Freeman v. Nathan

• Citation: 149 S.W. 248
• Court: Court of Appeals of Texas
• Decision Date: 08 May 1912
• Parties: FREEMAN v. NATHAN et al.<SMALL><SUP>†</SUP></SMALL>

149 S.W. 248

FREEMAN v. NATHAN et al.^†

Court of Civil Appeals of Texas. Austin.

May 8, 1912.

Rehearing Denied June 19, 1912.

Appeal from District Court, Falls County; Richard I. Munroe, Judge.

Action by I. J. Nathan and others against T. J. Freeman, receiver of the International & Great Northern Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Appellee I. J. Nathan brought this suit against T. J. Freeman, as receiver of the International & Great Northern Railroad Company, to recover for the destruction by fire of the plaintiff's electric light and ice plant and stock of supplies in connection therewith, in the city of Marlin, Tex., on September 17, 1909. The fire was alleged to have been caused by the negligence of the receiver, which was denied in the defendant's answer, wherein it was alleged as a defense that the plaintiff was guilty of contributory negligence. Five insurance companies intervened and claimed the right to recover against the defendant, on account of having been compelled to pay certain policies of insurance upon the property referred to. There was a jury trial, resulting in a verdict and judgment in favor of the plaintiff and the interveners for $21,000, and the defendant has brought the case to this court for revision.

Omitting certain formal parts, the judge instructed the jury as follows:

"You are instructed that the defendant receiver, in running trains over the road of which he is receiver, is required to exercise ordinary care to equip the engine or locomotive drawing such train with the most approved appliances in general use to prevent the escape of sparks, cinders, and coals therefrom, and to exercise ordinary care to keep such appliances in repair and properly fitted and adjusted, and to exercise ordinary care to keep the land included within the right of way sufficiently free of inflammable grass, weeds, and other matter as to prevent the same catching fire from sparks, cinders, or coals escaping from passing engines, and communicating such fire to adjacent property, and to exercise ordinary care in respect to the wetting of the fuel used in such engines if in the exercise of ordinary care such fuel should be wetted, and to exercise ordinary care in respect of the emptying of the ash pan of such engine, if in the exercise of ordinary care such ash pan should be emptied, to prevent the escape of sparks, cinders, or coals from such engine. And the defendant receiver, if liable for damages from fires directly and proximately caused by his negligent failure to exercise such ordinary (care) in any of the respects above named, unless, however, the person or persons sustaining such damage have been guilty of contributory negligence, as hereinafter defined. But when the defendant receiver has exercised such ordinary care in each of the respects above named, he has complied with the requirements of the law, and is not liable for any damage from any

fires set out by said engines; nor is he liable for any such damage, when the person or persons sustaining such damage have been guilty of contributory negligence as hereinafter defined.

"Ordinary care is such care as an ordinarily prudent person would exercise under the same or similar circumstances. If therefore you believe from the evidence that on September 17, 1909, sparks, cinders, or coals escaped from the defendant's engine No. 122 and set fire to inflammable grass or weeds or other material on land included within the right of way, and through the agency of such inflammable grass, weeds, or other material set fire to the plaintiff's premises and improvements; and if you further believe from the evidence that the defendant failed to exercise ordinary care to equip said engine with the most approved appliances in general use to prevent the escape of sparks, cinders, and coals, or failed to exercise ordinary care to keep such appliances in repair and properly fitted and adjusted, or failed to use ordinary care to keep the land included within the right of way sufficiently free of inflammable grass, weeds, and other matter as to prevent the same catching fire from sparks, cinders, or coals escaping from such engine and communicating such fire to adjacent property, or failed to exercise ordinary care in respect of the wetting of the fuel used, in such engine, if in the exercise of ordinary care such fuel should be wetted, or failed to exercise ordinary care in respect of the emptying of the ash pan of such engine, if in the exercise of ordinary care such ash pan should be emptied; and if you further believe from the evidence that the setting of the plaintiff's property on fire was directly and proximately caused by the defendant's negligent failure, if any, to exercise such ordinary care—then you will return a verdict in favor of the interveners, or of the interveners and the plaintiff, as hereinafter charged, for the amount of the damage, if any, sustained by the plaintiff by reason of such fire, unless you believe from the evidence that the plaintiff was guilty of contributory negligence, as hereinafter defined.

"If, however, you do not believe from the evidence that sparks, cinders, or coals escaped from defendant's engine No. 122 and set fire to inflammable grass or weeds or other material on land included within the right of way, and through the agency of such inflammable grass or weeds or other material set fire to the plaintiff's property, you will return a verdict in favor of the defendant; or if you do not believe from the evidence that the defendant failed to exercise ordinary care to equip said engine with the most approved appliances in general use to prevent the escape of sparks, cinders, or coals, and do not believe that he failed to exercise ordinary care to keep such appliances in repair and properly fitted and adjusted, and do not believe that he failed to exercise ordinary care to keep the land included within the right of way sufficiently free of inflammable grass and other matter to prevent the same from catching fire from sparks, cinders, or coals escaping from said engine and communicating said fire to plaintiff's property, and do not believe that he failed to exercise ordinary care with respect to the wetting of the fuel used in said engine, or that in the exercise of ordinary care such fuel need not be wetted, and do not believe that he failed to exercise or use ordinary care in respect to the emptying of the ash pan of such engine, or that in the exercise of ordinary care such ash pan need not be emptied, you will return a verdict for the defendant, though you may believe that sparks, cinders, or coals escaped from said engine and set fire to material on the right of way, and through its agency set fire to the plaintiff's property.

"In determining the amount of the plaintiff's damage, if any, the difference between the market value of the real estate just before and just after the fire, together with the interest thereon from the date of the fire at the rate of 6 per cent. per annum, would be the measure of damages to such real estate. If the real estate had no market value, then the difference between the reasonable value of the real estate just before and just after the fire, together with interest thereon from the date of the fire at the rate of 6 per cent. per annum would be the measure of damage. By real estate as used herein is meant the ground and the structures thereon. As to property other than real estate, the measure of damages in the event such property was destroyed would be the market value of such property at the time and place of the fire, together with interest thereon from the date of the fire at the rate of 6 per cent. per annum. If such property had no market value, the measure of damages would be the reasonable cash value of such property at the time and place of the fire, together with interest thereon from such date at the rate of 6 per cent. per annum. If such property was not destroyed, but was only damaged, the measure of damages would be the difference between the market value thereof just before and just after the fire, at the place of the fire, together with interest thereon from the date of the fire at the rate of 6 per cent. per annum. If, however, such property had no market value, then the measure of damages would be the difference between the reasonable cash value just before and just after the fire, at the place of the fire, together with interest thereon from the date of the fire at the rate of 6 per cent. per annum. By market value of any item of property, as the term is used herein, is meant the price at which such an item of

property is currently bought and sold in the market.

"If the amount of such damage, if any, so determined should equal or exceed the sum of $14,000, then your verdict should be in favor of the Milwaukee Mechanics' Insurance Company of Milwaukee, Wis., and against the defendant for $2,000; in favor of Royal Insurance Company of Liverpool for $5,000; in favor of Northern Assurance Company, Limited, of London, England, for $2,000; in favor of Commercial Union Assurance Company of London for $2,000; in favor of Phenix Insurance Company of Brooklyn, N. Y., for $2,000; in favor of National Fire Insurance Company of Hartford for $1,000; and in favor of the plaintiff I. J. Nathan for the excess, if any, of the amount of damage over and above said amount of $14,000. If the amount of such damage, if any, so determined should be less than $14,000, your verdict should be in favor of each of said insurance companies for such a proportion of the amount of the damage as the sum mentioned above in connection with the name of such company bears to $14,000.

"You are instructed that if you believe from the evidence that sparks, cinders, or coals escaped from the defendant's engine No. 122 and set fire to inflammable grass or weeds or other material on land included within the right of way, and through the agency of such grass,...