Gulf, C. & S. F. R. Co. v. Benson

• Decision Date: 28 October 1887
• Court: Texas Supreme Court
• Parties: GULF, COLORADO & S. F. R. CO. v. BENSON.

5 S.W. 822

GULF, COLORADO & S. F. R. CO. v. BENSON.

Supreme Court of Texas.

October 28, 1887.

Commissioners' decision. Appeal from district court, Bosque county; J. M. HALL, Judge.

W. M. Knight, for appellant. No counsel for appellee.

COLLARD, C.

This suit was brought by the appellee against the appellant in a justice's court of Bosque county for $69.90 damages. Plaintiff claimed that defendant negligently permitted grass and combustible material to accumulate on its right of way, which was ignited by a spark from its engine, and so burning his pasture grass and some posts. The justice of the peace rendered judgment for plaintiff, and the case was appealed to the district court, (the county court having no civil jurisdiction,) when the case was tried by the judge, who rendered judgment for plaintiff for $69.90, and interest, from which this appeal was taken. The judge filed his conclusions in the case, stating that the pasture was burned by sparks from defendant's engine, and that the fire originated by reason of the negligence of defendant in permitting combustible material to remain on the right of way.

The appellant complains of the conclusions and the judgment, because (1) the evidence does not show that defendant had any right of way; and (2) the evidence does not show that defendant negligently permitted grass or other combustible material to accumulate on its right of way.

The only evidence we find in the record relating to the subject of these assignments of error is that of the plaintiff. He says: "The fire caught very near the cross-ties on the road within a few feet of the road-bed. It set the grass on fire near the cross-ties. It caught fire between the cross-ties on the road and the telegraph poles. I do not know how far from the road-bed the defendant's right of way extends. The fire caught ten or fifteen feet from the cross ties." It was agreed by the parties that plaintiff's witnesses would prove that the fire caught from sparks emitted from the smoke-stack of a locomotive drawing defendant's passenger train on the eighteenth day of August, 1884, which set fire to and burned plaintiff's grass and fence-posts, and that the same locomotive in the same way set fire to Rutherford's pasture near that of plaintiff on the same evening, and that plaintiff's damage would be greater than the amount claimed. It was also agreed that defendant's witnesses would testify that said engine was at that time provided with the best spark-arrester yet known or discovered; that no spark-arrester has yet been invented that will entirely arrest all sparks, but that the sparks escaping from the arrester on this particular locomotive were necessarily very minute, and that the smoke-stack and arrester were daily inspected by competent mechanics, and found to be in good condition and repair. These facts were not controverted, nor were the facts proved by plaintiff that the fire in question was caused by the emission of sparks from the same locomotive; also that the engineer on this engine was thoroughly competent.

When plaintiff established the fact by...