"We respectfully propound for your decision the questions hereinafter set out, which have arisen in this cause, now pending before this court on appeal:
"The partnership of W. T. Carter & Bro., composed of W. T. Carter, E. A. Carter, and Jack Thomas, owned and operated a sawmill and planing plant, together with the land, houses, stores, machinery, and other property appurtenant thereto, and owned the real estate on which it was situated. The property was situated in Polk county, Texas, near and adjoining the right of way of the Trinity & Sabine Railroad. At the time of the establishment of the sawmill, etc., at that point, the railroad was owned and operated by the Trinity & Sabine Railroad Company, a Texas corporation. The road was about 67 miles in length, and extended from the town of Trinity, Texas, through Polk county, to Colmesneil, in Tyler county, Texas. The Trinity & Sabine Railroad Company continued to own and operate its road until the 30th day of January, 1892, when the Missouri, Kansas & Texas Railway Company of Texas, also a Texas corporation, purchased all the properties of the Trinity & Sabine Company, and took a deed therefor. This purchase was made under the authority and powers conferred by the special act of the legislature April 30, 1891, and the general act of March 28, 1891. The appellant from the date of the purchase owned and operated the Trinity & Sabine Railroad as a part of its system. On the 9th day of August, 1897, W. T. Carter & Bro. owned and were still operating the mill and properties before mentioned, and had accumulated a large quantity of lumber, a part of which was stacked on the right of way of the railroad company at the point on the road where the mill was situated. The partnership had also built on the right of way a shed 300 feet long and 40 feet wide, in which was stacked and stored on the last named date a large quantity of kiln-dried lumber. On August 9, 1897, fire was discovered on or in the shed, near the east end thereof, at a point 60 or 65 feet from a side track on which one of appellant's engines had been used for switching about 30 minutes before the discovery of the fire. As a result of this fire, the entire mill plant, lumber, and other property was consumed, with the exception of a small amount of salvage. The lumber and sheds were on the right of way with the assent and acquiescence of appellant. At the time of its destruction, appellees Carter & Bro. were carrying fire insurance to the amount of $22,000; the risk being distributed among the several insurance companies, parties to this suit. The insurance companies paid the amounts for which they were liable under their several policies, and, having, by assignment or by subrogation clauses in the policies, themselves acquired an interest in the claim of Carter & Bro. against any person or concern responsible for the fire and its consequences, joined Carter & Bro. in this suit to hold the appellant company liable therefor on the ground that the fire was negligently set by sparks from one of appellant's engines. Appellant answered by general demurrer, general denial, and special pleas whereby it set up in defense: (1) That appellees, in stacking their lumber on and near the right of way, assumed the risk of fires due to negligence of appellant in equipping and operating its engines; (2) that appellees were guilty of negligence in placing combustible material so near the track, and in failing to provide adequate protection against fire; and (3) that Carter & Bro. had, in consideration of the building of the switch near the mill for their convenience in shipping lumber therefrom, executed a written contract with the Trinity & Sabine Railroad Company in 1883 whereby they agreed to release the railroad company from all responsibility for fires caused by the operation of their engines at and near that point, and that this contract, by its terms and nature, passed to the appellant company, by reason of its purchase of the properties of the Trinity & Sabine Railroad Company, and was an effectual bar to appellees' demands.
"On the trial before the court and jury, evidence was adduced by plaintiff showing that engine No. 35 of appellant, which had never belonged to the Trinity & Sabine Railroad company, was switching on the side track, within 65 feet of the point of origin of the fire, about 30 or 40 minutes before the fire was discovered. They adduced testimony to the effect that the engine in question was of an old and discarded pattern, as to the spark-arresting device, and adduced circumstantial evidence tending to show that the spark-arresting device was not in good condition, and that the engine, while switching at the point in question, was negligently handled. They also adduced circumstantial
evidence tending to show that the fire could not probably have originated from any other known source than defendant's engine. Appellant's evidence tended to show other causes as the probable source of the fire; that the course of the wind was from the fire toward the engine; that the smoke from the engine actually blew away from, instead of toward, the fire; and that its spark arrester was an approved device, in good condition. The contract of release from responsibility was shown to have been lost, and while some testimony was offered in an effort to show that it contained a clause of release, as alleged, the evidence was not sufficient to present the issue as against the appellees' plea of non est factum. The cause was submitted to the jury, and resulted in a verdict and judgment in favor of appellees for $150,000 and interest.
"The contract of release from liability was discovered by appellant after verdict, and was appended to its motion for new trial, and made one of the grounds on which a new trial was sought. It was the original actually executed by W. T. Carter. Its date was 3d of May, 1883. The other party thereto was the Trinity & Sabine Railroad Company. The contract is as follows: `Whereas, W. T. Carter, of the county of Polk, state of Texas, owns a steam sawmill and fixtures, which is located in the county of Polk, state of Texas, on a tract of land described as follows, to wit: Ira Conway league, in said Polk county, being about (70) seventy feet from the main track of the Trinity & Sabine Railway Company; and whereas, the said W. T. Carter, for his convenience in shipping lumber and other freight, has petitioned the said Trinity & Sabine Railway Company to construct a side track and switch at a point between stations 2600 and 2609, east from Trinity station, and about twenty miles east from Groveton station; and whereas, in consideration of the stipulations hereinafter contained, the said Trinity & Sabine Railway Company has agreed, and by these presents does agree, to construct the said side track and switch at said point, which switch shall be known and called "Barnum": Now, therefore, in consideration of the premises, and of the construction of the said side track and switch by the said railroad company, I, the owner of said mill, hereby release the said Trinity & Sabine Railway Company from any and all damages and claims arising from the injuring or killing of any stock or cattle belonging to me or my contractors or employés that may be injured or killed by the locomotives, trains, or cars of the said railroad company on the line of said road or any of its tracks, and from all damages resulting from the injury or destruction of any property whatever that may be injured or destroyed by fire or sparks from any locomotive of said railroad company at or about said Barnum switch, belonging to me, my employés or contractors, in and about said mill; and in the event the said railroad company shall be made liable for any damage done by it to any cattle, stock, or property belonging to any of my contractors and employés as aforesaid, then I bind myself and assigns to reimburse said railroad company for any money they have to pay therefor, including all costs of court; and I hereby agree that the claim against us for such money so paid by said railroad company shall be a lien on said mill and its fixtures, as also on the premises on which the same is located. It is understood that the stipulation herein contained shall be a covenant running with the said land and mill, and in the event I shall assign, transfer, or lease said premises, then the stipulation herein contained shall be binding on my assign or lessee. The said railroad company reserves the right to take up said track and switch whenever they may deem it proper, upon giving ____ days notice to the occupant of said mill. May 3rd, 1883. [Signed] W. T. Carter.' Though the contract was executed by W. T. Carter alone, no question is made but that it was equally binding upon his copartners. Appellees contested the motion for new trial, and, in so far as it was sought upon this ground, urged that, as the release was made between Carter and the Trinity & Sabine Railroad Company, appellant was a stranger thereto, and that it was not assignable without the consent of Carter & Bro., and no such assent was shown. Appellees also filed affidavits to the effect that the switch, the construction of which purported to be the consideration...
