Mann v. Pere Marquette Railroad

Grant, J.

(after stating the facts). 1. Counsel for plaintiffs contend in their supplemental brief that the contract is void because it exempts a common carrier from loss resulting from its own negligence, and that such contracts are void as against public policy. This case does not fall within those where contracts to exempt from liability are held void on the ground of public policy. It is a fundamental rule of law that what one may refuse to do entirely he may agree to do upon such terms as he pleases. In contracting to put in these side tracks, the defendant was not acting in the capacity of a common carrier. It was under no legal obligation to put them in. It might have refused. It is a fact known to all, and appears upon this record as well, that engines, when properly equipped and properly managed, will oftentimes set fires, and the court so said to the jury. In Burud v. Railway Co., 62 Minn. 243 ( 64 N. W. 562 ), the court say that a court, ‘as well as a jury, is justified in taking notice of the fact that it is impossible, by means of any present known appliances, to so construct and equip a locomotive that it will not sometimes scatter sparks and cinders. There was no occasion to contract against properly equipped and properly managed engines, for fire caused by such would not create any liability. The only purpose of such a contract was to avoid the consequences of its own negligence, and to avoid lawsuits growing out of alleged negligent acts. It had a perfect right, both in reason and authority, to contract against such liability. This is well settled both by our own decisions and those of other jurisdictions. Coup v. Railway Co., 56 Mich. 111 ( 22 N. W. *219 215 , 56 Am. Rep. 374 ); Michigan Southern, etc., R. Co. v. McDonough, 21 Mich. 165, 193 ( 4 Am. Rep. 466 ). In the latter case, speaking through Justice Christiancy, the court said:

“Having the right to refuse altogether, they must have the right to refuse except upon just such terms and conditions as they saw fit to require.”

See, also, Lake Shore, etc., R. Co. v. Perkins, 25 Mich. 329 ( 12 Am. Rep. 275 .

Many authorities upon this point are cited in the defendant’s briefs, among which are Stephens v. Railway Co., 109 Cal. 86 ( 41 Pac. 783 , 29 L. R. A. 751, 50 Am. St. Rep. 17 ); Hartford Fire-Ins. Co. v. Railway Co., 175 U. S. 91 (20 Sup. Ct. 33); Baltimore, etc., R. Co. v. Voigt, 176 U. S. 498 (20 Sup. Ct. 385); Quimby v. Railway Co., 150 Mass. 365 ( 23 N. E. 205 , 5 L. R. A. 846). The late case of Russell v. Railway Co., 157 Ind. 305, 316 ( 61 N. E. 678 , 55 L. R. A. 253, 87 Am. St. Rep. 214 ), is directly in point.

The court read to the jury that provision of the contract exempting it from loss by fire, and then said to them that it was for them to determine whether the loss came within the contract. The vice in this instruction lay in the fact that it did not instruct the jury that the contract relieved the defendant from its negligent acts. It was clearly the duty of the court to so instruct the jury. The court’s instruction upon this point was as follows:

“ It will be for you to say as to whether, taking everything into consideration, — the entire surroundings, the entire evidence in the case, — it was the contemplation of the parties, according to this contract, that the plaintiffs in this case were to assume and bear the burden of any loss that might result because ‘of the increased danger to the defendant by putting in and operating these two new side tracks; and if this loss, as I say, was caused by reason of the proper operation and necessary management of cars on those two tracks, or either of them, why, the plaintiffs haven’t any right to complain in this case; and in that case, if you so find, and find that is established by *220 the evidence in this case, by a fair preponderance of it, the plaintiffs cannot recover.”

The plaintiffs did assume the increased danger, and the exemption from liability agreed upon was not limited to losses caused by the “proper operation and necessary management of its cars.” There was no ambiguity in the contract, and its construction belonged to the court.

2. The court also erred in leaving to the jury the question of whether the destroyed property was situated in the vicinity of the side tracks. The contract is explicit upon this point. It releases the defendant from all liability for loss by fire of any property “situated or hereafter placed in the vicinity of said side track, whether such loss result from negligence or other causes.” It needs no authority to sustain the proposition that this property was situated in the vicinity of the track. The fire was started at a point about 40 feet from the track. Sawdust, shavings, and dry pieces of boards were situated upon the property at this point, and between that and the lumber piles, 400 feet distant. The lumber piles were situated very near the track, at a point farther north. The plaintiffs assumed the duty to keep their grounds in safe condition, and released defendant from all liability on account of fires that were due in whole or in part to the condition of the grounds. This property was situated on these grounds. The contract clearly recognized that the entire premises of the plaintiffs were adjacent to and in the vicinity of these tracks. Did they intend to leave it to a jury to say that property 30, 40, or 500 feet from these tracks, and situated upon the premises, was not upon land adjacent to and in the vicinity of the tracks ? Such a contention, in my opinion, finds no basis either in reason or authority. Construing these expressions according to their common and approved use, the entire territory covered by this fire was in the vicinity of these tracks. See Timmerman v. Dever, 52 Mich. 34 ( 17 N. W. 230 , 50 Am. Rep. 240 ). In People v. White-Lead Works, 82 Mich. 471 ( 46 N. W. *221 735 , 9 L. R. A. 722), the term “vicinity,” used -in the opinion, was clearly intended to include all such persons as were near enough to be affected injuriously by the business sought to be prohibited. See, also, Langley v. Barnstead, 63 N. H. 246; State v. Jungling, 116 Mo. 162 ( 22 S. W. 688 ); Coyle v. Railroad Co., 27 Mo. App. 584 . The combustible character of the materials which the plaintiffs put upon these premises in close proximity to the track, and the danger in any high wind and dry time to the property if a fire should occur, were known to both parties, and it was in relation to these and other circumstances that they used the term “vicinity.”

3. By the contract, plaintiffs assumed the duty and agreed to keep the adjacent grounds on each side of the tracks “reasonably free and clear of inflammable and combustible material, so as to prevent the starting of fire, by means thereof, to the property of the second party and others, as well as to the property of the first party.” The plaintiffs, in fact, did nothing to comply with this provision of the contract. Their conduct was the same as if no contract existed, and there was no danger of fire. The most inflammable material was left close alongside the tracks, and when, from whatever source, the fire caught, it was in a few moments beyond control. Plaintiffs knew that this material was very dry, that there was a very high wind, and that from even well-equipped and well-managed engines sparks do escape. This material, to a depth of nearly a foot, had been lying at the place where the fire caught for nearly a year, and between that and the lumber piles they had meanwhile been drawing and dumping the same kind of inflammable material,- — -shavings, sawdust, and small pieces of boards. Did this contract mean that it was to be complied with by distributing this most inflammable material close to the defendant’s tracks, without any covering or other means of protection ? If it did, then this clause of the contract is meaningless, and imposed no duty upon the plaintiffs. So inflammable was the material that, in the high wind then prevailing, *222 plaintiffs’ witnesses described it as “jumping right ahead. Something would fly in the air all on fire. It would take it up and carry it 20 or 30 feet at a time,— faster than we could follow it up. It catched from one place to another.”

Did plaintiffs contract to do nothing more than- to place this material there and leave it ? Ata very small expense it could have been covered with sand or dirt or cinders for a sufficient distance alongside the track to prevent fires. Or, as we know is often done, barrels of water could have been kept in such dangerous places near the track, ready for instant use. Or, knowing the increased danger on account of the wind, and the extreme dryness of the combustible material, a man could have been employed to watch during the short time used in switching. According to the plaintiffs’ own witnesses, they knew that fire escaped from this engine several days before, and had set fires alongside the track; they knew that the wind, as one of the witnesses said, “ was blowing a gale;” and yet they ordered the defendant to enter upon the premises to do the work under the contract. It seems to me too clear for further argument that plaintiffs did not comply with the contract, and that they failed to do the very things which the contract contemplated they should do, and which, if done, would have avoided the loss. It is no reply to the obligation of the plaintiffs under this contract to say that it is customary for mills like that of the plaintiffs to scatter this combustible material about their yards. Let this be granted, and it follows that this is the very condition against which the parties contracted, and imposed upon the plaintiffs the duty to obviate the danger and to assume the risk. If this mill had been the property of the defendant, and the land where the lumber was piled that of plaintiffs, and the fire had caught in this material upon the defendant’s land, and spread to the lumber piles on the adjoining land, the railroad company could not have defended upon the ground that they used an approved engine and managed it properly. It would have been negligence to leave such inflammable material in close *223 proximity to passing trains, which are apt, especially in cases of high winds, to set fires. Yet plaintiffs ask the court to hold that they were complying with this contract by dumping this material where they knew that fires are apt to occur, and they took not even the slightest precautions to prevent it. It is too clear to require argument that a very small expense would have prevented the fire.

4. It is also urged that exemption from liability is, under the contract, limited to the two side tracks which the defendant agreed to, and did, construct. The side tracks were contracted for with the knowledge that they would be useless unless they were used in connection 'with the South Horn track and the Brewery track. The greatest danger from fire was along the west side of the South Horn track. There plaintiffs deposited their most inflammable material. It was under the instruction of the plaintiffs that the defendant’s engine entered the premises, and it was taken there solely to do their work. It was while it was engaged in this work that the fire occurred. The engine would not have been upon plaintiffs’ premises but for these side tracks. Plaintiffs’ foreman gave the instruction; jumped onto the engine at the southerly end of the mill on the South Horn track; rode down past the switch, and up the Brewery track, and onto the east side track, where he jumped down and entered the mill. Hnder the plaintiffs’ contention, the defendant would be liable if the fire escaped a moment before it entered the side track B21, or if it escaped when within an inch of the switch, but the moment that it passed beyond the switch, or outside the South Horn track, the exemption would apply. This side track and the South Horn track are very near to each other for the whole distance of the side track. Is it reasonable to suppose that the defendant, in putting in this side track, agreed that it would be exempt only for a less and comparatively slight danger, and should be liable for the-greater danger? We think the fair construction of this contract is that the defendant was to be exempt from liability while entering upon the South Horn track *224 or upon the Brewery track in connection with, and for the express purpose of using, these side tracks in the business of, and solely for the use of, the plaintiffs, and under their direction.

5. As already stated, plaintiffs’ foreman had knowledge of the fact that this engine threw sparks; yet he made no complaint, and instructed defendants’ employés to bring this engine upon plaintiffs’ property for use when there was the greatest liability to fire. Plaintiffs’ foreman, who represented them, testified: After ■ jumping onto the engine,—

“ I spoke to the engineer about being careful about working his engine. I told him we had had a fire the day preceding, and the Saturday before that, right after his engine went by, and I told him — the wind was blowing very hard, and it was very dry — I would like to have him be careful working his engine in going by the corner. He gladly told me he would do so.” 1

It thus conclusively appears that plaintiffs, according to their own testimony, knew that this engine threw sparks; that it was apt to set fire; that they not only made no objection or protest, but, with full knowledge of the facts, not only invited, but directed, the defendant to bring it upon the premises to do their work, and at a time when the danger was greatly increased by the wind blowing, as this witness said, “a gale.” The engine was properly managed, as the jury have found, and was therefore managed as plaintiffs, through their foreman, requested it should be. These facts bring the case within the rule of Marquette, etc., R. Co. v. Spear, 44 Mich. 169 ( 6 N. W. 202 , 38 Am. Rep. 242 ); Spear v. Railroad Co., 49 Mich. 246 ( 13 N. W. 610 ). In that case the same defect was claimed as in this, with the same result following, namely, throwing sparks which caused fires. In that case Mr. Spear called the attention of the proper railway officials to this fact, and they promised to fix it, but “ put off the fixing.” In the opinion the court say:

“ It seems almost unnecessary to do more than to recite *225 this evidence in order to dispose of the case. Instead of showing a cause of action, it effectually disproves the existence of one. This was not the case of a defective locomotive moving through the country, and scattering desolation among those to whom its proprietors owed the duty of a care corresponding to its dangerous nature, but it was a case of private employment, whereby the proprietors of the engine were solicited to send it upon the private business of the employers into a place where the latter well knew, and had for a long time known and understood, it was likely to do mischief.”

Instead of instructing the jury in accordance with that case, the court instructed them as follows:

“If the conditions at the time indicated that to switch the cars on Mann, Watson & Co.’s premises would be attended with unusual risk of setting fire, it was negligence on the part of the railroad company to do the switching at that time.”

It was not the fault of the defendant that its engine was there. It was not the duty of the defendant to refuse the use of its engine when requested. By the terms of the contract, it was bound to furnish it. Presumably, the plaintiffs knew the condition of the ground better than did the defendant’s employés. They knew the danger, and, if they did not desire to have the work done then, it was their duty either to keep the engine away, or protect the premises from the dangers incident to its use, and covered by their contract. If either was negligent for the switching under these conditions, it was the plaintiffs, not the defendant.

Under the above disposition of the case, it is unnecessary to determine whether there was evidence of negligence to submit to the jury.

Judgment reversed, and no new trial ordered.

Moore, Carpenter, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.