
    No. 11,096.
    Mrs. E. H. Stoner vs. Texas & Pacific Railway Company.
    In an action tor damages for the destruction of an orchard of fruit trees hy fire, the measure of damages is not the cost of replacing the trees, and the value of the care and labor bestowed on the destroyed trees before the burning, but the value of destroyed trees at date of fire.
    APPEAL from the First District Court, Parish of Caddo. laylor, J.
    
    
      Bell <& Randolph for Plaintiff and Appellee.
    
      Wise & Herndon for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

This is an action in damages, alleged to have been ■occasioned by the destruction of, and injury done to, fruit trees in plaintiff’s orchard in the immediate vicinity of the track of defendant’s railway.

The section hands of the defendant company were engaged in burning old cross-ties on its right of way, and fire from the heaps of burning ties caught the dry grass and rapidly communicated to plaintiff’s orchard, and the damage complained of was done before the employés and others could arrest it. This fact is not denied by defendant ; but, on the contrary, is admitted, as well as the truth of plaintiff’s averment that it was through the negligence and carelessness of the section hands that the orchard caught fire and burned.

Hence the controversy is narrowed down to a simple question of the quantum of damages. The amount demanded is $9240.

The cause was twice tried by a jury, the plaintiff having been awarded on the first trial the full amount claimed, and on the second, only $3500.

It is from this last verdict, and judgment thereon based, that defendant prosecutes this appeal.

Plaintiff’s averment of the loss and injury sustained is as follows— namely:

670 íull-boaring Caddo-chief plum trees, fully destroyed, at $12 each.....$8,040
20 ditto, damaged, at $10 each................................................................... 200
30 four-year-old Caddo-chief plum trees at....................................... 13
124 Oaddo-ehief trees grafted to other line plum trees of bearing age, at $3...................................................................................................... 620
29 full-bearing apple trees, at $10........................................................ 29>
12 ditto Chinese quince trees, at $5.......................................................... 60
lpeartreeat............................................................................................ 5
S acres of pasture grass.............................................................................. 10
Making a total of...................................................................$9,240

An examination of the record discloses the following facts substantially, as appertaining to the quantum of damages.

That plaintiff had standing in her orchard at the time of the occurrence of the fire about 3000 Oaddo-ehief plum trees that were full bearing at the time; and that that variety of plum trees was of a very superior quality and productiveness, and for the fruit yielded therefrom there was ready sale in Texas, as well as in home markets. That of these trees there were totally consumed 600 approximately —witnesses varying in their estimates of the number — and about fifty trees of a different variety. There were also some other trees that were injured, but not totally destroyed. Butin this respect the testimony is desultory and unsatisfactory.

A great deal of testimony was taken with re'gard to the quantity of fruit that was annually yielded by the trees, and with regard to prices realized in different markets. But this evidence can furnish us with no accurate idea of the value of the trees. Many witnesses were interrogated with regard to the specific value of the trees, and, from varying standpoints of knowledge and experience, they have made various estimates of their worth.

Generally, plaintiff’s witnesses placed upon them the value of $8 to $10 per tree; while those of the defendant put a much lower valuation upon them; that is to say from $1.50 to $2.50 per tree.

There is no possible way of reconciling their disparity of statement, all of the witnesses seeming to be equally honest and intelligent.

If we were to select a mien between the two extremes and adopt as the basis of our judgment, say, $6 per tree, and take 650 trees as the initial point for oar calculation, we would have the sum of 83900 for their total value. But, as this sum is not critically accurate, from a mathematical point of view, but is not materially different from that allowed by the jury, we deem it our duty to let the matter rest where it is, and affirm the judgment appealed from, and it is so ordered.  