International & G. N. R. Co. v. Morgan

• Decision Date: 19 March 1902
• Citation: 67 S.W. 425
• Parties: INTERNATIONAL & G. N. R. CO. v. MORGAN.
• Court: Texas Court of Appeals

67 S.W. 425

INTERNATIONAL & G. N. R. CO. v. MORGAN.

Court of Civil Appeals of Texas.

March 19, 1902.

Appeal from Gregg county court; J. T. Smith, Judge.

Action by C. C. Morgan against the International & Great Northern Railroad Company. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.

Young & Stinchcomb, for appellant. R. B. Levy, for appellee.

PLEASANTS, J.

Appellee brought this suit to recover of appellant the value of 182 cords of wood owned by appellee, and alleged to have been destroyed by a fire negligently set out by appellant. The defendant answered by special exceptions and general denial and by special pleas, in which it averred: (1) That if the fire which consumed plaintiff's wood was set out by sparks thrown by one of defendant's engines, same was not due to any negligence on the part of appellant, because its said engine was equipped with the best appliances for arresting the escape of sparks, and was in good repair, and carefully and skillfully operated by its employés; (2) that plaintiff's wood was burned by fire which was communicated from a fire which had been burning for some time upon plaintiff's land, and over which defendant had no control; and (3) that plaintiff was guilty of contributory negligence in allowing dry grass and other combustible material to accumulate and remain on his land adjoining defendant's right of way. The trial of the case in the court below by a jury resulted in a verdict and judgment for plaintiff for $161.70, from which judgment this appeal is prosecuted. Succinctly stated, all of the evidence in the case bearing upon the question of the origin of the fire is as follows: Plaintiff testified that his wood was burned on the 28th of August, 1899, in a fire which occurred on his farm, situated about 1½ miles from the town of Longview, and adjoining the right of way of appellant company. He was having the timber cut off his land, and as it was cut it was made into marketable wood, and corded to dry, the limbs and brush from the trees being left on the ground where they were cut off. He saw the wood the day before it was burned. The weather at that time was unprecedentedly warm and dry. He went over the defendant's right of way that day, and noticed that it was covered with a thick coat of grass, which was dry and combustible. This grass extended from the edge of the ties on the roadbed to the edge of a fire ditch, which was along the outer edge of the right of way. This fire ditch was made by the section hands about two weeks before the fire, and was only a space of about 20 inches wide running along the right of way next to plaintiff's fence, from which the grass had been scraped. He did not see his wood while it was burning, and did not know how the fire originated. On the day after the fire he found where some brush piles had been burned on the northeast corner of the land on which the wood had been corded. A ring or circle had been made around the brush piles, and the fire had not burned to this ring except on the north side. The defendant's right of way was burned off, and witness examined the trees standing on the ground, and found that they had been scorched by fire more on the side next to the railroad. A. C. Jones testified for plaintiff that he was a tenant on plaintiff's farm; that on August 28, 1899, about 8 o'clock a. m., he set fire to several piles of brush for the purpose of making a clearing to build a house; that he remained around these fires until about 12 o'clock, and then threw all the burned ends of the brush together, and scraped a space of about 18 or 20 inches around the brush heaps, and went to dinner. He returned about 1 o'clock, and saw that the brush had all burned down, and nothing was left of the fire but coals and embers. He then went to the bottom, about two miles off, and returned about 3 o'clock, when he found plaintiff's wood burning. The space he had cleared around the brush piles was still intact, and the main fire had not burned up to it, except upon the north side. The railroad...