McFarland v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 10 June 1905
• Citation: 88 S.W. 450
• Parties: McFARLAND v. GULF, C. & S. F. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

88 S.W. 450

McFARLAND v. GULF, C. & S. F. RY. CO.^*

Court of Civil Appeals of Texas.

June 10, 1905.

Appeal from Fannin County Court; T. C. Bradley, Judge.

Action by C. S. McFarland against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.

J. G. McGrady, for appellant. Thurmond & Steger, for appellee.

TALBOT, J.

Appellant, McFarland, sued appellee to recover damages for the destruction of his barn, and personal property situated therein, alleged to have been caused by fire started from sparks negligently permitted to escape from appellee's engine. Appellee pleaded the general issue, contributory negligence, and specially that it was operating, at the time and place where the fire occurred, engines properly constructed and equipped with the best appliances in use for preventing the escape of fire, and that said engines and appliances were in good repair and condition, and carefully and skillfully handled, as regards the escape of fire, by competent, skillful, and experienced engineers. The case was tried before a jury, and a verdict and judgment rendered for appellee, from which appellant has appealed.

1. The court, at the request of appellee, charged the jury as follows: "Plaintiff cannot recover in this case unless he proves by a preponderance of the evidence that all or a part of the property mentioned in his petition was destroyed through the negligence of defendant or its agents or employés, and that such negligence, if any, was the proximate cause of the loss of said property." This charge is assigned as error. The ground of objection, as stated in the assignment, is that "the undisputed facts showed that, if the property was destroyed by the negligence of defendant or its employés, such negligence was the proximate cause of the loss, and it was error to submit the question of proximate cause to the jury." If appellee's agents and employés negligently permitted sparks to escape from its engine, and the same fell upon appellant's barn and destroyed it, such negligence was necessarily the proximate cause of the loss of his property, and, under the holdings of our Supreme Court in the cases of Railway Co. v. McCoy 90 Tex. 264, 38 S. W. 36, Railway Co. v. Rowland, 90 Tex. 365, 38 S. W. 756, and Culpepper v. Railway Co., 90 Tex. 627, 40 S. W. 386, we think the said charge error and should not have been given. Railway Co. v. Tonahill (Tex. Civ. App.) 41 S. W. 875.

2. The following charge of the court is assigned as error: "If you believe from the evidence that plaintiff failed to exercise ordinary care to prevent his property being destroyed by fire, and if you further so believe that such failure of plaintiff, if any, was a proximate cause of the loss of his property, then you will find for defendant, no matter how negligent you may believe the defendant to have been." Appellant contends that the evidence did not raise the issue of contributory negligence on the part of appellant, and that it was error for the court to instruct the jury on that question. We have carefully examined the testimony, and are clearly of the opinion that this contention should be sustained. Appellant's barn, according to the uncontroverted evidence, was situated about 200 feet from appellee's railroad track, and, in so far as the evidence shows, he was using it in the usual and ordinary way. The testimony does not show any such condition of the barn itself, or exposure of the inflammable material situated therein, as authorized a finding that he was guilty of such negligence in failing to maintain and protect his property from the probable escape of fire from passing engines, as would defeat his right of recovery, if otherwise entitled to do so. There is no pretense that appellant was not justified in building his barn where situated, and in placing his hay and other personal property therein. Such contention, if made, would be wholly untenable, and, as said in Railway Co. v. Crabb, 80 S. W. 408, 10 Tex. Ct. Rep. 17, "The rule that the owner of property adjacent to a railroad must exercise ordinary care in the management thereof to protect it from fire does not require him to discontinue the ordinary beneficial use of such property, although such use might increase to some extent the hazard from fire." Only such use was appellant making of his property...