Gulf, Colorado & Santa Fe Railway Co. v. Witte

Citations

• 68 Tex. 295
• 4 S.W. 490
• 1887 Tex. LEXIS 684

Syllabus

<p>1. Damages—Burning by Railways.—When combustible material is left by a railway company on its right of way, which is ignited by sparks or cinders emitted from its passing train, and injury to adjacent property is caused by the spread of the fire, the company is liable in damages unless it is shown that it was not guilty of negligence. To avoid such liability, it is not sufficient alone to show that the best machinery to avoid accidents from fire were used on the train. It must show the full exercise of due care to avoid causing injury by fire.</p> <p>2. Pleading.—Under our system of pleading and practice it is neither necessary to set forth or prove the exact time at which a cause of action accrued, or to state the same in the petition under a videlicet.</p> <p>3. Argument op Counsel.—In an argument on the trial of a suit against a railway corporation for damages, the counsel for appellant said, that the people were too much given to ask big rewards against a railroad, and that the juries of the country were inclined to give them all they asked. Appellee’s counsel afterwards, in the course of his address to the jury, said: “Not a man in McLennan county would not dread suing a railroad as he would fire; they are backed by their employes, and have engendered prejudice because they are careless of the rights of the people. This suit was commenced by Witte; he has died during its pendency. The railroad postpones suits against it so indefinitely, until, in this case, the grave closes over the original plaintiff, and the widow is left to prosecute. Defendant is a powerful corporation, and as long as it has you in its power it will squeeze you like a lemon, but when seeking a favor it is suppliant and good”—held:</p> <p>(1) Though the language of appellee’s counsel was clearly improper, it could not, in view of the facts, have so seriously affected the rights of the appellant as to require a reversal.</p> <p>(2) The language complained of was retaliatory, and invoked by