MISSOURI PAC. RY. CO. fl. TEXAS <It P. RY. CO.
917
take nothing on that score. And on the whole case, as made by the eVI' dence, I am of the opinion that the master's report, so far as the cattle in question are concerned, should be sustained. It seems that, in the shipment of stock, there were three car-loads of horses, all of which arrived at the destination, and were delivered in good condiiion, except two, which were short. 'rhey are not accounted for in any way by the evidence in the case. Their value, from the testimony of witnesses, runs from $30 to $50 each. I think $75 for the two would be a fair valuation. This amount the intervenor should recover. The master's report will be so amended as to recommend payment of $75 to the intervenor for the two horses 'claimed, 'and thereupon all exceptions will be overruled, and the master's reported confirmed and. approved. The costs of the clerk, marshal, and special master, in and about this intervention, will be paid by the receiver. The master's compensation is fixed at 675.
MISSOURI
PAC. RY. CO.
11.
TEXAS & P. Ry., Co. (Boss .venors.) April 111890.)
ec
al., Inter-
(O(,/,cuitOowrt, E. D. Louisiana.
1.
&:rLROAD. FIRlI:s-NEGLIGENCE-PRoPER ApPLIANCES.
When damage has been cau.sed by sparks from a locomotive, in order.to rebut the presumption (If negligence on the part of the railroad comJ:lany it must be sllown not only that the locomotive was equipped with the most approved appliances in the way' of a spark'arrester,· but a.lso that it was operated by a skillful engineer, in a careful manner. \
S.
SAME-EVIDENCE.
A locomotive which throwuparks to the height of 50 feet, and to a distance of 100 . to 150 feet, is not equipped with a proper spark-arrester.
In Equity. On exceptions to the master's report. Interventions of John Boss, T. W. Wilson, W. J. Kuykendall, G. W. ,Ramsey, L. P. Cosens, W. J. Worder, E.S. Boone, and A. Leeson. W. S. Benedict and H. L.· BtmUey, for intervenors. Howe & Prtmtias, for defendant. PARDEE, J. These interventions are all for damages caused by nre on the night of the 6th of August, 1888, originating from sparks from an engine operated by the receiver Oll the line of the Texas & Pa,cHic Railway. There does not seem to be much doubt under the evidence that the fire was caused by sparks from tbe erigine No. 55, pulling a freight train operated by the receiver. The master reports asfollows: pliancesan!i proper in8pectionof its engines; but the master, upon a careful ..examinationol all the testimony., is of the opinion tbattbe prima fadieease by. the proof of the origin of tires by showing that it, bad used all pl'Oper ap-
"The defendant attemfltedto rebut the prima facie case of negligence raised
,FEDERAl:., RlilPORTER,
vol. 41.
raised has not the negligence oHhe defendants was the llJ'oximate of fires proved."" In the caseol Railway Oo.v.Benson,'69 Tex. 407, '5 S. W. Rep. 822, the supreme 'couif,adopts the opinion ofthe'commissiol1 announcing the following rules with regard to'.firescausedby;raihvay locomotives: , ,. When property situate contiguous to the righ,t of wa1of, a railroad companyis but'ned by sparks emitted from the compally'slocomotiveengine passing over the road;, which ignite the dry grass on the right of way, and in., jury' results in a suit fqr damages brought by the injured party, the burden of ,proof,is on the rail,way company to show that, tht'l'e was no negligeril;le." "burden of proof is, however, when the com· it was using at the time, and upon pany sliows by, UI;Idisputed evidence the ve'ryengineln.'question, the bes'lJ'and- most approved mechanical appliances known and in use to prevent, the escape of fire from its engine and' sparks from thtl sllil>ke·stllck, same were in. good'repair and condi· ]nllnner." tion, and were operated by a skillfui engineer in a Witnesses for the intervenors swear, and there is no contradiction, that the at the time alJ,d. plll.Ce in question, threw out sparks and fire to a height of 50 or more feet, and to a distance of 100 to 150 feet. The evideuc!l with regard to the condition of the engine and its inspec. tion as fQlll>WfiH, ' " r " William Keefe. for the "I was employed on the Big Spring section aboutAugnst 6th, last, in the capacity of inspeot01"ot boiler shops·. ,J,l&1D supposed 'to know the condition of ever,. engine that comt>s into the shops, in regard to ash-pan, etc. I ex· ami ned the engines fnnning on this. division between Baird and Toyah,Rnd these engines: ,were the ones that passed Trent. Remember engine No. 55 lie.. "',To the best O!,lDy'Qe!tef, the on engine lfs,along.abont the eady part of, AU,gl'lJt last, was in iQOd condillon: because none leave the shops unless they are that way. It is my duty to stop them unless they are'in condition·.' same kind of spark-al'rester Was used dO that engine that 'is them.. This engine has no extension front on her; she has got thl:! diamond stack; Have been t>mployed .in working arollnd locqmotives the Wth day of January, 1866. and! have · w9rked onthreedifferent roads.' for oneraad 'fof eighteen and a one three'lbon'ths j and I am' here very nearly five half yearll, apark.arrester nsedon enlline 55, as comyears. ' As regards, the lise, allY finer netting on pared with other any road that I have ever been with. As <);l,lality ofspark·arrester, I don't believe! have ever sel'n any better on any road than on this road. This 55 was a diamond stack; the extensic;m front is the improvement. The extensionfroutwas:ililed on Mba-roads thaU:!'was connected with came here, but they half arid balf. If the netting' diamond Js in good conditiQlh it :won't allow Bllyfire to escape that do You little bit fly up. 1fI sawall stackpassillg by me oltha T. & l'. road, arid saW escaping In 'flying ten and ft*!t'above theclilltfney, as to whether thespatk-attester was 'In p;ood condl· tion or bad condition would be altogether OWing to the kind of fuel they had in If I knew,shewa! ,bI'1rningDOthing:bnt coal, I would, say she waS: ,CQuditioD. Anyb04yknows:theve are more spal'ks come troma woQllfl,re, than coal; thel'e is more danger in burning wood. r would ,saysbe wood·.if, high:as ten or fifteen
TOWltiSJi}ND V.
'919
-:feek; n, I saw an engine was bIowing'Ollt numbers of I would not know Whether. it had It poor spark.. 0): a good one, in pretty fair,sJlap.e; it would not bea firl!F-class spark.arrester to permltth<lot sort of thing. but it might bea mediull/o,qne. I do, not personally go arotihdevery dlloY to inspect every spark-arrester that comes in that a man that goes around to inspect them, and when I have any ideii;tllitt:they have got in 1m,: bad conditioll,I inspect them myself,. 'It is too' long ago for rne ,bosay 1f inspected 55. Don't know who ,inventerltlle diamond stack llpark.arrester. It ;is considered that the exten,lli()n is a saVing of f\lel. are used on tris road, to tl1ebel,'lt of' my they are aboll t eq ually di vided Baird and considered equaUygood spal'k.arrestets, but the extension front " , as to engine was ,time ,In questl.on. .!f, the is estapenglll,e No. 55 was eqlllJ>ped the most appro,:ed 'In ;tbe way of. and, that same was ragaeyery left it to.reunder ;above not shovrn , tbat ,tp,6, operated by a and .in ,a ,m,anQer.,; , .''.' , :" r , ' ev.idenoo is u.D,con.tradieted. that th'e engine , helgb.t,_,H9,t, ,50,",', ",fee,t,',' h1C,h,," w" ;ca. n,ed, a di,sta,. r ,o"r. 1.00 ,teet from "th.,.,e rO.ad,.ltlsfll.lr to. presume" the testimony, pf X{eefe above quoted, that. tPJ, .sp,ark-arrest.ef. order,. and: engine was erated lD a careful .. None of the emplqyes on, the train 1n the Clise., " :"""" ,. 'On tlJe case, I agree withtbe repQrUlwllJ ,be,confirmed·
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'TOWNSEND 'tl. LANGLl!:S.
(Oircuit Cowrt, E. D.
Louiriana.
April 11,18llO.)
L MAsTJm
''lnan ootion by an employe for inju,ries rllC(livec1 from maohinery, the peotItton al· legell that his hand WBS, by oogo·wheels while,he was ,brushing them off, and that he .\Vas iiiexperienced'in hlLndling machinery, add (Uti not know and had IJ,ot been llold of the danger·· Held, that heoould notrecover·..as the danger was apto the employment. parept, and In such an' action, the failure of the employer to 'provide coverings for the CoBwheels is notnegligenoe per Be. ' , ,j
AND SERVANT-NEGLIGENCE-DANGEROUS ElIIPLOnfENT.
SAME-ExPOSED MACHINERY·.
At Law. 0n exception to the petition·. ' '" Aotion by Jobn Townsend against Justin J. Lll.ng1es. ,B. F. l'brman and L. plaintiff.,::
J.
!I
