Texas Pacific Ry. Co. v. Levine , 87 Tex. 437 ( 1895 )

The judgment from which the writ of error is sought in this case was for the value of cotton alleged to have been burned by fire set by an engine on defendant's railroad. The application must be refused, and in doing so we have thought it best to specify the reasons for our action as to one ground of error assigned.

Plaintiff in error claims that there was no evidence of negligence on the part of the defendant, and that the court erred in submitting that issue to the jury. If this contention as to the evidence is sound, the application should be granted. It is the established law in this State, that when fire is set out by sparks from an engine on a railroad the law presumes negligence, and the plaintiff is entitled to recover for damages done by the fire so set out, unless the railroad company shall prove that its engine was provided with the best approved apparatus for arresting sparks and preventing their escape, and properly operated. In other words, the proof that the fire which destroyed plaintiff's property was set from an engine on defendant's railroad made a prima facie case upon which he was entitled to recover, in the absence of proof by the railroad company required to rebut the presumption. Consequently the question as to negligence or not becomes a question of fact to be determined upon the evidence. The credibility of the witnesses and the weight to be given to their evidence are matters to be decided by the jury. It is apparent, therefore, that it can not be said that there is no evidence of negligence, when the evidence is such as to give a right of recovery if not rebutted. This being the case, it is not within the power of this court to determine the issue made by the evidence; it is a question of fact, and no matter how overwhelming the rebutting evidence may be, the Constitution and laws of the State have denied jurisdiction to this court.

We would not be understood as asserting that a jury may with impunity disregard evidence and find against it, but the authority to set aside a verdict in such cases is vested, first in the judge of the District Court, and secondly in the Court of Civil Appeals.

However much we might differ with the Court of Civil Appeals as to the effect of the evidence in this case, we must, in the exercise of the jurisdiction conferred upon this court, abstain from assuming authority delegated to that court.

The application for the writ will be refused.

Application refused.

Delivered January 21, 1895.