Pecos & N. T. Ry. Co. v. Amarillo St. Ry. Co.

• Decision Date: 19 December 1914
• Docket Number: (No. 643.)
• Citation: 171 S.W. 1103
• Parties: PECOS & N. T. RY. CO. v. AMARILLO ST. RY. CO. et al.
• Court: Texas Court of Appeals

171 S.W. 1103

PECOS & N. T. RY. CO. v. AMARILLO ST. RY. CO. et al.

(No. 643.)

Court of Civil Appeals of Texas. Amarillo.

December 19, 1914.

Appeal from District Court, Potter County; Jas. N. Browning, Judge.

Action by the Pecos & Northern Texas Railway Company against the Amarillo Street Railway Company and others. Judgment for defendants, and plaintiff appeals. Reversed.

Terry, Cavin & Mills, of Galveston, and Madden, Trulove & Kimbrough, of Amarillo (F. M. Ryburn, of Amarillo, of counsel), for appellant. Crudgington & Works, of Amarillo, for appellees.

HUFF, C. J.

This suit was instituted by the appellant, the Pecos & Northern Texas Railway Company, against the Amarillo Street Railway Company, appellee. The statement of the cause of action by appellant, and acquiesced in by appellee, is as follows:

"This suit was instituted in the district court of Potter county, Tex., by appellant, against appellee the Amarillo Street Railway Company, to recover the value of a bridge erected for the support of its track over a subway to be used by the appellee, and that the street railway company crosses the track of appellant at Twenty-Fifth street, in the city of Amarillo, Tex.; appellant alleging that said subway was constructed and such bridge built at its own expense under a written contract entered into between it and the appellee on the 12th day of August, 1908. Said contract containing the terms and conditions under which said subway was constructed, among which was a provision that the street railway company should drain and keep passable and free from all rubbish and inflammable material such subway or underground crossing, and should indemnify and save harmless and free from loss the appellant from any damage on account of the destruction of such subway or bridge or any part thereof, which might be directly or indirectly caused or originate from inflammable material which should be allowed to accumulate in said subway by appellee, whether said fire should be set by trains of the appellant or by the electric wires or cars of appellee or by the public. It is further alleged in such petition that in violation of such contract appellees permitted trash, weeds, paper, and other inflammable material to accumulate in said subway, and that such trash and inflammable material so accumulated in such subway were ignited from some cause and fire thereby transmitted to the timber supporting and composing said bridge, and said bridge was as a result thereof, on or about the 19th day of April, 1910, completely destroyed by fire, to appellant's damage in the sum of $10,000."

It will be unnecessary at this time to set out the answer of the appellee.

The first assignment of error is to the effect that the verdict of the jury is contrary to the law and evidence, in that the evidence conclusively shows that the defendant permitted the accumulation of trash, rubbish, etc., in the subway, and that they caught fire, which was communicated to the bridge and caused its destruction.

Without discussing the evidence or setting it out, we overrule this objection, holding that the testimony is not conclusive that the fire originated in the rubbish, etc., and the fire was thereby communicated to the bridge. For that reason the assignment will be overruled; and, in this connection, we overrule appellee's contention that the evidence is conclusive that the fire did not so originate as would render it liable, and that any error the court might have committed would be harmless for the reason that the jury could not have lawfully rendered any other verdict than they did. The evidence we do not regard as conclusive as against either the appellant or the appellee; but there are facts and circumstances for and against both, from which an inference might be drawn by the jury, either supporting the one or defeating the other. Contention on the part of both appellant and appellee in this particular will be overruled.

The second, third, and fourth assignments of error relate to the charge of the court given in this case, and the sixth assignment, to the refusal of the court to give the appellant's specially requested charge. The court in the third paragraph of its charge, instructed the jury as follows:

"By `ordinary care,' as used in this charge, is meant the exercise of that degree of care under given circumstances which a person of ordinary prudence would exercise under the same circumstances, and a failure to exercise such ordinary care is `negligence' in the sense that the term negligence is used in this charge. `Negligence,' in other words, is the doing of that which an ordinarily prudent person would not do, or the failure to do that which a person of ordinary prudence would do under the same circumstances."

The fifth paragraph is:

"Under the terms of the written contracts of March 26, 1908, and of August 12, 1908, between plaintiff and the defendant street railway company, read in evidence before you, it was the duty of the said street railway company to exercise ordinary care to keep the entire subway or underground crossing under plaintiff's bridge free from all rubbish and inflammable material which could or might cause fire to originate and damage or destroy said bridge."

In the sixth paragraph the court instructed the jury to bear in mind the foregoing instructions, and if they should find from the evidence the defendants "negligently allowed rubbish and inflammable material," etc., to accumulate, and that the bridge caught fire from any cause which was communicated to the bridge from such burning material, and destroyed, etc.

The appellant requested the court, in specially requested charge No. 1, to charge the jury that under the contract sued on the liability of the parties would be governed thereby with reference to the causeway, and instructed them what the provisions of the contract were with reference to fire, and concluded:

"Therefore, if you believe from the evidence before you that the defendant street railway failed to keep said entire subway free from all rubbish and inflammable matter as provided in said contract, and that said bridge or any part thereof was destroyed by fire directly or indirectly originating from such inflammable matter, if any, which may have been allowed to accumulate in said subway by the defendant Amarillo Street Railway Company, then you will find in favor of the plaintiff, whether said fire may have been set in such inflammable material, if any, by the train of the plaintiff company, or by the public."

This charge the court refused.

Section 2 of article 1 of the contract, is as follows:

"The Amarillo Company (appellee) shall construct its railroad on the P. & N. T. Company's right of way into and through the subway or undergrade crossing, as herein provided, at its own cost and expense, and shall at all times during its right to use said subway or undergrade crossing, at its own cost and expense properly drain and keep passable and free from all rubbish and inflammable matter the entire subway."

Section 6 of article 2 is that:

"The Amarillo Company shall indemnify and save harmless and free from all loss the Pecos & Northern Texas Company against the damage or destruction of said subway or any part thereof by fire, which may be directly or indirectly caused by or originated from inflammable material which may be allowed to accumulate in said subway by the Amarillo Company, whether said fire may be set by the trains of the Pecos & Northern Texas Company or the electric wires of said Amarillo Company, or by the public."

As the appellee contends in this case that the action brought by appellant is one sounding in tort or for negligence, we quote the following paragraph from the petition:

"(7) Plaintiff further says that defendant did not and has not performed the duties and obligations made incumbent upon it by the terms of said written contract, but, on the contrary, permitted trash, weeds, paper, chips, and various other inflammable and combustible material to accumulate and remain within and about the subway or underground crossing, and that on or about the 19th day of April, A. D. 1910, such inflammable and combustible material so permitted to collect and remain within and about said subway by the defendant was ignited from some cause unknown to the plaintiff, and fire was thereby transmitted to the timbers supporting and crossing said bridge, thereby burning the whole and destroying said bridge and injuring plaintiff's railway to plaintiff's damage in the sum of $10,000.

"(8) That the burning and destruction of said bridge was in no wise owing to the failure of duty of plaintiff in any respect nor to any acts of negligence on its part, but was the proximate result of defendant's failure to keep said subway or underground crossing free from inflammable matter and combustible substance."

In testing the charge of the court given in this case, it will be necessary to inquire into the nature of the action brought; that is, whether it is ex contractu or ex delicto, and whether a breach of a contract or a suit in tort. It could not in the strict legal sense be a suit in tort; that is, "a wrong done independent of contract." But there are wrongs which will maintain an action on the case, known to the common-law pleading, committed in the nonobservance of duties which are but the implication of contract obligation. Wherever there is carelessness, want of reasonable skill, or the violation or disregard of duty which the law implies from the conditions or attendant circumstances, and individual injury results therefrom, an action in tort lies in favor of the party injured. If the transaction had its origin in a contract which places the parties in such relation as that in performing or attempting to perform the service promised the wrong is committed, then the breach of the contract is not the gravamen of the action. There may be no technical breach of the letter of the contract;...