Texas Cent. R. Co. v. Qualls

• Decision Date: 04 December 1909
• Citation: 124 S.W. 140
• Parties: TEXAS CENT. R. CO. v. QUALLS.
• Court: Texas Court of Appeals

124 S.W. 140

TEXAS CENT. R. CO. v. QUALLS.

Court of Civil Appeals of Texas.

December 4, 1909.

Appeal from Eastland County Court; E. A. Hill, Judge.

Action by R. H. Qualls against the Texas Central Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed, and remanded for new trial.

J. A. Kibler and Scott & Brelsford, for appellant. J. J. Butts, for appellee.

SPEER, J.

This is an action by R. H. Qualls against the Texas Central Railroad Company to recover damages for grass burned and injury to the land, caused by the negligent escape of fire from one of defendant's engines. There was a verdict and judgment for the plaintiff, from which the defendant has appealed.

There was no error in permitting the witness Qualls to testify that he saw other engines being operated on appellant's line about the time appellee's grass was set on fire, and that said engines were throwing sparks of fire, some of which were as large as a man's thumb. Such evidence tended to rebut appellant's proof to the effect that all of its engines were provided with the same spark arresters used by other roads, and which were sufficient to prevent the escape of fire or sparks in such manner as to set grass on fire. Nor was there error in permitting this witness to testify as to the market value of his grass, he having stated that it had a market value, merely because he further stated that he could make the amount of such estimated value by pasturing cattle and horses on it at the rate of 25 cents per month per head for cattle, and 50 cents per month per head for horses. Such added statement in fact might materially strengthen the witness' opinion in the estimation of the jury by giving a substantial basis for it. What we have just said is an answer also to the fifth assignment of error, complaining that the court erred in permitting the witness Carodine to testify as to the number of head of cattle and horses the burned land would graze per month and the price paid per head for such pasturage.

There is an error, however, for which the judgment will be reversed contained in the following charge to the jury: "And in this case, should you find from the evidence that sparks escaping from the defendant's locomotive caused the burning of plaintiff's grass, you will find for the plaintiff, unless you further find that the defendant's locomotive was supplied with the most improved spark arresters, was in good state of repairs, that the locomotive was properly operated,...