287 S.W. 153 | Tex. App. | 1926
Appellee, among other things, pleaded contributory negligence by appellant, in that he was general manager of an oil refining corporation and of the plant of which the burned building was a part, and which plant had its own fire fighting equipment for protection against fires, and that while owing his employer and himself the duty of seeing that such equipment was kept in condition for use, appellant negligently permitted such equipment and material parts thereof to get and remain in a condition which prevented its use in extinguishing the fire which burned the building in question, resulting in the loss of such building to his employer, and the destruction of his property therein, which destruction was caused or contributed to by his own negligence.
In response to special issues the jury found:
(1) If the freight train of the defendant had not blocked the passage of said firemen at the time and place mentioned, they would have saved the property of the plaintiff in said building from loss by fire.
(2) That the blocking of the crossing on Main street by the freight train of defendant at the time and in the manner it did, under all the circumstances, was negligence on the part of those in charge of said train toward those who might desire to use said street.
(3) That the negligence in blocking said crossing was the proximate cause of the loss of the property of the plaintiff by fire.
(4) That the plaintiff was guilty of contributory negligence in failing to see that the fire extinguishing equipment of the said refining company was kept in proper condition for prompt use in the extinguishment of fires.
(5) That such contributory negligence did *154 cause or contributed to cause the loss of the property of plaintiff in said fire.
On said special findings the court entered judgment for the defendant, appellee herein.
The jury found that appellant was guilty of contributory negligence in failing to keep the fire-extinguishing equipment of said refining company in proper condition for prompt use in the extinguishment of fires, and that such negligence caused or contribued to cause the loss of his property. These findings, we think, are amply supported by the evidence. The universal rule seems to be that if negligence on the part of the person injured contributed to the injury, he is not entitled to recover therefor. This is the settled law in practically all the states, and is the law in Texas, (Walker v. Herron,
It is also true that contributory negligence will defeat recovery even though the negligent act of defendant consisted in the violation of a statute or ordinance, and though such violation is held to be negligence per se. Burnett et ux. v. Fort Worth Light Power Co. et al.,
While the facts of this case are peculiar, still, we think the general rules of negligence, contributory negligence, and proximate cause apply, and it is not necessary that plaintiff's contributory negligence be an active, co-operative link in the chain of events producing the injury. Plaintiff's negligence may be wholly disconnected with that of the defendant and may be of a negative character, such as lack of vigilance. Sanders v. Aiken Mfg. Co.,
As stated above, the jury found, in substance, that appellant was guilty of contributory negligence in failing to have the refining company's fire extinguishing equipment in proper condition for use, and that such negligence caused or contributed to cause the loss of appellant's property by fire. The findings of fact, being supported by the evidence, are binding upon this court. We think, also, appellant having caused the refining company to go to the expense of equipping a fire extinguishing system at its plant in order to protect same from fire, he ought reasonably to have anticipated its loss by fire, in the event he permitted it to be in such condition that it could not be used, or failed to have watchmen who knew how to operate it.
We have considered all of appellant's assignments, and, finding no reversible error, overrule same. The judgment of the trial court is affirmed.