McAdoo v. Hanway

Pattison, J., delivered the opinion of the Court. The suit in this case was brought in the Circuit Court for Harford County by the appellees to recover from the appellant, the Director General of Railroads, the value of t-heir stock of goods in the storehouse at Aberdeen, in said county, that was destroyed by fire on the 5th of February, 1918. The plaintiffs alleged in their declaration that they were engaged in the general mercantile business and had at the time of the fire a large stock of goods and merchandise in the ⁶⁵⁹ storehouse occupied by them at the southwest comer of Front street and Belair avenue in said town and county; that said store was located about three hundred and fifty feet from the track of, the Philadelphia, Baltimore and Washington Railroad Company, which road runs through the town of Aberdeen, and at such time was managed and operated by the defendant. It further alleges that on the 5th day of February “there was a fire raging in said town of Aberdeen, and when said fire reached a point at the northwest corner of said Front street and Bel Air avenue, and was burning the building there located, the plaintiffs had secured a hose of the volunteer fire company of said town of Aberdeen which they had connected with a fireplug which was part of the water system of said town of Aberdeen on the southeast side and across the tracks of the said railroad managed and operated by said defendant, as aforesaid, from the building of the plaintiffs, and that said hose was stretched across the tracks of said railroad, in the public street crossing said tracks, and the water had just begun to run through said hose from said fireplug on to the building in which was located the said store goods of the plaintiffs, which said water was sufficient in volume to extinguish the ñames about then catching the said building, when a train managed and operated by the defendant, willfully, maliciously and negligently driven by his servants, ran over and cut said hose and shut off from the plaintiffs their supply of water; that the plaintiffs at once spliced said hose, when a second time a train, managed and operated as aforesaid, and driven as aforesaid, ran over and cut said hose; that the plaintiffs were thereby deprived of the water to fight said fire, so that the said store and the contents belonging to said plaintiffs were burned to the ground and were a total loss; that the defendant and its servants were notified of said fire in time to stop the said trains, but willfully, maliciously and negligently, as above set forth, and regardless of the rights of tb* ⁶⁶⁰ plaintiffs, failed to stop the said trains; that if said hose had not heen cut, as aforesaid, and the defendant had used due care and diligence and stopped the said trains, the store goods of the plaintiffs, of great value, would not have been burned and lost to the plaintiffs.” The defendant demurred to the declaration.

The demurrer was overruled and the defendant filed his plea that he did not commit the wrong alleged. The ease was then heard by a jury in said Court, which rendered a verdict in favor of the plaintiffs, and upon that verdict a judgment was entered. It is from that judgment this appeal is taken. We will first consider’ the action of the Court in its ruling on the demurrer.

In the case of the Metallic Compression Casting Co. v. Fitchburg R. R. Co., 109 Mass. 277 , the facts are quite similar to those in the case before us. It was necessary in that case to lay a hose across the railroad in order to obtain an available supply of water' to throw upon the burning building. The water’ from the hose was applied to the fire and it had diminished and would probably have- extinguished it, but servants of the railroad company ran a train over the hose, and severed it, and thereby cut off the water from the fire, which then consumed the building. They had notice about the hose, and might have stopped the train to permit the hose to be uncoupled.

In that case, quoting from the syllabus, which seems to state correctly what was decided therein, the Court held in an action brought by the owner’ of the building against the railroad corporation “that the firemen had a right at common law to lay the hose across the railroad; * * * that the severing of the hose was the approximate cause of the destruction of the building and that the defendants were liable for the negligence of their servants in severing the hose.” In Shearman & Redfield on Negligence, Vol. 2, Section 464, it is said that the railroad company is liable for injuries ⁶⁶¹ to property so caused, where it is seasonably warned to stop its train but fails to- do so. In Concordia Fire Insurance Co. v. Simmons Co., 167 Wis. 541 , where the defendant, a private Corporation, in driving piles for a building, negligently pierced the intake pipe, thereby rendering useless the city’s water work’s system, and building of the plaintiff was burned, because of a lack of water to extinguish the fire, it was said, “if it shall appear from the evidence, that defendant’s negligence so interfered with or interrupted the service which the municipality had been rendering, and was ready and willing on its part to> continue to render, to the householder whose house was destroyed by fire, that it could properly he held the proximate cause of the loss of the dwelling, we see no' reason why the defendant should not respond in damages.” In Louisville & Nashville R. R. Co. v. Scruggs, 161 Ala. 97 , 23 L. R. A. (N. S.) 184, the Court said: “If the fire hose had bean laid from the hydrant, across the tracks of the defendant, to the fire, and thei defendant’s servants, with knowledge of the existing conditions as to the fire and the laying of the hose, had wilfully or negligently run the train of cars over the hose, destroying it, and thereby prevented the extinguishing of the fire, a legal liability for such conduct would have arisen.” See also the cases of American, Sheet & Tin Plate Co. v. Pittsburg & Lake Erie R. R. Co., 75 C. C. A. 47 , 143 Fed. 789 ; Little Rock Traction & Electric Co. v. McCaskill, 75 Ark. 133 , 70 L. R. A. 680; Atkinson v. Newcastle & Gateshead Water Works Co., L. R. 6 Exch. 404. Upon the principles contained in the authorities cited, the allegations in the plaintiffs? declaration, if true, are sufficient to render the defendant liable for the loss and injury complained of.

Consequently the Oourt acted properly in overruling the demurrer. At the conclusion of the testimony, the Court granted the plaintiffs’ second and fifth prayers as offered, and after modi ⁶⁶² fication granted their first prayer. The defendant offered six prayers. The first, second, third, fourth and sixth were refused.

His fifth prayer was granted, as modified. We will next consider the action of the Court in its ruling upon the prayers. The Court was asked by defendant’s first prayer to instruct the jury that under the pleadings in the case there was no evidence legally sufficient to entitle the plaintiffs to recover. The property of the plaintiffs was located in the storehouse occupied by them, situated at the corner of Belair avenue and front street, in the town of Aberdeen, and was about three hundred feet on the northeast side of the defendant’s road, which passed, as we have said, through the town.

On the morning of February 5th, 1918, it was extremely cold, the temperature being below zero. The fire which started about 4.30 o’clock in the morning in a building to the north of the storehouse containing plaintiffs’ property, soon became a general conflagration. There were a number of fire plugs both on the north aand south side of the tracks of the defendant’s road. It was discovered that a number, if not all, of those on the north side of the tracks were frozen and from which no water could be obtained until they were thawed out by building-fires around them.

It was because of this condition, as disclosed by the evidence in the case, that those managing the fire determined to cross to the south of the railroad 'to ascertain if water could be procured from the plugs on that side of the tracks with which to extinguish the fire. The first one, the one nearest to the tracks, was also1 found to be frozen. It was discovered, however, that the next one in point of distance from the tracks and from the storehouse of the plaintiffs was not frozen and the hose was attached to that plug, which was known as the Adams’ Plug, and carried across the tracks. It was this hose that was cut- by the next southbound train that reached Aberdeen at 5.33 in the morning.

The cut portions of the hose were removed and the hose again adjusted to the plug when it was cut the second ⁶⁶³ time by another southbound train arriving at Aberdeen at 6.12 A. M. It is claimed by the defendant that this case should not have been submitted to the jury because of a want of legally sufficient evidence to show: (1) That a.sufficient quantity of water could have been obtained from the Adams’ plug to extinguish the fire in its advanced state at the time the hose was adjusted to the plug; (2) Or at any other time that morning; (3) That the plaintiffs were prevented by the cutting of the hose from getting a sufficient amount of water to extinguish the fire when there were other plugs in the town upon the same side of the road as the store property; (4) That notice was given to the defendant’s agent at Aberdeen or to the engineers or conductors in charge of the trains arriving at Aberdeen at 5.33 and 6.12 on the morning of the fire of the placing of the hose across the track or1 any intention of so doing in time to have stopped the said trains. Harry F. Strasbaugh, a caxmer of Aberdeen, testified that on the morning of February 5th, he was awakened by the alarm of fire. “When he got to the fire Mr. Tarring’s storé and Mr. Adams’ store were on fire, they were about 100 feet from Mr. Hanway’s store on Belair avenue; that seven buildings were burned, and it was quite a big fire. He saw the Tarring and Adams places burning. Mr. Silver’s place was next to Adams, and it caught fire and burned.

The next place was the Odd Fellows’ Hall. It was on the southwest corner of Belair avenue and Front street; that Mr. Hanway’s building was located on the southeast corner directly across Front street, that Front street is not over thirty feet wide. * * -x- qbe public square or park is across from the Hanway’s store on Belair avenue. Mr. Hanway’s building was not burned when I got there, it had not caught fire. Witness saw it catch fire, hut could not state the exact hour; that the railroad crossing is about 300 feet from the Hanwav store.” The witness, in speaking of the fire plugs, said: “the two plugs immediately in front of the Odd Fellows ⁶⁶⁴ Hall were frozen, it took some time to' thaw one of them out; the other we did not thaw out until later in the morning; because we could not g’et water from the nearby plugs, I suggested to my son to go across the railroad tracks and try the plugs across the railroad to see if they were frozen.

The first plug was frozen. * * * My son called back to me that he could not open it. I said try the other one in front of the Adams’ house; he called to me and said we have water here, bring the hose down. We immediately rushed the hose carriage down as quickly as possible.” Witness further testified that while the hose was being attached to the plug, just before or at the time of stretching the hose over the track, he procured two red lanterns. One he directed to be carried up> the track to flag the southbound trains and the other down the track to flag the northbound trains, so they could be stopped before reaching the crossing and before cutting the hose.

He says that when he gave those directions, Mr. Pritchard, the station agent of the defendant’s road at Aberdeen, was standing nearby and he said to witness, as he understood him, “it is not necessary to send a lantern up the track, I have notified the tower that there is a fire at Aberdeen and stop all trains.” When the hose was connected and stretched across the track to' or near the Han-way store, he called to his son to turn on the water. This he „ did, and it was discovered that the hose had a leaky joint. The water was then turned off and the leaky section removed and the water again turned on, when it was cut off by the northbound train reaching Aberdeen at 5.33 o’clock. The hose was again adjusted to the plug and was again cut by the train from the north, arriving at Aberdeen at 6.12 o’clock.

After that time, witness knew little of what was done with the hose that was attached to the Adams’ plug. The plug in front of the Methodist Church was then open and that plug with the Berman plug were the only ones used. The back part of the Hanway storehouse, consisted in part of a shed, running near or along Front street. Mr. Strasbaugh thought ⁶⁶⁵ it was about twenty minutes past five, when tlie Hanway storehouse caught fire, although he says that he did not look at his watch when he so fixed the time.

He first, saw the shed afire. At that time the hose was attached to the Adams plug. He was then asked: Q. At the time it was attached you were at the Hanway store or down at the railway crossing? A. Part of the time at one place or at the other.

He further testified that then the plugs to the north of the railroad, at least some of them, were used upon other buildings upon that side of the road in an attempt to extinguish the fire or prevent it from spreading. After the Berman and Church plugs were opened, he thinks all three plugs were for a while being used, hut in a short while the Adams plug was abandoned and the other two plugs alone were used. He was then asked: Q. Using the plugs at the Church corner and the Berman store affected the force of the water in the plug between it and the Adams house ? A. Yes, quite naturally.

Q. It diminished the force of the water until it was regarded as impracticable to use it ? A. I could not say that. I am not prepared to testify one way or the other in regard to that. I have no knowledge ?

Q. You do not know whether the water coming through there was coming with any force or no-t ? A. It came with considerable force. Witness testified, it was about, as he thought, 5.20 o’clock when the hose was first cut. lie did not think it could he much later than that from the fact that “it was 5 minutes after 5 when we took the hose down, then there was a leaky joint that we fixed in 5 minutes, probably not more than 3 or 4 minutes to connect it up, there were only two joints to unscrew.” Q. When you say it was 5.20, it may have been 5.25 or 5.30 ? A. The time I mention was the time it seemed to me, and soon after we fixed the joint the train came along and cut it in two.

Q. When you went up to the fire, where was the fire at that time, with reference to Hanway’s store ? A. The Hanway store had not caught. It had just about caught after the hose was cut.” ⁶⁶⁶ George A. Mitchell, foreman of Hose Company Ho. 1, testified that at the time of the fire they had plenty of hose hut the difficulty was in getting’ the plugs to work, that is getting-water from the plugs* as many of them were frozen. He worked in front of the Hanway storehouse and saw it when it caught fire.

It caught on or near the eaves and the blaze was, as he said, about “18 inches to a foot wide” when the hose attached to the plug across the railroad was ready to play upon the fire; that the hose was soon cut and the water stopped; that they spliced it and the water came through the hose when it was again cut by another southbound'train. He was asked: Q. You say the other plugs were frozen up. After you got them thawed out and got the. hose attached, where did you take the hose, what building did you go on ? A. We played the upper one at Parle street on the Ivins Drug Store and the one at Berman’s we played on Mr. Hanway’s store and over on the building adjoining him.

Q. Hot on the store proper? A. Ho; on the building where the restaurant is now. Q;. How much water did you have?

A. We had plenty of water, all that we wanted. Q. What time was it when the hose was put across the railroad track ? A. I judge along about ten or twenty minutes after 5 o’clock. The Berman plug, he thought, was opened about six o’clock.

Harry E. Aaronson, a member of the volunteer fire company, testified that on the morning of February 5th, he was called at twenty minutes after four and went up after the hose. He tried to get water out of the plugs but they were frozen. They tried the plug in front of the Odd Fellows’ Hall. The fire at that time was at Mr. Adams’ meat store, about 100 feet from the hall. “We tried several plugs around there, before we could get water.

When we-could not get any water, we went below the railroad. We found a water plug not frozen up at Will Adams’ and we attached the hose on to it. That was about 5 o’clock or a little after. * * * I saw Mr. Pritchard before that and saw Mr. Strasbaugh. Q. ⁶⁶⁷ What was Hr.

Strasbaugh doing there ? A. He was working trying to find fire plugs and trying to get the hose out and also trying to get some lanterns. Q. AVhat did he want with the lanterns ? A. He wanted to send them up and down the track to flag trains.

Q. Did you hear the conversation between him and Hr. Strasbaugh? A. Yes. Q. Tell the Court and jury what it was.

A. I heard Mr. Pritchard tell Hr. Strasbaugh to go ahead, as he had notified the towers, and Hr. Strasbaugh said 'go ahead,’ and by that I went across the railroad track with the hose. Mr. Pritchard was ten or fifteen feet away when he was talking.

I could not say whether he saw me stretch the hose across the track. Q. Did you get any water in the hose ? A. AAThen we connected the hose up and turned it on there was a, leak and we had to shut it off and connect it up- with another piece of hose on it. After we connected it up and had just turned the water on, it was just running in when it was cut in two by a train coming south.

Q. AVhere were you when it was cut ? A. T was 20 feet, I will say 30 feet from where it was cut. He again connected it with the plug and as he says ''we had a good flow of water when it was