R. R. Scott et al. v. Texas & Pacific Railway Company, 93 Tex. 625

WILLIAMS, Associate Justice. Plaintiffs in error sued defendant in error to recover the value of buildings and other property destroyed by fire, alleging that the fire had been set by sparks which escaped from one of defendant’s locomotives, through its negligence in failing to keep its engine properly equipped with appliances to prevent the escape of sparks, and in carelessly operating the engine.

The charge of the triál judge, in terms, required the jury to find that the fire was communicated to the property by sparks flying from the engine, and that this was “the result of negligence on the part of defendant in respect to the appliances used to prevent the escape of sparks,” and thus excluded any right to recover because of negligence in the handling of the engine, the judge being of the opinion that there was no evidence tending to show negligence of that kind.

The evidence offered by plaintiff, if believed by the jury, was sufficient to justify a conclusion that the property was burned by sparks thrown out from the engine. Other evidence tended strongly to show that the fire was not caused by sparks. Had the jury concluded that the fire was set out by sparks, they could also have indulged a presumption of negligence on the part of defendant’s servants, consisting either in a defective equipment or the negligent management of the engine. Railway v. Levine, 87 Texas, 437.

In order to rebut such a presumption, defendant offered testimony tending to show that its engine and its spark arrester were of the proper kind and in proper condition, and that the engine was properly managed and operated. The jury might justifiably have found for defendant on both points; but was the court authorized to require them to find in its favor on one point and leave them free to find against it on the other?

In the case above referred to, it is said: “It is the established law in this State that when fire is set out by sparks from an engine on a railroad, the law presumes negligence, and the plaintiff is entitled to recover for damages done by the fire so set out, unless the railroad company shall prove that its engine was provided with the best approved apparatus for arresting sparks and preventing their escape, and properly operated.

In other words, the proof that the fire which destroyed plaintiff’s property was set from an engine on defendant’s railroad made a prima fació case upon which he was entitled to recover, in the absence of proof by the railroad company required to rebut the presumption. Consequently, the question as to negligence or not becomes a question of fact to be determined upon the evidence. The credibility of the witnesses and the weight to be given to their evidence are matters to be decided by the jury.

It is apparent, therefore, that it can not be said that there is no evidence of negligence, when the evidence is such as to give a right of recovery if not rebutted.” It is well settled that it is error for the trial judge to instruct a finding in favor of one party when there is evidence tending to establish, in favor of the other party, the fact against the existence of which the finding is directed.

Since the evidence for plaintiff tended to show negligence on the part of defendant’s servants in allowing the escape of sparks sufficient to cause the fire, we think it was the province of the jury and not of the court to determine in what such negligence consisted.

It is urged that other uncontradicted evidence showed that the engine was prudently managed and narrowed the inquiry to the question, whether or not the sparks, about which plaintiff’s witnesses testified, in fact escaped, and proved that, if they did,-their escape was necessarily due to a defective condition of the spark arrester and not to the manner in which the engine was operated. The chief controversy in the trial does appear to have been over these issues, but we can not agree that any of the facts were so conclusively shown as to authorize the court to assume their existence.

While the engineer testified to the proper management of the engine, both he and other witnesses testified, not quite so definitely, to the proper condition of the spark arrester. As to neither point were they contradicted, except, inferential^, by the evidence offered by plaintiffs as to the escape of sparks and their apparent size. All of the witnesses who claimed to have seen the sparks escaping stated that they were as large as the end of the little finger, and all of the expert witnesses agree that if this were the fact the spark arrester could not have been in proper condition.

But the jury might have found that the testimony of the witnesses as to the actual condition of the spark arrester was true, and yet that sparks escaped and caused the fire, and that this was due to the negligent management of the engine; or they might have found that sparks escaped and caused the fire through negligence, the exact character of which, whether in defective appliance or careless handling of the engine, they could not ascertain.’ The whole case should have been submitted. There is nothing to affect this point in the conduct of counsel for plaintiffs, to which reference is made.

The bill of exceptions shows that after the court had given its general charge, one of plaintiff’s counsel orally requested that a charge be given upon the question as to the handling of the engine, and that the judge declined to submit that question, because, in his opinion, the evidence did not raise it. The general charge already given was such as to exclude a recovery upon that ground. Another of plaintiff’s counsel expressed the opinion that the evidence did not raise the question, but the statements of the trial judge show that this had no effect upon his action.

A request for a special instruction was not necessary to enable plaintiffs to question the correctness of the general charge. The requested charge, had it been allowed, would have conflicted with the instructions given. Reversed and remanded.