149 S.W. 248 | Tex. App. | 1912
The plaintiff's barn was a frame building, containing no doors, windows, or other openings on the side toward the railroad, and was covered with an iron roof. While it was located near the railroad track and adjacent to the right of way, it was placed there long before the railroad was constructed. It was a lawful and proper structure; and that the plaintiff was not guilty of contributory negligence, as matter of law, in maintaining and using it at that place after the railroad was constructed adjacent to it, is well settled by the great weight of authority. In support of this proposition appellees have cited quite an array of decisions; and, while they have not all been verified by us, those examined have been found to be in point, and, for future reference, we here copy the entire list: T. P. Ry. Co. v. Rutherford (1902)
We also hold that if shucks or other combustible matter was carried by the wind from the plaintiff's premises to the right of way of the railroad, and the defendant was guilty of negligence in permitting them to remain there, it cannot charge the plaintiff with contributory negligence in permitting such combustible material to accumulate upon his premises in such manner as that the wind might carry it to the right of way. Tex. Pac. Ry. Co. v. Wooldridge, 63 S.W. 905; Tex. Pac. Ry. Co. v. Rutherford,
"Negligence is not the mere failure to act with ordinary prudence. Such failure alone never can give rise to a cause of action or constitute a ground of defense. Negligence is the breach of a duty. It is doing something which duty to another requires not to be done, or omitting to do something which duty requires to be done. A landowner must exercise care not to set fire to his neighbor's property; but no law requires him to refrain from a lawful use of his own property, in order that his neighbor may have no opportunity negligently to set fire thereto. If his neighbor acts negligently, that is his neighbor's fault; and his neighbor, not he, must stand the consequences. The duty to minimize his own loss resulting from his neighbor's negligence does not arise until after the negligence has occurred and the loss is caused or is imminent. Until then he may assume, as everybody has the right to assume, that his neighbor will perform his duty. He is not required to refrain from erecting improvements on his own property, or from using it in any lawful manner, merely that his neighbor may be saved from the consequences of his negligence. Much less is he required to tear down the improvements already erected, and cease using the property for the lawful purpose to which it already has been devoted, merely because his neighbor places dangerous instrumentalities on the adjoining property. A law which would compel such a result would bar all progress and be ruinous in its present consequences. It would not be tolerated as between man and man; and no reason exists why it should be applied as between man and railroad. A railroad, no less than a man, must stand the consequences of its negligence. Indeed, an enlightened public policy, as the courts have uniformly held, forbids that effect shall be given even to contracts secured by a railroad as a common carrier against the results of its own negligence.
"These considerations are sometimes overlooked by the courts in dealing with defenses of contributory negligence in railroad fire cases. But the recent decisions of this and other states show an awakened consciousness of their truth and force; and we think it unquestionably true that the great weight of authority, as well as of reason and legal principle, is that a man is not guilty of contributory negligence who merely uses his own property in a lawful way for a lawful purpose without injury to his neighbors.
"In Cook v. Champlain Transp. Co., supra, the court said: `The property destroyed was in an exposed and hazardous position, and therefore in more than ordinary danger from mere accidental fires. This risk the plaintiffs assumed, but not the risk of another's negligence. They were on their own land and free to use it in any manner and for any purpose which was lawful. As was correctly observed by the circuit judge: "The plaintiffs had as good a right to erect their mill on the shore of the lake as the defendants had to sail on its bosom." It would be a startling principle indeed, that a building placed in an exposed position on one's own land is beyond the protection of the law; and yet it comes to this result upon the argument urged in this case. A landowner builds immediately on the line of a railroad, as he has an unquestionable right to do; it may be an act of great imprudence, but in no sense is it illegal. Is he remediless if his house is set on fire by the sheer negligence of an engineer in conducting his engine over the railway? There must be some wrongful act or culpable negligence on the part of the plaintiff to bar him on this principle; and neither can be affirmed of any one for simply occupying a position of more or less exposure on his own premises. If the principle urged on the argument is correct, it must be applied in all cases of the same character. The owner of a lot builds upon it, although in close proximity to the shop of a smith. The house is more exposed than it would be at a greater distance from the shop; but is this to exempt the smith from the obligation of care, and to screen him from the consequences of his own negligence? I certainly think not. A horse or carriage on the open ground of the owner may be more exposed to injury than they would be in a yard or a barn. But if damaged by the carelessness of a passer-by, is the owner remediless because he chose to leave them in a place of comparative exposure and hazard? No one, I think, can doubt what the answer to this question should be. I refer to no authorities on this part of the case, for in my opinion none is requisite. It is but clearly to comprehend the principle upon which this species of defense must rest, to see that it has no application to such a case as this. By what criterion, let me ask, are we to determine the hazards of a particular position, and on what ground say that the owner by his own folly has deprived himself of all protection? In this respect everything is comparative, but where is the true standard to be found? A house 40 feet from a steamboat landing is in more hazard than one at the distance of 40 rods; but it is less exposed than one immediately on the wharf. Goods at the window of a shop are less safe than they would be on a shelf at the rear of the room; but is the owner remediless if they are carelessly soiled or broken by some one in the street? We may run through every imaginable variety of position, some of more and some of less exposure and hazard: and we must at last, I think, come to the *255 conclusion that, while a person confines himself to a lawful employment of his own premises, his position, however injudicious and imprudent it may be, is not, therefore, wrongful, and that his want of due care or judgment in its selection can never amount to negligence, so as thereby to deprive him of redress for wrong done to him by others.'
"In Salmon v. D. L. W. R. R. Co.,
"The Illinois citizens and the Illinois courts long since discovered the error of the early decisions referred to in the foregoing passage. A statute soon afterwards was passed which changed the rule, and in C., C., C. St. L. Ry. Co. v. Stephens [
"The language which we have quoted is the language of nearly all of the cases cited in the list of authorities under this counter proposition. The contention that the property owner is guilty of contributory negligence in permitting combustible matter to accumulate on his own property was early presented to the Court of Exchequer in England in the case of Vaughan v. The Taff Vale Ry. Co., 3 Hurl. N. 743. Baron Martin, in the course of the argument, said: `It would require a strong authority to convince me that because a railway runs along my land I am bound to keep it in a particular state.' The judgment of the court was delivered by Baron Bramwell, and thus disposed of the contention: `It remains to notice another point made by the defendants. It was said that the plaintiff's land was covered with very combustible vegetation, and that he contributed to his own loss, and Mr. Lloyd very ingeniously likened the case to that of an overloaded barge, swamped by a steamer. We are of opinion this objection fails. The plaintiff used his land in a natural and proper way for the purposes for which it was fit. The defendants come to it, he being passive, and do it a mischief. In the case of the overloaded barge, the owner uses it in an unnatural and improper way, and goes in search of the danger, having no right to impede another natural and proper way of using a public highway. We therefore think the direction was right, the verdict satisfactory, and the rule must be discharged.' The decision so rendered has remained the law of England to this day.
"The Texas cases cited in the list are to the same effect as those already stated. In H. T. C. R. R. Co. v. McDonough, 1 White
W. Civ.Cas.Ct.App. § 654, the court said: `It was not negligence "in legal sense for the plaintiff to leave the grass and stubble standing in his field or fence corners. He was not required to remove or destroy either in order to avoid the consequences of the possible or even probable negligence of the defendant. We do not believe that the owners of land adjoining railways are bound to keep their land clear from dry grass and weeds, under the penalty of being chargeable with negligence." Martin v. W. U. R. R. Co.,
"In G., C. S. F. Ry. Co. v. Fields, 2 Willson, Civ.Cas.Ct.App. § 795, the court said: `The owner of land adjacent to a railroad track, having stacks of oats and straw upon his premises, is not guilty of contributory negligence because he permits grass to grow up around said stacks. He is not required to foresee and anticipate the negligence of the company in permitting fire to be communicated to his land from its engines.'
"In Clark v. Dyer,
"In Rutherford v. T. P. Railway Co.,
"The same fire that destroyed the barn of Rutherford destroyed also the barn or warehouse of Wooldridge situated near by. The same plea of contributory negligence was made against Wooldridge, and there was evidence that, after corn was shucked in the barn, the shucks were thrown on the ground outside of the barn, where the cattle consumed most of them, but many of them were blown away and lodged on the right of way. The Ft. Worth court passed on the Wooldridge Case, and held, as in the Rutherford Case, that there was no contributory negligence. T. P. Ry. Co. v. Wooldridge, 63 S.W. 905.
"The Rutherford Case, after having been remanded by the San Antonio court, and tried again in the district court, was appealed to the Dallas court. On the new trial the same contention of contributory negligence was made, and it was contended that the shucks on the right of way came from the Rutherford barn and the Wooldridge barn. The Dallas court, speaking of the claim of contributory negligence, said (T. P. Ry. Co. v. Rutherford [
"In St. Louis S.W. Ry. Co. v. Miller [
"The foregoing decisions, we think, settle the law of this case with reference to the plea of contributory negligence. If a property owner is not forbidden to erect a barn on his property, or to use a portion of the same as a horse lot, simply because it adjoins a railroad, surely he is not required to tear down a barn already erected or cease to use his horse lot, simply because a railroad acquires the adjoining property and subsequently lays its track thereon, and runs its locomotives on the same."
2. The assignments of error from 3 to 10, inclusive, complain of rulings by which witnesses were permitted to testify as to other engines at other times on appellant's road emitting sparks and setting *258
out fires. Appellant's contention is that, as the engine which caused the fire in question was identified as No. 122, it was error to admit testimony tending to show that other engines, on other occasions, had set out fires at other places on appellant's road, in the absence of proof of similar conditions with respect to places, appliances of other engines, tonnage of train, load hauled, mode of operation, and other similar conditions. The plaintiffs submitted testimony tending to show that the defendant had permitted grass and weeds to accumulate upon its right of way, and that the fire originated in the combustible matter referred to. No witness testified to seeing sparks which escaped from the engine fall to the ground and set fire to the combustible matter thereon, and the plaintiffs relied upon circumstantial evidence as proof of that fact. In other words, the fire was discovered upon the right of way soon after the train, pulled by engine 122, had passed. The plaintiff alleged in his petition that the fire was caused by sparks escaping from that engine, and that averment was met by a general denial by the defendant. The plaintiff contended, and introduced evidence tending to show, that because of the curves and steep grade near the plaintiff's premises the defendant's engines were required to labor excessively and exhaust heavily while passing, and that this was true of the engine in question; and therefore the plaintiff contended it was probable that the fire in question was caused by sparks from the engine. The defendant contended that, if the exhaust was heavy, the sparks would be thrown higher into the air, and, in all probability, would be extinguished before reaching the ground; and evidence was introduced tending to support that contention. The other fires testified to by the witnesses were at or near the same place, and proof of them tended to controvert the defendant's and support the plaintiffs' theory, and for that reason such proof was admissible. Dunning v. Maine C. R. Co.,
In Dunning v. Maine Cent. Ry. Co., supra, the court said: "We think that when the question at issue is whether, as a matter of fact, the fire was caused by any locomotive, other fires caused by defendant's locomotives at about the same time and in the same vicinity may be given in evidence for the purpose of showing the capacity of locomotive engines to set fires by the emission of sparks or the escape of coals. It is admissible as `tending to prove the possibility, and a consequent probability, that some locomotive caused the fire' — language from Railway Co. v. Richardson,
It has also been held that testimony of the character in question is admissible for the consideration of the jury in determining whether or not the railroad was guilty of negligence in not cutting down and removing the grass and weeds from its right of way. T. P. Ry. Co. v. Wooldridge, and T. P. Ry. Co. v. Rutherford, supra.
3. The eleventh to fourteenth assignments, inclusive, challenge rulings of the court in permitting witnesses to testify as to the manner and cost of repairing the injury done by the fire. The objections presented have been considered, and, without discussing them in detail, they are overruled.
4. The fifteenth assignment challenges the correctness of the fifth paragraph of the court's charge; the contention being that it placed too great a burden upon the defendant by the reference therein to wetting the fuel and emptying the ash pan. We hold that the matters referred to constituted part of the operation of the engine, and that, as the plaintiff had alleged that the defendant was guilty of negligence in that respect, it was proper for the court to charge as it did in that particular.
5. The sixteenth assignment complains of the court's charge on the burden of proof; the contention being that it assumed that the plaintiff had a cause of action, and should prevail, unless defeated by the *259 matters relied on for that purpose by the defendant. That objection is not sustained by the plain reading of the charge, which told the jury that the burden rested upon the plaintiff and interveners to establish their case by a preponderance of the evidence, and that they could not recover unless they had done so.
6. The seventeenth and eighteenth assignments are predicated upon the court's refusal to give two requested instructions upon the question of contributory negligence. These assignments are overruled for the reason that, in the main charge and charges given at appellant's request, the subject of contributory negligence was fully and fairly covered.
7. The nineteenth and last assignment, charging that the verdict is excessive, has been dealt with in our statement of the case; and, for the reasons there stated, that assignment is overruled.
In concluding this opinion we desire to express our commendation of the charge given to the jury by the learned judge who tried this case. But few objections have been urged against it; and it seems to us that it stated and presented the case to the jury fully, clearly, and with more than ordinary accuracy.
We also take pleasure in commending the ability and industry displayed by counsel for appellee in the preparation of the very exhaustive and satisfactory brief which they have filed, and which has been of great assistance to this court.
No reversible error has been shown, and the judgment is affirmed.
Affirmed.