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

• Decision Date: 10 November 1915
• Docket Number: (No. 2781.)
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. AREY.
• Court: Texas Supreme Court

Page 860

179 S.W. 860

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

(No. 2781.)

Supreme Court of Texas.

November 10, 1915.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by G. E. Arey against the St. Louis Southwestern Railway Company of Texas. Judgment for defendant was reversed and remanded by the Court of Civil Appeals (170 S. W. 802), and defendant brings error. Affirmed, with instructions.

E. B. Perkins, of Dallas, and Crosby, Hamilton & Harrell, of Greenville, for appellant. Robt. F. Spearman, N. E. Peak, and Evans & Carpenter, all of Greenville, for appellee.

PHILLIPS, C. J.

The suit of the plaintiff in the trial court, G. E. Arey, the present defendant in error, was for the recovery of damages on account of the destruction of certain property, a barn and its contents, charged to have been due to escaping sparks from a passing engine of the railway company. The barn was upon premises near the railroad track, leased by the plaintiff, the barn itself being 108 feet south of the track. The track extended in a northeast and southwest direction. This situation placed the west side of the barn toward the track. In that side or end of the barn were two windows opening into a crib in the lower story, and one window, about three feet square opening into the loft. These windows were left open, having no shutters or covering of any kind. The plaintiff had placed a ton of baled oat straw in the loft near the window, and had used about half of it at the time of the fire. In feeding the oat straw loose straw had become scattered and banked up in the crib and stalls, and probably in the loft. The wind at the time was blowing from the railroad toward these windows; and, if the fire was caused by sparks from a passing engine, they must have been blown through the windows.

Contributory negligence on the part of the plaintiff was pleaded by the defendant, and in the court's charge the issue was submitted to the jury in the following form.

"You are further charged that plaintiff, in the use of the barn and lot and his property therein, and in regard to openings and the accumulation of combustible materials, is required to use ordinary care to prevent its destruction or injury, such care as a person of ordinary prudence would commonly exercise under like circumstances; and if plaintiff failed to use such care, and if such failure, if any, caused or contributed to the injury or destruction of plaintiff's property, then plaintiff cannot recover."

A verdict in favor of the railway company was rendered.

The honorable Court of Civil Appeals for the Fifth District, in an opinion rendered by its learned Chief Justice, reversed the judgment; one of the grounds of its action being the submission of the issue of contributory negligence. In so doing it expressly overruled its previous decision in Railway Co. v. Crabb, 80 S. W. 408, a case of practical identity in its facts with the present one. Its holding, as we gain it from the opinion, is that in cases of this character — the destruction of property on premises in lawful use, adjoining or near a railroad track, by fire caused by sparks from a railroad engine — the doctrine of contributory negligence is out of place, and that question cannot arise; a principal authority relied upon being Le Roy Fiber Co. v. Railway Co., 232 U. S. 340, 34 Sup. Ct. 415, 58 L. Ed. 631, in which a proposition to that effect is announced. We do not subscribe to this broad holding, either upon principle or authority. It subverts, in our opinion, the fundamental doctrine of the law that no man should benefit from his own wrong. It affirms, in substance, that while other men are held to the duty of exercising ordinary care to prevent injury either to their persons or property, and will be denied the right of recovery for such injury if it was proximately contributed to by their want of such care, the owner or lessee of premises adjacent to a railroad track, because alone of their use being lawful, is wholly exempted from that duty. It furthermore declares that a right denied, generally, to others will be allowed him, however careless or reckless, or even deliberate and intentional, was his exposure of his property to the danger. The proposition does not commend itself to sound reason, and cannot, in our judgment, be sustained.

It is unnecessary to here restate that the owner of premises has the full beneficial right to their free enjoyment for all lawful purposes; for it has often been unmistakably so declared by this court. It is a right which is not limited by another's use of his property; nor is it subject to the servitude of another's wrongful use of the premises. That the owner is not bound to anticipate another's negligence is also true; as it is likewise true of men, generally, in the use of their property and the conduct of themselves. But the doctrine of contributory negligence is not related to these considerations and is not defeated by them. It is founded, as has been said, on the mutuality of the wrong, the impolicy of allowing a party to recover for his own wrong, and the policy of making personal interests of men dependent upon their own prudence and care. It recognizes that one's use of his premises or his property, as well as his conduct, may be perfectly lawful, and also that in either using his property or in his conduct he is not bound to anticipate the negligence of another. But it declares that, notwithstanding this, a man may not court or invite injury to his person or property. And, furthermore, it affirms that, when faced with danger to either his person or his property, he is under the duty of using the care that a man of ordinary prudence would use under the same circumstances to avoid an...