Missouri, K. & T. Ry. Co. of Texas v. Murray

• Decision Date: 08 June 1912
• Citation: 150 S.W. 217
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. MURRAY.
• Court: Texas Court of Appeals

150 S.W. 217

MISSOURI, K. & T. RY. CO. OF TEXAS v. MURRAY.

Court of Civil Appeals of Texas. Dallas.

June 8, 1912.

Rehearing Denied October 12, 1912.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by N. C. Murray against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

Alex. S. Coke, of Dallas, and Dinsmore, McMahan & Dinsmore, of Greenville, for appellant. Sherrill, Mulkey & Hamilton, of Greenville, for appellee.

RAINEY, C. J.

Appellee brought this suit to recover of appellant the sum of $4,757.50, the value of appellee's house and household goods destroyed by fire, which was caused by the negligence of appellant in allowing sparks to escape from its locomotive engine. Appellant answered by general demurrer, general denial, and specially that its engine was equipped with the best approved spark arresters, which were in good repair; that the locomotive was properly operated and inspected. Further, that appellee's property was insured against loss by fire in the sum of $2,500 in the Springfield Fire Insurance Company; that $2,000 of said insurance had been paid; that by the terms of said policy of insurance said insurance company was subrogated to any right appellee had for destruction of said porperty from fire caused by negligence, and in consequence thereof the cause of action was vested in said company, and prayed that it be made a party that its rights might be adjudicated. Said insurance company appeared and pleaded payment of said sum to appellee, that its interest was merely equitable, that appellant was not a party to said insurance contract, and adopted appellee's pleas, and asked that appellee have judgment on said claim. Appellant answered this plea by general denial, and specially, proper equipment and care in operation, etc. After the trial had begun, the insurance company filed the following plea: "Now comes the Springfield Fire & Marine Insurance Company, defendant herein, and files this, its first amended answer under leave of the court, and disclaims any right to recover of the defendant, Missouri, Kansas & Texas Railway Company of Texas, but says that the plaintiff is entitled to recover any and all interest which this defendant might or may have in this suit. Wherefore, this defendant prays that it go hence without day and recover its costs." Appellant excepted to this plea, which was overruled, and the insurance company took no further part in the trial. A trial was had with the aid of a jury, which resulted in a verdict and judgment for $2,500 in favor of appellee, from which this appeal is taken.

Appellee's dwelling in which he and his family resided was situated near appellant's right of way some 155 feet from the nearest railroad track. About 2:30 a. m. a strong wind was blowing across the track in the direction of the appellee's house, which blew sparks of fire emitted from a passing engine into and set fire to and burned said house and its contents; the value of said house and contents being more than $2,500, the amount of the verdict and judgment. There was no direct evidence that the house was set on fire by sparks escaping from the engine, but the circumstances shown fully authorized the jury to conclude that the house was so set on fire.

Appellant's first, second, and third assignments complain of the court's action in refusing to exclude the testimony of appellee as to the value of the house burned. On direct examination he testified that he knew the cash market value of the premises, which was $3,000. On cross-examination he stated that he had in mind the cost and utility of the said premises, and that these were the two things which he had most prominently in mind and under consideration when he made the answer. The motion to exclude was, in effect, that he failed to qualify to answer the question and that he fixed his valuation from improper considerations. Appellee also testified, in...