183 S.W.2d 212 | Tex. App. | 1944
This suit was brought by J. A. Brandon, appellee, against Texas Pacific Railway Company, appellant, to recover damages for the destruction of property by fire alleged to have been caused by negligence of the appellant. The property destroyed consisted of 100 acres of grass, hay, grain (mixture of wheat and oats), mechanical self-feeder, wood saw, wood, 2 scoops and 2 forks, all alleged to be of the reasonable cash market value of $1,750.
The defendant entered a general denial, specially alleging contributory negligence and sought to avoid liability on various other grounds.
The trial was before the court without a jury, and at the conclusion thereof the *213 court rendered judgment in favor of the plaintiff for the sum of $1,750. The transcript contains findings of fact and conclusions of law.
Among other issues of fact, the court found as follows: "I find that the defendant negligently permitted and allowed grass, weeds and vegetation to grow up and remain on its right of way after the same had dried out and were in a highly combustible state, and the said weeds and grass extended out to similar grass and weeds on adjoining property, by which the fire was spread to other property and on to plaintiff's land, and that such negligence was the proximate cause of plaintiff's damages."
The appellant has presented 10 points challenging each fact finding and each conclusion of law by the trial court, specifically contending there was no evidence that the defendant permitted dry and combustible weeds and vegetation on its right of way, or in any way set fire thereto, etc., or that such fire, if any, extended out to similar grass and weeds on adjoining property and spread thereby to the plaintiff's premises and property, or that any such acts on its part constituted in any respect a direct and proximate cause of the plaintiff's damages.
It is unnecessary to set forth the lengthy testimony. Different witnesses for the plaintiff testified that the fire sprang up along the track and right of way of the defendant, immediately after a T. P. train had passed, and that from this origin it spread to the adjoining premises and consumed the property described in plaintiff's petition. Other witnesses for the plaintiff testified that from the appearances of the ground immediately after the fire it was evident the fire began on or near the railway track, possibly in 3 feet thereof, and burned from that point over appellant's right of way and on to and over the premises upon which the plaintiff's property destroyed was situated. That a strong south or southwestern wind was blowing, and the fire originated on the north side of the track and spread in that direction to said adjacent premises and plaintiff's property.
On the other hand, witnesses for appellant denied the origin of the fire on their right of way, or that they were in any way responsible therefor, and some of these witnesses testified that all their trains on that date were equipped with oil burning engines, which were in good condition, and that it was impossible for fire to escape from said engines.
In substance the circumstances of this case are like those detailed in Gulf, C. S. F. Ry. Co. v. Curry, Tex. Civ. App.
In discussing the relative effect of testimony by experts and laymen under such circumstances as that above indicated, Justice Alexander said for the Waco Court in Texas N. O. R. Co. v. Glass, Tex. Civ. App.
In other words, when the evidence is conflicting, the question of the condition of the premises, whether the fire originated on the property of defendant, and, if so. *214 whether defendant is chargeable with negligence, are questions of fact for the determination of the jury or the court, as in the instant case. That is certainly a correct proposition of law, unless the evidence is such that only one conclusion could be drawn therefrom by reasonable minds.
It is also the law in this state that "although it is necessary for the plaintiff to trace the fire to the railroad, it is not necessary that evidence should exclude all possibility of another origin, but it is sufficient if all the facts and circumstances fairly warrant a conclusion that the fire did not originate from some other source." 19 Tex.Jur. p. 681, § 23; Moose v. Missouri, K. T. R. Co., Tex.Com.App., 212 S.W. 645; St. Louis Southwestern R. Co. of Texas v. Adcock, Tex. Civ. App.
The cause of a fire, originating upon the right of way of a railroad, is seldom susceptible of affirmative proof from the actual observation of a witness. The eye cannot easily follow the livid spark, or in case of oil burning engines, the ignited or superheated soot or carbon from the smoke stack to the inflammable material on the ground, and note the actual ignition of the material thereby. Hence, the origin of the fire on a right of way must ordinarily be proved, if proved at all, by circumstantial evidence. The above reference to the testimony has been stated for the reason that we are of the opinion, after a careful reading of the entire statement of facts, that there is sufficient testimony to sustain trial court's conclusions above set forth, both as the existence of stubble, dry grass, etc., on said right of way, as well as the origin of the fire which spread to and destroyed the plaintiff's property.
Upon another phase of the case, namely, liability based on condition of premises, we find an applicable rule of law set forth as follows in the annotations following Orander v. Stafford,
Concerning liability based on condition of premises, it is further stated in said annotations, 42 A.L.R. at page 799, as follows: "In the absence of a statutory provision to that effect, it is the duty of a company operating a railroad to keep its right of way reasonably free from combustible material. If this is not done, and a fire starts on the right of way by sparks from a locomotive and damages other property by spreading thereto, the railroad company will be liable for the damage, although there is no negligence in the equipment and operation of the locomotive, provided there is no contributory negligence on the part of the person whose property is damaged."
A vast array of authorities are cited by the text in support of the rules just stated, and among them are many from Texas: Seale v. Gulf, C. S. F. R. Co.,
In the above cases combustible materials enter into the conditions giving rise to liability for negligence. Specific reference is here made to the following Texas cases. The Court's holdings will be reflected by the given excerpts.
Ft. Worth D.C. R. Co. v. Hogsett,
In Gulf, C. S. F. R. Co. v. Witte,
In Gulf, C. S. F. R. Co. v. Benson,
In Fort Worth N. O. R. Co. v. Wallace,
In Gulf, C. S. F. R. Co. v. Cusenberry,
To the same effect is Texas P. R. Co. v. Gains, Tex. Civ. App.
In Texas P. R. Co. v. Ross,
Of the opinion in the Ross case, the Court of Civil Appeals in Missouri, K. T. R. Co. of Texas v. Mitchell,
Progressive Lbr. Co. v. Marshall E. T. R. Co.,
Moose v. Missouri, K. T. R. Co., Tex.Com.App., 212 S.W. 645, states and applies the same fundamental principles reflected by the above authorities.
We are of the opinion that the material fact elements set forth in the trial court's conclusions are in all respects supported by the testimony, and that his judgment based thereon is fully warranted.
For the reasons assigned, appellant's points are overruled and the judgment of the trial court is affirmed.