Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-04-10
CIVIL COURT OF APPEALS.
Full Report Of Decisions Rendered BY the
Court Tor Ire Second District

/ No go Martin. Wise and I1tahugh, appel
iants vs.. Missouri Pacific hallway Com-
| pany, ct a., appeilees. Appeal from Dai-
/ las county
ooNULUslONs
Appellants brought tnis suit FOR the use
/ OF the insurance company Of North AMeiltN
l against the Missouri Pucinc Railway eon-
/ pauy and the Texas Compress association,
! to recover damages FOR tue destruction ~
/ IRE or 58f bales o. cotton on Nov. ~ ISL
/ The cotton when discovered 90 be on nre
/ was situated upon the platform 81 the
I Compress association az GrcoDville, Texas.
/ Appellant bad shipped this eOttJn from
| various local points VA Jexds 70 greenNille lof
| the purpose ~ concentration ana rcshlphleht
! abroad. Tho railway company, in order TO
multiply tile cGuying capacity OF its cars,
was Interested Ia, aud paid tic expense OF,
COMPRISING tho cotton, ~ vas the course
OF business for the compress company 70
receive and issue iecClpig for cotton shipped
IN from local points, upon which me rail-.
way company issued bills Of lndingi the
cotton bong received by the railway COM
pany from the platform Of the compress,
Tor which purpose u was In general use.
Tho 5Gt bales uf cotton ~ destroyed by IRE
had not been received by the railway com.
pany and NO bill Of ladinF had been issued
therefor and tho same were held BY the
compress company subject TO the order
or appellants, the compress company nav
iur been employed by appellants To receive
weigh, mark nnd ship al their cotton To-
called into Greguvllle. the railway CONT
puny had a small platform near its freight
depot ut GrcenYilip, which seems TO have
shipping cotton that OF the compress being
more extensive ana suitable. Tho main
track of the railroad was distant from the
compress platform about 10 feet, the truck
laid for carrying cotton 10 aud from this
platform, about four feet and between them
were two switch tracks. The court sustain.
ed the general demurrer OF the compress
company and dismissed II from the suit
In this we think there was error which
viii require the Judgment 90 be rcycleed
ana the cause reminded. II seems clear
10 Ms that. n the allegations OF the petit
ton be taken AZ true, it showed actiOnhblc
negligence In the compress company. Inc
the railway company, upon which they re-
turned verdict I'm its favor, were; Ol
whether the sparks aud Cnders escaping
from ~ engines set iifo tO,the cotton ana,
N 30. whether the proper precautions had
been taken by the railway company 90 pre-
vent this. u whether appellants were guilty
or COntrlhutOry negligence I'm having their
Gotten placed on the platform In question:
| That appellants failed 10 show by prepun'
dcrnuce OF the evidence that the lire orrl'
mated from sparks or clnders cscnping from
any OF uUprllec's engines " n conclusion
which we think the jury might reasonably
have drawn from the testimony Ms wen
a. that all proper precautions had been
taken 10y the railway company 90 prevent
such consequence. IL then becomes un.
necessary FOR MS 90 ma whether the yer.
diet can be sustained un the tissue " con.
tributory negligence. That this issue was
raised by the evidence and that The court
did not err in submitting N 10 the Jury y1
| fool constrained by the decisions OF our
| supreme court 10 hold. HALLWAY company
| w.. Lew, 90 Texas, ga; railway We Bart.
! lett, go Texas, ~. Appellants complain, not
/ only that there was error I'm submitting this
| issue, but also. ia lts repetition IN the
/ churgc. Whom repeated. II was given main.
/ ~ 20 qualify charges which otherwise might
| have DCcu Misleading. hallway company VS.
| i.enke, 90 Texas, ISL. halfway company vs..
/ Larklu, 90 Texas 500.
| Complaint IL made OF the following charge
/ as being comment upon the evidence
! nud giving undue prominence Ia particular
/ facts a. constituting contrlbutory negligence:
! or having A placed on tho platform OF the
| compress association, act ms an ordinarily
| prudent man would have nctcd, taxing into
! consideration It's surroundings, 10 prOxim.
| ity 20 passing engines etc, the purpose for
! which it was placed there etc" We do
! slpus dispose OF all the assignments OF
error anl prorctiions submitted there
under.
ON the last page OF appellants brief we
ma the following additional proposition
| ''lhC court erred In charging the jury that
| before plaintiffs could recover the jury must
! De satisfied from the evidence both that
! defeudAntn negligence caused the rrc and
! that plaintiffs were not guilty or contrihu.
| tory negligence" We are uf opinion that
| THIS proposition cannot properly be cousld-
cred under any OF the Assignments or error
! Ia fact. u seems 10 be ana after thought OF
! appellants counsel. who seem 20 have IN
] qucsted instruction No. !, 10 incorporate tine
| word, satisfaction complained ur. into
the charge We are further OF opinion that
] the charge, In ita entirety, when fairly con-
| htrued, does not come within the rule un-
| nounccd In BunA W.. UlmIn, "a Texas.
| b2ai Hallway company W. BirutttI 81 ieNps
| A.. The expression in the charge, ~ you
| are satisfied IRON Tie evidence before YOU
that the lire destroying said cotton origlnut-
ed on was caused by sparks aud uindors
| emitted from defOudautH engines etc, was
| qualified substantially In language request
cd 10y appellants, us follows: And the
destruction uf the cotton by ire under this
cir a % Ia
| evidence Huihciput In your opinion 60 justify
| the belief thn- the lire was caused uy
| Mrrks 9r cluders coming from dvtcndant 3
enginea,' which, We think, indicated TO
the mlud uf the Jury that by the WORT
| satisfied nothing more WIS meant than
/ oplulon OF belief The further expression.
| "lf you are satisfied from the evidence be-
fore you that the plaintiffs az the time
of The IRE. had their cotton ON the platform
OF the compress company could not have
done any harm, because, that they bad q
there Was beyond dispute the controversy
being, not whether they had n there, hut
whether having n there under the circum-
stances disclosed IN tho ovidouce was an
act OF contrhutory negligence. Upon this
issue the instruction ran "Hnd, In having 70
there you ind thai they ala not Ns a pru.
dent man would have acted under similar
surroundings, taking TO collaboration the
purposes Tor which Il WAS placed there,
the proximity TO passing engiies, etc. aud
10y reason thereof they were guilty or
/ con,ributory negligence, and the same wa,
burned ,een the plalnuns would not be
we are further OF opinion thar tho use
OF the word satisfied IN tho charge, under
the facts or this case, aha not Ia the least
prejudice the rights OF appellants, Our con.
company the Judgment should be affirmed,
cause reminded Tor new trial
S1ErhENS
Associate Justice.
Iarlton, chief Justice, not sitting.
No, 1871 John r. Wilson. anneilnnt N