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reason of inconsistency with well-known nato | against the wind which would prevent a ural laws.

successful fight. The third plug was so far [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3860-3876, 3948-3950; away the hose was not long enough to reach Dec. Dig. $ 1005.*]

the fire, and the fourth was still further 10. RAILROADS (8 222*)–EXTINGUISHMENT OF

away and difficult of access, and was not atFIRE-INTERFERENCELIABILITY.

tached until after the train had gone. ShortThe facts that a railroad train carried ly after the laying of this first hose across dynamite making it imperatively necessary for the track, a freight train from the northeast the engineer to get out of the vicinity of an entered the city, passed about a mile through burning building, that it was impossible to back out by reason of a grade, and that under these its confines, and approached the fire at a circumstances the fire chief voluntarily un- speed of from four to six miles per hour. coupled the fire hose laid across the tracks, did not relieve the railroad company of liability

It is plaintiff's contention that the engifor the damages caused by the delay due to the neer was warned of the situation and of uncoupling, where the engineer was notified, the hose across the track, and requested to warned, and requested to stop at a time when stop, in plenty of time for him to have stophe could have stopped in a place of safety.

[Ed. Note.-For other cases, see Railroads, ped before the train got near enough to the Cent. Dig. 88 720-724; Dec. Dig. $ 222.*] building to be in danger of the fire; but 11. RAILROADS (§ 222*)-EXTINGUISHMENT OF that he refused to heed said warning, or to FIRE-INTERFERENCE-QUESTIONS FOR JURY. stop as requested, but came on down till

In an action against a railroad company the engine was close to the fire and then by for interfering with a fire hose laid across its tracks, evidence held to make a question for the threats that, if the hose were not removed, jury whether the disconnecting of the hose to he would run over it and cut it to pieces, let a train through resulted in loss by fire compelled the fire chief to shut off the water, greater than would have otherwise occurred.

disconnect the hose, and allow the train to [Ed. Note.-For other cases, see Railroads, go by; and that during this delay in fightCent. Dig. 88 720-724; Dec. Dig. § 222.*]

ing the fire it got beyond control and caused Appeal from Circuit Court, Henry County; much greater loss than would have happened C. A. Denton, Judge.

otherwise. Action by W. H. Hurley against the Mis Defendant's claim is that the engineer had souri, Kansas & Texas Railway Company. no warning to stop until he was so close to Judgment for plaintiff, and defendant ap the building as to be in danger of the fire; peals. Affirmed.

that he stopped and endeavored to back the J. A. Gilbreath and Lee W. Hagerman, train, but was unable to do so because of the both of St. Louis, for appellant C. C. Dick. length and weight of his train and the fact inson & Son and Parks & Son, all of Clin- that it extended back around a curve and up ton, for respondent.

a steep grade; that when the trainmen

found they could not back out of the danTRIMBLE, J. Action for damages alleged ger, they told the fire chief there were exto have been caused by defendant's inter- plosives on the train sufficient to blow up the ference with firemen in their endeavor to town; and that the train must go through, extinguish a fire in plaintiff's mill and ele- and thereupon the chief, acting upon his own vator, combined in one building and stand-judgment and in the interest of all, and not ing on the east side of and immediately ad- through coercion, ordered the hose disconjoining defendant's railway track in the city nected and let the train go by. Defendant of Clinton. The south line of the building further contends that the fire was never at was 40 feet north of the north line of Ohio any time under control and that the loss street, which ran east and west. The fire would have occurred had no train gone by. originated near the ground on the south side [1-3] The petition is attacked as being innot far from the southeast corner, and began sufficient. A demurrer thereto was overrul. about 8:30 p. m. February 17, 1909. Re-ed, and the defendant answered and went sponding at once to the alarm, the City Fire to trial, The basis of the attack is that Department ran two blocks from its head- the petition does not charge that the acts of quarters to a water plug on the west side defendant were done negligently or willful. of the railroad, being the plug most conven- ly. It does not use those words, but it does ient to the seat of the fire and from which state facts which on their face are sufficient it could be best reached and most effectively to raise an inference of either. And when fought. Here a hose was attached and laid in addition to these facts, it says the acts along Ohio street across defendant's track were done "deliberately," this makes a suffi. to the fire, and a stream began playing cient charge of willfulness, since that word, on the flames. Hose were also finally attach- when used in the connection in which it is ed to three other plugs, but they could not in this case, connotes an intentional purpose be used so effectively in fighting the fire as to do a wrongful thing. If, on the facts the hose from the first plug. The hose from pleaded, the law raises an inference of negthe second plug could not be used with much ligence or willfulness, it is unnecessary to effect because of buildings being in the way formally charge the negligence or willfuland also because the water would be thrown ness. Dyer v. Railroad, 34 Mo. 127; Keeton *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

1. Railroad, 116 Mo. App. 281, 287, 92 S. W. gency of a fire or conflagration of or on such 512; Rawson v. Railroad, 129 Mo. App. 613, other person's property or premises, as to 616, 107 S. W. 1101. But because it is so make him or it liable for injury and damage held is not a good reason for leaving out directly resulting from such interference. words which plainly charge either negligence Actionable interference of this kind is the or willfulness according to whichever one is violation of a fundamental social duty, and applicable to the facts. To put in either one is within the definition of a common-law that is applicable involves no time nor la- tort. Private property may be entered by bor; while to leave it out invites attack and the public authorities, or by the person, or his consumes much time and labor in both the agents, who is owner of a burning property, trial and appellate courts in passing on the for the purpose of using reasonable means to question raised. In this case the petition save the same or extinguish the fire; and was certainly sufficient after verdict to sup- undoubtedly in the case now before us, the port the judgment, and hence the demurrer plaintiff's employés, as well as the public was waived by answering over. Cunning- firemen, had the right to cross the right of ham v. Wabash Ry. Co., 149 S. W. 1151; way and tracks of the defendant company Hof v. Transit Co., 213 Mo. 445, 111 S. W. for the purpose of leading the hose from the 1166.

source of supply to the burning buildings. [4] The question that next presents itself in such a case, the exclusive control of priis: Can the defendant be held liable, under vate property is subordinate to the exigenthe facts, on any theory? It would seem cies of public safety and private necessity, that if one knowingly interferes with the and legal sanction is given in such a case efforts of those engaged in putting out a to the requirements of morality and social fire, and such interference directly results duty.” And it was announced in that case in a greater loss by the fire than would have that a railroad company should be held liabeen otherwise sustained, such person ought ble for loss for what turns out to be an into be held liable. And if such person, after terfering use of its own property, provided full knowledge of the facts and the situa- it is notified or informed of the conditions tion, negligently or willfully conducts him- which make such use an interfering one. To self so as to cause an interference directly the same effect, also, is Louisville Ry. Co. v. resulting in loss, he ought to be held lia- Scruggs, 161 Ala. 97, 49 South. 399, 23 L. R. ble.

A. (N. S.) 184, 135 Am. St. Rep. 114. [5] In Metallic Compression Co. V. Rail- In Erickson v. Great Northern Ry., 117 road, 109 Mass. 277, 12 Am. Rep. 689, a hose Minn. 348, 135 N. W. 1129, 39 L. R. A. (N. S.) had been laid across a track, the water was, 237, a hotel caught fire in a frame addition by means of the hose, being applied to the built thereto. One hose was attached to a fire, and had diminished it, and would prob- plug and used in the main entrance to the ably have extinguished it in a short time hotel where there was smoke only; another but for the acts of the defendant. At that hose was then attached to another plug and time a freight train came along, and though laid across defendant's track to the seat its managers had sufficient notice and warn- of the fire. The flames were being brought ing, and might have stopped, they careless- under control when defendant backed a locoly ran over the hose and severed it. It was motive over the hose and cut it. In replacheld that the firemen had a right at common ing the cut section, 10 to 20 minutes were law to lay the hose across the track, that the lost, during which time the fire gained such severing of the hose was the proximate cause headway as to practically destroy the hotel. of the destruction of the building, and that it was held, not only that the defendant defendant was liable.

was liable, but that, in order to recover, In Little Rock Traction Co. v. McCaskill, the plaintiff did not have to plead and prove 75 Ark. 133, 86 S. W. 997, 70 L. R. A. 680, wanton negligence, or to prove that the en112 Am. St. Rep. 48, plaintiff's house was gineer actually knew the hose was on the burning in the night and three streams of track, but if he knew there was a fire near water were playing on it, one from a bose the track and knew that the situation and lying across a street car track. There was conditions were such as to make it reasonno reason why the motorman could not have able to anticipate that his engine might inseen it for a long distance. He denied see-, terfere with the work of extinguishing the ing it, but says he watched the fire as he fire, and after such knowledge failed to excame near. The car cut the hose causing ercise ordinary care under the circumstances greater loss than would have been sustain- to avoid cutting the hose, defendant was ed had it not been cut. The defendant was liable. held liable.

In Phenix Ins. Co. v. New York Central In American Sheet, etc., Co. v. Pittsburgh Ry., 122 App. Div. 113, 106 N. Y. Supp. 696, Ry., 143 Fed. 789, 793, 75 C. C. A. 47, 51, the court "refused to disturb a verdict 12 L. R. A. (N. S.) 382, loc. cit. 386 (6 Ann. against a railway company, although it was Cas. 626), it is said: “It is not denied that a disputed question whether the engineer a natural person, or a corporation by its cor- and fireman of a train were informed of the porate agencies, may so interfere with the progress of the fire before arriving at the that, as they approached the point where alleged to be a necessary sequence of the lines of fire hose were laid across the track, operation of natural laws, a correct judgthey failed to observe signals given them ment must usually depend upon an exact to stop the train, but ran over and cut the knowledge of so many determining factors hose, and in consequence thereof the opera- that such determination must generally be tions of the firemen were delayed so that for the jury." the fire, which was then under control, be- It would seem from the foregoing that if, came unmanageable, and extended to and after notice of the situation and its exigendestroyed property which otherwise would cies, defendant either carelessly or willfully have been saved.” 20 L. R. A. (N. S.) 1110, interferes with the efforts of those engaged note.

in extinguishing the fire, it will be held liable In Cleveland, etc., Ry. v. Tauer, 96 N. E. for the loss occurring as a direct result of 758, 39 L. R. A. (N. S.) 20, an Indiana case, such interference. a train, by blocking a crossing, delayed, for This brings us to the facts in the case, 10 minutes, firemen in getting to a burning which, as usual, are disputed. greenhouse, and it was held that such block- [6] As hereinbefore stated, the plaintiff ing, after being notified to remove the ob- claims, and the evidence tends to show, that struction, was negligence and that defendant the engineer was informed of the fire and of was liable for whatever loss occurred which the hose across the track in time to have would not have been sustained had the fire stopped the train in a place of safety. ACmen not been delayed. In Clark v. Grand cording to the engineer's admission, he saw Trunk Ry., 149 Mich. 400, 408, 112 N. W. evidences of a fire when he passed the Cozart 1121, 12 Ann. Cas. 559, it was announced Hotel more than a quarter of a mile before that if the persons in charge of a freight reaching the fire; and he actually saw the train had notice and warning of the presence fire and knew where it was, and its proximof the hose on the track and could have stop- ity to the track, as he left the curve and ped the train, but, instead of doing so, care entered the straight piece of track, which lessly ran over and cut the hose, thereby point was, at least, more than 700 feet north causing such delay that the destruction of of the fire. plaintiff's property was the direct and neces- In plaintiff's behalf it was shown that a sary result of such carelessness, plaintiff man on the track, not up in the engineer's could recover such damages as were conse- cab, before reaching this point could see the quent upon such delay. To the same effect, whole north side of the elevator 1,145 feet also, are Kiernan v. Metropolitan Con. Co., away, and the fire was some 80 or 100 feet 170 Mass. 378, 49 N. E 648; Hyde Park v. further on. The train, however, held on its Gay, 120 Mass. 589; Houren v. C., M. & St. way, and as it came on down, Ed Barnbart, P. Ry. Co., 236 Ill. 620, 86 N. E. 611, 20 L. Jr., stood at the edge of the track on the R. A. (N. S.) 1110, 127 Am. St. Rep. 309.

side next to the engineer and signaled and These cases also hold that the damage is halloed at him to stop. This was at the Kyle not too remote from the interference to pre building 653 feet or more north of the elevaclude recovery and that, if the interference tor. According to this witness the headlight caused the delay and the fire could have been shone in his face, the engineer said somecontrolled but for the interference, then such thing which the witness could not underinterference is to be regarded as an interven- stand, but the train continued on its way ing and concurrent cause of the burning of going about four miles per hour. Another the building, and in law would, with the fire, witness, Massie, who had heard some one form the proximate cause and render de say, “Flag that train," and who ran up the fendant liable. They also hold that while track for that purpose, met the train at it is not possible to prove absolutely what Swift's poultry house 352 feet north of the the result of the firemen's efforts would have elevator, and after signaling and yelling to been, had the progress of the men not been the engineer to stop and getting no response, delayed, still, when there is evidence show- jumped on the engine as it passed and said ing that the fire would have been controlled to the engineer: “Stop the train! They have but for the interference and delay, this is got a hose on the side of the track there." a question for the jury. Houren v. C., M. According to Massie, the engineer replied: & St. P. Ry., 236 Ill. 620, loc. cit. 627, 86 N. E. "We have got to go through here. To hell 611, 20 L. R. A. (N. S.) 1110, 127 Am. St. Rep. with the hose! Let them get it out of the 309; Kiernan v. Metropolitan Co., 170 Mass. way. We've got to go through; we've got 378, 49 N. E. 648. In Valentine v. Minneapo- some cars with explosives." The train did lis Ry., 155 Mich. 158, 118 N. W. loc. cit. not stop; but when the defendant's station 974, it is said: “Even though the plaintiff's agent down near the fire gave the regulachance to save his timber was, as alleged by tion railroad stop signal with his lantern, defendant's counsel, merely a gambler's the engineer stopped. According to plainchance,' he has a right to take it, and the de- tiff's evidence, the point where the engine fendant has no right to destroy such chance stopped was far enough away from the fire and render certain the destruction of his to permit the train to remain in safety. That timber." And “where a certain result is evidence also tended to show that the en. gineer did not remain there, but went on are going to go through, and going to cut down closer to the fire and hose, and by that hose if you don't get it out of the way.' threats and preparations to run over and We talked back and forth for a time, and cut the hose, if it were not removed, com- finally he invited me to go back and look at pelled its removal. The engineer and train the cars of dynamite. I told him I didn't men deny that any signal or warning was have time to go back and examine to see given them except the signal by the agent whether they had any dynamite there; I with his lantern. And they claim the train had the fire to fight. He says, 'Well, we are was, on that signal, stopped as soon as pos- going over that hose, if you don't get it out sible and within 100 feet after getting the of the road; we can't stay here any longer; signal, but that when the train stopped it we've got to get out of here and save this was so close as to be in danger from the train'; so I walked back then and told one of fire, and that in attempting to back, the en- the boys to cut the hose. Q. Did you believe gine was forced on down close to the hose; him? A. Yes, sir; I believed him. I cerand that when the fire chief learned the tainly did. Q. Now, what effect would runtrain could not back, and of the dynamite on ning the train across the hose have upon board and the consequent danger to the town, it? A. It would cut it all to pieces, ruin it. that officer, in the exercise of his own judg- Q. State whether-which would take the ment, ordered the hose removed.

most time, to take up that hose and let the [7-9] If there is substantial evidence to train go by, or let them run across it and support plaintiff's contention, then the char- cut it, and then place it back again? A. It acter of the act causing the delay, the ex. would have taken a great deal longer to put istence or nonexistence of notice and warn- in a new section of hose, after the train had ing, the question of proximate cause, the run over it, than it would be to uncouple the amount of delay, and whether damages re- hose and let them go through." sulted therefrom, are all questions for the Ed Lemon testified the trainman told the jury. The weight of the evidence and the fire chief, “You cut that hose in two, or I credibility of the witnesses are for the jury. will cut it in two." Hurst v. Scammon, 63 Mo. App. 634. This is W. H. Hurley testified he heard Osborne, a well-recognized rule. And when there is the station agent, say if the hose was not reconflicting evidence substantial in character moved the train would be run over it, and, to support both sides of a disputed issue, as he came around the engine, the engineer the verdict of a jury, receiving the approval said: “I am going to cut that hose; you of the trial judge, is, and ought to be, conclu- better get it out of the road.” sive on appeal, unless the evidence support- W. S. Steele, a witness for defendant, tesing the verdict is wholly incredible by rea- tified: "I heard the trainman tell Bolinger son of being inconsistent with well-known that he would have to cut that hose, and let natural laws. Bradford v. Railroad, 136 Mo. him through, or he would have to run over App. 705, 119 S. W. 32; Pickens v. Railroad, it; that he had four car loads of explosives 125 Mo. App. 679, 103 S. W. 124.

on there, and if it blew up it would kill In addition to the evidence hereinbefore everybody in town; and they had some few outlined in support of plaintiff's claim that words about that; and Bolinger holloaed to the engineer willfully disregarded the warn- cut that hose; me and Mr. Hales Leonard ing and request to stop, there is also evidence cut the hose and let the train go through. which, in one view, may characterize the in- Q. You mean, by cutting the hose, discontention the engineer had in coming on down nected it? A. We disconnected the hose, cerin spite of the warning and also bears on tainly-uncoupled it, rather; letting the the question as to who really caused the hose train pass through; and coupled it up again." to be disconnected. The fire chief testified There was other testimony to the same that the trainmen told him the hose had to effect. be removed or they would run over it; that In addition to this evidence, Osborne, deone of the trainmen came a second time and fendant's station agent, in giving his version said: “They were going to go over the of the way the hose was gotten off the track, hose, or cut the hose, and I told them testifies to certain facts which would indithey better not cut it, and just let it go at cate that the hose was moved only when it that; and they come back again, and kept became apparent that the engineer was preholloing; and the crowd kept holloing that paring to run over it. He testified that he they were going over the hose, going to cut twice requested the fire chief to disconnect it. So I went back over to the railroad and the hose and let the train through, and made told them just to go ahead and cut it if they two trips from the engine to the fire chief thought that would do; and this man says, for this purpose, and then requested the en'We have got five cars of dynamite on here,' gineer to back out of danger; that thereupon and says, 'We will blow up the town if we the engineer tried to back but could not; don't get through here.' I said, 'You did'nt that the engineer then started to go ahead have any business coming down here at all.' giving the required two blasts of his whistle, He says: 'Well, we are in here now. You the signal for that purpose; and that there

stop and disconnected the hose. We think , extended to the elevator proper. One of dethe evidence of this witness, when read be- fendant's witnesses testified that if the hose tween the lines, shows that the hose was dis-had not been disconnected they could not connected only in the last extremity when it have saved all of the building, but would became certain the engineer would in a mo- have saved a part of it. Other witnesses ment run over it if it was not removed. testified that they could have saved the west

[10] Now, of course, the fact that there part of the building and all of the north was sufficient dynamite on the train to blow part and its contents. Ex-Mayor Barnbart up the town would render it imperatively testified that the elevator would have been necessary for the engineer to get out of saved if the hose had not been interrupted there at all hazards. Being unable to back and only the shed or annex would have burnout, he must go on and run over the hose ed. Cashman, a member of the fire departif need be. But the mere existence of the ment for four years and who had attended dynamite would not relieve the defendant of a great many fires, gave the conditions both liability. The question of its liability would before and after the interruption, and tesdepend on whether the engineer was inno- tified that at the time the hose was disconcent or culpable in getting into such danger- nected the fire was being “put out right ous situation where it was necessary for along" and it would have been put out if him to get out regardless of results. If he, the hose had not been shut off. But, as said knowing all the facts, chose to go down into before, this is a question for the jury to such dangerous proximity to the fire as to settle. And we have reviewed plaintiff's evirender it imperative for him to go on dence on that question simply for the purthrough, without regard to what would be pose of showing the substantial character of the results to the hose and the fire, and did that evidence. go down in such manner as to warrant a We have carefully gone through the entire reasonable conclusion that he went intend record and the various briefs submitted and ing to either compel the hose to be removed are of the opinion that we are not warranted or run over it, then defendant is liable. And in disturbing the verdict. under these circumstances such liability can Therefore judgment affirmed. All concur. not be escaped on the claim that the fire chief let him through on his own judgment and not by coercion. The evidence is suffi KELLY et al. v. TIMES SQUARE cient to support the finding that the engineer

AUTOMOBILE CO. was notified, warned, and requested to stop (Kansas City Court of Appeals. Missouri. at a time when the train could have stopped

April 21, 1913.) in a place of safety. If, with such notice, 1. Sales (8 416*)—BREACH OF CONTRACT—Evthe engineer ran the train either willfully or IDENCE-ADMISSIBILITY. negligently, into a place of danger, which of sale of secondhand automobiles to be put in

Where, in an action for breach of contract made it necessary to either cut or remove good running condition f. o. b. cars by the seller the hose, the defendant is still liable. Nor is for resale in a sister state, the evidence showed this liability affected by the fact that the en- that the condition of the machines when regineer, after getting so close to the fire as must have been in that condition when shipped

ceived in the sister state was such that they to be in danger, was unable to back. He by the seller, evidence of the running condition knew his train was 1,540 feet long. He was of the machines at destination was admissible

to show their condition when loaded. acquainted with the grade of the road and of the curve at the place. He also knew of Dig. 88 1171, 1172; Dec. Dig. $ 416.*]

[Ed. Note.-For other cases, see Sales, Cent. the dynamite on board. So that he knew, 2. SALES (8 421*)—BREACH OF CONTRACT-ACwhen he first saw the fire, that if there was

TION BY BUYER-MISLEADING INSTRUCTIONS. danger down there he could not get out by An instruction, in an action for breach of backing but only by going on.

contract to sell secondhand automobiles to be [11] Did the enforced disconnecting of the the seller for shipment to a sister state for re

put in good running condition f. o. b. cars by hose cause any loss greater than would have sale at retail by the buyer, that if two of the occurred anyway?

machines when loaded by the seller were not in According to the testimony, some 6 to 10 good running order, and were unfit to be used

for the purpose for which they were bought, and minutes were lost in uncoupling the hose, that if the buyer was unable to sell them on letting the train through, and coupling up account of their condition when shipped, the and turning the water on again. At the

seller was liable, was not objectionable as leadtime the hose was laid, the fire was in the of fitness for a particular intended use existed,

ing the jury to believe that an implied warranty east part of the south shedroom and corn- especially where the court charged that, if the crib. The plaintiff, the fire chief Bolinger, jury believed that the seller loaded the autoEx-Mayor Barnbart, Jesse Cashman, a fire must be for him, regardless of their condition

mobiles in good running condition, the verdict man, Docherty, and Ed Lemon testified that when received at 'destination. the fire was dying out and was being sub [Ed. Note.-For other cases, see Sales, Cent. dued at the time the hose was disconnected, Dig. 1203; Dec. Dig. $ 421." ] but that by the time it was again connected Appeal from Circuit Court, Jackson Counthe fire had gotten beyond control and had ty; 0. A. Lucas, Judge.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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