Missouri Pac. Ry. Co. v. Bartlett

• Decision Date: 11 November 1887
• Citation: 6 S.W. 549
• Parties: MISSOURI PAC. RY. CO. v. BARTLETT.
• Court: Texas Supreme Court

6 S.W. 549

MISSOURI PAC. RY. CO. v. BARTLETT.

Supreme Court of Texas.

November 11, 1887.

Commissioners' decision. Appeal from district court, Bell county.

R. C. Foster and A. E. Wilkinson, for appellant. W. S. Holman, for appellee.

COLLARD, J.

This suit was brought by the appellee, J. T. Bartlett, against the appellant, the Missouri Pacific Railway Company, June 9, 1884, in Bell county, for the value of 35 bales of cotton placed by plaintiff upon defendant's platform for shipment, which it alleged were destroyed by fire from defendant's locomotive through the negligence of the defendant. Plaintiff alleged that he placed 57 bales of cotton on the platform by the consent and acquiescence of defendant's agent; that he had often placed cotton there before under the same circumstances; that the engine from which the fire escaped, and its appliances for preventing the escape of fire, were defective, out of order, and in improper condition, and were negligently operated by defendant's servants and employes, in consequence of which the fire escaped, and totally destroyed the said 35 bales of cotton of the value of $1,702.43; for which, with 8 per cent. interest from the time of injury, he sues. Defendant answered, September 29, 1884, by demurrer, general denial, and specially that the engine was equipped with all the most approved appliances to prevent the escape of fire, was carefully kept in good order by skillful mechanics, and was skillfully handled by competent employes; that plaintiff was guilty of negligence in voluntarily placing the cotton in an exposed condition near the track where defendant was operating its engine,—a place of great danger, and necessarily exposed to fire from passing engines; that no known appliance will entirely prevent the escape of fire from a locomotive; and the cotton being very inflammable, as known to plaintiff, he voluntarily placed his cotton in a dangerous place, and himself assumed the risk. There was a jury trial, July 1, 1885, and a verdict for the plaintiff for $1,937.11, for which judgment was rendered. There was evidence tending to establish plaintiff's case, — that he had bought cotton on the fifth, sixth, and eighth of October, and put it on defendant's platform, 57 bales. On the eighth he boarded the defendant's train to go from Bartlett to Waco, passed by the cotton then, and there was no appearance of fire. The train stopped before passing the platform, and then came on by it, heavy smoke coming from the smoke-stack. He got on the train, and went to Waco. The grass was set on fire twice as the train passed, and the car next to the locomotive took fire, and burned the inside of it out, on the same day, en route to Waco. It was very dry at the time, and it was shown that some of the cotton had been sampled. The platform was in fifteen feet of the main track, and in five feet of the switch. Plaintiff had customarily placed his cotton on the platform without objection of defendant's agent; the agent would not receive the cotton for shipment unless it was on the platform. No direct permission to store cotton there had been given by the agent, but it was allowed. It was done the fall before, and all along. Plaintiff had applied to the agent only a day or two before the fire to ship his cotton, and was informed that there were no cars. After this platform was destroyed by fire, on October 8, 1883, the agent would not allow persons to store cotton on the new platform until it was receipted for by the company. The fire was discovered in the cotton a few minutes after the said train passed, and totally destroyed plaintiff's 37 bales of cotton, valued as alleged. This was the only fire that ever occurred at the platform. Engines passed it often while cotton was stored on it, and no accident ever occurred before. The engine was a half mile off when the fire was discovered in the cotton. The defendant's engineer in charge of this particular engine had been in the business for 30 years. The defendant's witness testified that the smoke-stack and fire-arrester on the engine was known as the "Diamond." The pattern had been approved by the Missouri Pacific Railway Company, and was in use on all their engines,...