This suit was brought by appellants against appellee to collect about $10,000 alleged to be due on account of the burning of cotton belonging to appellants, situated on the compress platform at Hillsboro, Tex., on January 16, 1908. The facts will appear from the findings of the jury on special issues, and from the evidence hereinafter referred to in this opinion. The court submitted the case upon the following special issues, which were answered by the jury at herein indicated:
"(1) Was any cotton belonging to the plaintiff damaged or destroyed by fire on the compress platform at Hillsboro on or about the date alleged in the petition? A. Yes.
"(2) Did the fire in which said cotton was damaged and destroyed, if you have found there was a fire, originate from the defendant's engine? A. Yes.
"(3) Did the defendant company exercise ordinary care to equip its engine No. 192 with the most approved appliances in use for arresting sparks and preventing the escape of sparks from said engine? A. Yes.
"(4) Were the appliances, if any, in said engine, which were designed to arrest the escape of sparks of fire from said engine, in good repair at the time the cotton was burned, if you have found it was burned? A. Yes.
"(5) Had the defendant railway company exercised ordinary care as that term is hereinabove defined to you to have the appliances, if any, designed to arrest the escape of sparks and fire from said engine in good repair? A. Yes.
"(6) Did the agents and servants of the defendant company in charge of its engine No. 192 use ordinary care as that term has been defined to you herein in operating the *Page 1026 engine No. 192 to prevent the escape of fire therefrom? A. Yes.
"(7) If you believe from the evidence that the defendant company switched and propelled several cars attached to its engine No. 192 on its track and switches near the compress platform on the day of the fire, if there was a fire, and that the switching that was done, if any, on the compress switch, was done from the north end of said switch, then please say whether the servants and employés of the defendant who did the switching could have done the same without going in from the north end of said compress switch? A. Yes.
"(8) Were the employés of the defendant company who were in charge of engine No. 192, and who were doing the switching, guilty of negligence in doing the switching from the north end of said compress switch? A. Yes.
"(9) If the defendant company was negligent in doing said switching from the north end of said switch, then say whether said negligence, if any, was the proximate cause of the plaintiffs' cotton being burned a it was burned? A. No.
"(10) On what date did the fire occur, and what was the value of plaintiffs' cotton which was destroyed at that time? A. January 16, 1908; $10,105.61.
"(11) Were the plaintiffs guilty of contributory negligence in permitting their cotton on the platform where it was burned under the conditions surrounding it at the time? A. Yes.
"(12) Was plaintiffs' cotton in imminent danger of catching fire? If so, did defendant's employés in charge of its engine discover said danger before said cotton took fire? A. Yes.
"(13) If plaintiffs' cotton was in imminent danger, and if defendant's employés in charge of the engine discovered said danger before the fire, could they, by the exercise of ordinary care after discovering said danger, have prevented the fire? A. No.
"(14) If plaintiffs' cotton was in imminent danger before the fire, and if such danger was discovered by the defendant's employés in charge of its engine, then say: (a) Did said employés use ordinary care to prevent the fire, after discovering the danger? (b) If you find that they did not use such care, then was there a (their) failure to do so, it any, the proximate cause of the fire? A. Yes."
Upon the verdict as above indicated, the court rendered judgment for appellee.
1. Appellants assign error upon the finding of the jury as being inconsistent. We think that they are, but it does not necessarily follow that a case submitted on special issues should be reversed on account of inconsistent findings. If, looking to such findings as a whole, the court could say that some of them, in view of other findings, were immaterial, such immaterial findings should be disregarded.
2. On the issue of the burden of proof, the court charged the jury as follows: "The burden of proof is on the plaintiff to show that the cotton was burned from fire emanating from the defendant's engine. If the plaintiff has shown by a preponderance of the evidence that the fire which damaged or destroyed the cotton came from the defendant's engine, then the burden of proof is on the defendant to show that it used ordinary care to equip its engine with the latest and best appliances in use for the prevention of the escape of fire, and that such appliances were in good repair, and that the engine was properly handled, and if the defendant had shown by a preponderance of the evidence that it used ordinary care to equip its engines with the latest and best appliances in use to prevent the escape of fire, and that said appliances were in good repair, and properly handled, then the burden of proof upon all the other issues submitted to you is upon the plaintiffs." Error is assigned upon this charge, that it placed the burden of proving the absence of contributory negligence on the plaintiffs. We sustain this assignment. Contributory negligence was an issue in this case under the pleadings and the evidence. The jury found that appellants were guilty of contributory negligence. We cannot say under the evidence that contributory negligence was shown as a matter of law, nor can we say what would have been the verdict of the jury on this issue but for this erroneous instruction.
3. The court gave the following, among other, instructions to the jury: "If the plaintiffs' cotton was in imminent danger of catching fire, and defendant's employes in charge of the engine discovered said danger, it was the duty of such employes to avoid burning the cotton, if it could be done in the exercise of ordinary care, and a failure to use such care after a discovery of the danger would be negligence, and if such negligence, if any, was the proximate cause of the burning of the cotton, the defendant would be liable, although the plaintiffs were negligent in exposing the cotton to the danger." Both appellant and appellee contend that this paragraph of the charge is erroneous; the counter proposition of the appellee being that "the doctrine of discovered peril cannot be applied to inanimate property." We might content ourselves with saying that there was no error in this charge, such being the opinion of the majority of this court, but for the earnest insistence of the appellee that this point has never been decided, and that it is of great importance to the railroads of Texas that it be settled.
4. By the doctrine of discovered peril, as here used, is meant that where the danger of inflicting an injury is discovered by the party inflicting the same, in time to *Page 1027 have prevented such injury by the exercise of proper care subsequent to such discovery, and injury occurs as the proximate result of subsequent negligence, the party inflicting such injury will be liable therefor, notwithstanding the previous negligence of the party injured, and but for which the injury would not have occurred.
5. This principle of law is well settled in personal injury cases. Railway Co. v. Breadow, 90 Tex. 30, 36 S.W. 410; Railway Co. v. Staggs,90 Tex. 460, 39 S.W. 296; Railway Co. v. Wallace, 21 Tex. Civ. App. 396,53 S.W. 78; Railway Co. v. Smith, 52 Tex. 184; Railway Co. v. Lankford,9 Tex. Civ. App. 596, 29 S.W. 935; Railway Co. v. Robinson,4 Tex. Civ. App. 125, 23 S.W. 433.
6. In no class of cases has the principle involved in the doctrine of discovered peril or danger been more frequently applied than in suits for damage to live stock. Railway Co. v. Hauks, 78 Tex. 303, 14 S.W. 691, 11 L.R.A. 383; Railway Co. v. Cocke, 64 Tex. 158; Davies v. Man, 10 Meeson Wesley, 545; Kerwhaker v. Railroad Co., 3 Ohio St. 172, 62 Am.Dec. 246; Isbell v. Railroad Co., 27 Conn. 393, 71 Am.Dec. 78; Reeves v. Railway Co., 30 Pa. 461, 72 Am.Dec. 713; Lapine v. Railway Co., 20 La. Ann. 158; Railway Co. v. Mullins, 66 Ill. 526; Railroad Co. v. Barrie, 55 Ill. 229; Railway Co. v. Linn, 67 Ill. 109; Jones v. Railroad Co., 70 N.C. 627.
7. It may be true that no court has ever held in hæc verba that the doctrine of discovered peril applies to injuries to inanimate property, but, if so, it is perhaps because its application in such cases has never before been directly challenged. We know of no case holding to the contrary. Shearman Redfield, in their excellent work on the Law of Negligence, say: "It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to risk of injury, if such injury was more immediately caused by defendant's omission, after becoming aware of plaintiffs danger, to use ordinary care for the purpose of avoiding injury to him." Section 99 (5th Ed.). In announcing this rule they make no distinction between injuries to persons and injuries to property. On the contrary, they say this principle was first enunciated in Davies v. Man, supra, which was a suit for damages for killing an ass, which had been hoppled and turned upon the highway, and was run over and killed by a party driving a team and wagon. They further say: "This principle has been accepted in this form by every court in England, including the House of Lords, by the United States Supreme Court, and by every court in the Union, with the possible exception of Pennsylvania." In the review of the case of Davies v. Man, supra, in the exchequer, Lord Abinger said: "Even if the ass was a trespasser and the defendant might by proper care have avoided injuring the animal, and did not, he is liable for the consequences of his negligence." The courts of this state have recognized the rule applied to personal injury cases as also applicable to the destruction of inanimate property. Morgan v. Railway Co., 50 Tex. Civ. App. 420, 110 S.W. 986, 987; Edwards v. Campbell, 12 Tex. Civ. App. 236, 33 S.W. 764; Martin v. Railway Co., 87 Tex. 123, 26 S.W. 1052; Railway Co. v. Rippetoe, 64 S.W. 1017.
Each of the foregoing cases, except the Rippetoe Case, was, like the instant case, a suit to recover damages by reason of the destruction of cotton on compress platforms set on fire by sparks from a locomotive. In the Martin Case, our Supreme Court, speaking through Chief Justice Stayton, said: "There is, however, a class of cases in which, although one person has been negligent, it becomes the duty of another to avoid inflicting injury upon him after discovering his danger, if this can be done by the exercise of such care as is then practicable, and a failure in such cases will fix liability." In the Edwards-Campbell Case, this court, speaking through Chief Justice Fisher, said: "We understand the law upon this subject to be that, if the plaintiff is guilty of negligence in placing himself or property in a position of danger, he is barred of recovery, unless it is shown that the injury was inflicted under circumstances which show that the defendant discovered the peril or danger, * * * and that in the exercise of ordinary diligence, under the circumstances, with means at his control, he could have prevented the catastrophe." In the Morgan Case, Mr. Justice McMeans, speaking for the court, said: "If the engineer knew of the situation of said cotton and the peril to which it was exposed by the manner in which the engine was being operated, and if it was practicable for him to do the work in which he was engaged in some other manner, by which the damage by setting fire to the cotton would be obviated or lessened, and, notwithstanding said knowledge, he continued to operate in the same dangerous manner, and that, as a proximate consequence thereof, the cotton was destroyed by fire from the engine, the railway company would be liable, notwithstanding appellant's contributory negligence." We indorse the excerpts from these opinions above set out as sound statements of the law. The Rippetoe Case was a suit to recover damages for injuries to a wagon and team, inflicted by a railroad company. Mr. Justice Pleasants, speaking for the court, said: That the defendant "could only be held liable for failure to use ordinary care to prevent the injury after it had actually discovered the danger."
The principle which controls when the danger is discovered applies to the *Page 1028 plaintiff as well as the defendant. If the plaintiff sees that he is exposed to danger by reason of the negligence of the defendant, he must take all additional precautions that a person of ordinary prudence would use, in view of the circumstances as they are, and not as they ought to be, but for the negligence of the defendant. Sher. R. on Neg. §§ 92, 101; Walker v. Herron, 22 Tex. 56.
9. In Isbell v. Railroad Co., 27 Conn. 405, 71 Am.Dec. 78, which was a suit for damages on account of injury to cattle, the court, after stating the doctrine as to injury to persons, says: "These are instances, I am aware, of personal rights, but what is true in relation to the person is essentially true in relation to dumb animals and other kinds of property." How can there be any difference in principle? Appellee asserts that the doctrine of discovered peril, as applied to injuries to persons, is based upon principles of humanity, and refers in support of this contention to Railway Co. v. Breadow, and Railway Co. v. Staggs, supra. It is true such language was used in these cases, but upon what are based the principles of humanity there invoked? Upon the moral law which found its most perfect expression in the Golden Rule. Duty is the basis upon which the whole law of negligence rests. Our duty in specific instances is written in our statute books, but before human statutes were written, before the law was given at Sinai, the law of God had written upon the hearts of all men the injunction not to harm his fellow man. Puffendorf says: "In the series of absolute duties, or such as bind all men, antecedently to any human institution, this seems with justice to challenge the first and noblest place, that no man hurt another, and, in case of any hurt or damage done by him, he fail not to make reparation;" and he adds that this applies to such neglect as might easily have been avoided. Human laws, as a general rule, do not attempt to enforce the positive moral obligation that we should do good, but they do undertake to restrain us from doing harm.
That the right of recovery for injuries resulting from negligence is based upon the violation of duty is no invention of the writer. It is so announced in every text-book upon the law of negligence, and is found by direct announcement or by necessary implication in every well-considered case on this subject. The ancient maxim of the law, "Sic utere tuo ut alienum non lædas," indicates to what extent the Golden Rule is also the rule of law in cases of damage by negligence. The inquiry in each case of alleged damages is, What was the legal duty of the defendant under the circumstances of the case? In Breadow's Case, supra, speaking of the discovered peril, the court said: "Such knowledge imposed upon it (the railway company) the new duty," etc. What "new duty"? Not of using proper means to avoid taking the life or mangling the body of Breadow. That duty previously existed as to him and all other persons. But the "new duty" was to do those precautionary acts which would not have been incumbent upon it but for the discovery of such peril; that is to say, to use all practical means to stop the engine then and there. It is true that the duty to avoid taking human life would require greater effort than to avoid destroying property, and so to avoid destroying a large amount of property would require greater precaution than if the amount was small; but in each case the effort required would depend upon the circumstances of the case, and the fact that the danger was discovered, or was known to the defendant, before the injury was inflicted, would be a potent circumstance to be considered in any case, and should be taken into consideration in determining the liability or nonliability of the defendant.
10. It is frequently stated that liability of the defendant for negligence after the discovery of the danger, whereby injury is inflicted, the plaintiff also having previously been guilty of negligence, but for which the injury would not have occurred, is an exception to the rule that the plaintiff cannot recover if he has been guilty of contributory negligence. For practical purposes, upon whatever grounds it is rested, perhaps this is as good a reason as any other; but to us it seems rather to be the enforcement of the rule that he whose act is the proximate cause of the injury shall be held responsible.
Much confusion exists as to what is proximate cause, and it must be admitted that in many cases it is exceedingly difficult to draw the line between cause and condition. We will not here attempt a discussion of this subject, but we hold that if the appellee discovered the fact (if such was the fact) that there was imminent danger of setting fire to the appellants' cotton by doing its switching in the manner the same was done, and that the same could have been done in another manner which would not have interfered with the appellee's business, and that by so doing the danger would have been avoided, its failure to exercise such reasonable care to avoid the injury was the proximate cause of the destruction of the cotton. In such case, the previous act of appellants in placing their cotton on the platform, when the dangerous condition arising from a strong northwest wind, if such was the fact, did not exist, though, perhaps, it should have been anticipated, was not a concurring cause of the fire in a proper legal sense. The intentional acts of the party, done after the discovery of the danger, if they amount to negligence under the circumstances of the case, and are the immediate cause of the injury, breaks the causal connection between the previous negligence of the injured party and the injury inflicted Sher. R. on Neg. *Page 1029 (5th Ed.) §§ 26, 99; McDonald v. Railway Co., 86 Tex. 13, 22 S.W. 939, 40 Am. St. Rep. 803; Isbell v. Railway Co., supra; Kerwhaker v. Railway Co., supra.
11. Appellants insist that under the fact of the discovered danger it was error to charge that appellee was bound to exercise only reasonable care to avoid the injury. As we understand the law, reasonable, or, as it is often termed, ordinary, care to avoid injury, is all that is required of any one in the absence of contractual relations. What acts amount to such care depend upon the seriousness of the probable injury and the imminence of the danger; or, as is usually said, the circumstances of the particular case. Railway Co. v. Hodges, 102 Tex. 525, 120 S.W. 848. The railroad company was transacting a lawful business, which it not only had the right to pursue for its own profit, but which it was compelled to pursue in the discharge of a duty which it owed to the public. Had a human life been in imminent peril, the higher duty which it owed to avoid destroying the life of a human being would have superseded its duty to its stockholders to earn dividends, and to the public to promptly transport freight tendered it; and would have demanded, if reasonably necessary, the total, temporary cessation of its business at that point, and in doing so it would have done only what a reasonably prudent man would be expected to do under like circumstances; while reasonable care to avoid injuring the property of one who had voluntarily exposed the same to at least some degree of danger would have demanded no such action on the part of appellee, even though it had discovered such danger. But such circumstance would demand ordinary care on the part of appellee to avoid such discovered danger, and what would amount to ordinary care would be influenced by the fact of such discovery.
For the error in the charge of the court as to the burden of proof, pointed out in subdivision No. 2 of this opinion, this case is reversed and remanded.
Reversed and remanded.