Texas & N. O. R. Co. v. Bellar

• Decision Date: 26 May 1908
• Citation: 112 S.W. 323
• Parties: TEXAS & N. O. R. CO. v. BELLAR et ux.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

112 S.W. 323

TEXAS & N. O. R. CO. v. BELLAR et ux.^†

Court of Civil Appeals of Texas.

May 26, 1908.

Rehearing Denied June 18, 1908.

Appeal from District Court, Jefferson County; E. E. Easterling, Special Judge.

Action by L. A. Bellar and wife against the Texas & New Orleans Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, Parker & Hefner, and Will E. Orgain, for appellant. Smith, Crawford & Sonfield, John Lovejoy, and Jno. W. Parker, for appellees.

McMEANS, J.

This was a suit brought by the appellees, L. A. Bellar and wife, against the appellant, Texas & New Orleans Railroad Company, for damages resulting to them from the loss by fire of two houses in Beaumont.

Appellees alleged that appellant negligently permitted oil to escape from an oil tank on its premises and from tank cars on its switches, and that the oil so escaping saturated the ground upon which their houses were situated, as well as all that intervening between the tank, switches, and plaintiffs' premises, rendering the same highly inflammable, extrahazardous as regarded the danger of being set on fire, and that such condition greatly increased the danger of fire, and was the proximate cause of the fire which destroyed their houses. They also alleged the destruction of the houses by fire, which fire, they alleged, started in the nighttime, and "was carelessly and negligently set by defendant, its agents and servants, in operating its engines and cars adjacent to plaintiffs' premises, by fire escaping therefrom, or by said employés in some other manner, or by its employés, otherwise engaged in its behalf thereabout, or by some other person or agency, plaintiffs being unable to point out with any greater certainty the origin or cause of the fire, but allege that same would not have been set out and plaintiffs' property destroyed but for the highly inflammable and extrahazardous condition in which plaintiffs' premises were placed by the escape of oil as aforesaid." They further alleged that they protested to defendant against the continuance of such negligence, and repeatedly requested defendant to remove the oil and to stop the cause that produced the condition of danger from fire, which defendant failed to heed, and that the defendant, in the exercise of ordinary care, should have foreseen the destruction of plaintiffs' property as likely to result from such condition. The defendant answered by general denial, and specially pleaded that the fire was not caused by fault on its part, but from causes over which it had no control, and for which it was in no wise responsible. The case was tried before a jury and resulted in a verdict and judgment for the appellees, from which the railroad company has appealed.

Mrs. Bellar owned in her own right lot 9 in block 31 of the Van Warmer addition to the city of Beaumont and she and her husband, L. A. Bellar, owned in community lot 10 in said block. On lot 9 there was a twostory frame house of 19 rooms and on lot 10 there was also a two-story frame house, and on both lots there were necessary outhouses, wells, cisterns, fences, etc. These lots were situated south of and abutted on the right of way of appellant's railroad. The railway at this point ran east and west, and the main line track was about 300 feet north of the two houses. Between this track and the lots there were 8 or 9 sidetracks, the nearest of these to the lots being about 20 feet. About 275 feet west from the lots appellant maintained an oil tank 30×20 feet in dimensions, in which it stored oil for use in its locomotives, the oil being pumped therein from tank cars. On the track nearest the lots defendant kept cars of oil nearly all the time, there being on some days only one or two and on other days from seven to eight. The general slope from the tank was in the direction of the Neches river, which was east of the lots, and which made the slope toward plaintiffs' premises. It was not controverted that oil in large quantities leaked or escaped from the tank and from the cars and overran and saturated the ground between the tank and the lots, but the evidence was conflicting as to whether it flowed onto the lots in question. The jury was justified in finding, and in support of the verdict we find that the oil did flow onto plaintiffs' lots and under the house situated on lot 9. Some of the witnesses testified that the territory mentioned was a lake of oil; others that oil stood in pools, and that all the ground was saturated; the oil stood four or five inches deep under a part of the house on lot 9. This condition had existed for more than a year before the fire. The oil was crude petroleum, and of the character used as fuel by defendant for generating steam in locomotives, and was highly inflammable; and on several occasions before the houses were burned the oil had caught fire on parts of the ground covered by it, but had been extinguished before any serious damage was done. On the night of October 29, 1903, the oil in some way, unexplained by the testimony, caught fire, and, burning upon the ground, finally communicated fire to the house on lot 9, first catching at the northwest corner, and consumed the entire building, and from the burning of this house fire was communicated to the house on the other lot, burning it also, and thereby appellees were damaged in the amount found by the jury. No one testified as to the manner in which the fire was set out; but when first discovered the oil on the ground from near the side track nearest the houses was ablaze, and the fence on the west side of the lots was on fire and the flames had taken hold of the northwest corner of the house on lot 9 and were running up the side of the house. It is a reasonable inference from the facts stated, and in support of the verdict of the jury we find, that the fire which caused the destruction of appellees' property was communicated by the burning oil, and but for the presence of the oil the loss would not have ensued; that the spreading of the oil over the ground was due to the negligence of appellant, and was the proximate cause of appellees' damages. The day before the fire a water pipe near plaintiffs' premises burst, and the escaping water flowed onto the lots in question, carrying with it a larger quantity of oil than was there before, but we find that the danger to plaintiffs' property was not materially increased thereby.

By its first assignment of error appellant complains of the refusal of the court to instruct a verdict for defendant as requested in its first special charge.

The second assignment complains that the verdict and judgment were without evidence to support them in many particulars, prominent among which were the following: That the evidence did not show (1) that the defendant started the fire or that it was in any manner responsible for its origin; (2) nor that defendant was negligent in permitting the escape of the oil; (3) nor that the oil was...