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

• Citation: 29 S.W. 688
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. FULMORE et al.
• Decision Date: 20 February 1895
• Court: Texas Court of Appeals

29 S.W. 688

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

Court of Civil Appeals of Texas.

February 20, 1895.

Appeal from Bell county court; John M. Furman, Judge.

Action by Z. T. Fulmore and another against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Reversed.

B. F. Lee and A. M. Monteith, for appellant.

COLLARD, J.

This is an action by Z. T. Fulmore, husband of Luella R. Fulmore, and J. A. Gamel, husband of Imogene Gamel, brought in the county court of Bell county, September 9, 1892, against the Missouri, Kansas & Texas Railway Company of Texas, charging that the defendant, by means of sparks carelessly and negligently allowed to escape from its engines, set fire to hay, grass, and other combustible material allowed by it to accumulate on its right of way, the fire thence communicating to the land belonging to the plaintiffs' wives, and burning over 60 acres of the same, destroying the grass growing thereon, and the sod and turf; the value of the grass destroyed being laid at $300, and the injury to the sod and turf, $300. There was a general verdict for plaintiffs for $262.25, upon which judgment was rendered. The defendant has appealed.

We have carefully examined the testimony in the record, and find that there is no evidence that the fire was caused by the negligence of defendant below, or its servants, as alleged in the petition. It was proved by one witness that he did not know the time of the fire, but that if he had his papers with him, showing when the Missouri, Kansas & Texas settled with him for his fence, which was burned by the same fire, he could tell the exact date. This statement comes nearest of any in the statement of facts to fixing the responsibility of the fire upon the defendant, but it cannot be said that it does so establish the fact that the fire occurred through the negligence of defendant. The company may have compromised with him on his claim for damages. Other than this incidental fact, there is a total absence of testimony indicating that the defendant or its agents caused the fire. The plaintiffs could not recover without proving such negligence on the part of defendant or its agents as would render the company responsible for the injury done. The proof does not show that the fire commenced on the right of way, as charged in the petition, nor by whom or in what manner it was set. The testimony does show facts that would authorize a verdict that de...