146 S.W. 1024 | Tex. App. | 1912
Lead Opinion
This suit was brought by appellants against appellee to collect about $10,000 alleged to be due on account of the burning of cotton belonging to appellants, situated on the compress platform at Hillsboro, Tex., on January 16, 1908. The facts will appear from the findings of the jury on special issues, and from the evidence hereinafter referred to in this opinion. The court submitted the case upon the following special issues, which were answered by the jury at herein indicated:
"(1) Was any cotton belonging to the plaintiff damaged or destroyed by fire on the compress platform at Hillsboro on or about the date alleged in the petition? A. Yes.
"(2) Did the fire in which said cotton was damaged and destroyed, if you have found there was a fire, originate from the defendant's engine? A. Yes.
"(3) Did the defendant company exercise ordinary care to equip its engine No. 192 with the most approved appliances in use for arresting sparks and preventing the escape of sparks from said engine? A. Yes.
"(4) Were the appliances, if any, in said engine, which were designed to arrest the escape of sparks of fire from said engine, in good repair at the time the cotton was burned, if you have found it was burned? A. Yes.
"(5) Had the defendant railway company exercised ordinary care as that term is hereinabove defined to you to have the appliances, if any, designed to arrest the escape of sparks and fire from said engine in good repair? A. Yes.
"(6) Did the agents and servants of the defendant company in charge of its engine No. 192 use ordinary care as that term has been defined to you herein in operating the *1026 engine No. 192 to prevent the escape of fire therefrom? A. Yes.
"(7) If you believe from the evidence that the defendant company switched and propelled several cars attached to its engine No. 192 on its track and switches near the compress platform on the day of the fire, if there was a fire, and that the switching that was done, if any, on the compress switch, was done from the north end of said switch, then please say whether the servants and employés of the defendant who did the switching could have done the same without going in from the north end of said compress switch? A. Yes.
"(8) Were the employés of the defendant company who were in charge of engine No. 192, and who were doing the switching, guilty of negligence in doing the switching from the north end of said compress switch? A. Yes.
"(9) If the defendant company was negligent in doing said switching from the north end of said switch, then say whether said negligence, if any, was the proximate cause of the plaintiffs' cotton being burned a it was burned? A. No.
"(10) On what date did the fire occur, and what was the value of plaintiffs' cotton which was destroyed at that time? A. January 16, 1908; $10,105.61.
"(11) Were the plaintiffs guilty of contributory negligence in permitting their cotton on the platform where it was burned under the conditions surrounding it at the time? A. Yes.
"(12) Was plaintiffs' cotton in imminent danger of catching fire? If so, did defendant's employés in charge of its engine discover said danger before said cotton took fire? A. Yes.
"(13) If plaintiffs' cotton was in imminent danger, and if defendant's employés in charge of the engine discovered said danger before the fire, could they, by the exercise of ordinary care after discovering said danger, have prevented the fire? A. No.
"(14) If plaintiffs' cotton was in imminent danger before the fire, and if such danger was discovered by the defendant's employés in charge of its engine, then say: (a) Did said employés use ordinary care to prevent the fire, after discovering the danger? (b) If you find that they did not use such care, then was there a (their) failure to do so, it any, the proximate cause of the fire? A. Yes."
Upon the verdict as above indicated, the court rendered judgment for appellee.
1. Appellants assign error upon the finding of the jury as being inconsistent. We think that they are, but it does not necessarily follow that a case submitted on special issues should be reversed on account of inconsistent findings. If, looking to such findings as a whole, the court could say that some of them, in view of other findings, were immaterial, such immaterial findings should be disregarded.
2. On the issue of the burden of proof, the court charged the jury as follows: "The burden of proof is on the plaintiff to show that the cotton was burned from fire emanating from the defendant's engine. If the plaintiff has shown by a preponderance of the evidence that the fire which damaged or destroyed the cotton came from the defendant's engine, then the burden of proof is on the defendant to show that it used ordinary care to equip its engine with the latest and best appliances in use for the prevention of the escape of fire, and that such appliances were in good repair, and that the engine was properly handled, and if the defendant had shown by a preponderance of the evidence that it used ordinary care to equip its engines with the latest and best appliances in use to prevent the escape of fire, and that said appliances were in good repair, and properly handled, then the burden of proof upon all the other issues submitted to you is upon the plaintiffs." Error is assigned upon this charge, that it placed the burden of proving the absence of contributory negligence on the plaintiffs. We sustain this assignment. Contributory negligence was an issue in this case under the pleadings and the evidence. The jury found that appellants were guilty of contributory negligence. We cannot say under the evidence that contributory negligence was shown as a matter of law, nor can we say what would have been the verdict of the jury on this issue but for this erroneous instruction.
3. The court gave the following, among other, instructions to the jury: "If the plaintiffs' cotton was in imminent danger of catching fire, and defendant's employes in charge of the engine discovered said danger, it was the duty of such employes to avoid burning the cotton, if it could be done in the exercise of ordinary care, and a failure to use such care after a discovery of the danger would be negligence, and if such negligence, if any, was the proximate cause of the burning of the cotton, the defendant would be liable, although the plaintiffs were negligent in exposing the cotton to the danger." Both appellant and appellee contend that this paragraph of the charge is erroneous; the counter proposition of the appellee being that "the doctrine of discovered peril cannot be applied to inanimate property." We might content ourselves with saying that there was no error in this charge, such being the opinion of the majority of this court, but for the earnest insistence of the appellee that this point has never been decided, and that it is of great importance to the railroads of Texas that it be settled.
4. By the doctrine of discovered peril, as here used, is meant that where the danger of inflicting an injury is discovered by the party inflicting the same, in time to *1027 have prevented such injury by the exercise of proper care subsequent to such discovery, and injury occurs as the proximate result of subsequent negligence, the party inflicting such injury will be liable therefor, notwithstanding the previous negligence of the party injured, and but for which the injury would not have occurred.
5. This principle of law is well settled in personal injury cases. Railway Co. v. Breadow,
6. In no class of cases has the principle involved in the doctrine of discovered peril or danger been more frequently applied than in suits for damage to live stock. Railway Co. v. Hauks,
7. It may be true that no court has ever held in hæc verba that the doctrine of discovered peril applies to injuries to inanimate property, but, if so, it is perhaps because its application in such cases has never before been directly challenged. We know of no case holding to the contrary. Shearman Redfield, in their excellent work on the Law of Negligence, say: "It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to risk of injury, if such injury was more immediately caused by defendant's omission, after becoming aware of plaintiffs danger, to use ordinary care for the purpose of avoiding injury to him." Section 99 (5th Ed.). In announcing this rule they make no distinction between injuries to persons and injuries to property. On the contrary, they say this principle was first enunciated in Davies v. Man, supra, which was a suit for damages for killing an ass, which had been hoppled and turned upon the highway, and was run over and killed by a party driving a team and wagon. They further say: "This principle has been accepted in this form by every court in England, including the House of Lords, by the United States Supreme Court, and by every court in the Union, with the possible exception of Pennsylvania." In the review of the case of Davies v. Man, supra, in the exchequer, Lord Abinger said: "Even if the ass was a trespasser and the defendant might by proper care have avoided injuring the animal, and did not, he is liable for the consequences of his negligence." The courts of this state have recognized the rule applied to personal injury cases as also applicable to the destruction of inanimate property. Morgan v. Railway Co.,
Each of the foregoing cases, except the Rippetoe Case, was, like the instant case, a suit to recover damages by reason of the destruction of cotton on compress platforms set on fire by sparks from a locomotive. In the Martin Case, our Supreme Court, speaking through Chief Justice Stayton, said: "There is, however, a class of cases in which, although one person has been negligent, it becomes the duty of another to avoid inflicting injury upon him after discovering his danger, if this can be done by the exercise of such care as is then practicable, and a failure in such cases will fix liability." In the Edwards-Campbell Case, this court, speaking through Chief Justice Fisher, said: "We understand the law upon this subject to be that, if the plaintiff is guilty of negligence in placing himself or property in a position of danger, he is barred of recovery, unless it is shown that the injury was inflicted under circumstances which show that the defendant discovered the peril or danger, * * * and that in the exercise of ordinary diligence, under the circumstances, with means at his control, he could have prevented the catastrophe." In the Morgan Case, Mr. Justice McMeans, speaking for the court, said: "If the engineer knew of the situation of said cotton and the peril to which it was exposed by the manner in which the engine was being operated, and if it was practicable for him to do the work in which he was engaged in some other manner, by which the damage by setting fire to the cotton would be obviated or lessened, and, notwithstanding said knowledge, he continued to operate in the same dangerous manner, and that, as a proximate consequence thereof, the cotton was destroyed by fire from the engine, the railway company would be liable, notwithstanding appellant's contributory negligence." We indorse the excerpts from these opinions above set out as sound statements of the law. The Rippetoe Case was a suit to recover damages for injuries to a wagon and team, inflicted by a railroad company. Mr. Justice Pleasants, speaking for the court, said: That the defendant "could only be held liable for failure to use ordinary care to prevent the injury after it had actually discovered the danger."
The principle which controls when the danger is discovered applies to the *1028
plaintiff as well as the defendant. If the plaintiff sees that he is exposed to danger by reason of the negligence of the defendant, he must take all additional precautions that a person of ordinary prudence would use, in view of the circumstances as they are, and not as they ought to be, but for the negligence of the defendant. Sher. R. on Neg. §§ 92, 101; Walker v. Herron,
9. In Isbell v. Railroad Co.,
That the right of recovery for injuries resulting from negligence is based upon the violation of duty is no invention of the writer. It is so announced in every text-book upon the law of negligence, and is found by direct announcement or by necessary implication in every well-considered case on this subject. The ancient maxim of the law, "Sic utere tuo ut alienum non lædas," indicates to what extent the Golden Rule is also the rule of law in cases of damage by negligence. The inquiry in each case of alleged damages is, What was the legal duty of the defendant under the circumstances of the case? In Breadow's Case, supra, speaking of the discovered peril, the court said: "Such knowledge imposed upon it (the railway company) the new duty," etc. What "new duty"? Not of using proper means to avoid taking the life or mangling the body of Breadow. That duty previously existed as to him and all other persons. But the "new duty" was to do those precautionary acts which would not have been incumbent upon it but for the discovery of such peril; that is to say, to use all practical means to stop the engine then and there. It is true that the duty to avoid taking human life would require greater effort than to avoid destroying property, and so to avoid destroying a large amount of property would require greater precaution than if the amount was small; but in each case the effort required would depend upon the circumstances of the case, and the fact that the danger was discovered, or was known to the defendant, before the injury was inflicted, would be a potent circumstance to be considered in any case, and should be taken into consideration in determining the liability or nonliability of the defendant.
10. It is frequently stated that liability of the defendant for negligence after the discovery of the danger, whereby injury is inflicted, the plaintiff also having previously been guilty of negligence, but for which the injury would not have occurred, is an exception to the rule that the plaintiff cannot recover if he has been guilty of contributory negligence. For practical purposes, upon whatever grounds it is rested, perhaps this is as good a reason as any other; but to us it seems rather to be the enforcement of the rule that he whose act is the proximate cause of the injury shall be held responsible.
Much confusion exists as to what is proximate cause, and it must be admitted that in many cases it is exceedingly difficult to draw the line between cause and condition. We will not here attempt a discussion of this subject, but we hold that if the appellee discovered the fact (if such was the fact) that there was imminent danger of setting fire to the appellants' cotton by doing its switching in the manner the same was done, and that the same could have been done in another manner which would not have interfered with the appellee's business, and that by so doing the danger would have been avoided, its failure to exercise such reasonable care to avoid the injury was the proximate cause of the destruction of the cotton. In such case, the previous act of appellants in placing their cotton on the platform, when the dangerous condition arising from a strong northwest wind, if such was the fact, did not exist, though, perhaps, it should have been anticipated, was not a concurring cause of the fire in a proper legal sense. The intentional acts of the party, done after the discovery of the danger, if they amount to negligence under the circumstances of the case, and are the immediate cause of the injury, breaks the causal connection between the previous negligence of the injured party and the injury inflicted Sher. R. on Neg. *1029
(5th Ed.) §§ 26, 99; McDonald v. Railway Co.,
11. Appellants insist that under the fact of the discovered danger it was error to charge that appellee was bound to exercise only reasonable care to avoid the injury. As we understand the law, reasonable, or, as it is often termed, ordinary, care to avoid injury, is all that is required of any one in the absence of contractual relations. What acts amount to such care depend upon the seriousness of the probable injury and the imminence of the danger; or, as is usually said, the circumstances of the particular case. Railway Co. v. Hodges,
For the error in the charge of the court as to the burden of proof, pointed out in subdivision No. 2 of this opinion, this case is reversed and remanded.
Reversed and remanded.
Dissenting Opinion
The writer concurs in the reversal of this case, because the charge of the court put the burden of proof on the plaintiffs on the issue of contributory negligence. While there was testimony tending to prove contributory negligence, neither the plaintiff's petition nor the testimony showed, as matter of law, that they were guilty of such negligence, and therefore that issue was a question of fact to be passed upon by the jury, and the burden of proof rested upon the defendant in that regard. Railway Co. v. Shieder,
It has long been well settled that the doctrine of contributory negligence is a part of the common law, and the authorities, with a few exceptions, agree that when the injured party has himself been guilty of negligence, which was a proximate cause of the injury, he cannot as a general rule recover of the negligent defendant compensation for such injury. Difference of opinion may exist as to the reason upon which that doctrine is founded, but the doctrine itself is well settled. In the McDonald Case, just referred *1030 to, it is in effect held that it rests upon the proposition that the law will not permit a party to recover from another what would constitute compensation for his own negligent misconduct, and many authorities rest it upon the same ground of public policy.
The Supreme Court of this state, as well as some other courts, has allowed one exception to the rule referred to, and that exception, and the reason upon which it is founded, is well and clearly stated by Mr. Justice Denman in T. P. Ry. Co. v. Breadow,
In that case the court certainly undertook to lay down the rule of law which should govern in cases of this class when a defendant has discovered the danger to which the plaintiff's property is exposed, because the court was specifically requested to decide whether it was proper in such a case to instruct the jury that contributory negligence by the plaintiff would be an absolute defense, no matter how negligent the defendant may have been, and that was followed up with the question asking the court to declare what would be the rule if the defendant knew of the situation of the cotton, and, by the exercise of ordinary care, could have avoided setting it on fire and destroying it; and the court said: "To hold that the knowledge of the railway company of the situation of the cotton would fix liability on it, if its employés failed to use ordinary care for its protection, although the compress company, the representative of the plaintiffs, knew the same fact, and also failed to use ordinary care in view of the surroundings, would be, in effect, to hold that the railway company was under obligation to use greater care for protection of the cotton against fire than were its owners. Such is not the law." The court, then, after some further discussion of the question, states that there is a class of cases in which, although one person has been negligent, it becomes the duty of another to avoid inflicting injury upon him after discovering his danger, if this can be done by the exercise of such care as is then practicable, and failure in such cases will fix liability; and it is stated that the class of cases referred to embraces those in which exposure to danger is known and imminent, and as illustrating that doctrine six cases are cited, in all of which recovery was sought for personal injuries. But, if the doctrine of discovered peril should be extended so as to include inanimate property, I do not believe the facts of this case disclose such known and imminent peril as would render that doctrine applicable. In most of the cases in which that doctrine has been announced, the injured party was upon the railroad track, and was injured by being struck by a passing engine. When a person is so situated, and it becomes apparent or reasonably probable to those who are operating the engine that he will not get off the track, then the danger becomes known and imminent, because it is absolutely certain that, if he remains on the track and the engine strikes him, he will be seriously injured. But there is no such certainty that an engine running past a nearby platform upon which baled cotton is stored will set fire to the cotton, although sparks may escape from the engine; that result may or may not happen.
As to the question of proximate cause, the court instructed the jury, in effect, that, in order for the plaintiffs' negligence to bar a recovery, it must have been a proximate cause of the injury, and thereafter the court gave the charge set out in the majority *1032 opinion, telling the jury, in effect, that the plaintiffs' contributory negligence would not prevent their recovery if the cotton was in imminent danger and the defendant's employés in charge of the engine discovered the danger, and could, by the exercise of ordinary care, have avoided the injury. According to the language used in that charge, it is fair to assume that the jury reached the conclusion that although the plaintiffs may have been guilty of negligence in permitting their cotton to remain exposed and unprotected upon the platform, and although such negligence may have been a proximate cause of the injury, still they could recover if the defendant's employés, knowing the situation of the cotton and the other surrounding circumstances, could have prevented the injury by the exercise of ordinary care. If the plaintiffs were guilty of negligence in permitting their cotton to remain upon the platform near the railroad track, with the lint exposed, and without covering it or otherwise attempting to protect it from sparks which might be emitted by passing engines, then, while such negligent conduct on their part was an omission, still, it was continued up to and existed at the very time the cotton caught fire, and there are numerous authorities that hold that such a negligent omission constitutes a proximate cause. The plaintiffs alleged in their petition that the platform upon which the cotton was located was in 2 or 3 feet of a switch track belonging to the defendant, and that 20 feet west of that track was the defendant's main track, and that defendant was guilty of negligence on the occasion in question on account of the fact that it negligently ran an engine upon the tracks referred to, and negligently permitted sparks of fire to escape therefrom.
The proof shows, and it is perhaps a matter of common knowledge, that a locomotive engine cannot be run by steam generated by coal without some sparks of fire escaping therefrom. Unless there is a draft, the coal will not burn, and, when there is a draft, it will carry sparks out with it. The spark arresters which are used upon all properly equipped engines are so constructed as to prevent the escape of large, but they do not prevent the escape of all, sparks; and therefore, no matter how carefully an engine is handled, some fire will at times escape therefrom. It is also a matter of common knowledge that lint cotton is very combustible; and whether or not plaintiffs were guilty of contributory negligence in leaving their cotton exposed upon the platform nearby railroad tracks upon which they should have anticipated that engines would be run, and whether or not such negligence was a proximate cause of the cotton's being destroyed by the fire which escaped from an engine, are questions of fact which should be submitted to and determined by the jury. Such, in effect, was the ruling of the Supreme Court in T. P. Ry. Co. v. Levi Bro.,
It is important to keep in mind the distinction between willful and negligent conduct. When an act is willfully done for the purpose of injuring another, the latter's negligence, although it be a proximate cause of the injury, is no defense; but if the defendant's wrongful conduct is not willful — that is to say, is not committed for the purpose of injuring the other party — but is an act of negligence only, then, as a general rule, contributory negligence is a defense; and it is clear that this case belongs to the latter class. The majority opinion seems to stress the fact that the law of negligence is founded upon the nonperformance of a duty, and it seems to be argued that, because it was held in the Breadow Case that the discovery of the impending danger placed upon the defendant a new duty, therefore contributory negligence was not a defense. In reply to that argument is is proper to say that contributory negligence is also founded upon the failure of the injured party to perform a duty he owes to himself, and the law does not deny him the right to recover upon the ground that because of his negligence the other party was not in fault. Conceding the existence of the other party's failure to perform a duty to him, the law refuses to afford redress to the injured party when he is also guilty of negligence which co-operated in causing the injury, because to do so would be permitting him to recover for an injury caused, in part, by his own wrong. While it may have been once supposed that the Breadow Case, and others of the same class, established the proposition of law that a defendant's knowledge of the fact that the injured party was in imminent peril would require such person to exercise more than ordinary care to prevent the threatened injury, that belief was dispelled by S. A.
A. P. Ry. Co. v. Hodges,
It also seems to be held in the majority opinion that knowledge of the danger would have the effect of rendering the plaintiff's negligence the remote, and the defendant's negligence the proximate, cause of the injury. The same thing has been said by other courts *1033 in other cases; but the writer fails to see what bearing the knowledge of either or both parties could have in determining the question of proximate cause. A proximate cause is any act or omission which contributes directly to the injury complained of, and but for which such injury would not have occurred. A hunter may shoot at and kill another person, supposing him to be an animal, and yet his act in shooting him is just as much the proximate cause of the other's death as it would have been if the hunter had known that it was a man, and had shot at him for the express purpose of killing him. Hence is seems to me to be illogical and unsound in reason to suppose that what a party may know can have any bearing in determining whether or not a particular act or omission of his was a proximate cause of a given result. Knowledge, or the lack of knowledge, of facts, may be important in determining whether or not a person has exercised due care; but it is difficult to see how it can aid in determining what was the proximate cause of a given result.
Addendum
Upon motion for rehearing, we have examined the entire statement of facts of 120 pages, and find that there is very little therein to indicate just what was being done by appellee's servants at the time of an immediately preceding the discovery of the fire. The only evidence upon this point which we have been able to find in the record is that of the fireman Baldridge, who says: "I was on the engine when I first discovered the fire. The engine was on the main line when I first discovered the fire, near about even with the compress platform" — and that of the witness Fox, who said: "As soon as the alarm was sent in, I ran up to the platform. * * * I noticed the engine when I got on the platform. It was standing on the main line, as well as I remember, just about even with the northwest corner of the compress platform."
Now it will be seen by reference to the findings of fact that the jury upon every issue of negligence, save one, found in favor of the defendant, and that was that defendant was negligent in switching from the north end of the compress switch. See special findings 7 and 8 set out in findings of fact herein. But the jury also found in answer to special issue No. 9 that said negligence was not the cause of plaintiff's cotton being burned. Upon the theory that the cotton was fired by sparks from the engine while it was on said compress switch spur, this finding would be inconsistent with the findings in response to issues 7 and 8. But, if said fire did not originate from sparks thrown by said engine while on said compress switch, then said findings are not inconsistent.
We construe the finding of the jury on the ninth special issue to be that the fire did not originate from sparks thrown while the engine was on the compress switch, and the evidence is sufficient to sustain this finding.
Such being the case, the charge of the court as to the burden of proof on the issue of contributory negligence was harmless error. If the fire did not originate from the negligence of the appellee, the appellant was not entitled to recover, and contributory negligence becomes a mere academic question, which can in no wise influence the judgment that should be rendered on the facts found. The most that can be said by appellant is that under a proper charge as to the burden of proof the jury might have found that they were not guilty of contributory negligence. But, if such be conceded to be the fact, still the appellee cannot be held liable if it was guilty of no negligence in causing the fire. That it was guilty of negligence which might have caused the destruction of the cotton, but in fact did not, is immaterial.
In view of the matters above stated, the issue of discovered peril is eliminated from this case, but the majority of this court take this occasion to say that, notwithstanding the able dissenting opinion of the Chief Justice of this court, they adhere to the views expressed in their opinion herein, and, should occasion hereafter arise, they stand prepared to give additional reasons and cite additional authorities in support of their views.
For the reasons herein stated, the motion for a rehearing is granted, the judgment hereinbefore rendered by this court reversing and remanding this cause is set aside, and the judgment of the trial court herein is affirmed.