San Antonio & A. P. Ry. Co. v. Home Ins. Co. of New York

• Decision Date: 29 October 1902
• Citation: 70 S.W. 999
• Parties: SAN ANTONIO & A. P. RY. CO. v. HOME INS. CO. OF NEW YORK.
• Court: Texas Court of Appeals

70 S.W. 999

SAN ANTONIO & A. P. RY. CO. v. HOME INS. CO. OF NEW YORK.

Court of Civil Appeals of Texas.

October 29, 1902.

Appeal from Kendall county court; Henry Theis, Judge.

Action by the Home Insurance Company of New York against the San Antonio & Aransas Pass Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed on rehearing.

Houston Bros. and Hines & Taliaferro, for appellant. H. C. Von Struve, for appellee.

JAMES, C. J.

The petition alleged negligence of the railway company in negligently operating its engine so as to permit the escape of sparks from its engine which set fire to certain cedar timber upon its right of way. This was a sufficient allegation of negligence, and admitted of proof not only of the careless handling of the engine, but also of insufficient construction and equipment of the engine. Railroad v. Gains (Tex. Civ. App.) 26 S. W. 873.

The sixth assignment of error is not well taken for the reason that, if the testimony of H. J. Graham as to value of the cedar was subject to the objection made to it, the testimony of another witness, Hutchison, whose testimony as to value was the only other testimony on that subject and was admitted without objection, was substantially the same.

The seventh assignment presents the most serious question in the case. Witness Hutchison was allowed to testify that he saw sparks escape from one of defendant's engines during January or February, 1902, at the same place,—saw cinders fall upon and set fire to cedar piled at this place. The burning in question occurred on October 1, 1902. This was objected to upon the ground that testimony of prior or subsequent acts or omissions is incompetent and irrelevant in proving negligence. The proposition advanced is that such evidence having no connection with the specific fact is admissible only in rebuttal, and must then be shown to have been under similar conditions and circumstances and at about the same time. There are authorities which seem to declare this character of testimony admissible in cases of this kind, but we need not consider them. Appellant contends that, while the rule may be correct in cases where the particular engine from which the damage proceeded is not identified or described, it is not so when the engine is so identified, and in such a case it must appear, in order to make the testimony admissible, that the other engine was similar in construction and equipment to the one in question. The witness Hutchison does not in any way describe the engine from which he saw sparks fall. But we think on reading the testimony of defendant's witnesses that it indicates that defendant had in general use on its engines the spark arrester with which the one in question was equipped. In the testimony of witness Stallings, the inspector of engines, he says that he got his information in regard to other spark arresters not in use in the San Antonio & Aransas Pass Railway Company by reading magazines, etc. This implies and conveys the impression that defendant had this spark arrester in general use. He also testified: "Spark arrester is examined by removing plate back of smokestack and examining inside with torch. Can't say whether he inspected inside of this engine upon each of the times mentioned or not. It is his custom to do so, but he has a great many engines to inspect each day, and cannot remember at this time as to this particular inspection." From this it may be fairly understood that this was not the only engine thus equipped, but that they were generally so equipped. If the company had the arrester in use, it is not probable that it stopped short of using them generally. From this testimony the jury may have understood that defendant had the arrester in general use on its lines, and it was sufficient to warrant them in doing so.

It was material for plaintiff to prove that the fire in question was communicated by sparks emitted from the engine; defendant introduced testimony to show that the sparks emitted were too slight on account of the arrester to set fire to the cedar; hence the relevancy of evidence that, from an engine similarly provided, fire was seen to be readily communicated. Under such circumstances, the date would be unimportant.

In reference to proposition under the eighth, tenth, eleventh, twelfth, and seventeenth assignments, we may refer to the testimony of witness Foote, who testified, in substance, that immediately after the train passed the yard he began to load two wagons with cedar, and before one was loaded the fire was noticed. This was about 20 or 30 minutes after the train left, possibly longer, the witness stated. He also stated that it might have been an hour; that there was no one at or about the timber that was burned when they passed it or when they got to...