Tex. & Pac. R'Y Co. v. Bro

• Decision Date: 19 June 1883
• Docket Number: Case No. 4707.
• Citation: 59 Tex. 674
• Court: Texas Supreme Court
• Parties: THE TEXAS & PACIFIC R'Y CO. v. LEVI & BRO.

59 Tex. 674

THE TEXAS & PACIFIC R'Y CO.

v.LEVI & BRO.

Case No. 4707.

Supreme Court of Texas.

Jun. 19, 1883.

APPEAL from Dallas. Tried below before the Hon. Geo. N. Aldredge.

Suit by appellees to recover damages for the burning of their cotton in Dallas in 1879. Appellees alleged that their cotton was stored in their cotton yard, and was set on fire by defendant's train through defendant's carelessness.

Defendant pleaded the general denial, and specially, that if appellee's cotton was damaged by fire from defendant's engine, it was by reason of appellee's own negligence in stacking it on a public street and in a place of danger, thus exposing it to any chance spark that might escape from defendant's engine. And further, that the cotton was insured by appellees in an insurance company for $1,500, which sum had been paid them by the insurance company, and was the full amount of damage done to the cotton.

To the last plea the court sustained special exceptions??

Verdict for appellees for $3,360, on which judgment was rendered.

Among other charges the court gave the following: “You are instructed that defendant is required to use the best engines and the best appliances for the prevention of the occurrence of fires, and it is required to use its engines and such appliances with strict care and diligence to prevent the occurrence of fires, and if it fails in either of these respects and thereby a fire is caused then this would be negligence on the part of the defendant.”

Wellborne, Leake & Henry, for appellant, on character of appliances required by a railway company, cited 18 Barb., 30;8 Pa., 366;42 Ill., 407; 15 Conn., 124; Thomp. on Neg., vol. 1, pp. 151-5; 14 N. Y., 218;4 Md., 242;40 Cal., 14;29 Barb., 226;37 Mo., 287;52 Pa., 379;34 U. S., 96; 3 Iowa, 419; 27 Ga., 418; 32 N. Y., 339;14 Cal., 387;73 Pa., 121;31 Ind., 141; 7 Kan., 308; 18 Barb., 80; 21 Am. R. R. Cas., 1; 2 Am. & Eng. R. R. Cases, 269; Wharton on Neg., secs. 870-2.

Cowart & Barksdale and Sawnee Robertson, for appellees.

STAYTON, ASSOCIATE JUSTICE.

Appellant alleged as a defense that the appellees held policies of insurance on the cotton destroyed or injured, which had been collected, and that, therefore, it was not liable for such loss as the appellees might have sustained, through its negligence, to the extent to which appellees had been reimbursed by the money collected upon such policies. The court sustained a demurrer to this defense, and this is assigned as error.

In this ruling there was no error. If the cotton had been fully paid for by insurance companies under policies which had been paid for by the appellees, it is not perceived how that could in any manner affect the liability of the appellant. Such payment would be the result of contract with which appellant has no privity, and to which, in no respect, had it made any contribution.

If, when the suit was brought, the appellees had alleged such payment by insurance companies and had sought to recover for the use of such companies from the party when a wrongful act caused the loss, there would be reason in such a claim.

“The insurer and the defendant are not joint tort-feasors or joint debtors so as to make the payment or satisfaction by the former operate to the benefit of the latter; nor is there any legal privity between the defendant and the insurer so as to give the former the right to avail itself of a payment by the latter. The policy of insurance is collateral to the remedy against the defendant, and was procured solely by the plaintiff at his expense, and to the procurement of which the defendant was in no way contributory…. It cannot be said that the plaintiff took out the policy in the interest or behalf of the defendant, nor is there any legal principle which seems to require that it be ultimately appropriated to the defendant's use and benefit.” 43 Vt., 538; Weber v. Morris & Essex R. R. Co., 35 N. J., 413;Clark v. Wilson, 103 Mass., 221;Hayward v. Cain, 105 Mass., 213; The Propeller Monticello v. Mollison, 17 How., 155;Dunham v. N. E. Mut. Ins. Co., 1 Low., 253; Mason v. Sainsburg, 3 Doug., 61; Clark v. The Inhabitants, 2 Barn. & Cress., 254; Merrick v. Brainard, 38 Barb., 589.

It is urged that the court erred in giving the following charge: “You are instructed that plaintiffs had a right to place their cotton upon their cotton yard, and in so doing they would not on this account alone be guilty of negligence, although said cotton yard was in close proximity to defendant's road-bed.”

The cotton yard in which the cotton was alleged to have been burned was in close proximity to the appellant's railway, and the evidence tends to show that, by the use of the most approved spark arresters, it is impracticable to prevent entirely the escape of sparks from locomotives, unless the draught is so closed by the spark arrester as to prevent the generation of steam. If such be the case, a railway company is authorized to operate its engines with such protection against injury to others by fire as can be given by the use of a high degree of care in the selection and use of such appliances as are approved by prudent and skilful persons generally engaged in such business, and are found to be best adapted to prevent the escape of fire by which others may be injured, even though, as thus operated, there may be danger of injury to others from fire escaping from locomotives. The business being authorized by law, no liability can be incurred for its exercise, unless there be a want of care in its prosecution, even though it be attended with some risk of injury to others. Such being the case, a very high degree of care is requisite from those whose property is so situated, with reference to a railway, that it is liable to injury even when due care is exercised by the railway company.

It is true that a person owning or renting property near a railway is entitled to use such property; but the greater the degree of exposure to injury from such proximity, the greater degree of care should be exercised by such person to prevent injury from causes for which a railway company will not be responsible, because impracticable to prevent them.

What constitutes negligence sometimes may...