Texas & P. Ry. Co. v. Smith, 2466.

• Court: Texas Court of Appeals
• Writing for the Court: Funderburk
• Citation: Texas & P. Ry. Co. v. Smith, 183 S.W.2d 182 (Tex. App. 1944)
• Decision Date: 22 September 1944
• Docket Number: No. 2466.,2466.
• Parties: TEXAS & P. RY. CO. v. SMITH.

183 S.W.2d 182

TEXAS & P. RY. CO. v. SMITH.

No. 2466.

Court of Civil Appeals of Texas. Eastland.

September 22, 1944.

Rehearing Denied October 20, 1944.

Appeal from District Court, Callahan County; M. S. Long, Judge.

Action by Edgar Smith against the Texas & Pacific Railway Company to recover for injuries sustained in automobile collision. From a judgment for plaintiff, defendant appeals.

Reversed and rendered.

Shropshire & Bankhead, of Weatherford, and B. L. Russell, of Baird, for appellant.

Scarborough, Yates & Scarborough and J. R. Black, all of Abilene, for appellee.

FUNDERBURK, Justice.

This appeal is from a judgment of the court below in favor of Edgar Smith awarding him recovery, against Texas and Pacific Railway Company, of damages in the sum of $1,497.50 for alleged negligence of defendant "in allowing * * * grass, weeds and vegetation to grow up on its right of way and remain there in a dry and inflammable condition where the same might communicate a fire to the adjoining premises"; and, following which, Defendant "negligently started a grass fire on its right of way at a point about one mile east of Putnam in Callahan County, Texas, * * * [which] spread over a large surrounding area and the smoke from said fire drifted across the highway * * * at the time Plaintiff's wife, Elva Smith, was driving her car along the said highway * * * [and] drove into said smoke, and after she got into the smoke it thickened and despite her great care and prudence in driving slowly and on her extreme right-hand side of the road, the car which she was driving was run into by a car driven by a third party, and the Plaintiff's said wife sustained serious personal injuries from said collision * * *."

The issues being joined, the case was tried without a jury. The Honorable Trial Judge filed findings of fact and conclusions of law.

Appellant presents Eleven Points upon which the appeal is predicated, one or more of which are deemed to present each of the questions hereinafter discussed.

Although no point is made as to the pleadings, a construction of the pleadings seems to be necessary in order to identify the issues which, it is contended, there was no evidence to support.

Plaintiff's First Amended Original Petition (trial pleading) in paragraph "II" alleged that the defendant "negligently started a grass fire, as hereinafter stated, etc." (Italics ours.) In the immediate connection, there was no allegation of any other act or omission claimed to constitute the act of starting the fire a negligent act. In paragraph "VI" the only acts or omissions alleged to be negligence were as follows: "That the Defendant had allowed high grass, weeds, and vegetation to grow upon its right of way and said vegetation had dried out to where the same was highly combustible and was set fire to by one of defendant's trains." That the defendant was negligent "in allowing the said grass, weeds and vegetation to grow upon its right of way and remain there in a dry and inflammable condition to where the same might communicate a fire to the adjoining land, and the Defendant was further negligent in failing, which it did, to provide and maintain a satisfactory fire guard or cleared space along or near its right of way to prevent the spread of such fires.

"That each and all of said acts of negligence were the direct and proximate cause of the damages and injuries above stated sustained by Plaintiff's wife."

An ambiguity calling for a construction of the pleading involves the question of whether it alleges two different grounds of negligence or three. Any particular act or omission, unless it has the character of negligence per se, involves an issue separate and distinct from the issue of its negligent quality. Rowland v. Murphey, 66 Tex. 534, 1 S.W. 658; Texas & P. R. Co. v. Murphy, 46 Tex. 356, 26 Am.Rep. 272. If Defendant intentionally, or unintentionally, "started a grass fire" on its right of way, that was not an act constituting negligence per se. Texas, etc., R. Co. v. Medaris, 64 Tex. 92. The pleader seems to have appreciated the necessity of alleging the acts or omissions which, in addition to the otherwise lawful act of starting the fire, constituted negligence. Instead, however, of alleging such acts or omissions in the immediate connection, he reserved them and set them out later as above quoted. Had there been no such subsequent statement, the general language would have failed to show whether the fire was started intentionally or unintentionally. In subsequently alleging that the fire was set "by one of defendant's trains" the unintentional starting of the fire was perhaps implied.

Believed to be applicable to the question whether Plaintiff's petition alleged two or three grounds of negligence is the rule that "`Where the petition alleges generally that the injury was the result of negligence, and then specifically sets up the acts of negligence relied upon, the evidence will be confined to the specific allegations of negligence and the general allegations will be controlled by the specific acts averred.'" 30 Tex.Jur., Sec. 124, p. 798; San Antonio & A. P. R. Co. v. De Ham, 93 Tex. 74, 53 S.W. 375. That rule would apply here, no doubt, even if the general allegation had made no reference to the specific allegations but more certainly so since it did make such reference. By such reference the general allegation is so modified that it does not purport to be complete in itself, but for completeness refers to the later allegation which so explained and limited the general allegation as to show that only two specific negligent acts or omissions were relied upon to constitute the cause of action. Only "said" acts, thereby implying acts previously expressed were alleged to be proximate causes of the injuries.

Of the two "acts" of negligence alleged, one only need be considered because the findings do not include as a basis of the judgment, any finding as to one of them, namely, the alleged negligence "in failing, which it did, to provide and maintain a satisfactory fire guard or cleared space along or near its right of way to prevent the spreading of such fires." Under this interpretation of the petition if correct, we need only consider whether there was any evidence that the Defendant was negligent in permitting combustible weeds, grass, etc., to be on the right of way and whether there was any evidence that such negligence was a proximate cause of the injuries.

The Court found that "Defendant negligently permitted and allowed grass, weeds and other vegetation to grow up and remain on its right of way after same had dried out and were in a highly combustible state, and the said weeds and grass extending out to similar grass and weeds on adjoining...