St. Louis Southwestern Ry. Co. of Texas v. McLeod

• Decision Date: 02 January 1909
• Citation: 115 S.W. 85
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. McLEOD.
• Court: Texas Court of Appeals

115 S.W. 85

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. McLEOD.

Court of Civil Appeals of Texas.

January 2, 1909.

Appeal from District Court, Hill County; W. C. Wear, Judge.

Action by T. J. H. McLeod against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appealed. Reversed and remanded.

E. B. Perkins and Scott, Sanford & Ross, for appellant. Morrow & Smithdeal, for appellee.

TALBOT, J.

Appellee brought this suit to recover the value of a number of pounds of coal and the coal bin in which it was situated, alleged to have been destroyed by fire through the negligence of appellant. It was alleged, in substance: That the defendant negligently permitted dry grass to be upon its right of way, which was ignited by sparks of fire emitted from one of its engines, and that the fire so set out spread to and burned plaintiff's said coal and coal bin; that the defendant was negligent in the operation of its locomotive engine and negligently permitted said engine to emit sparks of fire which fell upon and set fire to the hullhouse of the Hill County Cotton Oil Company, and was thence communicated to plaintiff's bin and coal near by and burned the same. The defendant answered by general demurrer, general denial, and special plea to the effect that its engine was equipped with the best and most approved spark arrester and was in good condition and repair and was carefully and cautiously operated. A jury trial resulted in a verdict and judgment for the plaintiff, McLeod, in the sum of $1,005.79, and the defendant has appealed the case to this court.

The first assignment of error is as follows: "The court erred in permitting the witness T. J. H. McLeod, the plaintiff, to testify to the amount of coal in the bin at the time of the fire; it appearing from his testimony that he did not know except from hearsay, as is now shown by the defendant's bill of exceptions No. 1." We think this assignment is well taken. After the plaintiff had testified that shortly before the fire he had put into his coal bin six car loads of coal bought from E. R. McCarty, and that said coal weighed 422,700 pounds, it was developed on cross-examination that his knowledge of the weight of the coal was obtained from the invoice of the same sent to him from South McAlester, Okl. He testified, in substance: That the weight of the coal, as related by him, was the mine weight, the weight as ascertained in South McAlester; that he did not know whether the weight, as stated, was correct or not, but that he settled by it; that when he stated how much coal he had in the bins he was stating what he had heard relative to the weights. Upon thus ascertaining that the only knowledge the witness had of the weight of the six cars of coal put into the bin was acquired from the invoice of the same as prepared and sent to him by the party from whom he had purchased, appellant moved the court to exclude all the testimony of said witness relative to the amount or number of pounds of coal in said cars, on the ground that it was hearsay. This motion was overruled, and the witness stated: "The invoice weight of the six last cars I had to come in was 422,700 pounds. A part of it was McAlester...