Gulf, C. & S. F. Ry. Co. v. Blakeney-Stevens-Jackson Co.

• Court: Texas Court of Appeals
• Writing for the Court: Levy
• Citation: Gulf, C. & S. F. Ry. Co. v. Blakeney-Stevens-Jackson Co., 106 S.W. 1140, 48 Tex.Civ.App. 443 (Tex. App. 1908)
• Decision Date: 09 January 1908
• Parties: GULF, C. & S. F. RY. CO. v. BLAKENEY-STEVENS-JACKSON CO.

106 S.W. 1140

GULF, C. & S. F. RY. CO. v. BLAKENEY-STEVENS-JACKSON CO.

Court of Civil Appeals of Texas.

January 9, 1908.

Appeal from Fannin County Court; H. A. Cunningham, Judge.

Action by the Blakeney-Stevens-Jackson Company against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. W. Terry and Thurmond & Steger, for appellant. McGrady & McMahon, for appellee.

LEVY, J.

Appellee brought this suit against the railroad company to recover the value of certain personal property which was burned while located in a barn just outside the right of way of the company, alleged to have been destroyed by reason of sparks or live cinders that negligently escaped from one of the engines of the appellant. The case was tried before the court without a jury, and verdict and judgment were rendered in favor of the appellee for the value of the goods burned, which the appellant seeks to have reversed for errors assigned upon the findings of the court.

The appellant complains in its first and second assignments of error that there is no evidence sufficient to support the findings by the court that sparks or live cinders escaped from the engine of appellant, nor that the employés operating the engine were negligent in handling the engine at the time of the alleged fire. The finding of the trial court which the appellant complains of is as follows: "On February 12, 1904, plaintiff owned and had stored in a barn and lot on which it was situated in the town of Ladonia, owned by C. S. McFarland, certain personal property as described in its petition, and on that day fire, sparks, and live cinders were communicated to said barn and its contents at about 11:35 a. m., which fire escaped from one of defendant's locomotive engines, to wit, engine No. 201, while said engine was being operated on the defendant's railroad track in said town in defendant's business by its employés near said barn, to wit, about 195 feet therefrom, and the fire so escaping was carried by the wind to said barn and contents, and such fire consumed and destroyed said barn and its contents, and that such burning and escape of fire from the engine was proximately caused by the negligence of the defendant in these things, to wit: (1) The employés operating said engine were negligent, and did not handle such engine with ordinary care to prevent the escape of sparks and live cinders, but they carelessly and unnecessarily caused said engine to give off loud exhausts thereby throwing more fire and throwing fire further than it would have done if the engine had been operated with ordinary care on the occasion in question, and if the engine had been operated with ordinary care it would not have fired said barn and contents; (2) that the spark arrester on said engine was not in good repair for preventing the escape of fire on the occasion in question, but that defendant had used ordinary care to have the same in good repair."

Looking to the statement of facts in this case, there does not appear that direct proof was made of the fact that sparks or live cinders escaped from the engine and burned the barn, though circumstantial evidence was resorted to for the purpose, and that on this character of evidence the trial judge found that the fire was set out by sparks from the appellant's engine, and through the negligence of appellant. To determine the correctness of the court's findings we take the weightiest facts in the record as testified to by the several witnesses for the appellee. The barn which was burned, and which contained the property sued for, was situated a little west of north from the appellant's depot in the town of Ladonia, 195 feet from the defendant's main track. It had a shingle roof, the comb extending east and west, practically parallel with the appellant's track. The roof was rather old with holes in it, some an inch wide and several inches long. The loft next to the roof was filled with dry hay, some loose and some baled. The weather was dry, and the wind blowing hard from the direction of the depot towards the barn. The lower part of the barn contained live stock, harness, implements, and agricultural products. There were sheds to the barn on either side. From 5 to 15 minutes before the fire broke out the witness Jake Brown entered the east door of the barn, and led his cow out around to the west end of the barn, and watered her at a trough, then took the cow to a grass lot 150 feet west and turned her in, and came back to the sidewalk on the street, which was about 50 feet east of the barn, and was standing there when the fire alarm was first given. The witness Wright was the first to give the fire alarm. The witness Brown then looked and saw the barn burning in the south end of the roof of the barn. Smoke was coming out through this roof, and possibly a little blaze. Other parts of the barn were not then burning. The material was combustible, and the fire spread rapidly, consuming the barn and its contents. No fire was in the barn when the witness Brown was in there. He neither saw nor smelled any fire or smoke. No one was seen about the barn except Brown when he was there, nor was anybody seen there after he was, though the barn was in plain view of several persons near by who testified that no one was there. At the time Brown was there he had no fire about him. So far as the record shows the only other person except Brown who had been in or around the barn was the delivery boy of the appellee, Covington, who was there early in the morning. It was proven that no other person had any occasion or business in or around the barn, and that Brown was only about the west end of the barn, and when there the appellant's engine, shown to be No. 201 pulling an extra freight, pulled in from the direction of Dallas, Tex. The engine stopped about the west end of the depot, and cut loose two cars, started up very suddenly and rapidly in making a quick switch, doing at the time very hard and unusually loud puffing, which attracted the attention of both Brown and Wright and the other witnesses who lived in Ladonia and testified they were accustomed to trains. The appellee's witnesses testified that from 5 to 15 minutes after this engine pulled in, and after it did this hard puffing, the fire broke out. It was proven that there were no furnaces, fires, chimneys, or other means that could have fired the barn other than the appellant's engine. The nearest place having a fire was the stove in the appellant's depot 180 feet distant. The engine came in to the depot at about 11:35 a. m., and the fire was discovered by the witnesses some minutes before 12, variously estimated to be, as stated, from 5 to 15 minutes after the quick switching was done. It was shown that at other times within a few weeks of this fire live sparks thrown from the defendant's engine had been seen to travel at night a greater distance than from the barn to the depot, with the wind not so high. The appellant's engine was a coal burner. The appellant offered evidence showing that the engine was equipped with the most approved spark arrester in use, and that the engine was examined by competent persons on February 2d, 7th, 9th, and 11th, and...