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

• Decision Date: 17 December 1902
• Citation: 71 S.W. 294
• Parties: GALVESTON, H. & S. A. RY. CO. v. CHITTIM.
• Court: Texas Court of Appeals

71 S.W. 294

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

Court of Civil Appeals of Texas.

December 17, 1902.

Appeal from district court, Maverick county; J. M. Goggin, Judge.

Action by J. M. Chittim against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Baker, Botts, Baker & Lovett and Ellis, Garner & Love, for appellant. Winchester Kelso and W. C. Douglass, for appellee.

FLY, J.

This is a suit for the sum of $36,693.37 damages alleged to have accrued to appellee by the negligent burning of grass and 14 miles of fence. A trial by jury resulted in a verdict and judgment for $28,357.72 in favor of appellee. The grounds of negligence were as follows: "(a) In permitting broom weed, grass, and other combustible growth to accumulate on its right of way as aforesaid; (b) in overloading the engines attached to and pulling the freight and passenger trains on said Eagle Pass Branch at and about the time of the fire hereinbefore described, as aforesaid; (c) in failing to cause said engine to be furnished and fitted with adequate appliances, in good repair, and with adequate spark-arrester appliances, in good order and condition, as aforesaid; (d) in using engines that were old and in a bad state of repair, and of size and capacity too small to pull the load to which they were attached; (e) in operating said engines and trains, through its servants, in a careless, reckless, and negligent manner; (f) in running said engines at an excessive rate of speed, and in using in said engines an excessive amount of fuel and steam, and coal and fuel of an inferior quality; (g) in disregarding, in the operation of said freight and passenger trains, the danger incident to the high wind which was blowing at the time of the fire hereinbefore described, as aforesaid; and(h) in failing to take prompt, proper, and adequate steps to prevent the spread of the aforesaid fire, as aforesaid." There was some testimony bearing on most of the grounds of negligence.

The court, in the last clause of the charge, instructed the jury: "The burden of proof in this case rests upon the plaintiff, and, before he can recover, he must establish all the facts necessary to his recovery by a preponderance of the evidence; but you are instructed, as to the burden of proof on the question of negligence, that, if the plaintiff has shown by a preponderance of the evidence that the fire originated from sparks from one of the defendant's locomotives, then the burden rests upon the defendant to show that the escape of such sparks was not due to negligence on its part." In case the testimony established that the fire originated from sparks of appellant's locomotive, the charge in question shifted the burden from appellee, and laid it upon appellant, not only of proving that its locomotive was supplied with the most-approved spark arrester, and that it was in a good state of repair, and that the locomotive was properly operated, but that the load it carried was not too heavy, that it used the proper kind of fuel, and that its right of way was kept in such condition that the fire was not communicated from it. In other words, the rule, as laid down by the trial court, in cases of this character, is that, by showing that the fire was communicated by sparks from the locomotive of a railroad company, a prima facie case of negligence is made out, and the whole burden is shifted from the plaintiff to the defendant. The general rule in Texas prohibits the judges from declaring that the proof of certain facts raises a presumption of negligence; but in cases of fires communicated by sparks from railroad locomotives an exception has been ingrafted upon the rule, and it has been held in a number of decisions that it was permissible to inform the jury that proof of the ignition of property by such sparks makes out a prima facie case for the plaintiff, unless the same has been rebutted by proof of use of the most-approved spark arresters, and proper handling of the locomotive. It is the English rule, formulated many years ago, that, when premises are fired by a passing engine, that fact is prima facie evidence of negligence, rendering it incumbent on the company to show that reasonable precautions had been taken to prevent the escape of fire. The rule was first adopted in Texas in a well-considered opinion rendered by the old court of appeals through Judge Ector. Railroad v. McDonough, 1 White & W. Civ. Cas. Ct. App. §§ 652, 653. The following language from a Wisconsin case was adopted in the McDonough Case: "The reasons given for requiring the companies to show that this duty has been performed on their part are that the agents and employés know, or are at least bound to know, that the engine is properly equipped, and they know whether any mechanical contrivances were employed for that purpose, and, if so, what was their character; whilst, on the other hand, persons not connected with the road, and who only see trains passing at a high rate of speed, have no such means of information, and the same is inaccessible to and cannot be obtained by them without great trouble and expense,—then often only as a favor from the company, which, under the circumstances, the company would be very likely to withhold." In the case of Railway Co. v. Timmermann, 61 Tex. 663, the McDonough Case was followed, and the same reasons given for the existence of the rule; and, indeed, no other valid reason can be given for a departure from the general rule, to the effect that the burden of proof never shifts from the plaintiff during the course of a trial. In formulating the rule, language is used in the Timmermann Case that might possibly justify the charge given by the court; but the reasons given for the rule do not sustain a rule so wide in its application, and indicate that it was not so intended. In all of the cases in which the rule in the McDonough Case has been followed, the only burden that has been placed upon the railway company, when proof has been introduced showing the destruction of property by sparks emitted by a locomotive, was to show that the most-approved spark arresters were used on the locomotives, and that they were in good repair and skillfully operated. When the railroad company has introduced such proof, it has removed the presumption of negligence, and has no further burden of proof laid upon it by the mere proof of the ignition of the property by its locomotive. Railway Co. v. Bartlett, 69 Tex. 79, 6 S. W. 549; Railway Co. v. Benson, 69 Tex. 407, 5 S. W. 822, 5 Am. St. Rep. 74; Railway Co. v. Horne, 69 Tex. 643, 9 S. W. 440; Railway Co. v. Johnson, 92 Tex. 591, 50 S. W. 563. In the Benson Case, above cited, the court said: "This demand of the law as to burden of proof is, however, satisfied when the company shows by undisputed evidence that it was using at the time, and upon the very engine in question,...