Case No. 4943 | Tex. | May 30, 1884
In the caption of this transcript, it is not stated, as always should be, when the district court finally adjourned (Buies of Hist. Court, Ho. 87). We have on this account had some little difficulty in ascertaining at once whether the statement of facts was in fact filed within ten days after the adjournment of the court, as was required by the order of the judge. Courts of justice, as a general rule, judicially know the time when the terms of the different courts of the state commence, where the time for their commencement is fixed by statute. They could not,
In this case, however, while the record does not show on what day the session of the court ended, it does affirmatively appear from the record that it was in session on the 15th day of June, 1883, for on that day the order granting time to prepare a statement of facts in vacation was entered. As the statement of facts was filed, as a matter of fact, in less than ten days after that order was entered, it may be said that the record in this case furnishes sufficient evidence that the statement of facts was lawfully filed. It therefore becomes = unnecessary to determine whether we could take judicial notice of the duration of the sessions of the district courts of the state. All necessity for inquiry into this matter would be obviated in every case if the clerk of the court, in preparing the record for this court, would comply with the plain and imperative rule of the district court which requires him, in every instance, to state in the caption of the transcript the dajr when the court ended its session.
Objection is here urged to the character of title exhibited on the trial by appellee.
The evidence disclosed that appellee and her husband had been in quiet and actual possession of the locus in quo for eighteen years before this suit was instituted. It also appears that the appellee, after the death of her husband, had, for four years before this action was brought, been in the undisturbed possession of the property injured, as her homestead, as a surviving widow and a head of a family. It also appeared that all her children acquiesced and consented to it. As a matter of fact, without reference to their consent, the surviving widow, as the head of a family, is entitled during her life-time to the exclusive possession and enjoyment of the homestead. R. S., art. 2004; Const. 1876, art. 16, sec. 52.
This species of possession constitutes in itself a sufficient title for her to maintain the present action for damages against this appellant.
The appellant, no doubt (and the record sufficiently shows this fact), enjoyed its right of way over the land, where the damage occurred, by the permission of the appellee or her husband. In such
The cases of May v. Slade, 24 Tex., 205" court="Tex." date_filed="1859-07-01" href="https://app.midpage.ai/document/may-v-slade-4889583?utm_source=webapp" opinion_id="4889583">24 Tex., 205, and Miller v. Brownson, 50 Tex., 592, cited and relied on by appellant, contain nothing at all in conflict with the rule laid down in this case. They present an entirely different state of facts from the case now under consideration.
The only remaining question to consider is whether the jury were authorized under the proof in finding that the injury and damage from the fire complained of resulted from the negligence of the appellant.
We have given the question of negligence in this connection much attention, and have examined all the authorities and adjudicated cases in our reach bearing on the question of damage by fire resulting from sparks emitted by passing railroad engines.
Our limited time will not permit us, nor do we deem it necessary in this opinion, at this late day, to treat at any great length of this question.
The general rule may be fairly stated to be, under the present state of the authorities, that where the property is destroyed by fire along or near the railroad track, if it be affirmatively shown as a matter of fact that the fire did actually occur from sparks of fire emitted from the locomotive engine, then the burden, after such affirmative proof is made, rests on the railroad company to show that there was in fact no negligence on its part in causing the fire.
The reasons given for requiring such proof as to the want of negligence to be made by the company seem to be good. The plaintiff cannot, in the nature of things, have access to the locomotive engine for the purpose of ascertaining if it is properly constructed and operated.
On the other hand, the agents and employees of the road know or are bound to know that the engine is properly equipped to prevent fire escaping, and they know in every instance whether any mechanical contrivances have been emploj’ed for that purpose, and they also know the character of such contrivances and appliances. Persons like the plaintiff, wholly unconnected with the company, and who only see the company’s trains as they daily pass over their land at a high rate of speed, have no means whatever of information on such subjects.
The burning, the injury, the escape of. fire from the company’s engine, and the negligence, are all facts required to be alleged and proved in every case. But they can be, proved, like, all other facts, by such pertinent evidence as will satisfy a reasonable mind of their existence.
Railroad companies undoubtedly have .the legal right to run steam-engines on their roads, but they have no right to scatter sparks of fire along their track; and when it is found that this is done by them, and the property of others is thereby destroyed, with no further explanation as'to the cause of such destruction, the jury are, under all the circumstances, warranted in inferring that there has been some neglect.on the,part of the railroad company.
We have been greatly aided in the examination and investigation of the law applicable to this case by the able and satisfactory opinion of the late Judge Ector, who, as presiding judge of the court of appeals of this state, had occasion, in the case of H. & T. C. R. R. Co. v. McDonough, to examine into this question. His opinion will be found well reported in the condensed reports of the decisions of that court in civil cases recently published by Judges White and Willson of that court. See sections 651-655. See, also, the case of Tex. & P. R. R. Co. v. Levi & Bro., 2 Tex. Law Review, p. 50 (Austin Term Sup. Ct., 1883—59 Tex., 674" court="Tex." date_filed="1883-06-19" href="https://app.midpage.ai/document/texas--pacific-ry-co-v-levi--bro-4894147?utm_source=webapp" opinion_id="4894147">59 Tex., 674). See, also, the well considered case of the G., C. & S. F. R. R. Co. v. Holt, 1 Tex. Law Rev., p. 199.
We have also, in this connection, examinéd many other cases. See, also, on this point, Chief Justice Redfield’s views in vol. 1, ch. 1Y, of his work on Railroads, under the head of “ Liability of Railroads for Fires by Engines.”
In this same connection, see, also, Pierce on Railroads, ch. 16,, under the head of “.Injuries to Property by Fires,” where the subject is treated quite fully, and in a very fair and satisfactory manner.
There is no material error in the judgment of the court below, and it is affirmed.
Affirmed.
[Opinion delivered May 30, 1884.]