St. Louis Southwestern Ry. Co. of Texas v. Johnson

Court of Appeals of Texas

St. Louis Southwestern Ry. Co. of Texas v. Johnson

209 S.W. 183, 1919 Tex. App. LEXIS 215

Procedural entryThis page is a short order in St. Louis Southwestern Ry. Co. of Texas v. Johnson. Read the opinion of the Court — 1917 Tex. App. LEXIS 1174 →

Court of Appeals of Texas·Decided January 27, 1919·No. No. 2070.·Published

Opinion

LEVY, J.

(after stating the facts as above). The appellant insists that the finding of the jury is without evidence to support it that the employés failed to exercise ordinary care in the handling and operation of the locomotive to prevent the escape of sparks of fire. A flying switch was, it appears, being made, and “was,” as testified, “made in an unusual manner.” One witness says, “There was an unusual amount of cinders coming from the train,” and another witness says:

“Just previous to the fire, I had noticed the train switching back and forth west of the house that burned. It was making a flying switch: I noticed sparks of cinders coming from the train. I spoke of it before the house caught fire. There was a great quantity of the sparks and cinders. I never saw more come out in plain daylight — and sparks don’t show very plain in the daylight. They wore falling all along on this side or the east side of the railroad, and they were just coming right towards the Johnson house.”

And there are other similar statements and circumstances appearing in evidence. Considering all the evidence, it is .believed this court may not say as a matter of law that the finding of the jury is unauthorized. In these circumstances, the jury may have decided that the way and manner of operation of the engine caused sparks of fire to fall on the house, although there was a spark arrester in good order.

The judgment is affirmed.

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LEVY, J.

(after stating the facts as above). The appellant insists that the finding of the jury is without evidence to support it that the employés failed to exercise ordinary care in the handling and operation of the locomotive to prevent the escape of sparks of fire. A flying switch was, it appears, being made, and “was,” as testified, “made in an unusual manner.” One witness says, “There was an unusual amount of cinders coming from the train,” and another witness says:

“Just previous to the fire, I had noticed the train switching back and forth west of the house that burned. It was making a flying switch: I noticed sparks of cinders coming from the train. I spoke of it before the house caught fire. There was a great quantity of the sparks and cinders. I never saw more come out in plain daylight — and sparks don’t show very plain in the daylight. They wore falling all along on this side or the east side of the railroad, and they were just coming right towards the Johnson house.”

And there are other similar statements and circumstances appearing in evidence. Considering all the evidence, it is .believed this court may not say as a matter of law that the finding of the jury is unauthorized. In these circumstances, the jury may have decided that the way and manner of operation of the engine caused sparks of fire to fall on the house, although there was a spark arrester in good order.

The judgment is affirmed.

St. Louis Southwestern Ry. Co. of Texas v. Johnson, 209 S.W. 183, 1919 Tex. App. LEXIS 215 (Tex. Ct. App. 1919).

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