Lemann Co., Limited v. Texas & P. Ry. Co

• Court: Louisiana Supreme Court
• Writing for the Court: SOMMERVILLE, J.
• Citation: Lemann Co., Limited v. Texas & P. Ry. Co, 55 So. 684, 128 La. 1089 (La. 1911)
• Decision Date: 08 May 1911
• Docket Number: 18,226
• Parties: LEMANN CO., Limited, v. TEXAS & P. RY. CO

55 So. 684

128 La. 1089

LEMANN CO., Limited, v. TEXAS & P. RY. CO

No. 18,226

Supreme Court of Louisiana

May 8, 1911

Rehearing Denied June 26, 1911.

Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Paul Leche, Judge.

Action by the Lemann Company, Limited, against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Marks Wortham & Le Blanc (Howe, Fenner, Spencer & Cocke and Esmond Phelps, of counsel), for appellant.

Pugh &amp Lemann, for appellee.

OPINION

SOMMERVILLE J.

Plaintiff sues defendant for loss sustained by fire on two of its plantations, Peytavin and Souvenir, in Ascension parish. The evidence shows that both fires occurred on two Sunday mornings, when the buildings, of frame, were unoccupied and closed, and when no one was in or around them. That one of said buildings was about 50 feet, and the other about 150 feet, from the track of defendant. Plaintiff alleges that the loss was due to fault and negligence on the part of defendant, its employes, agents, etc., and it asks for judgment for $ 5,825.77 against defendant.

Defendant answers that its engines did not set fire to plaintiff's buildings; that it was not at fault; that its engines, on the two occasions referred to in plaintiff's petition, had been examined just prior, and immediately subsequent, to the fires, and found to be in good order, and equipped with spark arresters, in perfect condition.

The case presents a question of fact only, and a jury has found in favor of the plaintiff, and the trial judge has approved the verdict.

The testimony of plaintiff is contradicted by that of defendant. Witnesses for the latter testify that the spark arresters in the smokestacks of defendant's engines were in good order and condition, and sparks, sufficiently large to carry and communicate fire to the buildings some 50 to 150 feet distant, could not be emitted therefrom. Witnesses for plaintiff testify that sparks were being constantly emitted from defendant's locomotives; were emitted on the morning when the fire took place on Peytavin plantation; that many fires had been set out by defendant's engines and much property destroyed thereby; and that some of the buildings along the roadway of defendant had been roofed with iron sheeting to protect them from fire from passing engines.

The evidence upon the disputed points, being thus in conflict, the question has been properly submitted to and solved by the jury.

A re-examination of the evidence convinces us that the finding of the jury is correct. The preponderance of the evidence is in favor of...