
    NACOGDOCHES COMPRESS CO. et al. v. TEXAS & N. O. R. CO.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 26, 1911.
    Rehearing Denied Jan. 4, 1912.)
    1. Appeal and Error (§ 1051) — Habmless Ebror — Evidence.
    In an action for the destruction of a cotton compress by fire, testimony by a fuel agent of the defendant railroad as to what was the production of oil in Texas in certain years, based on information received from others, and introduced on an issue of negligence of the railroad company in using coal, instead of oil, for fuel, while hearsay, was harmless, where by his other testimony the inability of the company to procure fuel oil for its engines was shown.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4101-4170; Dec. Dig. § 1051.*]
    2. Railroads (§ 481) — Operation—Fires— Evidence.
    In an action for the burning of a cotton compress, alleged to have been caused by the negligence of a railroad in using coal, instead of oil, in engines, evidence that two other lines had, from year to year, reduced the number of their oil-burning engines and increased the number burning coal was admissible, where it was shown that such roads with the defendant formed a portion of one system of railways, and had one fuel agent for the entire system.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.]
    3. Appeal and Error (§ 742) — Assignment oe Error — Propositions.
    In an action for burning of a cotton compress, alleged to have been caused by the burning of coal, instead of oil, in the engines of the defendant, an assignment of error, in admitting testimony, on behalf of defendant, that other roads of the same system were decreasing the number of their oil-burning engines, did not support a proposition in the assignment that the court should not have permitted a witness to testify that changes were made on defendant’s road because of a belief that oil could not be secured for the operation of its engines, not being germane to the assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    4. Appeal and Error (§ 1052) — Harmless Error — Admission oe Evidence.
    Testimony of a witness who was not shown to be competent to testify as to the value of a cotton compress, charged to have been destroyed by the negligence of the defendant, is harmless error as to the plaintiff, where the verdict allowed no damages whatever.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.]
    5. Railroads (§ 485) — Operation—Fires— Instructions — Evidence.
    Where, in an action against a railroad company for the destruction of a cotton compress by' fire, evidence that the compress was adjacent to the tracks of the defendant, and that, while the officers of the compress company and those in charge knew that the engines of the defendant threw sparks onto a platform on which cotton was placed, they neither wet such cotton, covered it, nor otherwise protected it from sparks, was sufficient to support an instruction submitting contributory negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1747-1756; Dec. Dig. § 485.]
    Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.
    Action by the Nacogdoches Compress Company and others against the Texas & New Orleans Railroad Company. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    Crane & Crane and June C. Harris, for appellants. Baker, Botts, Parker & Garwood and Jacob Garrison, for appellee.
    
      
      For other cases see same topic and section NUMBER in Bee. Big. & Am. Big. Key No. Series & Rep'r Indexes
    
   McMEANS, J.

This suit was brought by the Nacogdoches Compress Company, appellant, against the Texas & New Orleans Railroad Company, appellee, to recover damages, laid at $20,000, occasioned by the destruction by fire of its cotton compress at Nacogdoch-es, alleged to have been negligently caused by the appellee.

Appellant alleged several grounds of negligence, among others the following: “That defendant railroad company failed to equip its engines with oil burners, and to use oil, instead of coal; that the fuel that it used was coal, and not oil, and that the property of plaintiff was set on fire by sparks emitted from coal-burning engines of the defendant; that if oil had been used, instead of coal, no sparks would have been emitted, and plaintiff’s property would not have been destroyed.”

Five fire insurance companies which had issued policies of insurance on the plant intervened as parties plaintiff; each alleging that the policy issued by it contained the subrogation clause, which provided, in effect, that upon the payment to the assured after loss, if the fire was caused by the negligent act of any other person or corporation, that it would be subrogated, upon the payment of said loss, to the cause of action of the plaintiff against such person or corporation causing the loss to the extent of the payment. The insurance companies are also appellants herein.

The defendant, among other things, pleaded a generar denial and contributory negligence on the part of plaintiff, in that it had not properly protected the cotton on its platform from fire, etc.

The case was tried before a jury, and resulted in a verdict and judgment for defendant, from which judgment the plaintiff and interveners, after their motion for a new trial had been overruled, have appealed.

Appellants, by their first assignment of error, complain of the action of the court in permitting the witness Stephens to testify, over their objection that the testimony was hearsay, that the Texas production of oil was, in 1905, 27,000,000 barrels, and that it dropped to 17,000,000 barrels in 1906, and was about tbe same in 1907, and then it dropped to 10,000,000 barrels in 1908. This testimony was introduced on tbe issue of negligence of defendant in failing to use oil as a fuel in its locomotives, and in using coal instead. Tbe witness, before testifying as to tbe amount of tbe annual production of oil in tbe years named, admitted, in answer to questions propounded to bim by plaintiff, that be personally knew nothing of tbe production of oil during said years. He testified that tbe railroad companies for wbicb be was fuel agent, wbicb included tbe defendant company, bad inspectors, sometimes called “oil scouts,” wbo inspected tbe oil in each oil field; that it was tbe business of tbe scouts to keep in touch with the amount of oil in tbe fields, and to report to their employers. They did not report to tbe witness directly, but to bis superiors, and bis superiors reported to him, and that it was upon tbe reports that he received from bis superiors that he based bis estimate of the production of oil for tbe years named. Tbe testimony was hearsay, and tbe objection to it should have been sustained; but, in view of other parts of tbe witness’ testimony tending to prove the same fact, viz., tbe inability of the appellee to procure sufficient oil for use as fuel for its engines,' which was not objected to upon any ground, other than not being responsive to tbe question asked, and upon tbe admission of wbicb no assignment of error is based, we think the admission of the testimony complained of was harmless, and not such an error as required a reversal of the judgment. Tbe issue upon wbicb the testimony was elicited was tbe negligence of tbe appellee to use oil as a fuel in its engines. After tbe witness Stephens bad testified as above detailed, be further testified, in answer to questions propounded by appellee’s counsel, as follows: “As purchasing. agent, and from my knowledge of tbe purchasing of oil, and from my knowledge of what it would take to supply oil for fuel in 1908, I don’t think I would have been able to supply oil to furnish all tbe engines on these lines, because we used tbe equivalent of coal in oil, 1,551,-104 barrels; that is, estimating four barrels of oil as being equivalent to a ton of coal, we did use 2,164,938 barrels. Now, if we had not used coal, it would have required 1,551,104 barrels more of oil. I don’t think we could have been able to have gotten that additional quantity of oil on tbe markets for fuel purposes in 1908; don’t think that it would have been possible.' I don’t think it would have been possible on account of the export and tbe refining propositions, from which tbe refineries and oil people make more money than they do out of crude; it would have been impossible, unless we paid some outlandish prices far in advance of coal.” We think, in view of this testimony, that appellant could not possibly have been prejudiced by tbe testimony complained of. Tbe assignment is overruled.

There was no error in refusing the* motion of appellants to strike out tbe testimony of tbe witness Connor, to the effect that tbe Houston & Texas Central Railroad Company and tbe Houston East & West Texas Railway Company, from year to year,, reduced the number of its oil-burning engines and increased the number that burned! coal, as complained of by the second assignment. It was shown that the two roads above named, together with tbe road of appellee, formed a portion of one system of railways, and bad one fuel agent for tbe entire system. Tbe testimony was admissible on the issue of appellee’s negligence-in not using oil as a fuel, and appellants’ objection that it was irrelevant, immaterial,, and hearsay cannot be sustained.

The second proposition under tbe assignment, that the court should not have permitted the witness to testify that tbe changes were made, “because we felt satisfied that we would not be able to keep our engines SO’ we could operate them with oil,” is not germane to tbe assignment. Tbe assignment is overruled. What we have said in disposing of tbe second assignment sufficiently disposes of tbe third and fourth, which assail the action of tbe court in admitting tbe testimony of tbe witness Connor, before referred to, and testimony of like import of tbe witness Rock.

By their fifth assignment, appellants-complain of the admission, over their objection, of the testimony of tbe witness E. A. Blount, as to the amount of damage done to tbe compress property by the fire; tbe objection being that tbe witness did not show himself competent to testify as to tbe value of tbe particular compress property, ñoras to tbe damage done thereto. As the verdict was against appellants for any damages, it is clear that tbe jury must have found against appellants on tbe issue of appellee’s liability; and, having found that appellee was not liable for tbe damages sustained by appellants, a consideration of tbe extent to which appellants had been damaged could not have been reached by them. We think, therefore, that if there was any error in-admitting the testimony the error was rendered harmless by the finding that appellee was not liable for any damages at all. The assignment is overruled.

The sixth assignment complains of the following paragraph of the court’s charge, submitting the issue of appellant’s contributory negligence: “You are further instructed that if you believe from the evidence that the plaintiff, or its agent or employés, placed cotton where it was burned, and where the fire started, and that same was not protected, except by the roof of the building or shed, and if you find that the placing of such cotton at the place where it was burned, and where the fire first ignited, and so leaving it there, covered by nothing but the roof, was such an act of omission as a person of ordinary prudence would not have done, in view of the probable danger of the fire from passing engines, if such danger was probable, and if you further find from the evidence that such placing of the cotton there and leaving it uncovered was the proximate cause which, concurring with the negligence of the defendant, if you find the defendant negligent, produced the fire which destroyed the property described in plaintiff’s petition and damaged the other property therein described, then the plaintiff was guilty of contributory negligence, and you would find for the defendant, without reference to and notwithstanding any negligence of which the defendant may have been guilty.”

It is contended that the issue of contributory negligence was not raised by the facts, and that the court erred in submitting it to the jury. The testimony showed that the compress was adjacent to the tracks used by appellee company; “that it had a large wooden platform, covered by a metallic roof, which came down to within 10 or 11 feet of the floor at its outer edge. The cotton that caught on fire was standing up on end on this platform, and was burning on top. The Nacogdoches Compress Company owned the ground on which its platform and compress stood. The witness again repeated the cotton that was on fire was under the shed— that is, on the covered part of the platform —and the cotton bales stood on their ends. There were several feet of space between the top of the bales of cotton and the roof. The compress was not being operated at the date of the fire. The manager of the compress knew that the Texas & New Orleans engines threw sparks. The compress had been cleaned up on Friday night before the fire. The fire was on Monday. The plaintiff kept a watchman at night Usually at noon Mr. Naaman and the manager, witness Jones, went to lunch at different hours, so as to keep one of them there all the while. The witness had known cotton to be set on fire by the engines on the platform of the compress, however, but none under the shed.”

In this connection, Roland Jones, who was general manager of the compress company, testified: “It was an everyday occurrence for the T. & N. O. engines to be switching around and near the press during the time I was operating same. Those engines, in switching, emit sparks and cinders. I could not say positively the number of engines that threw out sparks and cinders, but they all spit sparks and cinders sometimes. You could find cinders on the platform as large as the end of your finger. I know that the cotton at the compress was very inflammable. I knew that it was easily ignited; that the cotton that was next to the track was exposed to the track. I knew there was danger of that cotton being set on fire. I had known that for some time, and knowing that we had the cotton in that position on the platform where it could be easily ignited from sparks, I left it there, knowing that fact. In using that machinery down there, there was naturally a good deal of oil around there. During the operating, there was a good deal on the cotton and loose bagging hanging around there, but not after the operating season. There was not during the fire. At the time of the fire, the press was in pretty clean condition. We cleaned it up the night we quit running. That was Friday night before the fire. We did not sweep down the loose cotton. I had seen engines pass there and throw sparks. I knew that; I knew that at the time I left the cotton exposed there. I did not know about what time the trains came in there during the day. I know that, prior to the fire, I had seen these engines throw sparks. I knew all of these facts. I did not have any water setting around on that cotton. I did not have the cotton protected with any cover or anything. I did not have the cotton sprinkled, or dampened, or anything of the kind.”

We think the evidence was sufficient to raise the issue of contributory negligence, and that the charge complained of was required by the facts proved. The assignment is overruled.

We have examined the other assignments of error urged by appellants in their briefs, and are of the opinion that no reversible error is pointed out in any of them. The judgment of the court below is affirmed.

We have carefully considered appellee’s motion to strike out the statement of facts filed in this court in this case, and have concluded that the same should be overruled, and it is so ordered.

Affirmed.  