St. Louis Southwestern Ry. Co. v. Crabb

• Decision Date: 09 April 1904
• Citation: 80 S.W. 408
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. CRABB.
• Court: Texas Court of Appeals

Page 408

80 S.W. 408

ST. LOUIS SOUTHWESTERN RY. CO. v. CRABB.

Court of Civil Appeals of Texas.

April 9, 1904.

Appeal from Hunt County Court; F. M. Newton, Judge.

Action by J. M. Crabb against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

E. B. Perkins and Templeton, Crosby & Dinsmore, for appellant. Huffar, Nichols & Teddy and Sherrill & Hefner, for appellee.

TALBOT, J.

The following statement of the nature and result of this suit, contained in appellant's brief, is admitted to be correct, and is adopted: J. M. Crabb brought suit against the St. Louis Southwestern Railway Company of Texas to recover the value of a barn, and a lot of hay, corn, oats, and harness situated therein; it being alleged that all of said property was destroyed by fire caused by sparks emitted from one of the engines of the railway company through the negligence of the company in failing to equip its engine with the proper appliances for preventing the escape of fire, and in failing to properly handle the said engine. The defendant answered by general denial, and specially denied the negligence charged against it; averring that the engine was equipped with the proper appliances for preventing the escape of fire, and was in good order and was skillfully handled. The defendant further pleaded that, if the fire was caused by sparks emitted from one of its engines, the plaintiff's negligence caused the fire, for the reason that he voluntarily erected his barn near the track, and failed to keep the same closed or in any way protected from sparks that might be emitted from engines. The case was tried before a jury, which returned a verdict for the plaintiff for $187, and judgment was entered accordingly.

The only paragraph of the court's charge under which the jury was affirmatively authorized to return a verdict for the defendant reads as follows:

"If you believe from the evidence that sparks of fire escaped from the defendant's engine, and set fire to plaintiff's barn—destroyed said barn, with its contents—but if, from the evidence, you believe that the engine from which the sparks escaped was at the time equipped with the most approved spark arrester in use, and that said spark arrester was in good repair, or that all reasonable care and caution had been taken to keep the same in repair, and you believe that defendant's servants exercised ordinary care, as above defined, to carefully and skillfully handle said engine at said time and place, as regards the escape of fire therefrom, then the defendant would not be liable, and you should so find."

In another subdivision of the charge the jury was instructed:

"If you believe from the evidence that said fire was caused by sparks of fire emitted from defendant's engine, and that said engine had a spark arrester, yet if you should believe that said spark arrester was not the most approved appliance of the kind then in use, * * * and that by reason thereof fire escaped from said engine and burned plaintiff's barn, then you will find for the plaintiff."

Complaint is urged to these instructions on the ground that the same imposed upon the defendant the absolute duty of having its engine equipped with the most approved spark arrester in use, to prevent the escape of sparks and fire therefrom, while the law only required it to use ordinary care to provide its engine with such device. The charge is subject to the criticism urged against it. The law did not impose upon appellant the absolute duty of having its engine provided with the most approved spark arrester in use, and to keep it in good condition. Ordinary care to equip and keep in good condition said engine, and to use such care in its operation, was the measure of its duty. The testimony offered by appellant tended to prove that such care had been exercised by it, while that offered by appellee tended to rebut such testimony. The issue being thus raised, it became the duty of the court to submit it to the jury by an appropriate instruction; and the charge, having placed upon appellant the absolute duty to equip its engine with the best spark arrester in use, and to keep it in good repair, was erroneous, under repeated decisions of our courts. Ry. Co. v. Goodnight (Tex. Civ. App.) 74 S. W. 583; Ry. Co. v. Gentry (Tex. Civ. App.) 74 S. W. 607; M., K. & T. Ry. Co. v. Mitchell, 79 S. W. 94, 9 Tex. Ct. Rep. 460; Ry. Co. v. Carter, 95 Tex. 461, 68 S. W. 159.

It will also be noted that, in the paragraph of the court's charge first quoted above, the jury was required to find, before authorized to return a verdict for defendant, that the spark arrester in use by it "was in good condition, or that all reasonable care and caution had been taken to keep the same in repair." As said above, the duty in this respect was to use ordinary care, and the seeming effort of the court to relieve the charge of the objectionable feature wherein the absolute duty was imposed to keep the spark arrester in good repair, by the use of the language, "or that all reasonable care and caution had been taken to keep the same in repair," was ineffectual. A very similar, if not identical, charge has been by this court held to be erroneous. It is said that the use of the expression "`all reasonable care and caution' would seem to require a higher degree of care than ordinary care." Ry. Co. v. Gentry, supra. This error in the court's charge cannot be regarded as a mere omission, and treated as harmless, for the reason that the appellant requested a correct charge upon that phase of the case, and the same was refused.

Appellant complains of the refusal of the court to give the following special charge requested by it:

"If you believe from the evidence that the plaintiff's barn was located so near the defendant's track that it and its contents were exposed to danger from sparks of fire that might escape from passing locomotives, and further believe there were stored therein oats, straw, hay, or other combustible material, and that there was a door or window therein, and that the shutters to the same, or either of them, were left open, and plaintiff was guilty of negligence, as that term is defined in the court's charge, and that such negligence was the proximate...