Receivers of Missouri, K. & T. Ry. v. Pfluger

• Decision Date: 07 February 1894
• Citation: 25 S.W. 792
• Parties: RECEIVERS OF MISSOURI, K. & T. RY. v. PFLUGER.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

25 S.W. 792

RECEIVERS OF MISSOURI, K. & T. RY. v. PFLUGER.¹

Court of Civil Appeals of Texas.

February 7, 1894.

Appeal from district court, Williamson county; W. M. Key, Judge.

Action by William Pfluger against the receivers of the Missouri, Kansas & Texas Railway and others. From a judgment for plaintiff, defendants appeal. Affirmed.

The court charged the jury, among other things: "(2) Negligence may be defined to be the failure to do that which a person of ordinary prudence would have done under like circumstances, or doing that which such a person would not have done under such circumstances. A failure to exercise ordinary care constitutes negligence. Ordinary care is such care as a person of ordinary prudence would exercise under like circumstances. The exigencies of the particular occasion indicate and fix the amount of care that should be exercised." "(5) If the jury find a verdict for the plaintiff, the measure of damage will be the reasonable and fair market value of his grass and posts destroyed by the fire, and the difference, if any, in the market value of the land covered by the fire immediately before and immediately after the fire, and you may also allow interest on such amounts at eight per cent. per annum from date of fire to July 12, 1891, and at six per cent. per annum from that date to this time." The court refused to give in charge to the jury the following special instruction: "(2) If, from the evidence, the jury believe that the passenger engine of defendant going south on the evening of August 9th fired the grass in the vicinity of Elgin, but that the fire so set out was on the west side of the track, and not connected with the fire that burned plaintiff's land, they will not consider such in arriving at a verdict." Defendants assign the following errors, inter alia: "(3) The court erred in its definition of negligence in its charge to the jury, because the court does not make negligence the doing or the failure to do that which the defendant rests under a legal obligation or duty to do or not to do. (4) The court erred in giving to the jury the measure of damages in this case." "(6) The court erred in refusing to give to the jury special instruction No. 2 asked by the defendants. (7) The court erred in not granting the defendants a new trial, because the testimony herein shows that the verdict of the jury is contrary to and against the evidence. The testimony of the defendants, to the effect that the fire complained of was not set out by an engine of the defendants, but originated otherwise, being clear, positive, and-unequivocal, and the testimony of the plaintiff being conjectural and uncertain, no witness having seen an engine of the defendants set fire to the grass, and none being closer, at the time the smoke was first seen to rise, than a half mile, and all making guesses simply as to the distance from the track of the smoke when first seen."

Fisher & Townes, for appellants. J. W. Parker, for appellee.

Statement of the Nature and Result of the Suit.

FISHER, C. J.

Suit by William Pfluger, originally instituted against Cross and Eddy, as receivers of the Missouri, Kansas & Texas Railway, and subsequently, by amendment, against the Missouri, Kansas & Texas Railway Company...