In re Seale

• Decision Date: 15 January 1886
• Docket Number: Case No. 2098
• Citation: 65 Tex. 274
• Court: Texas Supreme Court
• Parties: LAURA V. SEALE. v. GULF, COLORADO & SANTA FE R'Y CO.

65 Tex. 274

LAURA V. SEALE.

v.GULF, COLORADO & SANTA FE R'Y CO.

Case No. 2098

Supreme Court of Texas.

Jan. 15, 1886.

APPEAL from Burleson. Tried below before the Hon. J. B. McFarland.

This suit was brought by appellant, Laura V. Seale, November 24, 1884, to recover damages for the death of her daughter, Capitola Seale, which she alleged occurred August 30, 1884, from burns received in attempting to prevent the destruction of appellant's fence and dwelling by fire, originating from sparks emitted from appellee's engine.

The petition alleges that plaintiff, a widow, with her daughter Capitola, fifteen years of age, and four younger children, resided, on August 30, 1884, upon her farm adjoining defendant's right of way, near the station of Somerville, in Burleson county; that, on that date, the engine attached to a passing train of defendant's, emitted a large and unusual volume of sparks, cinders and coals, setting fire to a quantity of dry brush, grass and leaves, which defendant had allowed to accumulate and remain upon its right of way; that a strong wind was blowing at the time, and the fire spread rapidly to plaintiff's land adjoining defendant's right of way; that when it had reached a point near to the fence enclosing plaintiff's premises and was threatening the destruction of the fence and of the dwelling and other houses upon the premises, there being no male person upon the premises, Capitola Seale approached the point along the line of the fence opposite and near to the fire, and engaged in efforts to save the fence from burning, by putting out the fire as it reached it; and that while so engaged, and while using such reasonable care to prevent injury to herself and the property as a person of ordinary prudence would have used under like circumstances, the fire caught the clothing of Capitola Seale and burned her, causing her death within six hours.

The petition charges negligence upon defendant in allowing quantities of dry and combustible brush, grass and weeds to accumulate and remain upon its right of way; in failing to provide proper appliances for preventing the emission of sparks from its engines; and in entrusting the management of its engines to incompetent and unskillful persons; and specially charges negligence in the management of the particular engine, and in allowing the escape of sparks, cinders and coals therefrom, causing the fire in question.

The court below, on November 27, 1885, sustained a general demurrer to this petition, and, plaintiff declining to amend, dismissed the suit. From the judgment of dismissal plaintiff appeals.

W. K. Homan, for appellant, that the negligence of the railway company in originating the fire, was the proximate cause of the death of Capitola Seale, cited: Eames v. T. & N. O. R'y Co., 63 Tex. 660; H. & T. C. R. R. v. Smith, 52 Tex. 178; H. & T. C. R. R. v. McDonough, W. & W. Cond. Rep. 654-655; T. & P. R'y Co. v. Chapman, 57 Tex. 75; T. & P. R'y Co. v. Levi, 59 Tex. 674; Rorer on Railroads, 807; Thompson on Negligence, 1089-1091; Ib., 169, note 10; Pastene v. Adams, 49 Cal. 87;Page v. Bucksport, 64 Me. 51; Maher v. R. R., 13 Am. and Eng. R. R. Cases, 572; Savage v. R. R., Ib., 566; Poeppers v. M. K. & T. R'y Co., 67 Mo. 715;Lane v. Atlanta Works, 111 Mass. 136;Hill v. Winsor, 118 Mass., 251.

On the question of contributory negligence, he cited: R. R. Co. v. Robinson, 5 Tex. Law Rev. 590; H. & T. C. R'y Co. v. Gorbett, 49 Tex. 573; Rorer on Railroads, 793 (note 2), 800, and cases cited: Wait's Acts. and Def. vol. 6, 583, 584, 719; Wyandotte v. White, 13 Kans. 191;W. U. Tel. Co. v. Eyser, 2 Col. 141.

On the proposition, that negligence and proximate and remote cause were questions of fact for the jury, he cited: Eames v. T. & N. O. R'y Co., 63 Tex. 660; R. R. Co. v. Randall, 50 Tex. 260; R. R. Co. v. Murphy, 46 Tex. 356; R. R. Co. v. Ormand, 5 Tex. Law Rev. 645; Wait's Acts. and Def., vol. 6, 586, 598; Fletcher v. A. & P. R'y Co., 64 Mo. 484;Kenworthy v. Ironton, 41 Wis. 647.

Garrett, Searcy & Bryan, for appellee, that the attempt of Capitola Seale to extinguish the fire, and not the negligence of the railway company in starting it, was the proximate cause of her death, cited: Brandon v. Mfg. Co., 51 Tex. 126; R. R. Co. v. Ormand, 5 Tex. Law Rev. 645; Eames v. R. R. Co., 63 Tex. 665;Jones v. George, 61 Tex. 346; R. R. Co. v. Kellogg, 94 U. S. 474; Cooley on Torts, 70; Id. 679.

On the question of contributory negligence, they cited: R. R. Co. v. Gorbett, 49 Tex. 573; R. R. Co. v. Richards, 59 Tex. 373, and authorities cited; Addison on Torts, 33, 34; Id. 589; Id. 567; Cooley on Torts, 670.

That the plaintiff's petition, in stating her own case, made one of remote cause against the railway company, and was bad, on demurrer, they cited: R. R. Co. v. Richards, 59 Tex. 373; R. R. Co. v. Murphy, 46 Tex. 362;Eames v. R. R. Co., 63 Tex. 666.

WILLIE, CHIEF JUSTICE

The correctness of the ruling of the district judge in sustaining the general demurrer to the appellant's petition, depends upon whether or not the negligence of the defendant, in setting fire to the combustible matter upon its right of way, was the proximate cause of the death of Capitola Seale. The subject of proximate and remote cause, as applied to injuries resulting from negligence, has undergone frequent adjudication in the English and American courts, and the result has been a diversity of decision, from which but few general principles concurred in as correct can be extracted. One principle seems pretty generally conceded, viz: When a defendant has violated a duty imposed upon him by the common law, he should be held liable to every person injured, whose injury is the natural and probable consequence of the misconduct; and that the liability extends to such injuries as might reasonably have been anticipated, under ordinary circumstances, as the natural and probable result of the wrongful act. McDonald v. Snelling, 14 Allen, 290;Barron v. Eldredge, 100 Mass. 455;Kellogg v. C. & N. W. R'y. Co., 26 Wis. 223, 278.

It is upon the question of what consequences are the natural and probable result of the wrongful act, or might have been anticipated as such, that the decisions diverge, and, in some cases, become irreconcilable with each other. It is generally held, however, that if, subsequent to the original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote. Ins. Co. v. Tweed, 7 Wall. 52. This has been recognized as a correct rule in our own state. Brandon v. Mfg. Co., 51 Tex. 121.

What character of intervening act will break the causal connection between the original wrongful act and the subsequent injury is also left in doubt by the decisions. If the intervening cause and its probable or reasonable consequences be such as could reasonably have been anticipated by the original wrongdoer, the current of authority seems to be that the connection is not broken. Thus, in the leading case, where the defendant threw a lighted squib into a crowd of people, one...