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

• Court: Texas Court of Appeals
• Writing for the Court: Blair
• Citation: St. Louis Southwestern Ry. Co. of Texas v. Adcock, 269 S.W. 144 (Tex. App. 1924)
• Decision Date: 17 December 1924
• Docket Number: (No. 6822.)
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ADCOCK.

269 S.W. 144

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

(No. 6822.)

Court of Civil Appeals of Texas. Austin.

December 17, 1924.

Appeal from Comanche County Court; F. J. Reese, Judge.

Action by R. J. Adcock against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

E. B. Perkins, of Dallas, and A. R. Eidson and A. E. Nabors, both of Hamilton, for appellant.

Callaway & Callaway, of Comanche, for appellee.

BLAIR, J.

Appellee sued appellant for $250 damages, alleged to have been occasioned by sparks escaping from one of appellant's engines, and setting fire to and burning appellee's corn of that value.

Appellant formally answered by general demurrer and denial, and specially pleaded that it used ordinary care in equipping the engine in question with the most modern and best approved spark arresters in general use, which were in good repair, and that said engine was being operated with ordinary care at the time in question. The cause was tried to a jury upon special issues, and upon their answers thereto the court rendered judgment for appellee for $166.65. From this judgment appellant has perfected this appeal.

Special issue No. 1 and the jury's answer thereto are as follows:

"No. 1. Was the corn on plaintiff's land set on fire by sparks from defendant's locomotive No. 174 on or about the 11th day of March, 1920? Answer yes or no. Answer: Yes."

Appellant's first assignment is that the evidence is insufficient to support the jury's verdict and the court's judgment on this issue, in that the evidence does not show defendant's engine set out or caused the fire alleged to have burned and destroyed appellee's corn. We do not sustain the assignment.

The proof on the issue is substantially as follows: Appellee's farm was situated on the north side of and adjoined appellant's railway track near the station Gustine. The fire occurred March 20, 1920. The corn was the crop of the previous year, and was still standing on the stalk in the field, due to excessive rains making it impossible for it to be gathered. There was a small cemetery in the corner of the field adjoining the railway, to the extent of its south line. Along the right of way touching this cemetery and appellee's field was much dry grass. The ground was covered with a mat of dead dry grass in the cemetery and in appellee's field. No one was immediately present when the fire started; hence no one knew the exact place it started. Witnesses, who reached the fire and attempted to check it a few minutes after it started, testified that some grass was burned on the right of way, a small amount burned in the cemetery, but that it spread over about 10 or 12 acres of appellee's corn land; that the high south or southwest wind blowing at the time drove it from its starting point on or near the right of way across a small portion of the cemetery, thence across appellee's land, or that from the lay of the burned portion it could have started near the right of way fence directly on appellee's land.

Mrs. P. J. Talley, a witness for appellee, testified:

"We lived on a place down this side of Gustine in the year 1919. I was living there in March, 1920. I lived on the Fritts place right across the railroad track from Rufe Adcock's farm. I was there in March, 1920, when the fire broke out in the field. I remember that occasion. I do not remember whether it was in March or not. I was at home that afternoon. I do not know how far the house was from the cemetery, but I judge 200 or 300 yards. I remember the train coming along there that afternoon. The train had not been gone very long until I noticed the fire. It was burning pretty good when I saw it. It had already burned a considerable lot when I noticed it. I did not see any one over there that afternoon."

Several other witnesses testified to having seen the train pass, and to having seen the smoke from the burning grass shortly thereafter, although they were a considerable distance from the fire. There was no proof that the fire could have originated from any other source than from appellant's engine. There was proof that a small closet stood on the cemetery lot, which could be and was occasionally used by persons passing along the railway track, or those coming to the cemetery; but there was no proof whatever that any one had used the closet, or had been seen near the place of the fire on the day of the fire. The engine in question was traveling slightly up grade at the time it was supposed to have emitted the sparks causing the fire and destroying appellee's corn. It was burning coal.

Witness L. A. Wright, the engineer, testified by deposition in part as follows:

"If the corn field was set on fire by sparks directly from the engine to the field, then the spark arrester must have been in a defective condition. On this trip I had a little better than a half train of tonnage and there was no occasion to work the engine unusually hard. The engine was worked with a light throttle and with the reverse lever hooked up."

The above testimony is sufficient to support the inference that the fire was probably caused by a spark or sparks of fire from appellant's engine, and that any other probable source or origin was fairly negatived. The rule as to this question is announced in Moose v. Ry. Co., 212 S. W. 646, in an opinion by the Commission of Appeals, approved by the Supreme Court, in the following language:

"The character of proof required of plaintiff in this regard is thus stated in Ruling Case Law, vol. 11, pp. 994, 995:

"`In actions against railroad companies for injuries to property by communicated fires, while it is necessary to trace the liability for the fire to the defendant, and proof of a mere possibility that the fire communicated in the operation of the road is not sufficient, yet it is not required that the evidence should exclude all possibility of another origin or that it be undisputed. It is sufficient if all the facts and circumstances in evidence fairly warrant the conclusion that the fire did not originate from some other cause, and the origin of the fire has generally been held sufficiently established by inferences drawn from circumstantial evidence. Thus it has frequently been held that from proof that an engine passed near inflammable material immediately before the discovery of fire, there being no evidence to explain its origin, the jury may infer that the fire originated from sparks from the passing engine. If it is sought to recover damages for fire alleged to have been caused by the negligent escape of sparks from a locomotive, and the evidence as to the origin of the fire is circumstantial, the fact that the weather had been dry for several days prior to the fire is admissible in connection with other circumstances tending to show that the fire was caused by sparks emitted from such locomotive.'

"`We bear in mind in passing upon the sufficiency of these facts offered that every case must and will depend more or less upon the collection of circumstances disclosed by the evidence of the given case.' Railway v. Blakeney, 48 Tex. Civ. App. 443, 106 S. W. 1140.

"`From the nature and circumstances of such cases, considerable latitude must be allowed in the introduction of testimony and in the drawing of inferences as to the origin of the fire.' Railway v. De Busk, 12 Colo. 294, 20 P. 752, 3 L. R. A. 350, 13 Am. St. Rep. 221, citing 1 Thompson on Negligence, 159; Railway v. Jones, 9 Colo. 379, 12 P. 516; Butcher v. Railway, 67 Cal. 518, 8 P. 174."

"These general principles are well recognized, we believe, by adjudications in this state. Lumber Co. v. Railway, 106 Tex. 13, 155 S. W. 175; Railway v. Curry, 135 S. W. 592; Railway v. Blakeney, supra."

Appellant cites in this connection the cases of Talley v. Ry. Co. (Tex. Civ. App.) 176 S. W. 67, Ry. Co. v. Meentzen, 52 Tex. Civ. App. 416, 113 S. W. 1000, and Ry. Co. v. Gentry (Tex. Civ. App.) 74 S. W. 607. We think these cases not parallel with the case at bar. A different state of facts existed in those cases, for in each instance the engine was equipped with an oil burner; and the experts testified that there was always more danger of sparks escaping from an engine burning coal, equipped with the best of spark arresters in good repair, than from an engine burning oil. The inference that the fire was probably caused by a spark from the engine was fairly deducible from the following circumstances in evidence in this case:

That the engine and train of appellant passed the place where the fire started in a reasonably short time before the fire, going slightly up grade. It was burning coal, and, if sparks escaped under such circumstances, the spark arresters, according to the experts, were not in good condition. The fire started on the side of the track where the prevailing wind blowing at the time would naturally blow the sparks. No one was seen at or near the place where the fire started on the day of the fire, and no circumstance was in evidence tending to explain its origin upon any other hypothesis than that a spark or sparks from...