Opinion
Decided June 6, 1905.
Common carriers cannot exempt themselves by express contract from liability for loss or damage attributable to their own negligence. A consignor is entitled to recover of common carriers for merchandise destroyed by fire which started without their fault, but which they negligently failed to extinguish. In an action against common carriers to recover for merchandise destroyed by fire, evidence of inadequate public protection is competent upon the question of the defendants' negligence in failing to employ watchmen and maintain fire apparatus.
CASE, for goods destroyed by fire while in the custody of the defendants as common carriers. Trial by the court and verdicts for the plaintiffs. Transferred from the May term, 1904, of the superior court by Wallace, C. J., upon the defendants' exceptions to the denial of their motions for nonsuits and to the admission of evidence as to the fire protection provided by the city of Taunton, Massachusetts, in the vicinity of the defendants' freight yards.
The evidence in the first case tended to prove the following facts: The plaintiffs delivered a case of goods to the Boston Maine Railroad at Newport, New Hampshire, for shipment to Taunton, Massachusetts. The Boston Maine Railroad delivered the merchandise to the defendants at Lowell, Massachusetts, and they hauled it to Taunton, where it arrived on Sunday morning. The car was not unloaded upon arrival, but remained upon the track near the defendants' transfer station, and was destroyed that night by a fire which started without their fault. The transfer station stood in the middle of a large freight yard, and consisted of an open shed about 400 feet long, with an office building at one end and a storehouse at the other. The fire started in the middle of the shed and was discovered by a crossing tender when it had been burning only a few minutes; but no alarm was given, nor any attempt made to extinguish the fire or to remove the cars from its vicinity, for three quarters of an hour. When an alarm was given the fire department responded promptly, but considerable time was consumed in getting sufficient water to control the conflagration, owing to a scarcity of hydrants in that section of the city. Although the fire spread slowly, before it was placed under control the transfer station was burning from end to end, together with a large number of cars which stood on the tracks near it. The defendants employed no one to discover or extinguish fires on their premises and provided no fire apparatus. If the transfer station had been equipped with hydrant and hose, two men could have controlled the fire within five minutes from the time it, was discovered. The majority of those who are engaged in business in that section of the city maintain their own fire apparatus, and are permitted to connect their hydrants with the city's water-mains. There had been several fires in the yard before the one in question. The plaintiffs' goods were shipped under a special contract which provided that "no carrier . . . shall be liable for any loss thereof or damage thereto . . . by fire from any cause, wheresoever occurring."
The evidence in the second case was the same as that in the first, excepting that the property destroyed was a trunk filled with clothing.
Frank O. Chellis, for the plaintiffs.
Ira Colby Son, for the defendants.
The defendants' first exception must be overruled because there is evidence from which it can be found that the defendants' negligence was the legal cause of the plaintiffs' loss, and they cannot relieve themselves from the consequences of their wrongful acts by special contract, either in this state or in Massachusetts. Durgin v. Company, 66 N.H. 277; Cox v. Railroad, 170 Mass. 129, 136, 137; School District v. Railroad, 102 Mass. 552. It could be found that if the defendants had used ordinary care in respect to employing watchmen and providing apparatus for extinguishing fires, this one would have been confined to the transfer station. In that case, notwithstanding the fire started without the defendants' fault, their negligence in respect to extinguishing it would be the legal cause, and the fire itself only the occasion, of the plaintiffs' loss.
The evidence in respect to the facilities provided by the city for extinguishing fires was properly admitted, for the precautions that ordinary men would take to protect the property in this yard from fire would depend in some degree, at least, upon the protection furnished by the city. The exception to the amount of the damages in the second case, not having been argued, has not been considered.
Exceptions overruled.
All concurred.