This was an action to recover from the railway company the value
of plaintiffs' cotton destroyed by fire while in the company's cars
on its tracks near its terminal wharf. On the facts,
held:
1. that the obvious danger resulting from the use of locomotives
about so easily ignitible a material as cotton was clear, and the
jury would have been reasonably justified in drawing the inference
that it had caused the fire; 2. that the proof
Page 184 U. S. 174
showed negligence in the care of the property; 3. that the jury
would have had reasonable ground to infer negligence from the
inadequacy of the fire apparatus, and from the want of instructions
as to its use or competent men to handle it.
This action was commenced to recover from the Texas &
Pacific Railway Company the value of sixty-five bales of cotton
destroyed by fire on the night of the 12th of November, 1894,
whilst the cotton was in the cars of the railway company standing
on its tracks in the rear of or in close proximity to a terminal
wharf of the corporation situated opposite the upper portion of the
City of New Orleans, on the west bank of the Mississippi River at a
point called Westwego. The cotton formed part of one hundred bales
shipped from Greenville, Texas, on the 29th of October, 1894. An
export bill of lading was given by the Sherman, Shreveport &
Southern Railway Company, that Company purporting to act not only
on its own, but also on behalf of the Texas & Pacific Railway,
and of the Elder Dempster & Co. steamship lines. The bill of
lading provided for the carriage of the cotton from the point of
shipment "to the port of New Orleans," and thence by the steamship
line to Havre, France, and contained numerous conditions and
exceptions, one of which exempted the carrier from all loss
occasioned by fire. Responsibility of the railway company for the
value of the cotton destroyed by fire, although at time of its
destruction it was in the possession of the railway under the bill
of lading, was based on the assumption, first, that the fire was
due to the negligence of the corporation, and second that the
carriage of the cotton to the terminal wharf at Westwego, for
transhipment there to the steamship line, was a deviation, and
hence the railway company was not entitled to avail itself of the
exception against loss by fire.
Upon issue joined, a trial was had in the circuit court. After
the plaintiffs had introduced their testimony and rested their
case, the defendant requested the court to take the case from the
jury by giving a peremptory instruction in its favor. This was
asked on the ground that there was no proof sufficient to go to the
jury either as to the alleged negligence, or the asserted
deviation. The court granted the request, and exceptions were
Page 184 U. S. 175
duly saved by the plaintiffs. From the judgment entered on the
verdict the plaintiffs prosecuted error to the Circuit Court of
Appeals for the Second Circuit, and in that court, the judgment was
affirmed.
The case being one depending not solely on diverse citizenship,
the defendant corporation being chartered by an act of Congress,
the plaintiffs prosecuted error to this Court.
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
Questions involving the liability of the defendant for damage
occasioned by the loss of other cotton by the fire which destroyed
the cotton, the value of which is now sought to be recovered, have
been previously decided by this Court.
Texas & Pacific
Railway Co. v. Clayton, 173 U. S. 348;
Texas & Pacific Railway Co. v. Reiss, 183 U.
S. 621, and
Texas & Pacific Railway Co. v.
Callender, 183 U. S. 632.
Whilst, in deciding these cases, it was essential to refer to and
in some respects consider the course of business at the terminal
wharf at Westwego, the controversy which here arises for decision
involves different considerations and causes it to be necessary to
more fully refer to the establishment of the wharf at Westwego and
the course of business at that place prior to and at the time the
fire occurred.
In the circuit court of appeals, there were a number of
assignments of error; now, however, only four of such assignments
are pressed; the first, the twelfth, the thirteenth and the
fourteenth. As the first of these only complains generally that the
circuit court of appeals erred in affirming the judgment, and the
fourteenth is a mere reiteration of the first, the only assignments
which we are called upon to consider are the twelfth and the
thirteenth. The one asserts that the case should have been allowed
to go to the jury on the issue of deviation,
Page 184 U. S. 176
the other that error was moreover committed in not permitting
the plaintiff to go to the jury on the general question of the loss
of the cotton by the negligence of the defendant railway.
In order to pass upon the issues arising on these assignments,
the evidence must be considered. In taking it into view, however,
we shall do so only to the extent necessary to enable us to decide
the question of law which arises -- that is, was the evidence
sufficient on the subject of negligence and deviation to go to the
jury?
Approaching the City of New Orleans, on the opposite or right
descending bank of the Mississippi River, the track of the Texas
& Pacific Railroad terminated prior to 1873 at a point called
Gouldsboro. There, the company had a railway yard, roundhouse, and
other structures. It there also had a terminal wharf with an
incline by means of which its cars could be transferred directly
across the river by boat to a depot and yard belonging to the
company situated at the foot of Thalia Street at about the center
of the river front of the City of New Orleans. At the Thalia Street
depot, freight for New Orleans was delivered and that intended for
further transit by way of export or otherwise was also delivered in
carload lots over connecting tracks, or, where this could not be
done, was hauled and delivered at the expense of the railway to the
steamship or other carrier. Prior to 1873, the proof tended to show
at a point some six or eight miles above Gouldsboro, a spur track
left the main track of the Texas & Pacific road, and extended
for about one-half mile in length to Westwego, on the bank of the
river. Before 1873, however, the proof showed that none of the
inbound traffic was carried on at Westwego, though at that point
probably some outbound freight, intended for the purposes of the
railroad, may have been received at Westwego. Sometime in 1873 the
company constructed a grain elevator at Westwego, and built a
terminal wharf at the same point. The proof gives no description of
the elevator wharf except that it was below the freight wharf and
connected with it, but the freight wharf is fully described, there
being no material variation in the testimony on the subject.
Page 184 U. S. 177
The wharf was built on the bank of the river. It was constructed
on piles and stood above the water, the piling having placed on it
beams and joists upon which planks were nailed, constituting a
flooring which had very narrow spaces between the planks, as they
were not tongued and grooved. The wharf was about 800 feet,
stretching up and down the river front, and was somewhere between
350 to 400 feet in depth, that is, running back from the river
front to where it rested against the bank. On this wharf were
constructed two freight sheds, the one designated as No. 1 began
same short distance above the lower end of the wharf, and extended
up for a length of between 250 to 300 feet. At a short distance,
above the upper end of this shed, the flooring on the wharf ceased,
and there was an open space about 50 feet, extending up the wharf,
and which was near about the width of the shed; in this place the
piling had been driven and the joists and beams placed, but no
flooring was laid. Beyond this open space there was built shed
known as No. 2, of the same dimensions as the lower one. Both of
these sheds were wooden structures raised on posts placed in the
wharf, entirely open at each end and at each side. The roof
commenced at about 20 feet above the flooring of the wharf, and was
surmounted by a cupola running the entire length of each shed,
which was covered with a lattice or wooden work like a wooden
shutter. The number of the rows of posts in each shed is not made
clear in the proof, but it tended to show that the posts were
somewhere between 20 and 30 feet apart. About 8 to 10 feet in front
of both of these sheds along the wharf was a railroad track, which
entered the wharf from the lower end and extended to and beyond the
extreme upper end of shed No. 2. Between the outer rail of this
track and the riverfront, there was a space on the wharf of about
30 feet. Behind the sheds were two railroad tracks running the
entire length, and extending above the upper end of No. 2 shed,
somewhere between 50 and 100 feet.
Westwego was not within either the municipal limits of the City
of New Orleans or the limits of the port of New Orleans, as defined
by statute. It was shown that the season of active cotton receipts
in the City of New Orleans commences about
Page 184 U. S. 178
the first of September and ends about May of each year, and that
the Westwego wharf was completed in time to enable the railway
company to avail of its facilities for, if not the whole, at least
a portion, of the business of the cotton season of 1893 and 1894.
After the construction of the wharf in the season in question, the
great bulk of cotton handled by the Texas & Pacific Railroad
under export bills of lading was deflected from its main track at
the Westwego spur track, carried to the terminal wharf, and there
unloaded and transhipped. This the proof showed was the course of
business also as to all export cotton in the following season of
1894 and 1895, up to the time of the fire, except, perhaps, as to
small lots of cotton intended for export, where the number of bales
would not justify the coming of a steamer to the wharf at Westwego,
in which case the cotton was carried to Gouldsboro, transferred,
and delivered. In arranging to carry export cotton, the course of
business was this: the Texas Pacific Railway would contract with
steamship lines for the carrying of a given quantity of cotton at a
stated price, and under these contracts would then, through either
itself or through other carriers at various points of original
shipment, issue through bills of lading, embracing both railroad
and water carriage. The method pursued by the railway to bring
about the formal delivery to the steamship lines of the export
cotton at the Westwego wharf after its arrival is fully stated in
the case of
Texas & Pacific Railway Co. v. Clayton,
supra. It was shown that, under the contracts made by the
railway with the steamship companies, there was always an
understanding that the ships would not be obliged to suffer the
expense of moving from their own docks, usually in the City of New
Orleans, to the Westwego wharf for the purpose of loading cotton
unless a sufficient amount, variously stated at from 1,000 to 2,500
bales, was on hand for delivery.
It appears that other railroads possessed terminal wharfs on the
river, some of them being outside of the municipal and port limits,
and that they were used as a depot for the shipment of through
billed export cotton, under methods of business substantially
similar to those at Westwego. The export cotton intended for
transhipment at the Westwego wharf was
Page 184 U. S. 179
thus handled: on arriving in the vicinity, the cars were
usually, in the night-time, switched to the tracks running in the
rear of the wharf beside the open sheds, and the cotton would then
be unloaded and stored in the sheds, whence, when called for, it
was delivered to the steamships. The track running the length of
the wharf in front of the sheds was principally used for the
bringing in of freight intended for shipment by water other than
cotton. The cars containing it would be drawn or pushed by a
locomotive along the track, and the freight would then be moved
from the cars to the vessels.
During the cotton season of 1894 and 1895 (prior to November the
12th, 1894), labor troubles of a serious character occurred at the
docks in the City of New Orleans. The disturbances, the proof tends
to show, caused delay in the movement from the port of New Orleans
of export cotton. Either because of this fact or because of an
unusually large cotton crop, or an unexpectedly rapid movement of
cotton to the seaboard by the Texas & Pacific lines, large
quantities of export cotton accumulated in the sheds on the wharf
at Westwego. The cotton, which was all compressed, was stored in
the following manner: the bales were piled between 15 and 20 feet
high throughout the whole space of the shed, but probably three,
and certainly not more than four, narrow gangways being left in
each shed, running from front to rear. There was no possible doubt
from the evidence that no gangways were left running lengthwise of
the sheds. There was also proof tending to show that these narrow
gangways, as the cotton accumulated, were obstructed by bales of
cotton standing endwise. The proof also tended to show that the
accumulation of cotton became so great that, on the riverfront of
the sheds, in the open space towards the railroad track, cotton was
also placed, approaching so close to the railroad track, that as an
engine moved along carrying or pushing cars containing freight
intended for shipment, there was not sufficient space between the
cotton and the track to enable a person to stand with perfect
safety. It appeared that around the open space between the upper
end of the No. 1 and the lower end of the No. 2 shed cotton had
also been piled. It was shown that most, if not all, of the cotton
exposed as stated was
Page 184 U. S. 180
not covered with tarpaulins, and no other means were resorted to
to protect it from the danger of fire arising from the operation of
the locomotives in the rear and front of the sheds and among the
cotton on the wharf.
Westwego was remote from any town or village having a police
force or a fire department. The wharf exclusively belonged to the
railway company, and was under its control; property on it
therefore had the benefit of no police protection except that
afforded by the company, and in case of fire, had nothing to rely
upon except the men and appliances which the company furnished. The
fire appliances were as follows: there was a tank near the grain
elevator standing at such a height as to afford adequate pressure.
This tank was supplied by a pump drawing its water from the river.
From the tank a pipe ran to the wharf and passed under the floor of
each of the sheds. In each shed there were three hydrants or water
pipes, in the middle of the shed -- about equidistant; they were by
the side of the posts, and stood six feet above the floor. On each
of the six posts by which the hydrants stood and connected to them
there was a platform six or more feet above the floor, on which was
placed one hundred feet of coiled hose. A witness testified that,
some months or more before the fire, he had seen hose stretched
along the front posts of the shed resting on pieces nailed to such
posts, but there was other testimony tending to give rise to the
reasonable inference that no such hose was there at the time of the
fire. The testimony on this subject, however, had no relation to
the hose coiled on the platforms on or around the posts where the
hydrants were situated. This is conclusively the case since the
witness who testified as to hose being stretched as above stated
spoke only of the front, and said he had not observed the hydrants
and their condition, and knew nothing of them. We say this in
passing because, in the argument for the defendant in error, it is
suggested that the testimony of the witness in question related to
the hose at the hydrants, and was all the testimony on the subject
in the record, overlooking the clear and cumulative testimony that
the hose at the hydrants, was connected with them and coiled on a
platform on or around the posts about six feet above the floor. The
evidence left it
Page 184 U. S. 181
uncertain exactly where the valve was placed which opened the
connection with the water. The proof tended to show that the valve
was either under the floor with an opening to reach it, or just
above it at the base of the hydrant pipe. As the three hydrant
pipes in each shed stood beside the posts, and the gangways running
from front to rear, although very narrow, were shown not to be
obstructed by the posts, it was therefore inferable from the proof
that the posts where the hydrant pipes stood had cotton piled
around them. Indeed, this inference was sustained by direct
evidence tending to show that the posts near which the hydrants
stood had cotton piled around them from twelve to fifteen feet
high, and there was also proof tending to show that in some
instances the cotton so piled had fallen over on the hose on the
platform, and the bale which did so had to be removed.
There was testimony tending to show that along the front and
rear of the sheds, there were barrels containing water with buckets
hanging near. It was shown without contradiction that there were no
chemical fire engines, although there was testimony tending to show
that what were designated as chemical fire buckets had been bought
at about the time the wharf was built, and there was conflict in
the testimony as to whether these buckets were on hand for use at
the time of the fire. The evidence tended to show that no general
directions as to handling or the use of the hose in case of fire
had been given, that no fire drill had ever taken place, nor had
the men in charge of the wharf been ever instructed in any way as
to the use of the apparatus which has just been described.
The wharf in the daytime was under the direct authority of an
employee designated as chief clerk; in the nighttime it was in the
charge of one regular employee of the company and three watchmen,
who were the members of a special private police force in the City
of New Orleans, the railway company contracting with the head of
the special police organization for the services of the three men
at the wharf, and a like number of men were on watch during the
daytime. In other words, in the nighttime the wharf was in charge
of but four men, one a regular employee of the company, and three
special policemen
Page 184 U. S. 182
employed as just stated, and their duty extended over the whole
surface of the wharf and sheds, as well as under the wharf.
A short while prior to November 12, growing out of supposed
danger resulting from fear of election disturbances, the force at
the wharf was increased by a few men whose duty it was to patrol
the space under the wharf and prevent persons from entering by
boats or otherwise. This force, prior to the fire, had been reduced
to the number previously stated.
It was shown that at a wharf in the City of New Orleans
belonging to a steamship company where cotton had accumulated, the
force of watchmen employed was largely in excess of the number at
Westwego, and that, at a terminal wharf of another railroad, where
there was about half the quantity of cotton which was on the wharf
at Westwego at the time of the fire, there were twenty-five
watchmen employed instead of four, the number at Westwego; that
there were Babcock fire extinguishers, hose placed on reels ready
for use, and that this hose was used almost daily for the purpose
of washing down the wharves and to enable the men in control to be
familiar with its use in case of emergency.
By about the middle of October, 1894, the accumulation of cotton
at the wharf of Westwego had been so great that the proof showed
that the railroad officials had become solicitous on the subject,
and deemed that they were in great risk of fire. It was also shown
that, about that date, a destructive fire had occurred in a wharf
where cotton was stored in the City of New Orleans, presumed to be
result of the labor disturbances, and that, at Westwego, during the
daytime, within a period not remote from the general conflagration
which ensued subsequently, the longshoremen working there had
discovered a fire smouldering in a bale of compressed cotton which
was in the tiers, and that it had been extinguished by throwing
down the cotton and removing the bale, and that this fact had been
reported to the officers of the company. Prior to Monday, the 12th
of November, 1894, cars loaded with cotton were being brought in in
the nighttime in the rear of the sheds, and for days prior to that
date vessels had been loading in front of
Page 184 U. S. 183
both of the sheds, some with cotton and some with other
products. On the 12th of November, two steamers were at the wharf;
one about abreast of the lower end of No. 1 shed, and the other
opposite the upper or No. 2 shed; that, for the purpose of bringing
in the cargo taken by these ships, a locomotive was operating among
the cotton on the wharf in front of the shed, and was passing back
and forth on the track, pushing cars containing the freight to be
loaded. Although there was some proof indicating that, on that
particular day, the locomotive which entered from the lower end of
the wharf proceeded up the track abreast of No. 2 shed, we assume,
for the purposes of this opinion only, that it was shown that the
locomotive was pushing so many cars ahead of her that she did not
get abreast of the No. 2 shed. There was no proof that the
locomotive, in operating along the front of the wharf, was emitting
sparks from her smokestack or dropping cinders from her
firebox.
There was evidence as to the direction of the wind on the 12th
of November. The parties asserting that opposing inferences were to
be deduced therefrom, but, without undertaking to consider this
controversy, we assume, only for the purpose of this opinion, that
the result of this proof as to the direction of the wind tended
alone to show that, if a spark had been emitted from the locomotive
operating on the front of the wharf, as above stated, the wind
would have carried it away from the No. 2 shed, where the fire
subsequently broke out, as we shall hereafter state.
On Monday, the 12th of November, 1894, the accumulation of
cotton was so great that there were stored in the sheds and on the
wharf in the manner which we have indicated, about 20,000 bales of
compressed cotton, and there were in cars, standing on tracks in
the vicinity of the wharf and sheds, about 8,000 bales more,
awaiting storage room. The cotton sued for was among the latter. On
the evening of the date above mentioned, shortly after the force
had ceased work and the four night watchmen had come on duty, the
cotton was discovered to be on fire. The flames spread rapidly, and
a disastrous conflagration followed, with the result that most of
the
Page 184 U. S. 184
cotton in the sheds and the sheds themselves, as well as cotton
in the cars in the vicinity, among which was that sued for, was
destroyed. What took place at the time of the discovery of the fire
was testified to by only one witness, one of the night watchmen,
Robeau, who was one of the three special officers of the private
police agency. His statement of what occurred may be thus
summarized: his place of duty was at the upper or No. 2 shed, and
his business was to pass around and through the shed, and at
designated intervals register his presence upon a watchman's clock.
After sending a telephone message to indicate his presence at his
post, and whilst he was on the river side of shed No. 2 at the
lower end, he heard a cry of fire. Running immediately to a
gangway, he crossed to the rear or wood side of the shed. Not
seeing the fire, he ran up the rear side and across by a gangway to
the riverfront, thence running along the riverfront of the shed he
turned into another gangway and hastened towards the rear of the
shed. In going through there, he discovered Valle (the one of the
four watchmen who was the regular employee of the railroad company)
standing on top of the piled cotton, about 15 feet from the floor.
Robeau joined Valle, who had the nozzle of a hose in his hand, from
which no water was being thrown. From the place where the two stood
on the piled cotton, they saw a fire burning near the floor in the
direction of the upper end of the shed. As they stood upon the pile
of cotton, they were above the hydrant pipe running up by the
post and about six feet above the platform around or upon
the post upon which was coiled the hundred feet of hose connected
with the hydrant. From where they stood, both the hydrant pipe and
the platform with the coiled hose on it were hidden from their view
by the piled cotton. Valle, holding the nozzle of the hose in his
hand, from which no water was flowing, called upon Robeau to get
down between the piles of cotton and open the water valve. Robeau
squeezed himself through the space between the cotton piled around
the post to the floor, felt about for the valve, perceived water on
the floor, declared the value to be open, and rejoined Valle. They
both dragged at the hose, but no water flowed. The burning cotton
flamed up, Valle called upon Robeau
Page 184 U. S. 185
to get down on the platform around the post and uncoil or
untangle the hose. He refused on account of the intensity of the
fire, and both became alarmed and ran away. The destruction of the
property ensued.
As the only witness who testified concerning the outbreak of the
fire, the alarm, and the efforts to extinguish it, was Robeau, and
as therefore his testimony is of the utmost importance in
determining whether the case should have been allowed to go to the
jury, we excerpt in the margin
* the portions of
his testimony which are material.
Page 184 U. S. 186
Such being the proof, was it sufficient to go to the jury? is
the question then for decision. In answering this question, as we
have said at the outset, we shall be called to pass upon not
Page 184 U. S. 187
the preponderance of the evidence, but whether it was adequate
to go to the jury, and this involves, not a decision as to the
facts, but the determination of a proposition of law.
Page 184 U. S. 188
In
Washington Gas Light Co. v. Lansden, 172 U.
S. 534, the question of the liability of the gas company
for certain acts of its general manager, in respect to procuring
the publication
Page 184 U. S. 189
of a libel, was presented for determination. In the course of
the opinion, after observing that in the case no specific authority
was pretended to have been given to the general manager on the
subject, the court said, p.
172 U. S.
545:
Page 184 U. S. 190
"We are then limited to an inquiry whether the evidence is
sufficient upon which a jury might be permitted to base an
inference that Leetch had the necessary authority to act for the
company in this business. If different inferences might fairly be
drawn from the evidence by reasonable men, then the jury should be
permitted to choose for themselves. But if only one inference could
be drawn from the evidence, and that is a want of authority, then
the question is a legal one for the court to decide."
The Court then reviewed the evidence on this branch of the case,
and concluded as follows p.
172 U. S.
548:
"We are of opinion that the court erred in submitting to the
Page 184 U. S. 191
jury the question whether Leetch, in respect to the subject of
the letters written by him to Brown, had authority to bind the
company. The Court should have directed a verdict for the
corporation on the ground that there was an entire lack of evidence
upon which to base a verdict against it."
In
Patton v. Texas & Pacific Railway Co.,
179 U. S. 658, the
following facts appeared: the action was brought by Patton to
recover damages for injuries sustained while in the employ of the
railway company as a fireman. On a second trial, a verdict was
directed for the defendant, upon which judgment was rendered, and
the court of appeals affirmed such judgment.
Answering the contention of the plaintiff in error that the
trial court erred in directing a verdict and in failing to leave
the question of negligence to the jury, the Court said, p.
179 U. S.
659:
"That there are times when it is proper for a court to direct a
verdict is clear."
"It is well settled that the court may withdraw a case from them
altogether and direct a verdict for the plaintiff or the defendant,
as the one or the other may be proper, where the evidence is
undisputed, or is of such conclusive character that the court, in
the exercise of a sound judicial discretion, would be compelled to
set aside a verdict returned in opposition to it.
Phoenix Ins.
Co. v. Doster, 106 U. S. 30,
106 U. S.
32;
Griggs v. Houston, 104 U. S.
553;
Randall v. Baltimore & Ohio Railroad,
109 U. S.
478,
109 U. S. 482;
Anderson
County v. Beal, 113 U. S. 227,
113 U. S.
241;
Schofield v. Chicago, & St. Paul Railway
Co., 114 U. S. 615,
114 U. S.
618;
Delaware &c. Railroad v. Converse,
139 U. S.
469,
139 U. S. 472.
See also
Aerkfetz v. Humphreys, 145 U. S. 418;
Elliott v.
Chicago, Milwaukee &c. Railway, 150 U. S.
245."
"It is undoubtedly true that cases are not to be lightly taken
from the jury; that jurors are the recognized triers of questions
of fact, and that ordinarily negligence is so far a question of
fact as to be properly submitted to and determined by them.
Richmond & Danville Railroad v. Powers, 149 U. S.
43."
We come, then, to an analysis of the evidence for the purpose of
ascertaining whether it was correctly decided that it afforded no
reasonable ground upon which a jury, in the exercise of its
Page 184 U. S. 192
functions, could have inferred that the destruction of the
cotton by fire was occasioned by the negligence of the defendant.
In doing so, we shall, of course, be mindful, as was said in
Patton v. Texas and Pacific Railway Company, supra, that
as both courts below have held that the evidence had not the
tendency stated, their decision is entitled to great respect -- a
respect, however, which cannot relieve us from the duty of securing
the plaintiffs in the enjoyment of their constitutional right to
trial by jury if, in our opinion, the case made by them was one
proper to be decided as one of fact by the jury, and not to be
concluded as a matter of law by the court.
All the reasonable tendencies of the proof, if any, to show
negligence, must arise from three propositions, which we shall
proceed to consider in their order.
First. The manner in which the cotton was stored and the
operation of the locomotives in and about the same so as to subject
the cotton to danger of fire and to cause the prompt detection of a
fire to be so difficult as to render it practically impossible in
time to prevent a conflagration.
That the storage of such a great mass of cotton in the open
sheds and on the wharf, with only a few narrow gangways from front
to rear, with no passageways between the tiers running lengthwise
of the sheds, so as to enable the cotton to be inspected and to be
accessible upon an alarm of fire, with substantially no tarpaulins
or other covering, and the operation of the locomotives in and
around the open sheds and in front of the wharf among the cotton so
situated at least afforded sufficient proof to go to the jury, we
think is too clear for discussion. This was not controverted by
either the trial court or the circuit court of appeals, but the
proposition which those courts felt constrained to uphold was that,
as the proof did not in their opinion furnish any reasonable ground
from which it could be inferred that the acts above enumerated had
actually tended to produce the fire therefore even although there
was negligence in the matters suggested, they furnished no
reasonable ground upon which the jury could have given a verdict
for the plaintiffs. This reasoning proceeded upon three
assumptions,
a, because the proof did not show that the
locomotive
Page 184 U. S. 193
operating along the front of the wharf, on the morning of the
12th of November, had traversed the track opposite to or in the
immediate vicinity of the place in No. 2 shed where the fire
occurred;
b, because there was no proof that the
locomotive was emitting sparks or dropping fire from its firebox,
and if there had been, because the proof as to the direction of the
wind showed that such sparks, if emitted, would have been blown
away from the direction of the upper part of No. 2 shed where the
fire broke out, and
c, because the fire was immediately
discovered on its outbreak.
But each of these propositions either rested on premises of fact
where no proof whatever existed, or disregarded what the jury would
have had the right to conclude was the reasonable tendency of the
proof as made. There was no question that the proof showed, leaving
aside the movement of the engine on the wharf on the morning of the
12th of November, that other locomotives had been moving in the
rear of the wharf and in its vicinity probably on the night of the
11th, and certainly on the 10th, and previously, and the proof also
unquestionably showed that for days prior to the breaking out of
the fire, except it may be Sunday, vessels had been loading at the
wharf in front of the No. 2 shed, and the tendency of the proof was
to show that the cargo which they took was carried on the wharf in
front of the shed by locomotives. To hold, then, that there was no
proof tending to show that the conflagration was the result of the
movement of locomotives about and among the piles of exposed cotton
was simply to say such must have been the case because the proof
did not tend to show that the fire could have been caused by the
locomotive which was on the wharf on the morning of the 12th. This,
however, was only to find, in the absence of all proof as to any
other origin of the fire, that it would have been unreasonable for
the jury to deduce the conclusion that the fire was the result of
other and previous proximity of the locomotives to the cotton. The
obvious danger resulting from the use of the locomotives, as
described, in and about so easily ignitable a material as cotton,
particularly when stored and unprotected as this was, is to our
mind so clear that we think the least that can be said is, when
Page 184 U. S. 194
the origin of the fire was otherwise unexplained, that the jury
would have been reasonably justified in drawing the inference that
the use of the locomotives caused the fire. And the general course
of legislation, both in England and this country, demonstrates the
soundness of this conclusion.
St. Louis & San Francisco
Railroad v. Mathews, 165 U. S. 1. The
only possible ground by which this can be met is the assumption
that, because there was no proof tending to show the operation of a
locomotive in the rear of the sheds or on the front of No. 2 shed
for a considerable period of time before the fire, therefore sparks
from the locomotives could not have caused the fire, because if
they had, the conflagration would have broken out sooner. But this
assumes that compressed cotton, piled up as this was, if ignited by
sparks, would necessarily at once break out into flame, and
disregards the right to have the judgment of the jury as to whether
the fiber of such cotton, when so situated, on being touched by a
spark, might not have smouldered for a considerable time, until
such headway had been gained as to cause the fire to break into
flame. In other words, there being two inferences to be drawn from
the testimony, one of a sudden outbreak of the fire and the other
of a long-continued smouldering, it was the province of the jury to
pass upon the question. And this disposes of the assumption that
the fire was discovered immediately on its breaking out. Such
assumption, however, was a mere unreasonable inference from the
facts in favor of the defendant and against the plaintiff, and
rested on the predicate that there was nothing in the proof which
would have justified a jury, although the cotton was compressed and
piled up, in inferring that the fire might have smouldered for a
considerable time before bursting into flame. It was certainly open
to the plaintiff to direct the attention of the jury to the obvious
natural law that any fibrous material like cotton, when tightly
compressed and piled, as was the cotton in question, if ignited by
a spark, may smoulder for an uncertain period. The only proof on
the subject of the discovery of the fire is that to which we have
referred, giving an account of the alarm of fire by Valle. The mere
fact, however, that he gave an alarm of fire when he discovered it
does not support
Page 184 U. S. 195
the inference that the fire had not been burning for a
considerable period before he knew of it. Indeed, when the state of
the fire, as described by the witness Robeau when he first saw it,
is taken into consideration, and the natural tendency of a tightly
compressed fiber to smoulder is borne in mind, the jury might have
reasonably inferred, we think, from the condition of the fire when
first seen by Robeau and the rapid and extensive conflagration
which almost immediately resulted, that the discovery marked not
the time when the ignition of the cotton took place, but the
breaking out of the cotton into a flame as a consequence of its
prior burning. This also disposes of the view that, although the
cotton was negligently stored by leaving no gangways through the
length of it by which it could be inspected and the presence of
fire be promptly detected, the proof did not tend to justify a
recovery because the fire was discovered in the mass of cotton just
as soon as it would have been if proper precautions had been taken
in its storage. The description of the state of the fire, we think,
afforded ground for a jury to otherwise find, for the only proof on
the subject was that, in order to discover the fire, the watchmen
had to climb up on the pile of cotton, and that it was not
possible, from the gangway, to have seen the fire, as it would have
been if suitable openings lengthwise had been left.
Second. That the proof showed negligence in the care of the
property inasmuch as the number of watchmen who were engaged were
greatly inadequate for the service, and therefore the jury would
have been reasonably justified in finding that the destruction of
the cotton was occasioned thereby.
Here also, we think it was evident that the presence of only
four watchmen to care for so vast an accumulation of cotton stored
and exposed to the risks it was subjected to was sufficient to go
to the jury on the question of negligence. Both the courts below
with reference to this ground substantially concluded, as they did
as to the former one, that even although the number of watchmen was
insufficient, nevertheless, as the inadequate number of watchmen
discovered the fire as soon as it broke out, a greater number of
watchmen could have done no more,
Page 184 U. S. 196
therefore, the inference of negligence contributing therefore
the inference of negligence contributing to the loss was, as a
matter of law, unwarranted. This, however, but rested on the
assumption that the fire was immediately discovered. On the
contrary, as we have said, not only the reasonable inference that
cotton stored and piled like that here in question, when ignited,
would smoulder, but the actual facts as to the conflagration in
hand, we think, were sufficient to go to the jury so as to enable
the jury to conclude whether, if an adequate force of watchmen had
been on hand, the fire might have been sooner detected and the
property saved from destruction. But the larger number of watchmen
would have been efficient not only in detecting the fire, but for
the purpose, in such an emergency, of handling the cotton in order
that the fire might be gotten at and extinguished. That an adequate
force might have so done was reasonable to infer, especially in
view of the proof that, in the daylight, when a larger body of men
were at work, smouldering cotton was discovered in one of the lower
bales, and by removing the others and getting at the ignited bale
in a tier, a conflagration was prevented.
Third. That the jury would have had reasonable ground to
infer negligence from the inadequacy of the fire apparatus and from
the want of instructions as to its use or competent men to handle
it.
This proposition, we think, is also well founded The argument to
the contrary is that, as it was shown that, if the apparatus which
was there had been properly worked, the fire would have been
extinguished, therefore there was no negligence in respect to such
appliances. The proof was construed to be that, when Robeau heard
the alarm of fire and rushed to the point where Valle stood, upon
the cotton, and was ordered by Valle to go down and open the valve,
he found the valve open, because Valle had previously opened it.
But we have searched the record in vain for any direct proof that
Valle had opened the valve before Robeau's arrival.
Non
constat, therefore that the valve had not been left open
negligently sometime previously, as it was hid from view by the
cotton, and if the open valve therefore caused the tangling of the
hose or
Page 184 U. S. 197
rendered it so that it could not be moved, the negligence in
respect to the care of the hose would be that of the company. If it
be that one inference from the testimony would have justified the
conclusion that Valle had opened the valve, as such inference was
not necessarily to be drawn, then it was the function of the jury,
and not of the court, to draw the proper inference.
But this, it is argued, is of no consequence, since, it is
asserted, the proof showed that the cause of the destruction of the
cotton was not the imperfect nature of the appliances, but an error
of judgment in the use of them by the employees in the emergency of
the moment. The proof, it is insisted, left no room for any other
inference than that Valle, on the discovery of the fire, had rushed
to the spot, thrown the hose down from the platform, got down among
the cotton and opened the valve, or had left the hose on the
platform without unwinding it, and that the pressure of water had
either so kinked or tangled the hose when thrown down, or rendered
it so difficult to move it, if left coiled on the platform, that
the water would not flow, and the failure to extinguish the fire
resulted. But all the elements contained in these propositions
involve mere inferences from the evidence which it was the province
of the jury to make. The only testimony in the case showing the
actual condition of the hose at the time of the discovery of the
fire was that of Robeau. That testimony showed that the cotton was
piled up around the post where the hydrant was situated, above the
platform on which the hose was coiled, to such an extent that
neither the hydrant nor the hose could be seen from the gangway or
from the top of the pile of cotton, that to get at the hose, if it
was on the platform, required either reaching to or getting on the
platform about 6 feet below, between the cotton, and to reach the
valve necessitated squeezing down between the cotton to the floor.
Under these circumstances and the difficulties which they
necessarily created, we think the proof was such as would have
reasonably justified the jury in concluding that the negligent acts
of stowing the cotton high up around the hose and the hydrant and
the valve connected with it created a condition so conducing to
error of judgment and misdirected efforts as to
Page 184 U. S. 198
render the railway company responsible therefor. And this
conclusion is greatly fortified when the uncontradicted proof is
considered that no general rules for the use of the fire apparatus
had ever been promulgated, that no systematic inspection thereof
had been made, that no fire drill or instructions as to the use of
the apparatus was had or given, and that the too few watchmen were
left in case of an emergency to use an apparatus which, even if it
were intrinsically adequate, was surrounded by the act of the
company with such conditions that its favorable and efficient use
was rendered practically impossible.
This leaves for consideration only the question whether the case
should have been allowed to go to the jury on the question of
deviation. As the result of the conclusions to which we have come
on the question of negligence is that a new trial must be granted,
it follows that, on the new trial, the whole case will be open.
Being so open, we cannot say that testimony may not be introduced
at the new trial which may modify the aspect of this question as
exhibited in the record now before us. Conducive, however, to the
result that there may be an end to this litigation, we content
ourselves on this branch of the case at this time with saying that
we think the proof in this record fully justified the action of the
trial court in respect to the question of deviation.
The judgments must be reversed, and the cause remanded to
the Circuit Court of the United States for the Southern District of
New York with directions to set aside the verdict and grant a new
trial, and it is so ordered.
*
"Q. Now go on and state what occurred."
"A. After we had done telephoning, and saw everything was all
right, we came to the office -- I mean to the office of the shed
No. 1 -- to take my lamp, and I went to my beat, and I met the one
that was there, and I said 'How is it?' He told me 'All right.' I
took off my coat and put my lamp away. Then I came to make my
rounds as usual, to see if everything was right, where my key was.
About five or six minutes I was standing there, or seven minutes --
I can't tell exactly. I saw the private watchman pass. In about a
minute or two, I heard 'Fire, Fire,'"
By the court:
"Q. You heard the cry of fire?"
"A. The crying of 'Fire, Fire,' I run to the woods side to see
if I could see anybody, but I could not see anybody, and then I run
to the river side, and then I run to the fire and I passed through
the shed to go to the woods side and I saw Valle with hose in his
hand, and he says, 'Go down and open the valve.'"
"Q. What did you do?"
"A. I went to open the valve. I could only go sideways. I
couldn't hardly stand, and I found the valve wide open. Then I came
back and tried to help Mr. Valle with the hose in his hand.
Everything was in flames. I couldn't do anything. I tried all my
might to have the water, but we could not have any water. The hose
was too heavy; we couldn't do anything at all, and he says to me,
'Robeau, go down and untangle the hose.' I says, 'I won't go down
where the flame is.' I kept up; that is the only thing I could do.
I went to the other end of my beat, and took my coat and ran
away."
"Q. Where did you first see the light of the flame that
night?"
"A. I was about 70 feet from the light."
"Q. When you saw Valle, did you first see the light of the
flame?"
"A. I saw Valle first."
"
* * * *"
"Q. And when you first saw Valle, where was he?"
"A. On top of the cotton."
"Q. Whereabouts? "
"A. About 12 or 15 feet high on top of the cotton."
By the court:
"Q. Whereabouts on the wharf?"
"A. At the woods side."
By Mr. Cleveland:
"Q. You were on the woods side?"
"A. Yes, sir."
"Q. Where was Valle?"
"A. He was on the cotton."
"Q. Whereabouts, with relation to the center of the shed?"
"A. The fire?"
"Q. No; where was Valle?"
"A. He was about the center of the shed, but the upper end;
because the fire was about 70 or 75 feet below the upper end."
"Q. When you first saw Valle what was he doing?"
"A. He had the hose in his hand."
"Q. What was he doing with it?"
"A. He couldn't do nothing. When I went down there, he told me
to go down and open the valve, and so I went, and it was wide
open."
"Q. When you were down there trying this faucet, and found that
it was wide open, did you see any water coming out?"
"A. No, not a drop. We couldn't have any water."
"Q. You did not see any water when you were opening the
valve?"
"A. Yes; saw the pouring."
"Q. Leaking, you mean?"
"A. Yes."
"Q. When you clambered up with Valle, and he had the hose in his
hand, what part of the hose did he have in his hand?"
"A. The pipe."
"Q. Was there any water coming out?"
"A. No, sir."
"Q. What was he doing when you got up on that pile of
cotton?"
"A. Tried to have water, but he could not have none."
"Q. Was Valle on the hose?"
"A. Yes, and I was too; but everything was in flames, we
couldn't do nothing at all."
"Q. You say he said to you, 'Go down and untangle that
hose?'"
"A. Yes, sir."
"Q. How do you mean go down? Where was the hose?"
"A. The hose was pretty near where the fire was, against the
post."
"Q. Against the post?"
"A. Yes, sir."
"Q. Was it on the platform?"
"A. On the floor."
"Q. On the floor of the platform?"
"A. Yes."
"Q. On the posts? How high up from the floor of the dock?"
"A. The hose?"
"Q. Yes."
"A. The hose was about six feet high."
"Q. What did you do when you got up with Valle?"
"A. Tried to pull out the hose to have the water to extinguish
the fire, but we could not. Everything was in flames."
"Q. When did you first see the flames that night? Before you got
up to Valle?"
"A. When I got on top, I saw the flames."
"Q. How many bales of cotton were on fire then, as you recollect
it?"
"A. About three or four bales."
"Q. Where were you on the wharf when you first heard this cry of
fire?"
"A. I was about 30 feet under the shed at the lower end."
"Q. Towards No. 1 shed?"
"A. Yes."
"Q. On the river side?"
"A. On the river side."
"Q. That is out near the tug that was there?"
"A. About 30 or 40 feet. I can't say exactly."
"Q. Were you under the shed?"
"A. Under the shed."
"Q. Which way did you go when you heard the cry of fire?"
"A. My idea first was to go to the woods side to see if I could
see anybody."
"Q. Were you at a gangway?"
"A. Yes, sir."
"Q. You went through that gangway then to the woods side?"
"A. Yes, sir."
"Q. And you saw nothing?"
"A. I saw nothing. Then I run to the river side."
"Q. Did you come back through the same gangway?"
"A. No. sir."
"Q. You went up along the woods then?"
"A. I went to the upper end of my beat after I heard the noise
'Fire, Fire,'"
"Q. Did you go clear up to the upper end?"
"A. Yes, sir."
"Q. And you did not see any fire up there?"
"A. No."
"Q. Then where did you go?"
"A. I went to the woods again. I went through the gangway, and I
saw Valle."
"Q. This hose he had in his hand, you say, did you?"
"A. He had what?"
"Q. He had the hose pipe in his hand, did he?"
"A. Yes, he had the pipe in his hand."
"Q. How far was the hydrant from where he was?"
"A. About 10 feet; but where he was he could not see the
hydrant."
"Q. He could not see the hydrant?"
"A. He was on top of the cotton. He could not see me when I went
down neither."
"Q. What did you do when you went there?"
"A. I went there and I saw the valve was wide open."
"Q. The what?"
"A. The valve of the pipe."
"Q. And was there water in the hose?"
"A. Kind of water; yes, in the hose."
"Q. It had pushed out in the hose, had it?"
"A. Yes, swelled up."
"Q. How far had it pushed out and swelled up in the hose?"
"A. I didn't look. As soon as I saw it open, I went to Valle to
help him."
"Q. What did you do to help him?"
"A. We tried to pull the hose free, and we couldn't do
anything."
"Q. The pressure of water had kinked the hose?"
"A. Yes, the hose was so tangled that we couldn't do anything.
At the same time the blaze was going, and Valle says to me, 'Go
down and have it untangled.' And I said, 'No, I won't go, go
yourself if you want to.'"
"Q. And you run away then, did you?"
"A. Yes, I did. I tried to save my skin."
"Q. This cotton was blazing?"
"A. Yes, very high."
"Q. Blazing right up?"
"A. Yes."
"Q. Blazing way up?"
"A. Yes."
"Q. How high was it blazing when you got there?"
"A. About 6 feet from the floor-about."
"Q. How high was the pile of cotton?"
"A. The cotton was piled about 15 feet high."
"Q. Was it blazing along the side of that pile of cotton?"
"A. Yes, spread out."
"Q. Spread out along the ends of the bales, was it?"
"A. Yes."
"Q. Where was this kink in the hose -- down below Valle?"
"A. Where the platform was?"
"Q. Yes."
"A. About 6 feet under."
"Q. You say the valve, when you tried it, was wide open?"
"A. Yes, sir."
"Q. How far out in this hose had the water pushed out from the
pipe?"
"A. I don't know that."
"Q. Did you take hold of the hose to see?"
"A. With all my might, all the strength I had."
"Q. And the pressure of water was so heavy that you could not
straighten it out?"
"A. We couldn't budge it."
"Q. Do you know who opened that valve?"
"A. I don't know."
"Q. Do you know how high the fire was when that valve was
opened?"
"A. Yes."
"Q. How high was it when the valve was opened -- when it was
first opened?"
"Q. No water came out of the hose?"
"A. No, sir."
"Q. How long were you there pulling that hose, trying to
untangle it?"
"A. Maybe two or three seconds, because we tried the best we
could."
"
* * * *"
"Q. Describe to the jury this fire? Where was it? Was it on the
top of the cotton or at the bottom?"
"A. At the bottom of the floor."
"Q. How near did you come to the flames that night, when you
were nearest to them?"
"A. About 15 paces."
"Q. In your judgment, if you had had a sufficient stream of
water--."
"A. We could easy put it out."
"Q. Wait. In your judgment, if the water had come out of the
hose that night -- a full stream of water -- such as the hose was
able to carry, could you have extinguished the flames?"
"A. Yes, sir; myself alone."
"
* * * *"
Cross-examination by Mr. Taggart:
"
* * * *"
"The Court: He found it open."
"The Witness: I found it open when I got there."
"Q. You don't know who opened it?"
"A. No, I don't know who opened it."
"Q. How long were you there with Valle when you discovered this
fire?"
"A. I never took my watch for that. I did the best I could."
"Q. About how long were you there?"
"A. Maybe two or three seconds; I don't know."
"Q. And then where did you go?"
"A. I went up stairs to help him."
"Q. You went up on the cotton?"
"A. On the cotton."
"Q. How long were you there with him?"
"A. Maybe one or two seconds."
"Q. Then where did you go?"
"A. I said I tried to save myself."
"Q. In saving yourself, where did you go?"
"A. I went to the lower end of my beat and took my overcoat and
ran away. I didn't stay any more."
"
* * * *"
"Q. No, how long was it before the fire was spread all over the
No. 2 shed?"
"A. About ten minutes."
"Q. And about two seconds after you got there you had to run
away on account of the fire, didn't you?"
"A. Yes."
"Q. Do you know where the fire started?"
"A. Right in the center of the shed; I mean up the shed, about
40 or 50 feet this side."
"Q. About 40 or 50 feet south of the upper end of No. 2
shed?"
"A. I can't say exactly. About 70 feet, maybe. I don't
know."
"Q. About that far from the upper end of No. 2 shed?"
"A. Yes, sir."
"Q. And in the center of the shed, wasn't it?"
"A. Yes, sir."
"Q. And near the bottom of a pile of cotton, wasn't it?"
"A. What?"
"Q. Was it near the bottom of the pile that it was burning?"
"A. At the floor, I told you where it started."
"Q. Was there a whole pile of cotton on fire?"
"A. When I got there I saw the light of the fire."
"Q. Where did you see the light from? Where were you when you
saw the light of the fire?"
"A. Didn't I tell you that?"
"Q. No, you have not."
"A. Didn't I tell you I was about 70 feet from the light of the
fire?"
"Q. Was it in a gangway that the fire was?"
"A. Yes, sir."
"Q. Were you at the end of the gangway when you saw the
light?"
"A. I was on the platform outside."
"Q. And did you see the light down the gangway?"
"A. Yes, sir."
"Q. How much of a fire was there then, when you saw that?"
"A. I couldn't tell you."
"Q. You did not see the fire?"
"A. Yes; when I came to climb up on the cotton, Valle says to
me: 'Go down and open the valve.'"
"Q. I didn't ask that. I asked how much of a fire there
was?"
"A. I don't know."
"Q. You did not see the fire?"
"A. I saw the light of the fire."
"Q. How much light was there: was it a big light?"
"A. How much light was there?"
"Q. Yes; how much light did you see?"
"A. I can't say exactly how much light I saw."
"Q. Did you see it over the piles of cotton?"
"A. No, sir; we couldn't see it."
"Q. You could not see it over the piles of cotton?"
"A. Because I passed there, about 15 paces from the places in
the gangway."
"Q. When?"
"A. To come to Valle."
"Q. And you did not see it in the other gangway, then, did
you?"
"A. No, of course, not."
"Q. You say this blaze was about 6 feet high when you got
there?"
"A. 6 or 7 feet high, yes."
"Q. And how many bales of cotton was it covering?"
"A. I don't know. I saw the light of the fire."
"Q. I know, but when you got there?"
"The Court: When you got there to Valle?"
"A. Three or four bales."
"Q. Had it burned the covering off the bales?"
"A. They were spread out."
"Q. How wide was the fire; how wide was the blaze?"
"A. About 15 or 20 feet I should say."
"Q. Was it on the end of a solid bale of cotton? Was the pile of
cotton solid there that it was burning against? Do you understand
that?"
"A. What do you mean?"
"Q. Was this cotton piled?"
"A. Yes, like that."
"Q. And was it burning 15 feet high?"
"A. Yes, spreading."
"Q. Spreading rapidly?"
"A. Yes."
"Q. How long was it from the time you heard Valle cry 'fire'
until you got to Valle?"
"A. Maybe half a minute. I don't believe it was."