Opinion
Nos. 318, 319.
August 8, 1927.
In Error to the District Court of the United States for the Southern District of New York.
Action No. 2 by the State of Russia against the Lehigh Valley Railroad Company to recover damages for negligence due to a fire, resulting in the destruction of the plaintiff's property. Judgment for the plaintiff. Defendant brings error. Affirmed.
Hornblower, Miller Garrison, of New York City (Charles A. Boston, of New York City, George S. Hobart, of Newark, N.J., and Nash Rockwood, Edgar H. Boles, and Richard W. Barrett, all of New York City, of counsel), for plaintiff in error.
Coudert Bros., of New York City (Frederick R. Coudert, Hartwell Cabell, Mahlon B. Doing, and Blaine F. Sturgis, all of New York City, of counsel), for the State of Russia.
Charles Recht and Osmond K. Fraenkel, of amici curiæ.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
As a result of the fire referred to in action No. 1 between these parties, a decision in which is rendered to-day (21 F.[2d] 396), a warehouse in which aluminum, property of the defendant in error was stored, was destroyed. The jury, in answer to a special question, found the fire to have been caused by the sole proximate negligence of the plaintiff in error. On this writ the plaintiff in error has assigned 362 errors. We will not consider them all, but only briefly such as require discussion.
The questions of the jurisdiction of the court and the right of the defendant in error to maintain this action have been considered fully in action No. 1, and for the reasons there stated the errors assigned here in regard to those questions are overruled.
The warehouse in which the aluminum owned by the defendant in error was located was adjacent to the terminal of the railroad company, and it caught fire as the fire progressed in the railroad yards. The fire occurred under the circumstances disclosed in the opinion in action No. 1. The specific questions submitted to this jury are also referred to in that opinion. The jury assessed the damages in the sum of $3,000, concluding that plaintiff in error was guilty of negligence and its negligence was the sole proximate cause of the damage.
Unless there were errors committed in the admission or rejection of evidence, or in the charge of the trial court, we must affirm this judgment. The jury found in favor of the railroad company on claims as to shipments of munitions which were on barges and which were destroyed in this catastrophe.
We have pointed out in the opinion in action No. 1 that the Johnson Lighterage Company was an independent contractor, and for its acts, if it were guilty of a nuisance, this defendant in error was not responsible. The fact that this action is based upon a theory of liability for negligence, rather than the common-law liability of the carrier for failure to deliver, does not change the rule or the relationship between the Johnson Lighterage Company and the defendant in error.
Error is assigned in the court's refusal to charge that the Interstate Commerce Commission rules are the exclusive measure of duty which the railroad company owed in respect to the transportation of the explosives, and exceptions are taken to the refusal to charge that there is no proof of negligence on the part of the railroad company in collecting and accumulating explosives and inflammables in its railroad terminal. The Interstate Commerce Commission rules and regulations as to explosives did not supersede the common-law liability of the carrier, and they are not the sole measure of the railroad company's responsibility. There was evidence of negligence on the part of the railroad company which required the trial judge to submit questions to the jury for their determination. We cannot weigh the sufficiency of that evidence. Herencia v. Guzman, 219 U.S. 44, 31 S. Ct. 135, 55 L. Ed. 81; Humes v. United States, 170 U.S. 210, 18 S. Ct. 602, 42 L. Ed. 1011; Fidelity Deposit Co. of Md. v. Lehigh Valley R. Co. (C.C.A.) 275 F. 922, 928.
The court properly charged that:
"The fact that there is a Jersey City fire department and the fact that the Jersey City fire department had jurisdiction — that is, the fact that this property was within the jurisdiction of the Jersey City fire department — does not permit the defendant to say: `Well, we have a city fire department here; we do not have to do anything' It is for you to say whether, in the exercise of reasonable care, in the light of this situation, this defendant could rely upon the Jersey City fire department altogether, or had to act itself and do other things."
This left to the jury the question of the care and caution which the plaintiff in error was obliged to exercise in the matter of the supply and maintenance of fire apparatus, and in effect instructed the jury that they might say that the railroad company could not rely solely upon the fire department of the municipality of Jersey City. It likewise disposed of the contention that there was some legal duty on the part of the defendant in error to furnish its own fire protection. Under the circumstances and proofs, the jury might have found the plaintiff in error negligent for failing to furnish fire protection, apparatus and equipment to put out the fire after it started. It also was a question for the jury to determine whether or not the plaintiff in error was negligent under the proofs in not properly guarding the property against intrusions of unauthorized persons, particularly since the fire was incendiary in origin, and to grant the request to charge, which would eliminate this from consideration of the jury, would have been erroneous. Lehigh Valley R. Co. v. Allied Machinery Co. (C.C.A.) 271 F. 903.
The court did charge that, if the Johnson Company was negligent, and if this negligence was the sole and proximate cause of the fire, the plaintiff in error would not be liable. All the evidence which the plaintiff in error offered tending to show negligence on the part of the Johnson Company in its loading of the T N T and detonators, was submitted to the jury, as was the question of proximate cause, under a full and clear charge.
Nor was it error to admit in evidence the contract of October, 1915, under which the work was done by the Johnson Company. The theory of this objection is that the Johnson Company was not a person legally qualified to make a contract to transport explosives, because it had not received a Jersey City municipal license. This did not render the contract excludable. Inquiry was made of a witness as to the provisions of the Interstate Commerce Commission as to the regulations regarding the isolation of cars in the event of fire. This evidence was proper, in view of the rule of law that, if a shipper and carrier were guilty of negligence, the concurring negligence of the latter would make it responsible; whereas, if the shipper alone caused the fire, there would be no liability on the part of the carrier. It was proper to show negligence on the part of the carrier as one of the contributing causes to the loss, to entitle defendant in error to recover.
The claim that the plaintiff in error should have been permitted to show that its agent considered the detectives an added precaution of the defendant in error, and therefore in some way excused the plaintiff in error from its obligation, did not make such evidence admissible. Nor was the knowledge, experience, or reputation of the Dougherty detectives of importance, because there was no evidence to show that they were in any way in the employ of the defendant in error. Additional care taken by the shipper, if it did so, to guard its property, did not in any way lessen the burden of care incumbent upon the carrier.
Whether or not the foreman of the plaintiff in error at the terminal on the night of the disaster knew that the Johnson No. 17 was going to tie up at the pier near the terminal with a dangerous load of explosives was irrelevant. The railroad company was obliged at all times to protect the property intrusted to its care.
Other errors assigned and argued, involving the admission and exclusion of evidence, we have examined, and we discover no ruling which is erroneous and prejudicial. The substantial rights of the plaintiff in error were protected in a protracted trial, and the charge was free from error.
Judgment affirmed.
The facts do not seem to me to require us to commit ourselves as to two questions, on which, for that reason, I express no opinion. These are: First, whether "owner's risk," adds anything to "shipper's load and count"; the second, whether the clause "act or default of the owner" includes only those cases in which the shipper is the sole cause of the loss.
Otherwise I concur.