Ft. Worth & D. C. Ry. Co. v. Thompson
222 S.W. 289
Tex. App.
1920
Check Treatment
BOECE, J.

Appellee brought suit against the Et. Worth & Denver City Railway Company and Walker D. Hines, Director General of Railroads, to recover damages for the burning of 73 tons of kaffir corn, pummies, cornshueks, étc., alleged to have been set on fire by sparks thrown from an engine operated on the line of road of the defendant railway company, while said property was under the control and operation of said Walker D. Hines, under authority of the Congress of the United States and proclamation of the President. It is alleged that said kaffir com ■ was stacked on property owned or controlled by the plaintiff, about 200 feet from the right of way of the railway company, and that the defendants, through the nеgligent • operation of an engine near said stacks of feed, permitted sparks to be ejected from said eiigine, starting a fire which consumed said feed. The dеfendants answered, denying that they set out said fire, and specially answered that the engine in question was equipped with the best approved spark arresters and dеvices for preventing the escape of fire, and that such appliances were in proper condition, and the engine was being properly handled at the time. The defendants further pleaded that the plaintiff was guilty of contributory negligence in placing said kaffir corn and other feed which was of a dry and inflammable character, in such close proximity to the tracks of the railway company without covering same or otherwise protecting it from the danger of ignition from spаrks from passing engines. A trial resulted in a joint judgment for the plaintiff agáinst the railway. company and the said Walker D. Hines, Director General.

[1-4] The first assignment is to the action of thе court in permitting the plaintiff to show that the premises on which this feed was stacked at the time had been used for such purposes for a period of four years before the time of the fire. We are not informed on what theory this testimony was admitted. The evidence showed that the stacks in question were about 125 feet from the ‍​​​​‌‌‌​​‌‌​​‌‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​‌‌​​​‌​‌‌​​​​​‌‍nearest track of the railway company; that such feed was of a dry, inflammable character, and was not protected in any way from sparks that might be thrown out by pаssing engines. Such facts were shown as would require the submission of an issue of contributory negligence under the law as now settled by the decision of the Supreme Court, in the eаse of Railway Co. v. Arey, 107 Tex. 366, 179 S. W. 860, D. R. A. 1916B, 1065. The feed stacks were not on the property of the railway company, and it could have taken no action to prevent such use of -the premises. The plaintiff had the right during all such time to use said premises for such purpose and could acquire no rights against the railway company on any theory of consent or acquiescence by it in such use. If the plaintiff were guilty of negligence in the first place, in placing property of this character in such prоximity to the tracks of the railway company, the long continuance of such negligence did not change the character of the act. Waters-Pierce Oil Cо. v. Snell, 47 Tex. Civ. App. 413, 106 S. W. 173; Thompson on Law of Negligence, § 7882. Nor could the knowledge of the fact on the part of the railway company that the stacks were in close prоximity to its tracks, and in danger of being set on fire, impose ‍​​​​‌‌‌​​‌‌​​‌‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​‌‌​​​‌​‌‌​​​​​‌‍on it an added liability on application of the doctrine of discovered peril, for it has been expressly held that the law of discovered peril has no application in such case. Morgan Bros. v. M., K. & T. Ry. Co., 108 Tex. 331, 193 S. W. 134. We think the testimony was inadmissible and calculated to have a harmful еffect in the consideration of the case by the jury.

[5] There was no error in refusing to give the first and second special issues ‍​​​​‌‌‌​​‌‌​​‌‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​‌‌​​​‌​‌‌​​​​​‌‍requested by the defendant. These call fоr answers as to evidentiary facts.

*291 [6] The issues reguested and referred to in the fourth and fifth assignments were sufficiently covered by the third special issue submitted.

[7,8] The defendants introduсed evidence to the effect that the engine which it was claimed set out the fire was equipped with the most approved appliances for preventing the escape of fire; that these were in good order; and that the engine was being properly handled at the time — and thus established, if the jury should have believed thе evidence offered, a complete defense to the cause of action. The defendants requested the submission of an issue and charge in conneсtion therewith, which was sufficient to call the court’s attention to their desire to have this defense submitted, but which was incorrect in some particulars, which we need not name. The sixth assignment is to the refusal of the court to submit this issue and charge in connection therewith. The court in his charge gave the ordinary definition of negligence and submittеd an issue as to whether the defendant, by the operation of its locomotive, set fire to plain tiff’s feed, and as to whether such ‍​​​​‌‌‌​​‌‌​​‌‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​‌‌​​​‌​‌‌​​​​​‌‍action on the part of the dеfendant railway company was “negligence” as that term had been defined. There was nothing in the charge defining the rights and duties of the railway company in the opеration of its engine in respect to preventing the escape of fire therefrom. We do not doubt that, if the instruction and issue requested in connection therewith had been correct, then this assignment would present reversible error, for unquestionably the defendants had the right to have this defense presented to the jury. It is the rule, as we understand it, that, if an issue made by the pleadings and evidence has not been submitted at all, a requested instruction, though defective, is sufficient to call tbe court’s attention tо the matter and require the submission of a correct charge on the issue. But if the issue has been submitted generally, the party wishihg a more specific charge must submit a cоrrect instruction in order to be entitled to complain on appeal.

[9] Of course, it may be said that in this case the ultimate issue of liability, aside from the special defense of contributory negligence, was one of negligence on the part of the railway company, and that the submission of the issue of negligence generally covered this defense of the proper equipment and operation of the engine, setting out the fire. However, the law of these cases is different from that of the ordinary ease of negligence, in that the court in charging the law may tell the jury that certain facts make a prima facie ease of negligenсe and that certain other facts rebut this case so made, so that the real issues to be determined by a jury in such cases are as to whether the fire was set by the railway company and whether the railway company had met the requirements of the law as to the equipment and handling of its engines. By the submission of a general issue of nеgligence without any instructions in connection therewith, as to the law applicable to this character of case, the jury was without any practical informаtion to guide them in their decision of the facts. While only ultimate issues are to be submitted, the court ought to so frame them, or the charges given in connection therewith, as to apply to the concrete facts of the particular case. In view of our reversal of the case on other grounds, we need hot decide whether we would be required to reverse the case on this assignment, but have indicated our views as to the matter for guidance of the court upon another trial.

It is contended by appellant that the court erred in entering judgment against the railway company! It has been held in a number of cases that no judgment ‍​​​​‌‌‌​​‌‌​​‌‌​​‌‌‌​‌‌‌​‌‌​‌‌‌​​‌‌​​​‌​‌‌​​​​​‌‍can be rendered against a railway company for damages inflicted in the operation of the railway property by the Director General. Baker v. Bell, 219 S. W. 245; G., H. &. S. A. Ry. Co. v. Wurzback, 219 S. W. 252; Western Union Telegraph Co. v. K. L. Wallace, 224 S. W. -, not yet reported; Mardis v. Hines, Director General (D. C.) 258 Fed. 945; Haubert v. B. & C. Ry. Co. (D. C.) 259 Fed. 361; Hatcher & Snyder v. A., T. & S. F. Ry. Co. (D. C.) 258 Fed. 952; Shumacker v. Pennsylvania Railway Co., 106 Misc. Rep. 564, 175 N. Y. Supp. 84. We have not ourselves undertaken an exhaustive consideration of the question, but would be disрosed to follow the decisions of the other Courts of Civil Appeals and general trend of the decisions of other courts.

The judgment will be reversed, and the cause remanded.'

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