Edwards v. Campbell

• Decision Date: 22 January 1896
• Citation: 33 S.W. 761
• Parties: EDWARDS et al. v. CAMPBELL et al.
• Court: Texas Court of Appeals

33 S.W. 761

EDWARDS et al. v. CAMPBELL et al.

Court of Civil Appeals of Texas.

January 22, 1896.

Appeal from district court, Williamson county; F. G. Morris, Judge.

Action by H. L. Edwards & Co. against Thomas M. Campbell and others. Judgment for defendants. Plaintiffs appeal. Reversed.

J. W. Parker, for appellants.

FISHER, C. J.

Statement of nature and result of suit: This was an action by appellants, plaintiffs in the court below, against Thomas M. Campbell, as receiver of the International & Great Northern Railway Company, George A. Eddy and Harrison C. Cross, as receivers of the Missouri, Kansas & Texas Railway Company, the Missouri, Kansas & Texas Railway Company of Texas, and the International & Great Northern Railway Company, defendants in the court below and appellees here, for the value of 116 bales of cotton destroyed and injured by fire set out by a locomotive engine of defendant receivers while situated on the platform of the Taylor Compress Company, in Taylor, Tex., on December 20, 1890. Defendants, besides a general denial, pleaded contributory negligence on the part of plaintiffs for having their cotton on the said platform, and an agreement to assume risk from fire while thereon. Judgment below was in favor of the defendants. It appears from the facts that the cotton in controversy was destroyed by fire at the time alleged, when it was situated on the platform of the compress company. The compress and platform were on grounds controlled by the railway companies, but the inference is that it was removed from the tracks in use for the principal business of the company, and that there were tracks or sidings, leading out to the compress, which ran close to the platform. These tracks were used by the railway companies in placing cars convenient to the platform for the purpose of loading and unloading cotton; and the tracks, it seems, were controlled by the roads. The compress was not under the control of the railway companies, but they paid the toll for compressing. There is strong evidence tending to show that the fire that destroyed the cotton was set out by a locomotive that approached the platform, and near to the cotton, in order to place some cars alongside of the platform. There is evidence that tends to show that the locomotive from which it is probable the fire escaped had, recently before the fire, been overhauled with reference to its condition in permitting fire to escape, and there is evidence that tends to show that it had been placed in proper condition to prevent the escape of fire; but there is also some evidence that tends to show that some fire will escape from a locomotive in use, although the most approved appliances be used to prevent it. The evidence shows that at the time the fire was set out there was a high wind, and that the locomotive approached the platform and cotton to the windward. There is also evidence that tends to show that the cars could have been placed alongside the platform without the necessity of the locomotive going near to it by pushing them by hand, or by placing other cars between the engine and those desired to be placed, and backing them to the desired point, or by what is called "kicking" the cars, and having a brakeman to stop them at the desired point. Plaintiffs proved a rule of the railway companies, in force, requiring yardmen to take precautions for the protection of cotton against fire under all circumstances, without any regard to any question of convenience. It also appears that the engine from which the fire evidently escaped was in operation as a yard engine at the time. There is evidence that shows that the cars may have been placed in the desired position in either of the ways suggested, and there is evidence to the effect that the methods of "kicking" cars to the desired point, and of placing cars where wanted by placing others between them and the locomotive and backing them to the point, are in use by first-class railroads.

Under this state of the facts appellant contends that it was negligence to place the cars alongside the platform by the use of the engine, and that either of the three other means suggested should have been resorted to. In reply to this it is shown that a public road crosses the tracks that ran alongside of the platform a short distance from it, and it may be contended that, as the law requires a whistle to be blown or a bell to be rung at a distance of at least 80 rods from the crossing, and that such bell shall be kept ringing until it shall have crossed the public road or street, that a resort to means in order to place the cars that would not require the locomotive to cross the street would be a violation of the law quoted. Under the facts as stated, and in view of this theory, the court gave to the jury the following charge: "(4) The defendants had the right to operate their engines with steam, and place cars by said platform, and haul them therefrom, and the defendants would not be required under the law, to cause cars to be run onto said side track detached from an engine, if in so doing the cars would be run across a public highway unaccompanied by an engine with a bell or other alarm, to be used, when crossing, in giving alarm to persons who might be passing along the public highway; and if you believe, from the evidence, that such movement of detached cars would have, in the reasonable course of such placing of cars, crossed a public highway, negligence cannot be attributed to defendants for such failure to cause its cars to be moved across such public highway detached from the engine, by which the alarms required by law could alone be made." Following this was also a charge instructing the jury that if they "believed, from the evidence, that there was a practicable means which persons of ordinary prudence would have used under like circumstances to place said cars at said platform, and to remove the same therefrom by steam power, without bringing the engine in such proximity to plaintiffs' cotton as would place such cotton in danger of being ignited by sparks from defendants' engine, the failure to use such means would be negligence." The court, in the latter charge, recognizes the rule contended for by appellants to the effect, if reasonable means could be resorted to in placing the cars, other than running the engine near the cotton, and exposing it to danger, it was the duty of appellees to do so; and the...