Texarkana & Ft. S. Ry. Co. v. O'Kelleher

• Decision Date: 06 April 1899
• Citation: 51 S.W. 54
• Parties: TEXARKANA & FT. S. RY. CO. v. O'KELLEHER.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

51 S.W. 54

TEXARKANA & FT. S. RY. CO. v. O'KELLEHER.¹

Court of Civil Appeals of Texas.

April 6, 1899.

Appeal from district court, Jefferson county; Stephen P. West, Judge.

Action by Martha O'Kelleher against the Texarkana & Ft. Smith Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Greer & Greer, for appellant. Hugh Jackson and W. L. Douglass, for appellee.

GARRETT, C. J.

This action was brought by Martha O'Kelleher against the Texarkana & Ft. Smith Railway Company to recover damages for the loss of an eye caused by a cinder escaping from a locomotive engine running upon the defendant's railway. The case was tried by a jury, and resulted in a verdict and judgment in favor of the plaintiff for the sum of $560.

Plaintiff was standing on the gallery of a residence situated 97 feet from the defendant's railway track, and just outside of its right of way. A shower of cinders, escaping from an engine passing along the track and operated by the defendant's servants, fell upon the gallery, and one of them struck the plaintiff in the right eye, and lacerated the cornea so that sight was destroyed. The engine was equipped with a spark arrester, but it was not shown to be in good condition, and it appeared that the cinders escaping therefrom were larger than would have escaped if the spark arrester had been in proper condition, or if the engine had been properly equipped to prevent the escape of sparks and cinders. The cinder that wounded the plaintiff's eye was a larger one than should have been permitted to escape. From the facts of the case, we would have no hesitation in saying that the defendant would have been liable for damages resulting from a fire set out by the escaping cinders or sparks that injured the plaintiff's eye; and the question is, is there any difference in principle between the injuries resulting from the same state of facts? In the case of fire, the liability of the defendant would depend upon its permitting sparks to escape that it was in its power to prevent by the exercise of proper diligence in the equipment of its engine with appliances for that purpose, and in keeping them in good condition, as well as in the operation of the engine. If the defendant should fail to exercise such diligence, and damage should result, it would be held guilty of negligence. Railway Co. v. Timmermann, 61 Tex. 660; Railway Co. v. Horne, 69 Tex. 643, 9 S. W. 440; Railway Co. v. Wallace, 74 Tex. 581, 12 S. W. 227.

The fact that the fire is set out from sparks shown to have escaped from a passing engine is prima facie evidence of negligence. The business of the defendant being lawful, it is not responsible for accidents resulting from the running of locomotives over its railroad by the agency of steam, provided it has exercised the requisite care to prevent damage. But the damage to result from an act must be proximate, and not remote. It must be such as reasonably might have been expected as liable to result from the act causing it. This is a familiar principle of law. Destruction of property by fire escaping from an engine is an apparent consequence of permitting it to escape. A spark is liable to fall...