By this suit Malissie Moss sought to recover of the defendant the value of certain household goods destroyed by a fire set by sparks from one of defendant's engines. The specific negligence alleged was the use of unsuitable and defective spark arresters. *Page 463
The defendant answered by general denial. A trial by jury resulted in a verdict and judgment for plaintiff for $400 from which defendant has appealed.
The errors assigned which we deem it necessary to notice are, in substance, (1) that the court erred in submitting as grounds for recovery the overloading and negligent handling of the engine, the issue not being presented by the pleadings; and (2) the insufficiency of the evidence on the issues of the value of the property destroyed.
We think each of the assignments should be sustained. The plaintiff chose to allege that the specific cause of the fire was the negligence of the company in failing to provide and keep in repair suitable spark arresters. Under this allegation she was confined to the issue thus made, and it was error to submit as ground for recovery other grounds of negligence not covered by the pleadings. Gulf C. S. F. Ry. Co. v. Johnson, 28 Texas Civ. App. 395[28 Tex. Civ. App. 395], 67 S.W. Rep., 182; Gulf C. S. F. Ry. Co. v. Pool, 10 Texas Civ. App. 682[10 Tex. Civ. App. 682]; Johnson v. Railway Co., 27 Texas Civ. App. 616[27 Tex. Civ. App. 616], 4 Texas Ct. Rep., 24.
The only evidence as to the value of the property destroyed was the purchase price payable in installments. While the cost of property is admissible as a circumstance tending to show value at the time of destruction, we do not think it is sufficient, standing alone, to furnish the jury a basis for a verdict.
In view of another trial it is proper also to notice the complaint that the court imposed on the defendant the burden of proof to show by a preponderance of evidence that it was without negligence in the respect complained of, after the plaintiff had shown that the fire was set by sparks emitted by defendant's engine.
We understand the rule to be that when plaintiff thus makes a prima facie case it devolves on defendant to rebut it, but the burden of proof on the whole case does not shift. Gulf C. S. F. Ry. Co. v. Johnson, 92 Tex. 591.
The other matters complained of, if error, are not likely to recur upon another trial, hence we do not dispose of them. For the errors indicated the judgment is reversed and the cause remanded.
Reversed and remanded.