Willson v. Colorado & Southern Railway Co.

Mr. Justice Gabbert delivered the opinion of the court: The motion of the C. & S. and D. B. & W. for judgment on the pleadings, or more properly speaking, as the record shows, for judgment by default for want of a reply, was based upon the ground that the respective replications of plaintiff, to the effect that all new mat — 313 — ter in tlie answers of these defendants was denied, did not pnt in issue the affirmative defenses so pleaded. Such a denial is poor pleading and vulnerable to a motion to make more specific, — but as the replications were not so assailed they were sufficient to put in issue the affirmative averments of the respective answers to which they were directed. — Highlands v. Raine, 23 Colo. 295, 47 Pac. 283; City of Crete v. Hendricks, 2 Neb. Vnof. 847, 90 N. W. 215. The remaining errors assigned by defendants raise the questions of the sufficiency of the complaint and misjoinder of parties. To some extent at least these questions are involved in those urged by plaintiff, and we will next consider the rulings of the court in sustaining the motions for non-suit as to the C. & S. and C. & N. and directing the verdict in favor of the D. B. & W. The C. & S. and C. & N. had an arrangement whereby the latter was permitted to use the tracks and station of. the former in Boulder. The powder had been placed in a car of the C. & N. and whether the motion for non-suit interposed on behalf of the C. & 8. was properly sustained depends upon whether it was liable for the alleged negligence of the receiver" of the C. & N. who, under the direction of the court appointing him, adopted this arrangement or contract., The contract was one for the joint use of the road-bed, track and station at the point where the explosion occurred. This property belonged to the C. & 8. The companies had a joint agent at Boulder. He had charge of the men who handled the freight at the depot for both roads. The C. & 8. employes handled the freight for the C. & N., and the foreman of the yards, who was an employe of the C. & 8., had control of the- disposition of the cars in and around the station; — so that it appears the C. & S. controlled the tracks and station at the yards and that the O. & N. used these tracks jointly with the O. & S. with its consent, for which, and the handling of freight, it paid the C. & S. company a monthly rental. A railroad company which permits another to make a joint — 314 — use of its track is liable for the negligence of the company to which the permission is granted. — St. Louis I. M. & S. Ry. Co. v. Chappell, 83 Ark. 94, 102 S. W. 893, 10 L. R. A. (N. S.) 1175; R. R. Co. v. Barron, 5 Wall. 90, 18 L. Ed. 591; Sanders v. Penn. R. Co., 225 Pa. 105, 73 Atl. 1010, 133 Am. St. Rep. 857; O’Bannion’s Adm’r v. So. Ry. Co. (Ky.) 110 S. W. 329; Penn. R. Co. v. Ellett, 132 Ill. 654, 4 N. E. 559; C. & E. R. Co. v. Meech, 163 Ill. 305, 45 N. E. 290; Central Ry. Co. v. Wood, 129 Ala. 483, 29 South. 775. We think the authorities are substantially unanimous on this proposition; the reason for the rule being that a railroad company owes the public certain duties and that it can not by its own act, without the consent of the legislature, absolve itself from its public obligations. It is true that in this state a railroad company is authorized to lease its property to another company under certain circumstances and if the arrangement or contract in question had given the receiver of the C. & N. the exclusive control and possession of the tracks and station where the explosion occurred, it is possible that the C. & S. would not be liable for the tortious or negligent act of the receiver, — but that is not this case. The O. & N. at the time the powder was loaded in the car, and at the time of the explosion, was in the hands of a receiver who had the exclusive control of its property and the operation of the road. The receiver’s possession was not the possession of the corporation; the latter could not control either the receiver or his employes. The receiver was not the agent of the C. & N., and although it owned, or had some interest in, the property of which he had charge, it had no voice in its management, and could not select or control the employes who operated its road, or the property which it had leased from the C. & S., consequently in the absence of a statute imposing liability, it is not responsible for the torts of the receiver or his employes. — Kansas Pac. Ry Co. v. Searle, 11 Colo. 1, 16 Pac. 328; Ohio & M. R. Co. — 315 — v. Davis, 23 Ind. 553, 85 Am. Dec. 477; Chamberlain v. New York, L. E. & W. R. Co. (C. C.) 71 Fed. 636; Memphis & C. R. Co. v. Hoechmer, 67 Fed. 456, 14 C. C. A. 469; Schurr v. Omaha & St. L. Ry. Co., 98 Iowa, 418 67 N. W. 280; Gableman v. Peoria, D. & E. Ry. Co. (C. C.) 82 Fed. 790; State v. Wabash Ry. Co., 115 Ind. 466, 17 N. E. 909, 1 L. R. A. 179; High, on Receivers (4th Ed.) § 396; Godfrey v. Ohio & M. Ry. Co., 116 Ind. 30, 18 N. E. 61; Archambeau v. New York & N. E. R. Co., 170 Mass. 272, 49 N. E. 435. There are some exceptions to this rule but the facts here do not bring the cause within the exceptions. From the averments of the complaint it appears that the negligence charged, for which it sought to hold the C. & N. responsible, was the acts of the receiver and, for the reasons above given, its demurrer challenging the sufficiency of the complaint should have been sustained. In considering the ruling of the court in directing a verdict for the D. B. & W. three questions are presented: (1) The sufficiency of the testimony to establish negligence of the receiver. (2) Whether the fire, started by incendiaries, was the proximate cause of the death of plaintiff’s husband, and, (3) If not, can the D. B. & W. be held for the negligence of the receiver in this action? The evidence establishes that the car containing the powder was loaded with other merchandise and left standing at the freight station, which was located in the near vicinity of many occupied dwellings; that the car was not placarded with notice of its dangerous contents; that those engaged in endeavoring to extinguish the fire were not warned that the car contained an explosive, although the fire had been'burning for fully one-half hour before the explosion occurred. Neither was any effort made to remove the car. It also appears that the powder was loaded in ample time for the car containing it to have been taken out on the train which left on the afternoon of August 8th, but was held on the track in order that enough freight might be accumulated — 316 — to fill the car. Does this state of facts, tend to establish negligence? The keeping of explosives in large quantities in close proximity to occupied dwellings is a menace to life, and whether keeping it in a car in which it is loaded for transportation by a common carrier constitutes actionable negligence must depend more or less upon the facts of each ease where such action is called in question. The law considers explosives dangerous and requires that those engaged in transporting them should exercise that degree of care to prevent injuries to others therefrom as ordinarily prudent persons, considering their dangerous character, would exercise in similar circumstances, and a failure to do so is negligence. — Derry Coal and Coke Co. v. Kerbaugh, 222 Pa. 448, 71 Atl. 915; Henry v. Cleveland C. C. & St. L. R. Co., (C. C.) 67 Fed. 426. A common carrier has the right to transport powder, but this does not include the right to subject persons to danger from its explosion in a greater degree than is reasonably necessary for the proper performance of its duty as a carrier. — Ft. Worth and Denver City R. Co. v. Beauchamp, 58 L. R. A. 716. Applying these principles we think there was sufficient testimony to justify the submission of the question of negligence to the jury. The car was left in the near vicinity of occupied dwellings. There is no doubt regarding the dangerous character of dynamite. The car containing it could have been sent out before it was entirely filled with other merchandise. If fire was communicated to the powder it was liable to explode. It was in sufficient quantity to cause the death of persons near by if it exploded. After the car was filled with merchandise and ready for shipment it was still left where, if the powder it contained exploded, it might cause the loss of human life. It was not placarded so as to give notice to any one of its dangerous contents. The fire had been under headway for a considerable period of time, and yet no employe of the receiver notified those engaged in extinguishing the fire that the car contained powder; nor made any effort to remove it. Un — 317 — doubtedly the car, after being loaded, could have been moved to some point where danger from fire would not have been so great as where it stood, or in case fire was communicated to it and an explosion occurred, it would not likely have caused the death of any person. We think all these matters were proper for a jury to consider in determining whether negligence was established, and not a question for the court. In this connection we will consider the ruling of the court in declining to admit in evidence the ordinance of the City of Boulder as pleaded in the complaint. No doubt a common carrier may be guilty of negligence by violating this ordinance, but in the circumstances of this ease we think it was not admissible. The receiver was engaged in transporting the powder. It was loaded into a car for that purpose, and the negligence, if any, consisted not in storing it, but in the failure to take that degree of care, after it was placed in the car, to prevent injury to others which an ordinarily prudent person, taking into consideration its dangerous character, would exercise under similar circumstances. Nor was the section of the ordinance pleaded by defendants admissible. They were not charged with negligence as a result of failing to comply with its provisions. If a jury should determine that the receiver was guilty of negligence, would the fact that the fire was started by an incendiary excuse such negligence? Where there are several agencies or causes of an injury the question is which was the efficient, dominating cause and in determining this question the rule is, if the jury should find the receiver was guilty of negligence, that where the injury is the result of the combined negligence of a defendant, and the wrongful act of a third party for whose act neither the injured party nor the defendant is responsible the latter is liable when the injury would not have occurred except for his negligence.— Colo. Mort. & Inv. Co. v. Rees, 21 Colo. 435, 42 Pac. 42; Carlock v. D. & R. G. Co., 55 Colo. 146, 133 Pac. 1103; Towner v. Harper, 32 Colo. 156, 75 Pac. 404; Colo. Mort. — 318 — & Inv. Co. v. Giacomini, 55 Col. 538, 540, 136 Pac. 1039; Byron Tel. Co. v. Sheets, 122 Ill. App. 6; Johnson v. Northwestern Tel. Exch. Co., 48 Minn. 433, 551 N. W. 225. If it should be determined that the receiver was guilty of negligence there is an additional reason, although along the same line, why the origin of the fire would not be a defense. A common carrier has the right to transport explosives, — but a nuisance may result from a negligent exercise of this right. Endangering life by leaving a car containing a high explosive in large quantities in a location in circumstances which would constitute negligence constitutes a nuisance. In such case it is not necessary to either plead or prove the immediate cause of an explosion of the powder so "kept, for the reason that the original and primary cause of an injury resulting from such explosion is the establishment of a nuisance. — Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654; Chicago W. & V. Co. v. Glass, 34 Ill. App. 364; Myers v. Malcolm, 6 Hill. 292, 41 Am. Dec. 744. There can be no doubt regarding the liability of the D. B. & W. for the tort of the receiver if such tort is established, because, by the terms of its purchase of the property of the C. & N., it assumed this liability. This agreement was for the benefit of those having a claim against the receiver, of which plaintiff is one. — Knott v. D. & S. C. Ry. Co., 84 Iowa 462, 51 N. W. 57. The only question is whether it can be joined as a defendant in this action. Counsel for defendants claim that it can not be, for the reason that the action against its co-defendants was one in tort, while that against it is in contract. The cause of action against each defendant is the alleged tort of the receiver, and its liability therefor. Hence the fact that one may be liable as a wrong-doer, and the other, because it assumed liability therefor, does not make a case of either misjoinder of parties or causes of action, because in such circumstances each is liable — 319 — for the same tort. — D. & R. G. Co. v. Gunning, 33 Colo. 280, 80 Pac. 627. It is urged on behalf of the defendants that because the non-suit against the C. & N. was properly sustained that the action for this reason must also fail as against the other defendants. In an action against several defendants based upon a joint tort the rule is that the plaintiff will be permitted to recover against • such of the defendants as his testimony establishes were guilty of the tort charged and the fact that one may be acquitted does not defeat his action as against those found guilty of the tort. — Denver Omnibus and Cab Co. v. Gast, 54 Colo. 17, 80 Pac. 727. The judgment of the district court granting a non-suit against the C. & S. and directing a verdict in favor of the D. B. & W. is reversed, and the cause is remanded for a new trial as to these defendants’. In discussing the case we must not be understood as having indicated that actionable negligence was established by the testimony, but that we have only held that from the testimony on the subject the question should have been submitted to the jury. Judgment affirmed in part and reversed in part and cause remanded for a new trial. Chief Justice Musser and Mr. Justice-Hill concur.