Texas & Pacific R. Co. v. Watson, 190 U.S. 287 (1903)
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Scribd Government DocsTexas & Pacific R. Co. v. Watson, 190 U.S. 287 (1903)
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Scribd Government Docs190 U.S.
287
23 S.Ct. 681
47 L.Ed. 1057
TEXAS & PACIFIC RAILWAY COMPANY, Plff. in Err.,
v.
SAMUEL E. WATSON.
No. 223.
Argued and submitted March 20, 1903.
Decided May 4, 1903.
This action was originally commenced in a Texas state court by the
appellee Watson, to recover the value of 64 bales of cotton, less insurance
thereon. The cotton was alleged to have been destroyed by fire on January
3, 1896, while stored upon what was known as the O'Neil cotton platform
near the depot of the railway company at Clarksville, Red River county,
Texas. The fire was averred to have been occasioned by the negligence of
the railway company in the use of a defectively constructed locomotive
and in the careless operation thereof while passing said platform.
Subsequently the insurance company was joined as plaintiff, and recovery
was asked of the full value of the cotton. Upon application of the
defendant, based upon the fact that it was incorporated under the laws of
the United States, the cause was removed to the United States circuit
court for the eastern district of Texas. In the latter court an amended
answer was filed. This pleading contained general and special demurrers, a
general denial, and a special answer setting up various defenses. The
general and special demurrers were subsequently overruled, and defendant
excepted. A trial was had, and it was shown by the evidence that at the
point where the fire in question occurred the track of the railway company
ran east and west, and the train which it was asserted caused the fire in
question was moving eastward, and a strong wind was blowing from the
north. A verdict was rendered in favor of the plaintiff Watson and against
the railroad and against the plaintiff insurance company in favor of the
railroad. Judgment was entered on the verdict; the judgment was affirmed
by the circuit court of appeals for the fifth circuit (50 C. C. A. 230, 112
Fed. 402), and the cause was then brought to this court by writ of error.
Messrs. David D. Duncan, John F. Dillon, and Winslow S. Pierce for
plaintiff in error.
Messrs. J. W. Bailey, E. S. Chambers, and Amos L. Beaty for defendant in
error.
Mr. Justice White, after making the foregoing statement, delivered the
opinion of the court:
The various assignments of error relied upon in the brief of counsel for plaintiff
in error will be disposed of in the order therein discussed.
First. In several assignments it is claimed that the circuit court of appeals erred
in holding that the trial court properly admitted the evidence of witnesses to the
effect that at or about the time of the fire complained of, and about the time of
the passing of the locomotive which it was charged occasioned the fire, the
witnesses observed other fires at various points not far removed from the place
where the cotton was burned and south of and near to the railway track. In the
light of the decision of this court in Grand Trunk R. Co. v. Richardson, 91 U. S.
454, 470, 23 L. ed. 356, 362, we think this evidence was competent as having a
tendency to establish that the destruction of the property of the plaintiff was
caused by the locomotive in question, and as tending to show negligence in its
construction or operation.
Second. In an assignment of error it was contended that the appellate court
erred in holding that the trial court properly admitted testimony to the effect
that certain witnesses did not know of and saw no opportunity for the cotton to
have caught fire except from the locomotive in question. The evidence in the
record is in narrative form, and that portion relating to the criticized testimony
merely recites that at the time said evidence was offered from each witness
'defendant then and there objected, because the evidence was of a negative
character and would not be relevant, and further, because it was in the nature of
a conclusion of the witness to the effect that the fire had originated from the
engine.' Whether the question which elicited the testimony complained of was
objectionable cannot be determined from the record, nor does the objection
seem to have been addressed to an omission to state the facts which induced the
belief that no other opportunity existed for the cotton to have caught fire than
was afforded by the operation of the locomotive. Evidence of the surrounding
circumstances and conditions which by a process of exclusion would have
tended to establish that the burning of the cotton could not have been caused
other than by the locomotive in question would, we think, have been clearly
relevant. As the record stands, we think the assignment in question was without
merit.
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Third. A further contention is that the appellate court erred in permitting a
question to be answered despite the objection that 'the evidence sought to be
elicited was not such as was the subject of expert testimony, but the endeavor
was to substitute a conclusion of the witness for that of the jury, and it was not
allowable by a hypothetical question, such as this and the answer thereto, to
prove the bad equipment of the engine in the face of the actual testimony that
the equipment was all in good order.' The following is the question referred to:
'Suppose an engine should come along, and in the course of 4 miles and 1/4
should set out, say, eight fires, should set fire to the grass in some of these
places, set fire to shavings 60 feet from the right of way, set cotton on fire, and
that live cinders could be seen falling and did fall and smoked after falling on
the ground, over the work benches and things and over platforms, would you
say there was anything wrong about the operation or construction of that
engine, or would you say it was all right? And suppose, instead of being eight
fires, there were five under the conditions named to you, what would you say?'
The question was proper. The witness was foreman of the boiler department at
the main shops of the defendant, having to do with the building of boilers, and
was in special control of the part of the shops which had to do with spark
arresters. The hypothetical question was based upon evidence, and if the
witness was competentas the evidence showed he wasto testify whether or
not an engine so conducting itself was or was not in good working order or
properly operated, we think the jury should have had the benefit of his opinion.
Inasmuch as there was evidence to the effect that it is impossible, even with the
use of the most effective spark arresters, to prevent the escape of sparks, a case
was presented justifying the introduction of expert testimony to aid the jury in
determining the ultimate fact whether an engine was in good repair and
properly operated which conducted itself as the evidence tended to show this
locomotive did. Eastern Transp. Line v. Hope, 95 U. S. 297, 298, 24 L. ed. 477.
Fourth. It is asserted that the appellate court erred in holding that prejedicial
error was not committed in permitting the deposition of a witness to be read
when the witness was actually in court and his presence was known to the
plaintiff. We adopt as our own the language of the circuit court of appeals on
this point:
'In view of the fact that the witness was called by the defendant after the
deposition had been admitted over the defendant's objection, and gave fully his
explanation of the deposition and his testimony as to the subject to which it
related, we conclude that the error committed is not sufficiently grave in its
results to require us to reverse the case.'
9
Fifth. It is claimed that the appellate court erred in holding that the trial court
rightly left it to the jury to determine that, if the railway company failed to use
the most approved spark arrester, and plaintiff was free from contributory
negligence, he could recover. This contention is based upon the assumption that
there was no evidence tending to show that the most approved spark arrester
was not used. We do not pause to analyze the evidence on the subject, because
we think it not necessary to do so. The proposition, considering it in the light
most favorable for the plaintiff in error, is but an abstraction, and assumes that,
because it may be that at one time the spark arrester was of the most approved
pattern, it continued to be such, even although it was not in good repair at the
time of the fire and such defective condition occasioned the loss complained of.
The court instructed that the jury must give a verdict for the railroad if it was
found that it 'did use the most approved spark arrester, at the time in good
condition, and that the engine was then and there operated with ordinary care
and prudence;' and, in stating the converse of the proposition, said: 'But if the
railroad failed to use the most approved spark arrester and apparatus connected
with the engine as in ordinary use by properly conducted railways to prevent
the escape of fire, in so far as it could consistently be done with the business'
which the railroad was carrying on, a verdict should be returned against the
railroad, provided it was found that the plaintiff Watson had not contributed to
the injury. This charge as a whole we think is not amenable to the objection that
it left to the jury to consider the original construction of the spark arrester,
irrespective of its condition at the time of the fire. The expression, 'as ordinarily
used by properly conducted railways,' of necessity implied that the apparatus
must have been kept in proper condition for use. To construe to the contrary
would presuppose that conflicting measures of liability were given to the jury
by the court when it pointed out the opposing views which the jury were
authorized to deduce from the proof. Thus rightly construing the charge, there
was beyond peradventure evidence to be weighed by the jury in determining
whether the spark arrester was or was not in satisfactory working order at the
time the cotton was set on fire. Several witnesses testified that the engine
emitted considerable fire and cinders, and the evidence upon which the
hypothetical question quoted in subdivision third of this opinion was based
clearly rebuts the assumption that there was not evidence of circumstances to be
considered by the jury in connection with the evidence introduced by the
defendant of the condition of the engine, spark arrester, etc., as disclosed by an
inspection thereof. So, also, the answer to the hypothetical question clearly
contained matter pertinent for the consideration of the jury in determining
whether the engine was properly equipped and operated. The witness said:
10
'An engine that will do as you have stated is doing something unusual, very
unusual. If there was dry and combustible material close to the track a spark
from the ash pan might drop among it and set fire. What you said might have
occurred, but it would be very unusual. I could not say that there would be
anything wrong in the operation of the engine, but there might have been
something deranged about the ash pan is the only way I could account for it. If
the engine did set out sparks in the manner stated by you, I cannot believe that
the engine was in quite perfect condition.' Sixth. A further assignment of error
is to the effect that the appellate court erred in holding that error was not
committed in refusing to charge the jury that plaintiff, in placing his cotton
upon the platform, assumed the risks which were to be anticipated from engines
properly equipped with appliances for preventing the escape of sparks and
properly operated, and in saying to them that contributory negligence and
assumed risk amount to the same thing. But the court charged the jury that,
even though the cotton was set on fire by sparks communicated from the
engine, yet, if the defendant used the most approved spark arrester, and the
engine was operated with ordinary care and prudence, the plaintiff could not
recover. As the court also fully instructed the jury as to what would have
constituted contributory neglgence on the part of Watson as respected the
storing of his cotton on the platform, and informed the jury that recovery could
not be had if there was such contributory negligence, it is quite clear that the
jury could not have been misled by the failure of the trial court to point out the
distinction between assumed risk and contributory negligence. It is not
perceived, for instance, how the jury could have been aided in reaching a
conclusion if, in addition to being informed that the plaintiff could not recover
if the railway company was not negligent in respect to the equipment and
operation of the engine, they were told that the plaintiff 'assumed the risks
which were to be anticipated from engines properly equipped with appliances
for preventing the escape of sparks, and properly operated.'
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Seventh. The remaining assignment of error is to the effect that error was
committed by the appellate court in affirming the judgment despite the fact that
the trial court refused to admit in evidence the stipulations and exemptions
from liability for loss caused by fire contained in the lease under which the
lessee held possession and occupancy of the storage platform on which the
cotton in question was when destroyed by fire. As Watson was not in privity
with the lessee,and it is conceded he had no knowledge of such stipulations
when he stored his property on the platform, there was no tenable ground on
which to contend that he was in anywise bound by the stipulations in question.
12
Judgment affirmed.
