Campbell v. Goodwin

• Court: Texas Court of Appeals
• Writing for the Court: Key
• Citation: Campbell v. Goodwin, 26 S.W. 864 (Tex. App. 1894)
• Decision Date: 06 June 1894
• Parties: CAMPBELL et al. v. GOODWIN.

26 S.W. 864

CAMPBELL et al. v. GOODWIN.

Court of Civil Appeals of Texas.

June 6, 1894.

Appeal from Williamson county court; D. S. Chessher, Judge.

Action by H. Goodwin against T. M. Campbell, receiver, and others. Plaintiff had judgment, and defendants appeal. Reversed.

Clarence H. Miller and Fisher & Townes, for appellants. J. W. Parker, for appellee.

KEY, J.

This is a grass-burning case. Appellee charged in his petition that appellant Cambell, as receiver of the International & Great Northern Railroad Company, negligently permitted dry grass, weeds, and other combustible matter to be upon the right of way of said railroad where it passes through appellee's pasture; that said Campbell was guilty of negligence in not equipping the engines used on said road with the latest and most approved appliances for the prevention of the escape of fire, etc. Appellants' answer contained a general demurrer and a generel and special denial.

1. Clearly and without conflict the testimony showed that the fire originated on the right of way, and spread to appellee's land, adjoining the right of way. The court instructed the jury that if they believed from a preponderance of the testimony that fire escaped from an engine operated by said Campbell as receiver of said company, and set fire to the grass in appellee's pasture, and destroyed any of the same, and injured the sod and turf of the land, as alleged in his petition, to find a verdict for him, unless they should find that he, by the exercise of ordinary diligence and prudence, could have extinguished the fire, and failed to do so; and nowhere in the charges given were the jury allowed to determine for themselves whether or not the facts thus enumerated, if found to exist, would constitute negligence. Appellants complain of the charge referred to, because it withdrew from, and did not submit to, the jury the question of negligence. The complaint is well founded, and requires a reversal of the judgment. A long line of decisions in this state, beginning as far back as Railway Co. v. Murphy, 46 Tex. 356, and ending with Railway Co. v. Cusenberry (Tex. Sup.) 26 S. W. 43, holds that, in the absence of a law defining the act or omission which constitutes negligence, it is a fact to be found by the jury on evidence, and that it is error to instruct the jury as to what acts or omissions constitute negligence. Railroad Co. v. Randall, 50 Tex. 254; Railway Co. v. Graves, 59 Tex. 330; Railway Co. v. Richards, Id. 376; Railway Co. v. Simpson, 60 Tex. 103; Costley v. Railway Co., 70 Tex. 112, 8 S. W. 114; and Railway Co. v. Lee, 70 Tex. 496, 7 S. W. 857; Railway Co. v. Hill, 71 Tex. 459, 9 S. W. 351; Campbell v. Trimble, 75 Tex. 271, 12 S. W. 863.

Appellee seeks to sustain the judgment in this case by the rule applied in Railway Co. v. Wallace, 74 Tex. 581, 12 S. W. 227. In that case a somewhat similar charge was given; and, while declaring that the charge did not state the law correctly, the supreme court declined to reverse the judgment, because, in the language of the opinion, "there was no evidence whatever tending to show that appellant used appliances such as are usual and necessary to prevent, as far as may be, the escape of fire from the engine, nor tending to show that its right of way was kept free from inflammatory material. On the other hand, there was evidence, which the jury must have believed, reasonably sufficient to show that the burning was caused by fire that escaped from the engine, and that inflammatory matter was permitted to accumulate on the right of way." That case differs...