Missouri, K. & T. Ry. Co. v. Stafford

• Decision Date: 09 May 1895
• Citation: 31 S.W. 319
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. STAFFORD et al.
• Court: Texas Court of Appeals

31 S.W. 319

MISSOURI, K. & T. RY. CO. OF TEXAS v. STAFFORD et al.

Court of Civil Appeals of Texas.

May 9, 1895.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by N. B. Stafford and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiffs, defendant appeals. Reversed.

Baker, Botts, Baker & Lovett, for appellant. O. T. Holt, for appellees.

PLEASANTS, J.

Appellees sued appellant to recover compensation for damages sustained by them in the destruction of grass growing upon their lands, and for injury to the land, caused from fires kindled by sparks from the locomotives operated upon the road of appellant, by the servants of appellant. The defense to the plaintiffs' averment, that the fire was the proximate result of the negligence of the defendant was that defendant's engines were, at the time said fires were set out, in good condition, and were supplied with the most approved appliances for the prevention of the escape of sparks, and were carefully handled and operated, by experienced and skillful persons. There was evidence tending to sustain this defense. The general and only charge given by the court is as follows: "Negligence is the want of such care which an ordinarily prudent person would use under the same or similar circumstances. If you believe from the evidence that plaintiffs' land has been injured, substantially as alleged, by fire from defendant's locomotives, and that the proximate cause thereof was the negligence of the defendant, you will find for plaintiffs such amount as, from the evidence, you believe to be the difference between the fair market value of the land, with the grass and posts, immediately before the fire, and its fair market value immediately after the fire, under such conditions, with or without grass or posts, as it then was." To supply an obvious defect in this charge, the defendant requested the court to give the following instruction: "If you believe from the evidence that the engines of defendant company were properly equipped with appliances determined by practical railroad men to be among the best in use on railroads for the prevention of the escape of sparks, fire, and cinders from locomotives, and that such apparatus and appliances were in good order, and that the engines were carefully and properly handled by competent employés of the defendant at the time of the alleged setting out of the fires complained of by defendant's engines,...