The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-06-28


Questions of recovery as effected
by insurance, negligence, measure of
damages, etc.-TeXas and Pacific rail-
Way company VS.. Levi Bros; from
Dallas county.
Appellant alleged as defense that
the appeIlees held policies Of insur-
ance on the cotton destroyed or in
iured, which had been collected, and
that therefore it was not liable for
such loss as the appellees might have
sustained through its negligence to
the extent to which appellees had
been Reimbursed by the money col
lected upon such policy. The court
sustained demurrer to this defense
and this is assigned as error.
Held In this ruling there was no
error. II the cotton had been fully
paid for by the insurance companies
under policy which had been paid for
by the appellees, that could in no
measure affect the liability of the ap-
pellant. Such payment would be the
result of contract with which appel
liant has no privity, and to which in
no respect had it made any contribu-
ton. If when the suit was brought
the appellees had alleged such pay
ment by insurance companies and
had sought to recover for the use of
such companies from the party whose
wrongful act caused the loss, there
would be reason in such claim. The
policy of insurance being collateral
to the remedy against the defendant
and procured solely by plaintiffs at
their own expense and for their own
use, there is no legal priyity between
the deft AID the insurer SO as to give
the former the right to avail itself of
a payment by the latter.
1t is urged that the court erred in
giving the following charge: " I on
are instructed that plaintiffs had
right to place the cotton upon their
cotton-yard, and in so doing they
would not, on this account alone, be
guilty of negligence, although said
cotton-yard was in close proximity to
defendants road-bed." Held: The
business being authorized by law, no
liability can be incurred for its eXer-
else, unless there be want of care in
it's prosecution, even though it be at
tended with some risk OF injury to
others; and, such being the case
very high degree Of care is requisite
from those whose property is so stu
ated with reference to a railway that
~ 10 lop1C w AlJNtJ NfNA hhSb ooO
care is exercised by the railway conf
pany. The question of negligence is
for the jury.
On this point Justice Stayton,
as the organ al the court, rea-
sons very interestingly, as follows:
at is true that a person owning or
renting property near a railway is en-
titled to use sach property, but the
greater the dcgfce of exposure to in
Jury from such proximity. the greater
degree of care should be exercised by
such person to prevent injury from
causes for which railway
company will not be responsible be-
cause impraCtiGabie to prevent. What
constitutes negligence sometimes may
be a matter OF law, but whether it
exists in a given case is question OF
fact for the determination Of the jury
in all cases where there is conflict of
evidence, or the facts are disputed.
And in nc case submitted to a jury,
where the facts are contested, or even
where the evidence admitted to be
true is of such character that different
well organized min Is might honestly
arrive at different conclusions as to
whether Il person had or had not used
due care; should i jury be instructed
that an act does or does not constitute
negligence. But there are cases in
which as matter of law, there being
no controversy about the facts, in
which court would be authorized to
instruct jury that a given use of
property was not negligence, when
considered with reference to a specific
use to which contiguous property is
lawfully appropriated. As for in
stance, if the appellees had been
using the open yard in which the
cotton was stored for the
purpose of storing railroad
iron, stone, brick or other pOn-intlam-
able material, which, however, may
be injured by fire, the court, with ref
erence to injury caused by sparks
from passing locomotive, might
instruct a jury that such. use was not
negligence. If the same lot was used
as a lumber yard, in which to store
plank and other intiamable material,
it would be question of doubt as to
whether such use, reference being
had 80 the use to which contiguous
property was lawfully appropriated,
was negligence or not.
So in the use of yard, contiguous
TO a railway track, for the purpose of
storing baled cotton, which, as a mat
ter of common knowledge. is intlam-
able and easily ignited where it is
shown that contiguous property is
lawfully used for a purpose from
which it necessarily results, that the
cotton will be subjected to some dam
ger from fire, it might be doubtful if
the storing of baled cotton in such
place was prudent act, and theques-
tion should be submitted to the jury.
If cotton badly haled, or of which
the baling had been cut, which seems
to have been the case with the cotton
injured, for the purpose of sampling
it, and thus more exposed to fire than
if the cotton was well baled, it would
become more doubtful still if such
use would be prudent use, and hence
the greater necessity for leaving the
entire question of negligence to the
jury, under all the evidence.
Ii we go step further and suppose
yard situated as was that of the APP.
peliees, to be used for the purpose of
storing lint cotton, in no way COM
pressed or covered, than which but
few things are more easily ignited;
in such case a court certainly would
not be authorized to instruct jury
that such use would not be negli-.
gence, in face of the proof that loco
motives were frequently passing with
in a few yards of it, and that with the
utmost care consistent with the use
of such machinery. sparks would es-
cape therefrom, and might reach and
fire the cotton.
If we take an extreme case and
suppose that instead of using the
yard, in which the cotton was stored
for that purpose, the appellees had
used it for a powder magazine, in
which, without any covering, they
left open kegs of gun powder then,
If it be admitted that such was the
case. and that locomotives were pass.
ing within few yards of that place
frequently, and that therefore sparks
would escape which might make such
explosion. even with the exercise of
that care required by law of railway
company to prevent injury to con-
tiguous property by fire from its To-
comotiyes, the court might instruct a
jury that such use WAS not a prudent
nse; but if there was controversy
as to the facts, even in such case.
the whole matter should be left to the
jury.
Another question. that of the
measure of damages, is discussed at
length by the court.