Paris, M. & S. P. Ry. Co. v. Nesbitt

• Decision Date: 02 November 1895
• Citation: 33 S.W. 280
• Parties: PARIS, M. & S. P. RY. CO. v. NESBITT et al.
• Court: Texas Court of Appeals

Page 280

33 S.W. 280

PARIS, M. & S. P. RY. CO. v. NESBITT et al.

Court of Civil Appeals of Texas.

November 2, 1895.

Appeal from Harrison county court; A. H. Cooper, Special Judge.

Action by Nesbitt & McKay against the Paris, Marshall & Sabine Pass Railway Company. Judgment for plaintiffs. Defendant appeals. Reversed.

Y. D. Harrison, for appellant. Chas. E. Carter, for appellees.

FINLEY, J.

This suit was instituted by Nesbitt & McKay against the Paris, Marshall & Sabine Pass Railway Company for $900 damages, alleged to have been suffered by them from the negligent burning of lumber through the means of sparks emitted from the engine of the railway company. The railway company answered by general demurrer and general denial, and specially pleaded that the plaintiffs were guilty of contributory negligence, in placing their lumber upon the right of way of the railway company, in a dangerous place, and that they knew of the danger, and therefore took the risk of its burning, etc. The cause was tried, and resulted in a verdict and judgment for plaintiffs in the sum of $518.70. From this judgment this appeal is prosecuted.

It is assigned that the court below erred in its charge to the jury upon the issue of contributory negligence. The court, in effect, charged the jury that if the plaintiffs were guilty of negligence in placing their lumber upon the right of way of the railway company, and allowing it to remain there, they could not recover in this case, unless it appeared that the railway company knew of the situation of the lumber, and of the danger it was in, and, with such knowledge, operated its engines in such a negligent manner as to indicate an indifference to plaintiffs' rights. If they found this to be true, then plaintiffs would be entitled to recover, notwithstanding the jury might believe they had been guilty of contributory negligence, as defined by the court. This proposition is in contravention of the law as declared by our supreme court in the case of Martin v. Railway Co., 87 Tex. 117, 26 S. W. 1052. That was a suit for damages for the negligent burning of cotton placed upon the platform of a compress company, adjoining and connected with the platform of the railway company. The trial judge in that case charged the jury as follows: "If you believe from the evidence that the plaintiffs, or their agents or employés, placed plaintiffs' cotton where it was burned, and if plaintiffs, or those persons who had charge of the cotton for them at the compress, did not cover or otherwise protect such cotton from sparks emitted from passing engines; and if you find that the placing of such cotton at the place where it was burned, and so leaving it there uncovered, was such an act of omission as a person of ordinary prudence would not have done, in...