Texas Midland R. R. v. Moore

• Decision Date: 01 April 1903
• Citation: 74 S.W. 942
• Parties: TEXAS MIDLAND R. R. v. MOORE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

74 S.W. 942

TEXAS MIDLAND R. R. v. MOORE et al.^*

Court of Civil Appeals of Texas.

April 1, 1903.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

Action by Mrs. M. J. Moore and others against the Texas Midland Railroad. From a judgment for plaintiffs, defendant appeals. Affirmed.

Chas. W. Ogden, A. H. Dashiell, and T. L. Stanfield, for appellant. W. H. Brown, G. C. Groce, and S. P. Skinner, for appellees.

NEILL, J.

Appellee Mrs. M. J. Moore, joined by her husband, sued the appellant to recover damages for the destruction of the grass, injury to the turf, and destruction of fence posts, caused by fire started from sparks negligently permitted to escape from appellant's engines. One of the tracts is designated as pasture, and the other as meadow land. It is claimed by appellees that the former was set on fire on the 2d day of March, 1901, and the latter on the 5th day of the same month. The defendant answered by a general denial. The case was tried before a jury, and a verdict was rendered in favor of plaintiff for $195 damages to the grass, and $704.90 damages to the turf on the pasture land, and in favor of defendant as to the meadow land. The railroad alone has appealed.

Reasons for Reversing the Judgment.

As to the measure of damages, the court charged the jury as follows: "You are further instructed that if you find for the plaintiffs, then the measure of their damages would be the value, if any, at the time of the grass or posts burned, and the amount which they, the said plaintiffs, were injured, if injured at all, by the effects of the fire upon the turf of the lands which you find were burned over by the negligence of the defendant or its employés, if you find that there were such negligence, to be ascertained by you from the evidence before you." It is assigned as error in that it does not state that, as to the injury to the turf, the measure of damages is the difference between the value of the land immediately before and after the burning. The assignment is well taken. In the case of G., H. & S. A. Ry. Co. v. Chittim, 71 S. W. 297, this court, after an examination of the authorities on the question of damages in cases of this character, stated the rule as follows: "The true measure of damages in this case, if the turf was injured, is the difference in value of the land immediately before and immediately after the fire, not taking into consideration the value of the grass; the market value of the grass, if ascertainable, and if not, its value for hay and other purposes; and the actual value of the fence destroyed, to be ascertained by considering the cost of labor and material necessary to construct a fence equal to the one destroyed." Turf has no value which can be accurately ascertained without reference to the soil out of which it grows. Apart from the soil, it would be practically worthless.

If the locomotive charged to have set the grass on fire was, as contended by appellant, identified, evidence of the emission of fire or setting fire to grass by other engines at different times was inadmissible. If, however, such evidence was introduced by appellees, in making out their case, before appellant...