Texas & P. Ry. Co. v. Levine

• Decision Date: 21 January 1895
• Citation: 29 S.W. 466
• Parties: TEXAS & P. RY. CO. v. LEVINE et al.
• Court: Texas Supreme Court

29 S.W. 466

TEXAS & P. RY. CO. v. LEVINE et al.

Supreme Court of Texas.

January 21, 1895.

Action by H. Levine and Max Levine against the Texas & Pacific Railway Company to recover for damage by fire started by sparks from an engine on defendant's railroad. There was an affirmance by the court of civil appeals of a judgment for plaintiffs, and defendant applies for a writ of error. Application dismissed.

Dillard & Muse, for petitioner.

BROWN, J.

The judgment from which the writ of error is sought in this case was for the value of cotton alleged to have been burned by fire set by an engine on defendant's railroad. The application must be refused, and in doing so we have thought it best to specify the reasons for our action as to one ground of error assigned. Plaintiff in error claims that there was no evidence of negligence on the part of the defendant, and that the court erred in submitting that issue to the jury. If this contention as to the evidence is sound, the application should be granted. It is the established law in this state that, when fire is set out by sparks from an engine on a railroad, the law presumes negligence, and the plaintiff is entitled to recover for damages done by the fire so set out, unless the railroad company shall prove that its engine was provided with the best approved apparatus for arresting sparks and preventing their escape, and properly operated. In other words, the proof that the fire which destroyed plaintiff's property was set from an engine on defendant's railroad made a prima facie case, upon which he was entitled to recover, in the absence of proof by the railroad company required to rebut the presumption. Consequently the question as to negligence or not becomes a question of fact to be determined upon the evidence. The credibility of the witnesses, and the weight to be given to their evidence, are matters to be decided by the jury. It is apparent, therefore, that it cannot be said that there is no evidence of negligence when the evidence is such as to give a right of recovery if not rebutted. This being the case, it is not within the power of this court to determine the issue made by the evidence. It is a question of fact, and, no matter how overwhelming the rebutting evidence may be, the constitution and laws of the state have denied jurisdiction to this court. We would not be understood as asserting that a jury may with impunity disregard evidence, and find against it, but the authority to set aside a...