Galveston, H. & S. A. Ry. Co. v. Horne

• Decision Date: 07 February 1888
• Citation: 9 S.W. 440
• Parties: GALVESTON, H. & S. A. RY. CO. <I>v.</I> HORNE.
• Court: Texas Supreme Court

9 S.W. 440

GALVESTON, H. & S. A. RY. CO.v.

HORNE.

Supreme Court of Texas.

February 7, 1888.

Appeal from district court, Colorado county; GEORGE McCORMICK, Judge.

Action by W. F. Horne against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.

Brown & Dunn, for appellant. Foard, Thompson & Townsend, for appellee.

WILLIE, C. J.

This suit was brought by the appellee against the appellant to recover compensation for damages done to the former's land and grass by fire escaping from an engine passing upon the appellant's road. The land lay in Wharton county, and the suit was brought in Colorado county. The railway company pleaded to the jurisdiction upon the ground that the suit, being for damages to land, should have been brought in the county where the land was situated. This plea was sustained, so far as the claim of damage to the land was concerned; but overruled as to the claim for the value of the grass consumed. This ruling was excepted to by the appellant, and forms the subject of the first assignment of error. The suit was filed on the 9th of October, 1886, and the cause was tried on the 8th of September, 1887. When the case was called for trial the appellant moved to continue for want of the presence of material witnesses, which motion was overruled by the court, and the appellant reserved a bill of exceptions. The ruling of the court upon the motion to continue is the subject of the second assignment of error. The court gave the following charge to the jury: "If the jury believe from the evidence that the grass growing on the land of plaintiff was destroyed by fire, caused by fire or sparks escaping from defendant's engine while passing along the road of defendant in manner and form as charged in plaintiff's petition, then these facts would make a prima facie case of negligence against the defendant; and such prima facie case can only be rebutted by the defendant showing to your satisfaction that, at the time in question, the engine was properly constructed, with the best approved appliances for preventing the escape of fire, and that the appliances were all in good repair and condition as regards the escape of fire, or that all reasonable care and caution had been taken to keep them in such repair and condition, and that the engine was carefully and skillfully handled as regards the escape of fire therefrom." This charge is alleged to be erroneous in the third assignment of error. The court also charged that the measure of damages was the value of the grass at the time it was destroyed, and in the condition it was at that time. This charge forms the subject of the fourth and fifth assignments of error. The jury found a verdict for the appellee for $4,655, with 8 per cent. interest from the 8th day of December, 1885; and the appellant contends that the finding is so excessive as to show that the jury were influenced by passion and prejudice in arriving at the amount of their verdict. The court below having entered judgment in accordance with the verdict, the defendant appealed to this court. The court did not err in overruling the plea to the jurisdiction. The twenty-first subdivision of article 1198 of the Revised Statutes provides that suits against any private corporation may be commenced in any county in which the cause of action or a part thereof arose, or in which such corporation has an agency or representative, or in which its principal office is situated; and that suits against a railroad corporation may also be brought in any county through or into which the railroad of such corporation extends or is operated. The petition alleged that the defendant operated a line of railroad through Colorado county, and had an agent at the county-seat of that county. These facts were not disputed, and the defendant was liable to suit in that county for the cause of action set forth in the petition. The statute makes no exception as to suits of this character when brought against this kind of corporations, as it does in reference to individuals, and we can make none. White & W. Civ. Cas. § 701.

The ruling upon the motion for continuance was also correct. The bill of exceptions does not show whether a continuance of the cause was sought for the first or second time by the defendant. The affidavit evidently attempts to comply with the requirements of an affidavit for a second continuance; but we think it insufficient in setting forth the facts which the affiant expected to prove by the absent witnesses. This is required, not only for the purpose of allowing the court to judge of their materiality, but to enable the adverse party to admit what the absent witnesses would state, and thereby prevent a postponement of the trial. This affidavit does not state with any certainty what would be the evidence of the absent witnesses. It says they would prove the value of the grass to have been much less than the plaintiff claimed. The plaintiff claimed...