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

• Decision Date: 01 November 1913
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. McGRATH et al.
• Court: Texas Court of Appeals

160 S.W. 444

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. McGRATH et al.

Court of Civil Appeals of Texas. Dallas.

November 1, 1913.

Appeal from Henderson County Court; C. D. Owen, Judge.

Action by Thomas McGrath and others against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Affirmed.

E. B. Perkins and Daniel Upthegrove, both of Dallas, R. S. Neblett, of Corsicana, and W. R. Bishop, of Athens, for appellant J. J. Faulk, of Athens, for appellees.

RASBURY, J.

Appellees sued appellant in the court below for the value of their residence and certain household furniture and appurtenances of the alleged value of $937.60. It was charged that the house and contents were destroyed by fire set by sparks from an engine in use on defendant's road, resulting from the fact that the engine was improperly and defectively built and constructed and carelessly and negligently managed by appellant. Appellee alternatively alleged that one Mitchell, or Mitchell-Crittenden Tie Company, with the consent and knowledge of appellant, in like manner operated said engine over appellant's line of railway and set the fire by escaping sparks which destroyed appellee's property. Appellant met the complaint by general demurrer and general denial and specially averred that the fire was not set by any engine belonging to it or operated by it or under its control, and impleaded L. F. Mitchell, charging that appellees had as good a cause of action against him as against appellant, and that Mitchell owned an engine which he operated over appellant's tracks and asked that all liability between the parties be adjusted. Upon trial by jury appellee was awarded $540 against appellant and appellant was awarded a like amount against Mitchell, followed by judgment, from which appellant has appealed. No appeal is taken by Mitchell.

The Mitchell-Crittenden Tie Company, or L. F. Mitchell, who seems to be the company, has a line of railway from Motel Camp, (a tie, wood, and lumber camp), to where it intersects the road of appellant at Trinidad, a distance of from four to eight miles. From the point of intersection Mitchell uses appellant's tracks with appellant's permission and consent for a distance of one-half or one-fourth of a mile in order to reach appellant's water tank, whence Mitchell secures his water supply, which was sold him by appellant, and also in order to reach appellant's side track at Trinidad, where he unloaded his wood, lumber, and ties. Appellee's house is about 75 feet from appellant's tracks, and sparks from the Mitchell engine set the fire that destroyed appellee's house, etc., while it was being operated upon appellant's tracks by Mitchell's agents. Mitchell's road at that time was a private road and was used only for the purpose of bringing to the appellant's line the wood, ties, and lumber cut by Mitchell and to secure his water supply. The road did not engage in transporting freight and passengers.

The first assignment of error complains of that portion of the court's charge which tells the jury that appellant would be liable for Mitchell's negligent operation of his engine over appellant's tracks. The proposition asserted under this assignment is that the court should have also at the same time told the jury that Mitchell was bound only to use ordinary care in the operation of the engine. This particular paragraph of the charge was intended only to fix appellant's liability for Mitchell's negligence, and the objection might be good, except for the fact that the court, by appellant's special charge No. 4, did tell the jury that appellant was only bound to exercise ordinary care in the operation of its engine.

The third assignment of error complains of the court for telling the jury it would be negligence if the engine was so carelessly operated by appellant that sparks of fire therefrom set fire to the property of appellee. The fourth assignment complains of that part of the charge which instructs the jury that railroads have no right to scatter sparks along their tracks in such manner as to cause unnecessary danger to property and upon so doing would be guilty of negligence and liable for resulting damages.

In this character of case it is well settled that, contrary to the general rule, it is permissible for the...