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

• Court: Texas Court of Appeals
• Writing for the Court: Hodges
• Citation: St. Louis Southwestern Ry. Co. of Texas v. Starks, 109 S.W. 1003 (Tex. App. 1908)
• Decision Date: 16 April 1908
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. STARKS.

109 S.W. 1003

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

Court of Civil Appeals of Texas.

April 16, 1908.

Appeal from District Court, Titus County; P. A. Turner, Judge.

Action by Mrs. Octie Starks against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

E. B. Perkins, D. Upthegrove, and Glass, Estes & King, for appellant. Ralston & Ward, for appellee.

HODGES, J.

Appellee instituted this suit in the district court of Titus county on the 27th day of October, 1904, alleging that her house and furniture were destroyed by fire on the 7th day of October preceding, and that the fire was caused by sparks escaping from the appellant's locomotives. The grounds of negligence were that the appellant had negligently failed to properly equip its locomotives with the best approved spark arresters to prevent the escape of fire, and to keep the same in good condition; and that the locomotives were negligently operated on the occasion when the fire was communicated to the appellee's property. Damages were claimed in the sum of $4,000, but it was agreed between the parties on the trial that the value of the property destroyed was $1,200. The court instructed the jury that, in the event it found in favor of the plaintiff, to assess her damages at $1,365.60; the excess over the agreed sum being the interest calculated at the legal rate from the time of the fire to the date of trial. The jury returned a verdict in favor of the plaintiff in the sum directed, and from the judgment entered thereon this appeal is prosecuted.

There was testimony tending to show that the fire originated from one of the appellant's locomotives switching in the yards, in close proximity to the building destroyed; while there was other evidence tending to show that the fire came from within the building, and could not have resulted from a spark emitted from a passing engine. The appellant also offered evidence to the effect that it had exercised proper care to equip its locomotives with the best appliances for arresting sparks, that the equipments were in good condition at the time of the fire, and that the engines were skillfully and carefully operated.

The first assignment of error presented in appellant's brief complains of the following portions of the court's charge: "If you believe from the evidence that sparks of fire escaped from an engine of defendant that you may find was being operated by it near the house of the plaintiff, on or about the 7th day of October, 1904, and set fire to plaintiff's house and burned it, then you will find for the plaintiff, unless you find for defendant under the third and fourth paragraphs of this charge." "If you believe that the evidence shows by a preponderance thereof that the defendant exercised ordinary care in equipping its engine from which the sparks of fire escaped, if you find they did escape, with the most approved spark arresters then in use, and in keeping the same in good repair, and that the servants of the defendant in charge of said engine used ordinary care in operating the same, then you will find for the defendant." It is claimed that this charge placed too great a burden on the appellant in rebutting the prima facie case made out by showing that the fire emanated from its locomotive. We think this assignment should be sustained, for the reasons given. Railway Co. v. Hooser (Tex. Civ. App.) 97 S. W. 708; Railway Co. v. Moss (Tex....