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

• Decision Date: 31 October 1894
• Citation: Galveston, H. & S. A. Ry. Co. v. Polk, 28 S.W. 353 (Tex. App. 1894)
• Parties: GALVESTON, H. & S. A. RY. CO. v. POLK.
• Court: Texas Court of Appeals

28 S.W. 353

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

Court of Civil Appeals of Texas.

October 31, 1894.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by Dan Polk against the Galveston, Harrisburg & San Antonio Railway Company for damages to personal property. Judgment for plaintiff, and defendant appeals. Affirmed.

Upson & Bergstrom, for appellant. Fleming, Camp & Camp and J. H. McLeary, for appellee.

FLY, J.

Appellee sued appellant for $1,600 damages, alleged to have accrued by reason of the destruction by fire of grass growing on certain land in Medina county. The negligence was alleged to have consisted in allowing sparks to escape from an engine, which set fire to the grass, and in permitting grass and other combustible matter to accumulate on the right of way, which became ignited from the engine, and from the right of way the fire was communicated to the grass of appellee. There was a verdict for $342 for the grass destroyed, and $17.50 for fence. The item for the fence was remitted, and judgment rendered for $342. We find the following facts to be sustained by proof: That the grass on 684 acres of land belonging to appellee was destroyed by a fire kindled by sparks emitted from an engine belonging to appellant, which sparks ignited the grass on appellant's right of way, and the flames were communicated from the right of way to the grass of appellee. We find that the fire occurred, and the grass was destroyed, through the negligence of appellant in failing to keep its right of way clear of combustible material, and that the grass was worth the amount found by the jury.

The first assignment of error brings in review the action of the court in permitting appellee and his witness Decker to testify as to what, in their opinion, was the reasonable market value of the grass that was destroyed, because the witnesses had not qualified themselves, nor stated facts upon which they could base an opinion. We are of the opinion that both witnesses had qualified themselves, and were in a position to estimate the value of the grass, and they swear positively to its value. The witnesses were old settlers, owned pastures, and were in a position to give an opinion as to the value of the grass. The testimony was admissible. Railway Co. v. Dunman, 85 Tex. 177, 19 S. W. 1073; Scalf v. Collin Co., 80 Tex. 514, 16 S. W. 314.

In the second assignment, complaint is made that the court did not grant a new trial because the great weight of the evidence showed that the defendant was not guilty of negligence, either in the construction or handling of its engines and appliances, or that the fire originated on the right of way. Also, that the verdict was excessive. The question of the faulty...