of a house owned and occupied by them as a residence, and of the household and kitchen furniture therein, and the clothing and personal effects of themselves and their minor children, destroyed by a fire, such loss being the result, as claimed by plaintiffs, of the tortious act of appellant in unlawfully blocking Market Street Crossing in Hattiesburg, Mississippi, thereby preventing the fire department of the municipality from extinguishing the fire. The jury found for plaintiffs in the sum of $1,750.00. On this appeal the Railroad urges four asserted reversible errors we deem necessary to decide.
(Hn 1a) It says, first, the evidence is insufficient to sustain a finding of liability. It requested, but was refused, a peremptory instruction. It now contends the instruction should have been granted. We will pass upon that question. Plaintiffs invoked Section 7780, Mississippi Code 1942, and Ordinances 458 and 302 of the municipality. The Code section makes it unlawful for a railroad to block a public highway and obstruct traffic thereover for a longer period than five minutes and Ordinance 458 does the same thing as to the streets of Hattiesburg. Ordinance 302 gives the fire fighting equipment the right of way over the streets, avenues and alleys of the City in going to and from fires, and requires all persons to clear the street crossings upon the sound of the fire alarm. The Code section and the Ordinances impose fines and penalties for their violation. Appellant argues that the proof does not show that it blocked Market Street five minutes, or, if so, it fails to establish it blocked traffic thereover for that time. Some of the witnesses for defendant so testified; other witnesses said the crossing was blocked by the train of appellant considerably longer than five minutes and some testified such blocking continued for a longer period than five minutes after the fire trucks reached the crossing. On this conflicting evidence the jury had the right to find the crossing was blocked longer than five minutes after the fire trucks approached the crossing, if that fact be essential to liability, which we need not decide.
Appellant also urges, in support of its request for a peremptory, that no causal connection is shown between its blocking of the crossing and the destruction of the property by the fire. This fire occurred on the morning of September 13, 1948. At that time Hattiesburg owned and operated four fire stations. No. 2 station was on the same side of appellant's track as the Bryant home. The other three stations were on opposite side of that track. The stations were located a distance of one mile to two miles from the Bryant house. The alarm is given all stations simultaneously. No. 1 station, called Central Station, was the nearest — about a mile. In addition to the regular fire truck that station also operated what is called a "booster" truck. It is smaller than the regular truck. It is used for quick, emergency duty. It carries 340 gallons of water which can be discharged upon a fire immediately on arrival. The hose is ready for use. There is no need to attach it to a hydrant. The purpose of this emergency truck, and often the effect of its use, is to extinguish fires shortly after their origin, and before they have made too great headway, and while the hose of regular fire engines are being unwound and attached to fire hydrants. No other station had a booster truck. Central Station equipment, including this booster truck, was blocked at Market Street crossing for the time above indicated by the freight train of appellant standing upon the crossing. It is shown the fire was discovered right after its origin. Mrs. Bryant saw smoke coming from the kitchen and caused the fire alarm to be given. A neighbor saw it and turned in the alarm. He rushed to the Bryant home and endeavored, without success, to extinguish the fire by turning on the kitchen faucet and throwing water upon the fire with his hands. No. 2 truck was the first to arrive but the fire was too far gone to save any of the property. However, the jury under the evidence could have found, and presumably did, that, in view of the stage of the fire when first discovered and the time when the alarm was given, and the usual time required for the Central Station equipment to arrive at the scene, and the effective use of the booster truck, that, except for the delay at Market Street, the fire would have been extinguished without great loss, or even with very slight loss. It will be noted the verdict was for some twelve hundred dollars less than the amount for which suit was brought. Concededly, it is a difficult matter in cases of this character to establish causal connection between the negligence and the damage, and especially (Hn 1b) the extent of the damage resulting from such negligence, but we think these were questions for the jury under the evidence in this case. See on this question, Terry v. New Orleans Great Northern Ry. Co., 103 Miss. 679, 60 So. 729, 44 L.R.A., N.S., 1069; Magers v. Okolona, H. C.C.R. Co., 174 Miss. 860, 165 So. 416.
Again, as bearing upon refusal to grant the peremptory, (Hn 2) it is contended the Railroad did not know there was a fire, nor that it was holding up fire trucks. If such knowledge is essential to liability, which we do not decide, the evidence discloses, without contradiction, the train crew did have knowledge of both facts. Gray, the flagman on the caboose, and Terry, chief yard clerk, and Reed, agent and yardmaster, so testified. While the conductor did not testify, it is shown he was also on the caboose. The train was headed north. Two freight cars and the caboose were south of Market Street crossing. While the conductor did not testify, it is a justifiable conclusion he knew of the existence of the fire and of the blocking of the fire trucks, since Gray, the flagman, who was at the caboose, knew it. However, it was not necessary for the conductor or the engineer to have such knowledge in order to charge the master therewith. Such knowledge by a flagman, the yard clerk and the agent was the knowledge of the master in this tort action and under the issues here involved.
We are of the opinion the verdict of the jury upon liability and extent of the damage resulting therefrom is supported by sufficient evidence, and the trial judge correctly refused the peremptory instruction.
(Hn 3) Appellant next argues for reversal because of erroneous admission by the court of certain evidence on behalf of plaintiffs. We deem it necessary to take note of only one type of such evidence. The Bryant family had prepared a detailed list of the various articles of household furniture and furnishings and personal effects destroyed by the fire, placing values opposite such listed articles. This list had been given counsel for plaintiffs, who had caused the same to be copied and he attached one such copy as an exhibit to the declaration. Miss Hall, a daughter of Mrs. Bryant by a former marriage, and Mrs. Bryant herself had a copy of this list before them as they testified on the stand to the destroyed articles and their values. Learned counsel objected to such use of the list. Mrs. Bryant had helped prepare the list. She stated that of her personal knowledge the list correctly set out the destroyed articles. The court sustained objection to her reading to the jury the various values shown on the list but permitted her to state to the jury her estimate of the values of the various articles. On cross-examination counsel went into detail as to the values of these articles, and the bases for such values. Mrs. Bryant gave her best judgment on the values. It is true that as to many of them her testimony is indefinite and uncertain but the weight of her evidence was for the jury. The court endeavored to confine her admissible testimony to her own knowledge aside from that shown on the list.
Miss Hall testified she knew what articles were destroyed. She said she was present and helped purchase much of the property and knew the purchase prices. She also helped pay for it originally, as well as replacements of much of that destroyed. She said she knew the market values of the articles. She had the list before her but the learned trial judge confined her admissible testimony to what she said she knew personally. Able counsel for defendant also subjected this witness to searching cross-examination as to her knowledge of the articles destroyed and the accuracy of her knowledge of the values thereof. We find no error in the use of this list in the method indicated.
As to other admitted evidence, of which complaint is made, the record reflects that diligent counsel for defendant made many objections to testimony, most of which were sustained by the court, and the testimony was not admitted until the questions were reformed to meet the objections and the evidence, in its nature, complied with the requirements of admissible testimony. The trial court was cautious in admitting testimony offered by plaintiffs and liberal in sustaining objections thereto by defendant. We find no reversible error, if error at all, in the admission or exclusion of testimony.
(Hn 4) Plaintiffs obtained an instruction telling the jurors that ". . . the law in Mississippi prohibits a railroad company from stopping trains at a place where such railroad shall cross a highway or public street within the corporate limits of a municipality for a period of over five minutes . . .", etc. Appellant says the state statute, Section 7780, Code 1942, has no application to streets in a municipality. This Court so stated in Magers v. Okolona, H. C.C.R. Co., 174 Miss. 860, 165 So. 416. However, the Court held that the blocking of the street in the manner shown in that case was negligence without the statute; also no city ordinance so prohibiting was introduced. The entire instruction in question leaves uncertain whether it bases liability entirely on the state statute or on a combination of the statute and the city ordinances. However, both municipal ordinances were invoked, the case was tried on the theory that negligence of defendant resulted from their violation and other instructions base such negligence on them. Under the circumstances, we do not think the jury could have been misled, and we cannot see that any prejudice resulted to defendant, especially when this instruction is considered in connection with the many others granted both plaintiffs and defendant.
Complaint is made as to other instructions granted plaintiffs. Some are merely mentioned. We have examined them in the light of their criticism by appellant, and, weighing all of the instructions together, we find no error in the action of the trial judge pertaining to instructions, other than the unreversible error in the instruction dealt with in the preceding paragraph of this opinion. (Hn 5) Appellant complains of remarks made by counsel for plaintiffs in his argument to the jury. The parties disagree as to just what the remarks were and there is no bill of exception disclosing them. Therefore we cannot consider them.
Affirmed.