
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. AREY.
    (No. 2781.)
    (Supreme Court of Texas.
    Nov. 10, 1915.)
    1. Negligence <@=>68 — Anticipation—Maxim.
    It is a maxim that no one is boun'd to anticipate another’s negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 92, 94, 95; Dec. Dig. <@¿>68.]
    2. Railroads <@=3460 — Operation — Fires — Contributory Negligence of Owner.
    Where the owner of a barn adjacent to a railroad right of way left a window therein which faced toward the railroad open, and the interior of the structure littered with loose oat straw, his contributory negligence in so doing debarred any recovery by him against the road for destruction of the barn by fire caused by the ignition of the straw by a spark from defendant’s locomotive carried through the open window.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1681; Dee. Dig.. <@=>460.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by G. E. Arey against the St. Louis Southwestern Railway Company of Texas. Judgment for defendant was reversed and remanded by the Court of Civil Appeals (170 S. W. 802), and defendant brings error.
    Affirmed, with instructions.
    E. B. Perkins, of Dallas, and Crosby, Hamilton & Harrell, of Greenville, for appellant. Robt. F. Spearman, N. E. Peak, and Evans & Carpenter, all of Greenville, for appellee.
   PHILLIPS, C. J.

The suit of the plaintiff in the trial court, G. E. Arey, the present defendant in error, was for the recovery of damages on account of the destruction of certain property, a barn and its contents, charged to have been due to escaping sparks from a passing engine of the railway company. The barn was upon premises near the railroad track, leased by the plaintiff, the barn itself being 108 feet south of the track. The track extended in a northeast and southwest direction. This situation placed the west side of the barn toward the track. In that side or end of the bam were two windows opening into a crib in the lower story, and one window, about three feet square opening into the loft. These windows were left open-, having no shutters or covering of any kind. The plaintiff had placed a ton of baled oat straw in the loft near the window, and had used about half of it at the time of the fire. In feeding the oat straw loose straw "had become scattered and banked up in the crib and stalls, and probably in the loft. The wind at the time was blowing from the railroad toward these windows; and, if the fire was caused by sparks from a passing engine, they must have been blown through the windows.

Contributory negligence on the part of the plaintiff was pleaded by the defendant, and in the court’s charge the issue was submitted to the jury in the following form.

“You are further charged that plaintiff, in the use of the barn and lot and his property therein, and in regard to openings and the accumulation of combustible materials, is required to use ordinary care to prevent its destruction or injury, such care as a person of ordinary prudence would commonly exercise under like circumstances ; and if plaintiff failed to use such care) and if such failure, if any, caused or contributed to the injury or destruction of plaintiff’s property, then plaintiff cannot recover.”

A verdict in favor of the railway company was rendered.

The honorable Court of Civil Appeals for the Fifth District, in an opinion rendered by its learned Chief Justice, reversed the judgment; one of the grounds of its action being the submission of the issue of contributory negligence. In so doing it expressly overruled its previous decision in Railway Co. v. Crabb, 80 S. W. 408, a case of practical identity in its facts with the present one. Its holding, as we gain it from the opinion, is that in cases of this character — the destruction of property on premises in lawful use, adjoining or near a railroad track, by fire caused by sparks from a railroad engine —the doctrine of contributory negligence is out of place, and that question cannot arise; a principal authority relied upon being Le Roy Fiber Co. v. Railway Co., 232 U. S. 340, 34 Sup. Ct. 415, 58 L. Ed. 631, in which a proposition to that effect is announced. We do not subscribe to this broad holding, either upon- principle or authority. It subverts, in our opinion, the fundamental doctrine of the law that no man should benefit from his own wrong. It affirms, in substance, that while other men are held to the duty of exercising ordinary care to prevent injury either to their persons or property, and will be denied the right of recovery for such injury if it was proximately contributed to by their want of such care, the owner or lessee of premises adjacent to a railroad track, because alone of their use being lawful, is wholly exempted from that duty. It furthermore declares that a right denied, generally, to others will be allowed him, however careless or reckless, or even deliberate and intentional, was his exposure of his property to the danger. The proposition does not commend itself to sound reason, and cannot, in our judgment, be sustained.

It is unnecessary to here restate that the owner of premises has the full beneficial right to their free enjoyment for all lawful purposes; for it has often been unmistakably so declared by this court. It is a right which is not limited by another’s use of his property; nor is it subject to the servitude of another’s wrongful use of the premises. That the owner is not bound to anticipate another’s negligence is also true; as it is likewise true of men, generally, in the use of their property and the conduct of themselves. But the doctrine of contributory negligence is not related to these considerations, and is not defeated by them. It is founded, as has been said, on the mutuality of the wrong, the impolicy of allowing a party to recover for his own wrong, and the policy of making personal interests of men dependent upon their own prudence and care. It recognizes that one’s use of his premises or his property, as well as his conduct, may be perfectly lawful,' and also that in either using his property or in his conduct he is not bound to anticipate the negligence of another. But it declares that, notwithstanding this, a man may not court or invite injury to his person or property. And, furthermore, it affirms that, when faced with danger to either his person or his property, he is under the duty of using the care that a man of ordinary prudence would use under the same circumstances to avoid an injurious consequence to himself. It proceeds from the rule of conduct which actuates men in general, from the natural law- which prompts them to self-preservation, that no man of common prudence, no matter how wrongful the act of another, or lawful his own conduct and the particular use of his property, will stand by and suffer injury from such act, either in his person or property, without an effort to prevent it; and therefore all men, as a rule of action, to avoid such injury, ought to use the care that such a man would exert under like circumstances.

While, in general, negligence cannot be predicated upon an owner’s lawful use of his premises, that is, the mere fact that he makes use of them for his home, his business, or pursuit, though in proximity to other premises whose equally lawful use creates a danger to neighboring property, as in a case like the present one, a man may have under lease premises near a railroad track over which pass engines, from which live sparks customarily escape, even in the exercise of ordinary care by their owners, causing constant apprehension of fire, and, because his use of the premises is rightful, be exempt, as a rule, from any charge of negligence for merely maintaining thereon his residence, his barn, and other structures, and devoting them to their usual and proper purposes, will it do to say that under no circumstances will his use of the premises, or the location of his property upon them, be negligent? Will his right to damages be countenanced in a court, though, in truth, he may aid in the destruction of his own property by rashly or purposely exposing it to the hazard? That is the question here. An affirmative answer to these questions must be given in the future administration of the law by the courts, if it is to be held, as is stated in Le Boy Fiber Company v. Railway Company, that in cases of this nature the doctrine of contributory negligence is entirely out of place; and in such holding it will further have to be said, as to such cases at least, that the law is no longer an influence for prudence and care in the conduct of men.

It is not a question of the lawful use by an owner of his premises. It is a question of his negligent use of them, and the legal consequence of such use when it is directly responsible, in whole or in part, for injury to the owner’s property. If others, in the lawful use of their property, are required to exercise ordinary care to prevent its negligent injury or destruction, what is there in the situation of an owner or lessee of premises like these that creates for him a different rule? It clearly does not lie in the fact that his use of the premises is lawful. Nor does it rest in the maxim that no one is bound to anticipate another’s negligence; for that is a principle of general application. No other ground for the distinction is advanced in the authorities which affirm the proposition. It is not believed that any other can be urged; and neither ground, in our opinion, is sound.

Of more importance than this conviction is the fact that the question has been definitely settled in this court in two comprehensive opinions, distinguished for their reason and clearness, rendered by Chief Justice Stayton, one of the ablest judges in its history, Railway Co. v. Levi, 59 Tex. 674, and Martin, Wise & Fitzhugh v. Railway Co., 87 Tex. 117, 26 S. W. 1052. We have no inclination to overrule them, as reluctant as we are to differ from the honorable Court of Civil Appeals or any of the authorities to which it refers. Both were eases where cotton had been placed upon premises contiguous to a railroad track. In the first the baling of the cotton had been cut, or it was badly baled, rendering it more exposed to fire than if well baled; and the other the cotton was placed near the track without covering over it. In the Martin, Wise & Fitzhugh Case a question certified for the court’ answer was as follows:

_ “If the railway company knew of the situation of the cotton, and by the exercise of ordinary care could have avoided setting fire to it and destroying it, would the fact that it was negligence on the part of the compress company to place the cotton in that position, uncovered, permit a recovery against the railway company?”

In response to the question the court said:

“To hold that the knowledge of the railway company of the situation of the cotton would fix liability on it, if its employés failed to use ordinary care for its protection, although the compress company, the representative of plaintiffs, knew the same fact, and also failed to use ordinary care in view of the surroundings, would be, in effect, to hold that the railway company was under obligation to use greater care for protection of the cotton against fire than were its owners.”

In the Levi Case the trial court had given the following charge:

“You are instructed that plaintiffs had a right to place their cotton upon their cotton yard, and in so doing they would not on this account alone be guilty of negligence, although said cotton yard was in close proximity to defendant’s roadbed.”

In the course of the opinion, after speaking of the impracticability of preventing entirely the escape of sparks from locomotives, it is said:

“It is true that a person owning or renting property near a railway is entitled to use such property; but the greater the degree of exposure to injury from such proximity the greater degree of care should be exercised by such person to prevent injury from causes for which a railway company will not be responsible, because impracticable to prevent them. What constitutes negligence sometimes may be a matter of law; but whether it exists in a given case is a question of fact for the determination of the jury, in all cases where there is a conflict of evidence, or the facts are disputed; and in no case submitted to a jury, where the facts are contested, or even where the evidence admitted to be true is of such character that different, well-organized minds might honestly arrive at different conclusions as to whether a person had or had not used due care, should a jury be instructed that an act does or does not constitute negligence. But there are cases in which, as matter of law, there being no controversy about the facts, in which a court would be authorized to instruct a jury that a given use of property was not negligence, when considered with reference to a specific use to which contiguous property is lawfully appropriated; as, for instance, if the appellees had .been using the open yard in which the cotton was stored for the purpose of storing iron, stone, brick, or other noninflammable material, which, however, may be injured by fire, the court, with reference to an injury caused by sparks from a passing locomotive, might instruct a jury that such use was not negligence. If the same lot was used as a lumber yard, in which to store plank and other inflammable material, it would be a question of doubt as to whether such use, reference being had to the use to which contiguous property was lawfully appropriated, was negligence or not.
“So, in the use of a yard contiguous to a railway track, for the purpose of storing baled cot-1 ton, which, as matter of common knowledge, is inflammable, and easily ignited, when it is shown that contiguous property is lawfully used for a purpose from which it * * * results that the cotton will be subjected to some danger from fire, it might be doubtful if the storing of baled cotton in such a place was a prudent act, and the question should be submitted to the jury.
“If cotton badly baled, or of which the baling had been cut, which seems to have been the case with the cotton injured, for the purpose of sampling it, and thus more exposed to fire than if the cotton was well baled, it would become more doubtful still if such use would be a prudent use, and hence the greater necessity for leaving the entire question of negligence to the jury, under all the evidence. * * *
“If we take an extreme case, and suppose that, instead of using the yard in which the cotton was stored for that purpose, the appellees had used it for a powder, magazine, in which, without any covering, they left open kegs of gunpowder, then, if it be admitted that such was the case, and that locomotives were passing within a few yards of that place frequently, and that therefrom sparks would escape which might reach such explosive, even with the exercise of that care required by law of a railway company to prevent injury to contiguous property by fire from its locomotives, the court might instruct the jury that such use was not a prudent use; but if there was a controversy as to the facts, even in such a case the whole matter should be left to. the jury. Wharton on Negligence, 420, and citations.”

There can be no doubt, under these authorities, that in the present case the question of whether the plaintiff was guilty of contributory negligence under the circumstances shown was one for the jury’s determination; and the submission of the issue by the trial court was therefore proper.

The judgment was reversed by the Court of Civil Appeals upon other grounds, as well, presenting questions over which its jurisdiction is final. Its judgment reversing the trial court - judgment and remanding the cause will therefore stand, and is affirmed, with instructions that upon the further trial of the ease this opinion be followed in respect to the issue of contributory negligence.

Affirmed, with instructions. 
      <@csoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     