Campbell v. Goodwin

• Decision Date: 05 November 1894
• Citation: Campbell v. Goodwin, 28 S.W. 273, 87 Tex. 273 (Tex. 1894)
• Parties: CAMPBELL et al. v. GOODWIN.
• Court: Texas Supreme Court

Page 273

28 S.W. 273

CAMPBELL et al. v. GOODWIN.

Supreme Court of Texas.

November 5, 1894.

Certified questions from court of civil appeals of Third supreme judicial district.

Action by H. Goodwin against T. M. Campbell, receiver, and others. Plaintiff had judgment, which was reversed in the court of civil appeals. 26 S. W. 864. The case was brought up on certified questions from that court.

J. W. Parker, for plaintiff. C. H. Miller and Fisher & Townes, for defendants.

BROWN, J.

Goodwin sued Campbell in the district court of Williamson county, alleging, in substance, that Campbell was receiver of the International & Great Northern Railway Company, and as such engaged in the operation of its railroad; that said Campbell, receiver, negligently permitted combustible matter to grow and accumulate upon the right of way of the railroad, and operated over the said railroad engines which were not supplied with the latest and most approved appliance for preventing the escape of sparks of fire from the same; that said engines were operated by employés who were incompetent and unskillful, and known to the receiver so to be; also, that the employés carelessly and negligently handled and managed said engines, whereby fire escaped from one of said engines, and was communicated to the grass on plaintiff's lands, destroying the same and injuring the sod, etc., alleging the amount of the damages. Appellant answered by general denial, and specially that the engine from which it was charged the fire escaped was properly equipped and skillfully handled.

We copy from the statement made by the court of civil appeals, as follows: "The testimony showed, without conflict, that sparks escaped from a passing engine, started a fire on the right of way of the railroad, and spread to appellant's land and burned his grass. No evidence was offered tending to show how the engine was equipped to prevent the escape of fire, nor how it was managed and operated on the occasion in question. There was testimony tending to show that the right of way, at the time in question, was reasonably clean and free from combustible matter, though there was other testimony to show to the contrary." "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...