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

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948-3950; Dec. Dig. § 1005.*]

10. RAILROADS (§ 222*)—EXTINGUISHMENT OF FIRE-INTERFERENCE-LIABILITY.

The facts that a railroad train carried dynamite making it imperatively necessary for the engineer to get out of the vicinity of a burning building, that it was impossible to back out by reason of a grade, and that under these circumstances the fire chief voluntarily uncoupled the fire hose laid across the tracks, did not relieve the railroad company of liability for the damages caused by the delay due to the uncoupling, where the engineer was notified, warned, and requested to stop at a time when he could have stopped in a place of safety. [Ed. Note. For other cases, see Railroads, Cent. Dig. 88 720-724; Dec. Dig. § 222.*] 11. RAILROADS (§ 222*)—EXTINGUISHMENT OF FIRE-INTERFERENCE-QUESTIONS FOR JURY. In an action against a railroad company for interfering with a fire hose laid across its tracks, evidence held to make a question for the jury whether the disconnecting of the hose to let a train through resulted in loss by fire greater than would have otherwise occurred. [Ed. Note. For other cases, see Railroads, Cent. Dig. 88 720-724; Dec. Dig. § 222.*]

Appeal from Circuit Court, Henry County; C. A. Denton, Judge.

Action by W. H. Hurley against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. A. Gilbreath and Lee W. Hagerman, both of St. Louis, for appellant. C. C. Dickinson & Son and Parks & Son, all of Clinton, for respondent.

successful fight. The third plug was so far away the hose was not long enough to reach the fire, and the fourth was still further away and difficult of access, and was not attached until after the train had gone. Shortly after the laying of this first hose across the track, a freight train from the northeast entered the city, passed about a mile through its confines, and approached the fire at a speed of from four to six miles per hour.

It is plaintiff's contention that the engineer was warned of the situation and of the hose across the track, and requested to stop, in plenty of time for him to have stopped before the train got near enough to the building to be in danger of the fire; but that he refused to heed said warning, or to stop as requested, but came on down till the engine was close to the fire and then by threats that, if the hose were not removed, he would run over it and cut it to pieces, compelled the fire chief to shut off the water, disconnect the hose, and allow the train to go by; and that during this delay in fighting the fire it got beyond control and caused much greater loss than would have happened otherwise.

and thereupon the chief, acting upon his own judgment and in the interest of all, and not through coercion, ordered the hose disconnected and let the train go by. Defendant further contends that the fire was never at any time under control and that the loss would have occurred had no train gone by.

Defendant's claim is that the engineer had no warning to stop until he was so close to the building as to be in danger of the fire; that he stopped and endeavored to back the train, but was unable to do so because of the length and weight of his train and the fact that it extended back around a curve and up 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 elevator, combined in one building and standing on the east side of and immediately adjoining defendant's railway track in the city of Clinton. The south line of the building was 40 feet north of the north line of Ohio street, which ran east and west. The fire originated near the ground on the south side not far from the southeast corner, and began about 8:30 p. m. February 17, 1909. ReThe basis of the attack is that sponding at once to the alarm, the City Fire to trial. 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 willfulof 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 And when it could be best reached and most effectively to raise an inference of either. 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 suffito 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

[1-3] The petition is attacked as being insufficient. A demurrer thereto was overruled, and the defendant answered and went

v. Railroad, 116 Mo. App. 281, 287, 92 S. W. 512; Rawson v. Railroad, 129 Mo. App. 613, 616, 107 S. W. 1101. But because it is so held is not a good reason for leaving out words which plainly charge either negligence or willfulness according to whichever one is applicable to the facts. To put in either one that is applicable involves no time nor labor; while to leave it out invites attack and consumes much time and labor in both the trial and appellate courts in passing on the question raised. In this case the petition was certainly sufficient after verdict to support the judgment, and hence the demurrer was waived by answering over. Cunningham v. Wabash Ry. Co., 149 S. W. 1151; Hof v. Transit Co., 213 Mo. 445, 111 S. W. 1166.

gency of a fire or conflagration of or on such other person's property or premises, as to make him or it liable for injury and damage directly resulting from such interference. Actionable interference of this kind is the violation of a fundamental social duty, and is within the definition of a common-law tort. Private property may be entered by the public authorities, or by the person, or his agents, who is owner of a burning property, for the purpose of using reasonable means to save the same or extinguish the fire; and undoubtedly in the case now before us, the plaintiff's employés, as well as the public firemen, had the right to cross the right of way and tracks of the defendant company for the purpose of leading the hose from the 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. Το 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. Railroad, 109 Mass. 277, 12 Am. Rep. 689, a hose had been laid across a track, the water was, by means of the hose, being applied to the fire, and had diminished it, and would probably have extinguished it in a short time but for the acts of the defendant. At that time a freight train came along, and though its managers had sufficient notice and warning, and might have stopped, they carelessly ran over the hose and severed it. It was held that the firemen had a right at common law to lay the hose across the track, that the severing of the hose was the proximate cause of the destruction of the building, and that defendant was liable.

In Little Rock Traction Co. v. McCaskill, 75 Ark. 133, 86 S. W. 997, 70 L. R. A. 680, 112 Am. St. Rep. 48, plaintiff's house was burning in the night and three streams of water were playing on it, one from a hose lying across a street car track. There was no reason why the motorman could not have seen it for a long distance. He denied seeing it, but says he watched the fire as he came near. The car cut the hose causing greater loss than would have been sustained had it not been cut. The defendant was held liable.

In American Sheet, etc., Co. v. Pittsburgh Ry., 143 Fed. 789, 793, 75 C. C. A. 47, 51, 12 L. R. A. (N. S.) 382, loc. cit. 386 (6 Ann. Cas. 626), it is said: "It is not denied that a natural person, or a corporation by its corporate agencies, may so interfere with the

In Erickson v. Great Northern Ry., 117 Minn. 348, 135 N. W. 1129, 39 L. R. A. (N. S.) 237, a hotel caught fire in a frame addition built thereto. One hose was attached to a plug and used in the main entrance to the hotel where there was smoke only; another hose was then attached to another plug and laid across defendant's track to the seat of the fire. The flames were being brought under control when defendant backed a locomotive over the hose and cut it. In replac ing the cut section, 10 to 20 minutes were lost, during which time the fire gained such headway as to practically destroy the hotel. It was held, not only that the defendant was liable, but that, in order to recover, the plaintiff did not have to plead and prove wanton negligence, or to prove that the engineer actually knew the hose was on the track, but if he knew there was a fire near the track and knew that the situation and conditions were such as to make it reasonable to anticipate that his engine might interfere with the work of extinguishing the fire, and after such knowledge failed to exercise ordinary care under the circumstances to avoid cutting the hose, defendant was liable.

In Phenix Ins. Co. v. New York Central Ry., 122 App. Div. 113, 106 N. Y. Supp. 696, the court "refused to disturb a verdict against a railway company, although it was a disputed question whether the engineer and fireman of a train were informed of 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 judg

they failed to observe signals given them to stop the train, but ran over and cut the hose, and in consequence thereof the operations of the firemen were delayed so that the fire, which was then under control, became unmanageable, and extended to and destroyed property which otherwise would have been saved." 20 L. R. A. (N. S.) 1110, note.

ment must usually depend upon an exact knowledge of so many determining factors that such determination must generally be for the jury."

It would seem from the foregoing that if, after notice of the situation and its exigencies, defendant either carelessly or willfully interferes with the efforts of those engaged in extinguishing the fire, it will be held liable for the loss occurring as a direct result of such interference.

This brings us to the facts in the case, which, as usual, are disputed.

[6] As hereinbefore stated, the plaintiff claims, and the evidence tends to show, that the engineer was informed of the fire and of the hose across the track in time to have stopped the train in a place of safety. According to the engineer's admission, he saw evidences of a fire when he passed the Cozart Hotel more than a quarter of a mile before reaching the fire; and he actually saw the fire and knew where it was, and its proxim

In Cleveland, etc., Ry. v. Tauer, 96 N. E. 758, 39 L. R. A. (N. S.) 20, an Indiana case, a train, by blocking a crossing, delayed, for 10 minutes, firemen in getting to a burning greenhouse, and it was held that such blocking, after being notified to remove the obstruction, was negligence and that defendant was liable for whatever loss occurred which would not have been sustained had the firemen not been delayed. In Clark v. Grand Trunk Ry., 149 Mich. 400, 408, 112 N. W. 1121, 12 Ann. Cas. 559, it was announced that if the persons in charge of a freight train had notice and warning of the presence of 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 necessary result of such carelessness, plaintiff could recover such damages as were consequent upon such delay. To the same effect, also, are Kiernan v. Metropolitan Con. Co., 170 Mass. 378, 49 N. E. 648; Hyde Park v. Gay, 120 Mass. 589; Houren v. C., M. & St. P. Ry. Co., 236 Ill. 620, 86 N. E. 611, 20 L. R. A. (N. S.) 1110, 127 Am. St. Rep. 309.

In plaintiff's behalf it was shown that a man on the track, not up in the engineer's cab, before reaching this point could see the whole north side of the elevator 1,145 feet away, and the fire was some 80 or 100 feet further on. The train, however, held on its way, and as it came on down, Ed Barnhart, Jr., stood at the edge of the track on the 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 but for the interference and delay, this is a question for the jury. Houren v. C., M. & St. P. Ry., 236 Ill. 620, loc. cit. 627, 86 N. E. 611, 20 L. R. A. (N. S.) 1110, 127 Am. St. Rep. 309; Kiernan v. Metropolitan Co., 170 Mass. 378, 49 N. E. 648. In Valentine v. Minneapolis Ry., 155 Mich. 158, 118 N. W. loc. cit. 974, it is said: "Even though the plaintiff's chance to save his timber was, as alleged by defendant's counsel, merely a gambler's chance,' he has a right to take it, and the defendant has no right to destroy such chance and render certain the destruction of his timber." And "where a certain result is

to the engineer: "Stop the train! They have got a hose on the side of the track there." According to Massie, the engineer replied: "We have got to go through here. To hell with the hose! Let them get it out of the way. We've got to go through; we've got some cars with explosives." The train did not stop; but when the defendant's station agent down near the fire gave the regulation railroad stop signal with his lantern, the engineer stopped. According to plaintiff's evidence, the point where the engine stopped was far enough away from the fire to permit the train to remain in safety. That evidence also tended to show that the en

gineer did not remain there, but went on down closer to the fire and hose, and by threats and preparations to run over and cut the hose, if it were not removed, compelled its removal. The engineer and trainmen deny that any signal or warning was given them except the signal by the agent with his lantern. And they claim the train was, on that signal, stopped as soon as possible and within 100 feet after getting the signal, but that when the train stopped it was so close as to be in danger from the fire, and that in attempting to back, the engine was forced on down close to the hose; and that when the fire chief learned the train could not back, and of the dynamite on board and the consequent danger to the town, that officer, in the exercise of his own judgment, ordered the hose removed.

[7-9] If there is substantial evidence to support plaintiff's contention, then the character of the act causing the delay, the existence or nonexistence of notice and warning, the question of proximate cause, the amount of delay, and whether damages resulted therefrom, are all questions for the jury. The weight of the evidence and the credibility of the witnesses are for the jury. Hurst v. Scammon, 63 Mo. App. 634. This is a well-recognized rule. And when there is conflicting evidence substantial in character to support both sides of a disputed issue, the verdict of a jury, receiving the approval of the trial judge, is, and ought to be, conclusive on appeal, unless the evidence supporting the verdict is wholly incredible by reason of being inconsistent with well-known natural laws. Bradford v. Railroad, 136 Mo. App. 705, 119 S. W. 32; Pickens v. Railroad, 125 Mo. App. 679, 103 S. W. 124.

In addition to the evidence hereinbefore outlined in support of plaintiff's claim that the engineer willfully disregarded the warning and request to stop, there is also evidence which, in one view, may characterize the intention the engineer had in coming on down in spite of the warning and also bears on the question as to who really caused the hose to be disconnected. The fire chief testified that the trainmen told him the hose had to be removed or they would run over it; that one of the trainmen came a second time and said: "They were going to go over the hose, or cut the hose, and I told them they better not cut it, and just let it go at that; and they come back again, and kept holloing; and the crowd kept holloing that they were going over the hose, going to cut it. So I went back over to the railroad and told them just to go ahead and cut it if they thought that would do; and this man says, 'We have got five cars of dynamite on here,' and says, 'We will blow up the town if we don't get through here.' I said, 'You did'nt have any business coming down here at all.' He says: 'Well, we are in here now. You

are going to go through, and going to cut that hose if you don't get it out of the way.' We talked back and forth for a time, and finally he invited me to go back and look at the cars of dynamite. I told him I didn't have time to go back and examine to see whether they had any dynamite there; I had the fire to fight. He says, 'Well, we are going over that hose, if you don't get it out of the road; we can't stay here any longer; we've got to get out of here and save this train'; so I walked back then and told one of the boys to cut the hose. Q. Did you believe him? A. Yes, sir; I believed him. I certainly did. Q. Now, what effect would running the train across the hose have upon it? A. It would cut it all to pieces, ruin it. Q. State whether-which would take the most time, to take up that hose and let the train go by, or let them run across it and cut it, and then place it back again? A. It would have taken a great deal longer to put in a new section of hose, after the train had run over it, than it would be to uncouple the hose and let them go through."

Ed Lemon testified the trainman told the fire chief, “You cut that hose in two, or I will cut it in two."

W. H. Hurley testified he heard Osborne, the station agent, say if the hose was not removed the train would be run over it, and, as he came around the engine, the engineer said: "I am going to cut that hose; you better get it out of the road."

W. S. Steele, a witness for defendant, testified: "I heard the trainman tell Bolinger that he would have to cut that hose, and let him through, or he would have to run over it; that he had four car loads of explosives on there, and if it blew up it would kill everybody in town; and they had some few words about that; and Bolinger holloaed to cut that hose; me and Mr. Hales Leonard cut the hose and let the train go through. Q. You mean, by cutting the hose, disconnected it? A. We disconnected the hose, certainly-uncoupled it, rather; letting the train pass through; and coupled it up again." There was other testimony to the same effect.

In addition to this evidence, Osborne, defendant's station agent, in giving his version of the way the hose was gotten off the track, testifies to certain facts which would indicate that the hose was moved only when it became apparent that the engineer was preparing to run over it. He testified that he twice requested the fire chief to disconnect the hose and let the train through, and made two trips from the engine to the fire chief for this purpose, and then requested the engineer to back out of danger; that thereupon the engineer tried to back but could not; that the engineer then started to go ahead giving the required two blasts of his whistle, the signal for that purpose; and that there

have saved all of the building, but would have saved a part of it. Other witnesses testified that they could have saved the west part of the building and all of the north part and its contents. Ex-Mayor Barnhart testified that the elevator would have been saved if the hose had not been interrupted and only the shed or annex would have burned. Cashman, a member of the fire department for four years and who had attended a great many fires, gave the conditions both before and after the interruption, and testified that at the time the hose was disconnected the fire was being "put out right along" and it would have been put out if the hose had not been shut off. But, as said before, this is a question for the jury to settle. And we have reviewed plaintiff's evidence on that question simply for the purpose of showing the substantial character of that evidence.

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 became certain the engineer would in a moment run over it if it was not removed. [10] Now, of course, the fact that there was sufficient dynamite on the train to blow up the town would render it imperatively necessary for the engineer to get out of there at all hazards. Being unable to back out, he must go on and run over the hose if need be. But the mere existence of the dynamite would not relieve the defendant of liability. The question of its liability would depend on whether the engineer was innocent or culpable in getting into such dangerous situation where it was necessary for him to get out regardless of results. If he, knowing all the facts, chose to go down into such dangerous proximity to the fire as to render it imperative for him to go on through, without regard to what would be the results to the hose and the fire, and did go down in such manner as to warrant a reasonable conclusion that he went intending to either compel the hose to be removed or run over it, then defendant is liable. And under these circumstances such liability cannot be escaped on the claim that the fire chief let him through on his own judgment and not by coercion. The evidence is sufficient to support the finding that the engineer was notified, warned, and requested to stop at a time when the train could have stopped in a place of safety. If, with such notice, the engineer ran the train either willfully or negligently, into a place of danger, which made it necessary to either cut or remove the hose, the defendant is still liable. Nor is this liability affected by the fact that the engineer, after getting so close to the fire as to be in danger, was unable to back. He knew his train was 1,540 feet long. He was acquainted with the grade of the road and of the curve at the place. He also knew of the dynamite on board. So that he knew, when he first saw the fire, that if there was danger down there he could not get out by backing but only by going on.

[11] Did the enforced disconnecting of the hose cause any loss greater than would have occurred anyway?

According to the testimony, some 6 to 10 minutes were lost in uncoupling the hose, letting the train through, and coupling up and turning the water on again. At the time the hose was laid, the fire was in the east part of the south shedroom and corncrib. The plaintiff, the fire chief Bolinger, Ex-Mayor Barnhart, Jesse Cashman, a fireman, Docherty, and Ed Lemon testified that the fire was dying out and was being subdued at the time the hose was disconnected, but that by the time it was again connected the fire had gotten beyond control and had

We have carefully gone through the entire record and the various briefs submitted and are of the opinion that we are not warranted in disturbing the verdict.

1.

Therefore judgment affirmed. All concur.

KELLY et al. v. TIMES SQUARE
AUTOMOBILE CO.

(Kansas City Court of Appeals. Missouri.
April 21, 1913.)

SALES (§ 416*)-BREACH OF CONTRACT-EVIDENCE-ADMISSIBILITY.

Where, in an action for breach of contract of sale of secondhand automobiles to be put in good running condition f. o. b. cars by the seller for resale in a sister state, the evidence showed that the condition of the machines when received in the sister state was such that they must have been in that condition when shipped by the seller, evidence of the running condition of the machines at destination was admissible to show their condition when loaded. Dig. 88 1171, 1172; Dec. Dig. § 416.*] [Ed. Note.-For other cases, see Sales, Cent. 2. SALES ( 421*)—Breach oF CONTRACT-ACTION BY BUYER-MISLEADING INSTRUCTIONS.

An instruction, in an action for breach of contract to sell secondhand automobiles to be the seller for shipment to a sister state for reput in good running condition f. o. b. cars by sale at retail by the buyer, that if two of the machines when loaded by the seller were not in for the purpose for which they were bought, and good running order, and were unfit to be used that if the buyer was unable to sell them on account of their condition when shipped, the seller was liable, was not objectionable as leading the jury to believe that an implied warranty of fitness for a particular intended use existed, especially where the court charged that, if the jury believed that the seller loaded the automust be for him, regardless of their condition mobiles in good running condition, the verdict when received at destination.

[Ed. Note. For other cases, see Sales, Cent. Dig. § 1203; Dec. Dig. § 421.*]

Appeal from Circuit Court, Jackson County; O. 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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