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

• Court: Texas Supreme Court
• Writing for the Court: McClendon
• Citation: Moose v. Missouri, K. & T. Ry. Co. of Texas, 212 S.W. 645 (Tex. 1919)
• Decision Date: 11 June 1919
• Docket Number: (No. 87-2892.)
• Parties: MOOSE v. MISSOURI, K. & T. RY. CO. OF TEXAS.

212 S.W. 645

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

(No. 87-2892.)

Commission of Appeals of Texas, Section B.

June 11, 1919.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by J. W. Moose against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant was affirmed by

Court of Civil Appeals (179 S. W. 75), and plaintiff brings error. Judgments of district court and Court of Civil Appeals reversed, and cause remanded for new trial.

See, also, 180 S. W. 225.

L. E. Blankenbecker, of New York City, and Ewing Werlein, of Houston, for plaintiff in error.

Baker, Botts, Parker & Garwood, of Houston (W. A. Parish, of Houston, of counsel), for defendant in error.

McCLENDON, J.

J. W. Moose brought this suit against the Missouri, Kansas & Texas Railway Company of Texas to recover the value of a house in Houston Heights which was destroyed by fire on the morning of June 2, 1913; plaintiff alleging that the fire was caused by the negligent emission of sparks from one of defendant's engines. The trial court rendered judgment for the defendant upon a verdict returned under peremptory instruction. The Court of Civil Appeals affirmed this judgment, upon the ground that the evidence was not sufficient to warrant a finding that the fire was caused in the manner alleged. 179 S. W. 75.

The sufficiency of the evidence as a matter of law to require submission of the case to a jury is the only question presented in this court. The evidence in some respects, notably in matters relating to time and distance, is somewhat conflicting. Viewing the evidence, however, most strongly for the plaintiff, we think the following facts are fairly deducible therefrom: The house in question was a one-story frame dwelling, some 13 feet in height from the eaves to the ground, with a rather steep roof. It was ceiled with ship-lap, and there was no means of ingress into the attic. It was about 14 feet wide and 50 feet long; the lengthwise frontage being towards the railroad. The distance from the track to the house is variously estimated at from 10 to 40 feet. Plaintiff estimates this distance at from 15 to 20 feet. The house was distant from Houston about a 15 or 20 minute run by rail. The defendant's track crossed a switch track of the Houston & Texas Central a short distance from this house in the direction of Houston. This distance is estimated by the several witnesses at from 150 to something about 400 feet. It was customary for trains to either slacken their speed or stop at or near this house in going in the direction of Houston, before crossing the Houston & Texas Central track. The fire occurred some time about daylight on Monday morning, June 2, 1912. A train of defendant going to Houston passed the house shortly before the fire was first discovered. The only witness who heard the train pass testified that it was about an hour before the fire. The weather was dry. Whether the wind was blowing is not shown. One witness testified that he had seen the train operatives shoveling coal into the engines that passed on this road; from which we think it can be inferred that the defendant used coal as a fuel in its engines, there being no other testimony upon this issue. The witness who heard the train in question pass testified that it made a great deal of noise, as though it were working hard. The evidence shows that trains when starting or quickening their speed after slowing up or stopping at this place would work hard and throw out sparks and smoke. One of defendant's engineers, who was called by plaintiff, testified that he passed over the road with a train of 25 cars, going toward Houston, arriving there about daylight, according to his recollection. He testified that he did not notice any house on fire when he passed, but would have noticed it had there been one at that time. The house in question was occupied at the time by a tenant named Westbrook, who testified that there had been no fire in the house for two weeks prior to the burning; that at that time his wife was away from home; that he had gone to the place the Saturday night previous, and had lit a lamp just long enough to go to bed; that he left the place about 4 o'clock on Sunday afternoon, at which time the house was securely fastened and locked, with no fire in it or lamp burning; and that he himself never smoked. There were no fires of any kind in the vicinity of the house, and no direct evidence as to its cause. When the fire...