Houston T. C. R. Co. v. Eaves

RAINEY, C. J.

Appellee J. C. Eaves sued the appellant to recover damages sustained from the loss of a certain cotton seed house, and other property situated on the right of way of appellant, caused from a fire negligently set out on the right of way by appellant’s servants.

Defendant answered by general denial, and specially that plaintiff was holding the premises under lease from one Allen, which was then in force, of which plaintiff was assignee, and by the terms of said lease it was agreed that Allen was to assume all loss and damages caused by the negligence of said railroad company to said property, and the said Allen was vouched in by appellant, and judgment- was asked over against Allen in the event it had to pay for the destruction of said property.

Allen pleaded a general denial and interposed other defenses.

A trial was had without a jury, and judgment rendered against the railroad company in favor of plaintiff, and also in favor of Allen.

There is no error presented that requires a reversal of this cause. The evidence shows: That appellant’s servants were negligent in setting fire to the grass on the right of way when a strong wind was blowing, and in not watching and preventing the fire from burning plaintiff’s house.

(2) That Eaves was in no way liable for the destruction of the house. He was not holding under Allen nor in privity with the contract between appellant and appellee Allen.

(3) Allen is not liable to appellant on the contract between them. The contract by its terms leased the right of way to Allen, and Allen assumed all risk of appellant’s negligence for loss by fire to the property on the right of way leased by Allen. The house of Eaves that was burned was situated on one end of the right of way, and was then and there owned by another when Allen entered into the contract of lease, and he was never in possession of said house. The appellant had never put him in possession of said house, and therefore he was not responsible, under the contract to said appellant, for the burning of the house.

The judgment is affirmed.