Progressive Lumber Co. v. Marshall & E. T. Ry. Co.

• Decision Date: 26 March 1913
• Parties: PROGRESSIVE LUMBER CO. v. MARSHALL & E. T. RY. CO.
• Court: Texas Supreme Court

155 S.W. 175

PROGRESSIVE LUMBER CO. v. MARSHALL & E. T. RY. CO.

Supreme Court of Texas.

March 26, 1913.

Appeal from Court of Civil Appeals of Sixth Supreme Judicial District.

Action by the Progressive Lumber Company against the Marshall & East Texas Railway Company. From a judgment of the Court of Civil Appeals (136 S. W. 491), affirming a judgment of the district court for defendant, plaintiff appeals. Judgments of the Court of Civil Appeals and of the district court reversed, and cause remanded.

Sam D. Snodgrass, of Temple, Geo. S. Wright and Wm. Thompson, both of Dallas, and Mell & Stephens, of Gilmer, for appellant. Warren & Briggs, of Gilmer, for appellee.

HAWKINS, J.

Appellant sued for damages in the sum of $25,000, alleging, substantially, that the fire which destroyed its planing mill and other property situated near appellee's right of way resulted from sparks negligently emitted from a locomotive of appellee, and that (1) said sparks fell upon appellant's property, setting it afire; or (2) said sparks fell upon and set fire to dry grass and other combustible substances which appellee had negligently permitted to incumber said right of way, whence the flames spread to said mill, etc. The district court charged the jury upon only the first alleged grounds of negligence. The verdict was in favor of the railway company and judgment accordingly was entered, and was affirmed by the Court of Civil Appeals.

Appellant's first assignment of error complains of the refusal of the trial court to give its requested special charge which is as follows: "Gentlemen of the jury, you are instructed that if you believe and find from the evidence that the defendant company negligently permitted dry grass to grow and accumulate on and incumber defendant's right of way and track at a point west of the dry shed or planer shed of the plaintiff's property, and if you further find from the evidence that sparks of fire were emitted from one of defendant's engines and set fire to said grass, if any, on defendant's right of way, and said fire spread to and consumed plaintiff's property, you will find for plaintiff, measuring his damages by the rule given you in the general charge herein." Appellee practically concedes, and the Court of Civil Appeals held, as we do, that said requested charge should have been given to the jury if the evidence required submission of the issue which it was designed to present. G., C. & S. F. Ry. Co. v. Cusenberry, 86 Tex. 532, 26 S. W. 43; Campbell, Receiver, v. Goodwin, 87 Tex. 273, 28 S. W. 273; Ft. W. & D. C. Ry. Co. v. Hogsett, 67 Tex. 685, 4 S. W. 365; Ft. W. & N. O. Ry. Co. v. Wallace, 74 Tex. 581, 12 S. W. 227; T. & P. Ry. Co. v. Ross, 7 Tex. Civ. App. 653, 27 S. W. 728; G., H. & S. A. Ry. Co. v. Polk, 28 S. W. 353; I. & G. N. Ry. Co. v. Newman, 40 S. W. 854.

If the evidence bearing upon that issue which was favorable to the lumber company, discarding all that was favorable to the railway company, was sufficient to support a verdict in favor of the lumber company, had that issue been submitted to the jury, said requested charge should have been given. Lee v. I. & G. N. R. Co., 89 Tex. 583, 36 S. W. 65; Choate v. Railway Co., 90 Tex. 86, 36 S. W. 247, 37 S. W. 319; Eastham v. Hunter, 98 Tex. 560, 86 S. W. 323; Harpold v. Moss, 101 Tex. 541, 109 S. W. 928; Heatherly v. Little, 40 S. W. 445; City of Ft. Worth v. Cetti, 38 Tex. Civ. App. 117, 85 S. W. 826; Long v. Ry. Co., 85 S. W. 1048; Lamberida v. Barnum, 90 S. W. 698.

Among the undisputed facts are these: Appellant's properties included a planer shed 40 by 60 feet, and adjoining it on the north a dry shed 40 by 100 feet, around both of which was a platform, the west side of which extended 140 feet along and about 12 inches east of appellee's spur track, which extended from the south end of said platform to a juncture with the main track about 150 feet in a northwesterly direction from the north end of said platform. The dry shed was not floored, but under it were heavy sills placed in trenches and nearly level with the ground upon which sills rested 2 by 12 sleepers on which lumber was piled. The "filing room" was in the end of the dry shed adjoining the planer shed. The floor of the planer shed was 4 feet above the ground. The machinery was on the floor under the planer shed. Three box cars stood on the south end of the spur track. Appellant's boiler and engine room was 40 feet south of the planer shed, and on the other side, and south of a dirt road which came in from the east, and ran westwardly nearly to the main track, and thence northwardly and about parallel with the main track, which ran almost north and south and about 45 feet west of the spur track. Appellant's property burned shortly after noon of October 1, 1909. The origin of the fire rests exclusively on circumstantial evidence. There was no proof that sparks of fire were seen to come from appellee's locomotive and fall on appellant's property. That the plant was afire was first discovered by Marshall, one of appellant's employés who was then at his home some 150 or 200 yards from the planer shed. For 24 hours there had been no fire about the plant, except a little in a zinc tub in the engine room, in which tub some babbitt metal had been melted on the forenoon of the day on which the plant was burned.

Marshall testified that the fire in the tub was put out that morning. Thompson testified that before noon he put out all the fire in the tub by pouring, water on it, and that he also poured water on the floor where the tub was. Phillips testified that there was scarcely any fire in the tub that morning; that they used just a few coals in melting the babbitt metal in the tub which was about half full of dirt; that no large fuel was used in it, only small stuff, with which to make a quick heat; that the fire in the tub had burned down, and that water was poured on it and it was extinguished. Houston testified that between 10 or 10:30 o'clock that morning Thompson put out the fire in the tub by pouring water on it. Several witnesses testified that only a few minutes— perhaps about fifteen minutes—before the plant caught fire, appellee's locomotive No. 59 passed the plant, moving over the main track and pulling a freight train. Two witnesses testified that about one hour before the plant caught fire said engine No. 59 set fire to grass some 200 or 300 yards from the plant and on the same side of the main track, or at least fire broke out in the grass there in a few minutes after that engine passed. Thompson testified that not over two weeks before the plant burned he had put out a fire which was burning grass on appellee's right of way south of the plant. This was corroborated by Murphy, who also testified that about a week before the plant was burned said engine No. 59 set fire to the south yard, upon which occasion he and Thompson ran up there and tore a stack of lumber completely down, and that it came near burning down before they could do so. Thompson also testified that on October 6th, five days after that on which appellant's plant was burned, he watched from said engine room and saw the grass on said right of way afire shortly after said engine No. 59 had passed the place where the fire broke out in the grass; that the grass was very dry then; that it had been an unusually dry year.

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