Houston & Texas Central Railroad v. Washington

JEHKIHS, Associate Justice. This was a suit by appellee to recover damages for loss of property by fire, _ alleged to have been *393 caused by sparks from defendant’s engine. There was a verdict and judgment for appellee, from which appellant prosecutes this appeal,, and assigns as error, first, the overruling of its special exception to appellee’s petition, in that it did not set out the alleged negligence with sufficient certainty. The petition alleged, as negligence, “that said locomotive was so defectively and improperly built and constructed, and was so carelessly, negligently and unskilfully managed by the agents and servants and employes in charge thereof that sparks of fire escaped from said locomotive and set fire to plaintiff’s barn,” etc. Where it appears that the engine or machinery was in the ex•clusive control of the defendant or its servants, from which it necessarily follows that its condition and management were matters peculiarly within the knowledge of defendant, it is not necessary to specify the particular defects or mismanagement. In such case a general allegation of negligence is sufficient. St. Louis S. W. Ry. Co. v. Wilbanks, 113 S. W., 319; International & G. N. Ry. Co. v. Timmerman, 61 Texas, 663; Gulf, C. & S. F. Ry. Co. v. Smith, 74 Texas, 276, 11 S. W., 1104. Appellant’s second and third assignments of error are to the effect that the verdict is not sustained by the evidence. The evidence showed that appellee’s barn was situated 113 feet east of appellant’s track; that appellant’s freight train passed along by said barn a short time before said fire; that it was puffing and emitting large sparks in unusual numbers. There is nothing to indicate that the fire originated in any other manner; no one is shown to have been in or about the barn shortly before it caught fire. It is true that, in order to make a prima facie case of negligence, where the damage occurred by reason of fire claimed to have originated from the sparks of an engine, it is necessary that there should be affirmative proof that the fire so originated, but this proof may be made by circumstantial evidence. Railway Co. v. Timmerman, supra. In fact, as a general rule, it could not be shown in any other way. That the engine passed just before the fire started, and was emitting sparks at the time, is a circumstance from which the jury might well find that the fire originated from such sparks. It being shown to the satisfaction of the jury that the fire did originate from the sparks of an engine, a prima facie case of neg ligence on the part of the defendant is made out, and it devolves upon the defendant to meet such case by evidence of the good condition of its engine and spark arrester, and the proper management of the same. This is reasonable, because such evidence, to meet such prima facie case, is peculiarly within the knowledge of the defendant, and the burden of producing it should be cast upon him. Railway Co. v. Timmerman, supra; Gulf, C. & S. F. Ry. Co. v. Benson, 69 Texas, 407, 5 S. W., 823; Gulf, C. & S. F. Ry. Co. v. Meentzen, 113 S. W., 1002; Gulf, C. & S. F. Ry. Co. v. Johnson, 92 Texas, 591, 50 S. W., 563; Galveston, H. & S. A. Ry. Co. v. Horne, 69 Texas, 643. Appellant’s fourth assignment of error is as to the failure of the court to give a requested charge to the effect that the plaintiff was required to show affirmatively, by a preponderance of the evidence, that the fire which destroyed the property actually originated from sparks emitted from defendant’s engine. The court in its main charge *394 instructed the jury that, in order for the plaintiff to recover, he must show that the fire originated from sparks emitted by defendant’s engine. The principal difference between the charge given and the one requested is the use of the word “actually.” We think it was proper for the court to refuse to give this charge, as it added nothing to the charge already given, unless it should have" impressed the jury with the belief that the court thought the facts insufficient' as to this matter. The opinion of the court as to the facts proven ought never to be intimated in a charge given. Appellant, in its sixth assignment, complains of the charge of the court which instructs the jury “that, if they believed from the evidence that the defendant failed to use ordinary care to provide its locomotive engine, from which the sparks may have escaped that caused the fire (if it was so caused), with the best approved spark arresters in general use, or that the agents and employes of the defendant operating and handling said locomotive engine failed to use ordinary care to prevent the escape of sparks, then the prima facie case made out (if made out) by proof of sparks escaping and causing the fire has not been rebutted, and if you so find you will find for the plaintiff.” . The objection to said charge being that it is upon the weight of the evidence. The law is, as hereinbefore stated, that the prima facie case is made out by proof that the fire originated from the sparks of the engine, and that it devolves upon the defendant to meet such prima facie case. The charge of the court is not upon the weight of the evidence. Railway Co. v. Johnson and Railway Co. v. Horne, supra. Appellant complains of the action of the court in'permitting a witness to testify, who was in the courtroom and heard other witnesses testifying, the rule having- been demanded. It appears that this witness had been summoned after the trial began, and that neither plaintiff nor his attorneys knew of his presence in the courtroom. We can not say the court abused its discretion in allowing this witness to testify. Appellant complains of the verdict, and alleges that it met the prima facie case of the plaintiff by proving that the engine was equipped with the best method known for preventing the escape of sparks, and that it was in good repair and operated by a skilful engineer in a careful manner. Whilst the defendant produced such testimony, the testimony of the plaintiff showed that said engine was emitting great numbers of sparks of very large size—one witness says as large as a man’s thumb. Another witness says: “It looked like the engine was throwing bushels of sparks, coming out by the wholesale; it looked like the whole smokestack was on fire.” Defendant’s evidence showed that if the spark arrester,,was of the most approved pattern, and in good condition, it could not emit large sparks. If the testimony of plaintiff’s witnesses was true, either the spark arrester was not of approved pattern or it was not in good condition. Texarkana & F. S. Ry. Co. v. O’Kelleher, 21 Texas Civ. App., 96, 51 S. W., 54. It was for the jury to pass on the credibility of the witnesses and the weight to be given to their testimony. We find no error in the record, except that which is complained of in appellant’s fifth assignment of error, which, in effect, is that the *395 court erred in permitting the witness T. B. McQueen to testify as to what the books of the cotton-oil mill showed as to the market price of cotton seed, a part of the recovery sought being for the alleged destruction of two tons of cotton seed. McQueen was the bookkeeper, and had general supervision of the cotton-seed-oil mill at Marlin at the time said barn was destroyed, to wit, on the 5th day of February, 1907. He testified that his books showed that the oil mill was' paying $13 a ton for cotton seed on that day. He further testified that cotton seed was received by the scale-man, and the weight and price thereof reported by him to the bookkeeper; that he had an assistant bookkeeper by the name of Brown who usually made the entries; that he did not have any personal recollection as to the price of cotton seed on the fifth day of February, and he did not know whether or not he was present on that day or had anything to do with the entries made by Brown on the books of the company on that day. The defendant objected to this testimony on the ground that it was hearsay, and not the best evidence. We think the contention of the defendant in this regard was sound, and, upon said objection being made, the books of the oil mill company should have been produced as being the best evidence • of the price paid by said mill for cotton seed on that date. It was not competent for McQueen to testify as to the contents of said books, the same not being produced in court, and the objection being made that his testimony was not the best evidence. For. the error of the court in permitting said McQueen to testify what his books showed as to the market price of cotton seed, as hereinbefore set out, the judgment in this case is reversed and the cause remanded. Reversed and remanded,. Associate Justice Bice not sitting in this case.