T. & P. R'Y Co. v. Tankersley

• Decision Date: 16 January 1885
• Docket Number: Case No. 1719.
• Citation: 63 Tex. 57
• Court: Texas Supreme Court
• Parties: T. & P. R'Y CO. v. R. E. TANKERSLEY.

63 Tex. 57

T. & P. R'Y CO.

v.R. E. TANKERSLEY.

Case No. 1719.

Supreme Court of Texas.

Jan. 16, 1885.

APPEAL from Kaufman. Tried below before the Hon. Green J. Clark.

On April 9, 1883, plaintiff (appellee) brought suit in the Kaufman district court against defendant (appellant) to recover the value of thirty-six bales of cotton which he alleged were destroyed by fire on January 28, 1883, at Terrell, by fire originating from one of defendant's engines. That said engine was out of repair, provided with no sufficient apparatus to prevent the escape of fire, and at the time was carelessly and recklessly handled by the engineer.

The defendant pleaded the general denial, and specially:

1. That the cotton in question was fully insured in the National Fire Insurance Company of Hartford, which company had paid plaintiff its value since it was burned, and plaintiff had assigned his claim against defendant to the insurance company.

2. That the loss of cotton was the direct result of plaintiff and his agents placing it in dangerous proximity to defendant's road track, with full knowledge that it was exposed and liable to be burned from sparks, which were, with the most approved appliances for arresting sparks, which defendant had attached to its engines, under careful and skilful handling of such engines, liable to be emitted, as well as from defective engines and careless handling of the same; and, knowing said danger, left said cotton in an uncovered and unprotected state, with a large quantity of other cotton similarly situated, some packed and some loose, belonging to other owners, when said risk could have been easily avoided by the exercise of proper diligence upon the part of plaintiff and his agents by not placing said cotton in such dangerous position in the first place, or by providing a covering, canvass or some cheap material, and spreading the same over the cotton.

3. That plaintiff had stored his cotton with C. C. Wilson & Co., his bailees, and it was on their platform in Terrell when it was burned; that the platform was built by Wilson & Co. on defendant's right of way for purposes connected with railroad business, under written lease between defendant and Wilson & Co., whereby the latter (in consideration that defendant only charged $1 annual rent for said ground on which said platform was built) released defendant from all liability on account of any loss or danger by fire; that under the terms of lease defendant was not to be liable for any property that might be burned while it was stored on the platform, etc., etc.

Plaintiff filed his supplemental petition, and demurred to defendant's said answer, and specially excepted:

1. To all that part which alleged that the cotton was insured, and plaintiff had been paid therefor by the insurance company, and had transferred his claim to that company.

2. To all that part of the answer that set up a contract between defendant and C. C. Wilson & Co., releasing defendant from all liability for loss from fire.

Verdict for plaintiff for $1,738.70.

The opinion indicates the points relied on for a reversal.

Leake & Henry, for appellant, cited: T. & P. R'y v. Levi, 59 Tex., 674; Whart. on Neg., secs. 300, 344 a, 689, 869, 870; H. & T. C. R'y Co. v. Muldrow, 54 Tex., 233; Cooley on Torts, 633; Thompson on Neg., p. 45.

Word & Charlton, for appellee, cited: Williams v. Mudgett, 2 Tex. L. Review, 339; Railroad Co. v. Miller, 51 Tex., 275; H. & T. C. R'y Co. v. Nixon, 52 Tex., 26;Duffell v. Noble, 14 Tex., 655; T. & P. R'y Co. v. Levi, 59 Tex., 674;T. & P. R'y Co. v. Murphy, 46 Tex., 364;51 Tex., 45;Endick v. Endick, 61 Tex., 560;G., C. & S. F. R. R. Co. v. Evansich, 61 Tex., 3; Railroad Co. v. Miller, 51 Tex., 275; T. & P. R'y v. Casey, 52 Tex., 112;20 Tex., 200;21 Tex., 625;18 Tex., 317;20 Tex., 229;28 Tex., 53; 25 ??.Tex., 701; 14 Tex., 48;H. & T. C. R'y Co. v. Jackson, delivered at present term of court ; Lawson's “““““Contracts of Carriers,” §§ 28, 29, 68, 69, 73, 74, 133, 163 and 178; Sutherland on Damages, 3d vol., pp. 214-15; Wynard v. Syracuse R. R. Co., 71 N. Y., 180.

WATTS, J. COM. APP.

Upon the trial in the court below appellant asked and the court refused to give the following charge:

“If the jury find from the evidence that the engine which plaintiff claims set his cotton on fire was properly examined at Fort Worth and left that place in good condition as to netting and spark-arresters, and that there were no repair shops for engines between Fort Worth and Longview, and that said engine got out of repair between Fort Worth and Terrell, and that there were no opportunities at the latter place for repairing it, then the mere fact that such engine got out of repair between Fort Worth and Terrell would not be such negligence as would render defendant liable for a fire caused by sparks escaping from such engine.”

The fact that the engine might have become out of repair at a point on the line where there were no facilities for repairing the same would not authorize the company or its employees to operate such engine through to the repair shop, if by reason of such defects its operation would be attended with increased danger to the person or property of others.

When an engine becomes so out of repair on the line as that its continued use would be accompanied by an increased danger, that is, such danger as does not ordinarily attend the operation of an engine in good repair, whether such danger be to the person or property of another, the company would by no means be justified in continuing its use or operation until it might, in the course of the service, reach some point along the line where it could be repaired. In such case, where such increased danger became known to the employees, the operation of the engine ought to cease at the first depot or station, and the same be fully repaired before being again used as an engine.

Appellant also asked and the court refused to instruct the jury as follows:

“If the jury find from the evidence that plaintiff's cotton, at the time it was burnt, was stored on the platform of C. C. Wilson & Co., in the city of Terrell, and that such platform was a dangerous place to store cotton--that it was there daily exposed to sparks of fire emanating from defendant's trains,-- and that this fact was known to plaintiff, or might have been known to him by the exercise of the slightest care and attention,--then the plaintiff would be guilty of contributory negligence, and cannot recover in this suit.”

It is claimed that the court failed in the general charge to properly instruct the jury in reference to the defense of contributory negligence,--that the defect was in not stating to the jury what would have constituted such negligence upon the...