Bennett v. Missouri, K. & T. Ry. Co.

• Decision Date: 05 October 1895
• Citation: 32 S.W. 834
• Parties: BENNETT et al. v. MISSOURI, K. & T. RY. CO.
• Court: Texas Court of Appeals

32 S.W. 834

BENNETT et al. v. MISSOURI, K. & T. RY. CO.

Court of Civil Appeals of Texas.

October 5, 1895.

Appeal from district court, Hill county; J. M. Hall, Judge.

Action by Bennett & Lovell against the Missouri, Kansas & Texas Railway Company. Judgment for defendant, and plaintiffs appeal. Reversed.

McKinnon & Carlton and Clark & Bolinger, for appellants. Stedman & Thompson, for appellee.

LIGHTFOOT, C. J.

The following statement of the case by appellants is concurred in by appellee, and is adopted: Appellants, as plaintiffs below, sued appellee, a railway corporation operating a line of railway passing through the corporate limits of the town of Hillsboro, for $22,000 damages resulting to appellants, in the total loss of 423 bales of cotton belonging to appellants, of the value of $22,000. Appellants stated as their cause of action against appellee substantially as follows: That on November 17, 1892, said appellee, acting through and by its agents, servants, and employés, in operating its train through said town of Hillsboro, Tex., negligently set fire to and burned the above-described cotton, of the above value, which cotton was situated in the Alliance Cotton Yards and Polland's Cotton Yard, on the northeast side of appellee's railway, in said town of Hillsboro; that said appellee so negligently and carelessly ran its engines and trains on and over its said railway tracks passing through said Hillsboro, Tex., and caused sparks and fire to fly through the smokestacks and engines, and set fire to said above-described cotton, causing its total destruction; that appellee was negligent in that its servants and employés ran their engines at said time and place, in the corporate limits of the city of Hillsboro, during a high wind, passing from their said engines in the direction of appellants' cotton, at a high and excessive rate of speed, to wit, at a speed of 15 miles per hour, thereby causing them to emit sparks and coals of fire as they passed the cotton yards in which appellants' cotton was situated, and that this was in violation of the laws and valid ordinances of said city of Hillsboro, a municipal corporation, prohibiting by ordinance the running of any engine through said corporate limits in said city at a greater rate of speed than 4 miles per hour; that appellee was further negligent in causing said fire, in that its engines were defectively constructed and permitted large sparks and coals of fire to escape from them in their operation along said railroad passing by said cotton yards where appellants' cotton was situated, and that said engines were provided with defective appliances, etc., and on account of said negligence and reckless high rate of speed at which defendant's engines were run on said day and date, and on account of said defective management and construction of said engines, appellants sustained all of said damages, etc. Appellee answered by general demurrer, general denial, and specially setting forth said fire did not originate from any negligence of appellee, but, if said appellee did cause said fire by negligence, appellants were also guilty of negligence, in that they placed their cotton in a few feet of appellee's railway track, where its trains were constantly passing, which trains necessarily and unavoidably emitted more or less fire, and were liable to communicate same to any combustible matter. The cotton was of highly combustible nature, and was in such position that it was liable to be ignited by sparks unavoidably thrown from appellee's engines passing, and if it was so ignited and burned by fire it was caused by appellants' own negligence, in failing to protect said cotton from being ignited, and in failing to provide means for extinguishing fire. And, further, if said fire resulted from negligence of appellee, as charged, that appellants were guilty of negligence in failing to prevent the destruction of said cotton after the fire had been communicated to it, and in permitting same to be destroyed after it had been ignited. And, further, that, even if said cotton was ignited and burned by sparks issuing from appellee's engines, it was not liable for the damages, for the reason that its engines were provided with the latest improved spark arresters and appliances for preventing the escape of fire, which appliances were in good condition, and said engines were manned and operated in a skillful manner, and engineers used the highest degree of skill and care to prevent said fire from escaping. And, further, that the ordinance of the city of Hillsboro referred to in plaintiffs' petition, prohibiting a greater rate of speed than 4 miles per hour, was void on the ground that it was unreasonable.

The cause being submitted to a jury, there was a verdict on which judgment was rendered for appellee, and the cause is before us on appeal.

The first assignment of error is as follows: "The court erred in failing and refusing to admit in evidence the testimony of Frank Young and others to the effect that at or about the time of the fire that he had seen engines drawing passenger trains for the defendant's railway passing through the city of Hillsboro at the place where the fire originated at a speed of 15 and 20 miles per hour. All of which is shown by bill of exceptions No. 1." The bill of exceptions does not make it clear that the testimony offered would show that the trains referred to passed "at or about the time of the fire," but that "the passing trains of the defendant going south before and after the burning of the cotton in question were in the habit of running into the city of Hillsboro, by the place where the cotton was located, at a rate of speed from 15 to 20 miles per hour." These trains might have passed so long before or so long after the fire as not to furnish the slightest evidence of negligence at or about the time of the fire. We cannot sustain the assignment, under the bill of exceptions, but in view of another trial, growing out of a reversal of the judgment for other errors, we will notice the question presented in the assignment. In the case of Railway Co. v. Donaldson, 73 Tex. 126, 11 S. W. 163, evidence was offered to show that a fire had originated on or about the same day from sparks from one of the defendant's engines at a different place, and from a different engine from the one causing the damage sued for. Judge Stayton said: "Other parts of the witness' testimony tend to show that the fire at Dickinson originated from sparks escaping from one of defendant's engines, though not from the one from which it is claimed the fire in question originated, and there was much evidence tending to show that all the appliances usual to prevent the escape of fire were used on the engines of defendant. So much of the evidence objected to, we are of the opinion, was admissible, as it had a tendency to rebut this evidence offered by defendant and to show that the officers and agents of the company, in this respect, were not so careful as they claimed to have been....