Louisville & N. R. v. Joullian

Stevens, J., delivered the opinion of the court. While there are two cases, and a separate appeal in each, both will be disposed of in one opinion. The testimony in the two cases is slightly different, but the same legal principle controls the disposition of both appeals. In September, 1915, a storm of great violence swept the Gulf Coast. During this storm two schooners belonging to the appellee, Mr. Joullian, were dragged from a certain canning factory of appellee across the marshes until they struck and were deposited upon the railroad of the appellant The schooner Two Sons, the value of which is sued for in cause No. 19,730, was carried a distance of three-fourths of a mile, while the other boat, the schooner Gabriel, was taken from her [44] moorings in the bayou and carried about a mile. After the storm had subsided, the employees of appellant, in clearing and repairing the track and rebuilding bridges, found both boats upon the track, and in order to clear the track, destroyed the plaintiff’s property. The schooner Two Sons was, according to the testimony offered for the plaintiff, “busted to pieces and burned,” while the schooner Gabriel was sawn in two and burned. Thereafter Mr. Joullian instituted separate suits for the value of the boats and recovered judgment in each case, from which the present appeals are prosecuted. The evidence being in conflict, we must take the case as made by the plaintiff’s testimony. This testimony tends to prove that the wrecking crew of appellant willfully and wantonly destroyed the plaintiff’s property. This being true, disposition of these appeals would not be controlled by the ease of McKeesport Sawmill Co. v. Pennsylvania Co. (C. C.), 122 Fed. 185, and the authorities referred to by Archbald, District Judge, in the opinion, upon which counsel for appellant rely. In the case just referred to, the railroad company in repairing a bridge across a stream had constructed certain false work for the bridge. A runaway coal barge floated down and against this false work, and endangered defendant’s property. Not only was there immediate danger to the construction work of the railroad company but the proof showed, and the opinion states, that: “There is no suggestion that it (the barge) was wantonly destroyed, and the evidence shows that it was cut to pieces only after other means had been tried and failed. ’ ’ The boat there was “a floating nuisance.” In the present case the testimony shows that the railroad bridge at Bay St. Louis on the north and the railroad bridge at Eigolets, in the direction of New Orleans, were both swept away by the storm, and the two boats involved in this litigation lay upon that part of the main [45] line of the railroad between these_ two bridges. At the time the boats were destroyed there was no through traffic, and the regular trains of appellant did not have occasion to pass until many days after the boats had been destroyed. In other words, there was time for the railway company to employ the services of those who knew how to jack up and remove the boat from the right of way, or to permit the plaintiff to do this work for himself. The proof shows this could have been done in six hours. This is the case as made by and for the plaintiff. There is also testimony in one of the cases tending to show that appellant had a passing unobstructed side track at the point where one of the boats lay. The proof justifies the conclusion that the foreman of appellant was reckless and employed unnecessary force in removing the obstructions. The boats were deposited upon the railroad track through no fault of either party. The instructions given the defendant were liberal and favorable. Two of these instructions advised the jury that: “It was the duty of the plaintiff to remove said boat at the earliest possible moment, and to use extraordinary diligence in said removal, and if the plaintiff failed * * * that the deffendant had a right to remove said boat, and that in so removing it, it was not bound to use the highest skill, either of workmanship or appliances, that it was only bound to have such ordinary and careful men and such appliances, which under the circumstances and the time and place were immediately available to it, for the purpose “of moving said boat.” While the present cases are somewhat different from,, yet they are within, the principle approved by our court in Postal Telegraph-Cable Co. v. Gulf & Ship Island R. R. Co., 110 Miss. 770, 70 So. 833. Affirmed.