The Grant Brothers Construction Company recovered judgment in the district court of the territory of Arizona for $9,061 for the loss of its property by fire on June 6, 1907, between Bouse and Phoenix, Arizona, while in course of transportation on the railroad operated by the Santa Fe, Prescott, & Phoenix Railway Company, the plaintiff in error. The judgment was entered upon a verdict of a jury, a motion for a new trial was denied, and the judgment was affirmed by the supreme court of the territory.
The railway company had been engaged in building, westerly from its main line, a branch railroad known as the Arizona & California Railroad. For this purpose it entered into a contract with the construction company for the necessary grading. The property in question consisted of the camp and grading outfit and supplies, belonging to the construction company, which had been used by it in this work, and were being removed by reason of its completion. At the time in question the branch line was operated regularly only as far as Bouse, and the property was loaded on cars 'at the front' or end of track, about 12 miles west of that station, to be carried to Phoenix. The superintendent, foremen, and about fifty workmen of the construction company, were taken on the cars at the same place for the same destination. The cars were hauled by the railway company to Bouse (where explosives and hay were unloaded), and were there attached to a regular train which brought them to a point known as the A. and C. Junction, where the Arizona & California line joined the main line of the railway company. At this junction (which was about 4 miles from Wickenburg, a station on the main line in the direction of Phoenix), all the cars containing the outfit of the construction company, save one, were cut out of the train and were put upon a side track. The rest of the train, with the employees of the construction company, went on to Wickenburg. This took place late in the evening of June 5, 1907, and about 10 o'clock in the morning of the next day, four of the cars left on the side track were destroyed by fire.
The A. and C. Junction is described as being in an open desert, without a station agent or inhabitants, and without water or fire apparatus. The cars were left without a watchman in charge. The reason given by the conductor for leaving them at this point was that there was no room for the cars at Wickenburg. There was no explanation of the cause of the fire, the only suggestion as to this being that before the fire occurred one train passed by, between 4 and 5 o'clock in the morning.
At the close of the evidence the railway company requested the trial court to direct a verdict in its favor. This request was refused and exception taken; and the sustaining of this ruling is assigned as error. It is contended by the railway company that, under its contract with the construction company, it was exempt from all liability; and, further, that even assuming it to be liable for negligence, there was a total failure of proof in that respect.
The principal question relates to the scope and validity of the provision of the contract between the parties as to the liability of the railway company.
The facts are these: In November, 1904, the railway company issued a call for proposals for the grading of the roadbed, clearing right-of-way, making necessary canals, etc., of the Arizona & California Railroad, for a distance of about 40 miles. The construction company made a bid, which was accepted, and a contract was executed accordingly on December 12, 1904.
This contract, after providing for the performance of the described work of grading, etc., contained the following terms with respect to the transportation of suplies, camp and grading outfit, and employees of the construction company, which were the same as those set forth in the call for bids:
'14. Water will be delivered in cars at the end of the track at the rate of one dollar and fifty cents ($1.50) per 1,000 gallons, and supplies will be hauled to end of track, both in the usual manner of construction trains, subject to delays, etc., incident thereto. All risk of loss or damage to be borne by the contractor.
'15. The company will furnish a rate of 1 cent per ton mile from all points on the S. F. P. & P. Road and leased roads for the contractor, on camp and grading outfit and supplies, corral supplies, etc., except explosives and commissary goods, and return to original shipping points at same rates, on completion of the work. All movements of goods at less than tariff rates to be at consignee's risk of loss and damage.