Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-01-22
COURT OF APPEALS.
Full Text Of Decisions Rendered in the Fort
Worth District.

NuIlN hf1NlNH
Court Of Ciyn Appcals-ElIst district; Is
d. Tarlton CHIEF justice; II. o. Head and
l. W. stevens, associate Justices W. L.
Hun clerk.
No. 1O Texas aud Pacific Railway com
pauy. appellant vs.. q. II. Gormun, APP
pclee. Appeal FROM Parker county
CONCLUSIONS OF FACT.
The verdict OF the Jury, which Is sup
ported hy the evidence. establishes thei ON
the Ilrd dny of November. 1881 appellant
nrHlgcntly set lire to the dry grass ana
weeds which Is allowed TO accumulate upon
TO- right OF way. and this hre spread 10
the farm OF appellee adjoining uuu Duiheu
etover about eighty acres OF his pasture
destroyed SuO Of his ralls; Twenty-Five posts (;
3OG fruit trees; 90 grape vinn'' aud -Ou
blackberry vines, the cash value OF AL OF
which amounted 10 as much or more thgn
the verdict of The Jury. Appellee brought
this suit Tor tlc damage 20 caused tu him
ana recovered iutgmCnt FOR the sum or
500 frun which tiily appeal " taken
No complaint Is made us To the amount
uf the verdict or the yuihcipncy uf inc
evidence to show negligence on the part OF
appellant
OPINION
Appellant complains that the measure OF
damage applied by the court below Tor the
destruction " the growing fruit trees ana
vines was thClr cash vb'ue. when they
should have been treated as % purt OF the
land. and lts lessened value the proper
measure.
a number " declslons In such cases re-
cOluilr as correct the rule adopted 10y the
vuutt hollow. tMhlturH Ny. tuilNnl, -
bagOcr GA; Railway w. BOhuunOu, $. u.
a.. Othrr authorities however perhaps with
better rvIfDn. adopt the rule Couieudci for
by appellant 20 Selgwicll ON namage9
NHi-i ISlis rule. However, iH generally
adopted for the benefit OF the owner Uf the
land. aud not fdr tine one causing the injury.
upon the uanliesty lusl ground that 10y
the destruction Of q valuable irit "rna,
mental on wi0Vc trpc. the value Of the land
may Doc lC9Rcucl ln an amount uauy titlcS
the Nulur Of tho tree Itself and IN such
case the rule adopted 10y the court below
would not furnish adequate compensation.
We believe where the Thing Injured or de-
suoycd b. part Of the realty the lcsscned
value of the land VIII COME nearer furnish
NIX rule just iu lts application to nh cnses
ihGn the one adopted by the court. lex
press company 50. Real Estate assOcia-
tion, Hl TcNiH, Sll. But we do not believe
appellant s IN q position 20 complain that
u different rulc WAS applied 10 ii in this
curr. n appellee ia willing 10 accent the
cash value OF his trees ANA waive tile Incl.
uruial dautNEc, II any done by thelr de-
hIutloh 10 me- tarin II would seem that
appellant should be ratisdcd. None OF the
evidence Introduced tpnds In the least TO
snow mat the land was not damaged To the
extent of The full value ~ the trees what.
ever that might be-, one OF the methods
proving HE dnmagc to the land ~ by PROV
lng tie value OF the trees taken therefrom
iholb vs. Bankhcad. is Texas. 22Sl And
whore the trees are full grown and are
only valuable as timber their value less
the cost uf MARKETING them hrs been fire.
uuently recognized us the proper measure OF
tho actual damage TO be allowed for their
wrongful or negligent destruction AZ Sedg.
Wick on Damages. O33.
Appellant also complains at the action OF
the court IN giving 10 the Jury AT the re.
quest or nppcllceN counsel. The following
utuniuuu ~ negligence. VIZ: "Negligpuce N
the lack ~ THAI care which an ordinarily
prudent man would exercise in The manage
mrnt or his OWr Affairs" The following
drnniton W2s approved 10y ol.r supreme
court Nv Railways vs. Dram ~ rpyns ana
y ptnuthi man would exercise under yiml.
lar circumstance The definition 10 which
we are cltei 10y APPELLANT BE- funud In The
opinion w Cotton Press 60. Vs. Bradley ~
Texas, $50 0s follows: Negligence r.. Inn.
pllrf gerpr1Uy The want OF that care and
diligence which ordinarily prudent men
would ne tO prevent injury under the chi
cumstNnces ~ ,ho particular ease" We he.
leye the difference ln these definitions Ia
- s.N-r' "''i NO iviW~ cOuld have resulted
TO appellant under the evidence n
case. No complaint is nude against the
finding ~ The Jury ON the question Of ncgli-
gcncr nor H. It conipnlel That their verdict
could have been different had this charge
not been oven.
The court committed no reversible error
In calling the attention Of the hurry In the
charge to the values Of he several Items
as alleged IN the petition.
We thing the Judgment Of the court be-
low should be IN al lhlngs affirmed,
tSigueul HEAD Associate Justice.
stephens, Justice, not sitting