Furst-Edwards & Co. v. St. Louis S. W. Ry. Co.

• Decision Date: 10 January 1912
• Parties: FURST-EDWARDS & CO. v. ST. LOUIS S. W. RY. CO.
• Court: Texas Court of Appeals

146 S.W. 1024

FURST-EDWARDS & CO. v. ST. LOUIS S. W. RY. CO.

Court of Civil Appeals of Texas. Austin.

January 10, 1912.

Dissenting Opinion, January 17, 1912.

On Motion for Rehearing, March 20, 1912.

On Rehearing, May 1, 1912.

Appeal from District Court, Hill County; W. C. Wear, Judge.

Action by Furst-Edwards & Co. against the St. Louis Southwestern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed on rehearing.

Morrow & Smithdeal, for appellant. Scott & Ross, for appellee.

JENKINS, J.

This suit was brought by appellants against appellee to collect about $10,000 alleged to be due on account of the burning of cotton belonging to appellants, situated on the compress platform at Hillsboro, Tex., on January 16, 1908. The facts will appear from the findings of the jury on special issues, and from the evidence hereinafter referred to in this opinion. The court submitted the case upon the following special issues, which were answered by the jury as herein indicated:

"(1) Was any cotton belonging to the plaintiff damaged or destroyed by fire on the compress platform at Hillsboro on or about the date alleged in the petition? A. Yes.

"(2) Did the fire in which said cotton was damaged and destroyed, if you have found there was a fire, originate from the defendant's engine? A. Yes.

"(3) Did the defendant company exercise ordinary care to equip its engine No. 192 with the most approved appliances in use for arresting sparks and preventing the escape of sparks from said engine? A. Yes.

"(4) Were the appliances, if any, in said engine, which were designed to arrest the escape of sparks of fire from said engine, in good repair at the time the cotton was burned, if you have found it was burned? A. Yes.

"(5) Had the defendant railway company exercised ordinary care as that term is hereinabove defined to you to have the appliances, if any, designed to arrest the escape of sparks and fire from said engine in good repair? A. Yes.

"(6) Did the agents and servants of the defendant company in charge of its engine No. 192 use ordinary care as that term has been defined to you herein in operating the engine No. 192 to prevent the escape of fire therefrom? A. Yes.

"(7) If you believe from the evidence that the defendant company switched and propelled several cars attached to its engine No. 192 on its track and switches near the compress platform on the day of the fire, if there was a fire, and that the switching that was done, if any, on the compress switch, was done from the north end of said switch, then please say whether the servants and employés of the defendant who did the switching could have done the same without going in from the north end of said compress switch? A. Yes.

"(8) Were the employés of the defendant company who were in charge of engine No. 192, and who were doing the switching, guilty of negligence in doing the switching from the north end of said compress switch? A. Yes.

"(9) If the defendant company was negligent in doing said switching from the north end of said switch, then say whether said negligence, if any, was the proximate cause of the plaintiffs' cotton being burned if it was burned? A. No.

"(10) On what date did the fire occur, and what was the value of plaintiffs' cotton which was destroyed at that time? A. January 16, 1908; $10,105.61.

"(11) Were the plaintiffs guilty of contributory negligence in permitting their cotton on the platform where it was burned under the conditions surrounding it at the time? A. Yes.

"(12) Was plaintiffs' cotton in imminent danger of catching fire? If so, did defendant's employés in charge of its engine discover said danger before said cotton took fire? A. Yes.

"(13) If plaintiffs' cotton was in imminent danger, and if defendant's employés in charge of the engine discovered said danger before the fire, could they, by the exercise of ordinary care after discovering said danger, have prevented the fire? A. No.

"(14) If plaintiffs' cotton was in imminent danger before the fire, and if such danger was discovered by the defendant's employés in charge of its engine, then say: (a) Did said employés use ordinary care to prevent the fire, after discovering the danger? (b) If you find that they did not use such care, then was there a (their) failure to do so, if any, the proximate cause of the fire? A. Yes."

Upon the verdict as above indicated, the court rendered judgment for appellee.

1. Appellants assign error upon the finding of the jury as being inconsistent. We think that they are, but it does not necessarily follow that a case submitted on special issues should be reversed on account of inconsistent findings. If, looking to such findings as a whole, the court could say that some of them, in view of other findings, were immaterial, such immaterial findings should be disregarded.

2. On the issue of the burden of proof, the court charged the jury as follows: "The burden of proof is on the plaintiff to show that the cotton was burned from fire emanating from the defendant's engine. If the plaintiff has shown by a preponderance of the evidence that the fire which damaged or destroyed the cotton came from the defendant's engine, then the burden of proof is on the defendant to show that it used ordinary care to equip its engine with the latest and best appliances in use for the prevention of the escape of fire, and that such appliances were in good repair, and that the engine was properly handled, and if the defendant had shown by a preponderance of the evidence that it used ordinary care to equip its engines with the latest and best appliances in use to prevent the escape of fire, and that said appliances were in good repair, and properly handled, then the burden of proof upon all the other issues submitted to you is upon the plaintiffs." Error is assigned upon this charge, that it placed the burden of proving the absence of contributory negligence on the plaintiffs. We sustain this assignment. Contributory negligence was an issue in this case under the pleadings and the evidence. The jury found that appellants were guilty of contributory negligence. We cannot say under the evidence that contributory negligence was shown as a matter of law, nor can we say what would have been the verdict of the jury on this issue but for this erroneous instruction.

3. The court gave the following, among other, instructions to the jury: "If the plaintiffs' cotton was in imminent danger of catching fire, and defendant's employés in charge of the engine discovered said danger, it was the duty of such employés to avoid burning the cotton, if it could be done in the exercise of ordinary care, and a failure to use such care after a discovery of the danger would be negligence, and if such negligence, if any, was the proximate cause of the burning of the cotton, the defendant would be liable, although the plaintiffs were negligent in exposing the cotton to the danger." Both appellant and appellee contend that this paragraph of the charge is erroneous; the counter proposition of the appellee being that "the doctrine of discovered peril cannot be applied to inanimate property." We might content ourselves with saying that there was no error in this charge, such being the opinion of the majority of this court, but for the earnest insistence of the appellee that this point has never been decided, and that it is of great importance to the railroads of Texas that it be settled.

4. By the doctrine of discovered peril, as here used, is meant that where the danger of inflicting an injury is discovered by the party inflicting the same, in time to have prevented such injury by the exercise of proper care subsequent to such discovery, and injury occurs as the proximate result of subsequent negligence, the party inflicting such injury will be liable therefor, notwithstanding the previous negligence of the party injured, and but for which the injury would not have occurred.

5. This principle of law is well settled in personal injury cases. Railway Co. v. Breadow, 90 Tex. 30, 36 S. W. 410; Railway Co. v. Staggs, 90 Tex. 460, 39 S. W. 296; Railway Co. v. Wallace, 21 Tex. Civ. App. 396, 53 S. W. 78; Railway Co. v. Smith, 52 Tex. 184; Railway Co. v. Lankford, 9 Tex. Civ. App. 596, 29 S. W. 935; Railway Co. v. Robinson, 4 Tex. Civ. App. 125, 23 S. W. 433.

6. In no class of cases has the principle involved in the doctrine of discovered peril or danger been more frequently applied than in suits for damage to live stock. Railway Co. v. Hauks, 78 Tex. 303, 14 S. W. 691, 11 L. R. A. 383; Railway Co. v. Cocke, 64 Tex. 158; Davies v. Man, 10 Meeson & Wesley, 545; Kerwhaker v. Railroad Co., 3 Ohio St. 172, 62 Am. Dec. 246; Isbell v. Railroad Co., 27 Conn. 393, 71 Am. Dec. 78; Reeves v. Railway Co., 30 Pa. 461, 72 Am. Dec. 713; Lapine v. Railway Co., 20 La. Ann. 158; Railway Co. v. Mullins, 66 Ill. 526; Railroad Co. v. Barrie, 55 Ill. 229; Railway Co. v. Linn, 67 Ill. 109; Jones v. Railroad Co., 70 N. C. 627.

7. It may be true that no court has ever held in hæc verba that the doctrine of discovered peril applies to injuries to inanimate property, but, if so, it is perhaps because its application in such cases has never before been directly challenged. We know of no case holding to the contrary. Shearman & Redfield, in their excellent work on the Law of Negligence, say: "It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to risk of injury, if such injury was more immediately caused by defendant's omission, after becoming aware of plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him." Section 99 (5th Ed.). In announcing this rule they make no distinction between injuries to persons and injuries to property. On the contrary, they say this principle was first enunciated in Davies v. Man, supra, which was a suit for damages...