On Motion for Rehearing. Upon a former day of the present term of this court we reversed and remanded this case for the reason that the charge of the trial court put the burden of proving the want of contributory negligence on the plaintiff. As we understood the facts from the brief of counsel, this was material error. The following statement was made in appellant's brief: "It was further shown that at the time of the fire that some few minutes before the fire broke out an engine of the appellee was standing on the compress spur track, switching from the north end of the compress spur track, and passed by the cotton several times immediately preceding the fire." The reference in support of this was "S. F. p. _____." Though no page was given in support of the correctness of the statement, we assumed that it was correct, inasmuch as no statement of an alleged evidence to the contrary was referred to in appellee's brief.
Upon motion for rehearing, we have examined the entire statement of facts of 120 pages, and find that there is very little therein to indicate just what was being done by appellee's servants at the time of an immediately preceding the discovery of the fire. The only evidence upon this point which we have been able to find in the record is that of the fireman Baldridge, who says: "I was on the engine when I first discovered the fire. The engine was on the main line when I first discovered the fire, near about even with the compress platform" — and that of the witness Fox, who said: "As soon as the alarm was sent in, I ran up to the platform. * * * I noticed the engine when I got on the platform. It was standing on the main line, as well as I remember, just about even with the northwest corner of the compress platform."
Now it will be seen by reference to the findings of fact that the jury upon every issue of negligence, save one, found in favor of the defendant, and that was that defendant was negligent in switching from the north end of the compress switch. See special findings 7 and 8 set out in findings of fact herein. But the jury also found in answer to special issue No. 9 that said negligence was not the cause of plaintiff's cotton being burned. Upon the theory that the cotton was fired by sparks from the engine while it was on said compress switch spur, this finding would be inconsistent with the findings in response to issues 7 and 8. But, if said fire did not originate from sparks thrown by said engine while on said compress switch, then said findings are not inconsistent.
We construe the finding of the jury on the ninth special issue to be that the fire did not originate from sparks thrown while the engine was on the compress switch, and the evidence is sufficient to sustain this finding.
Such being the case, the charge of the court as to the burden of proof on the issue of contributory negligence was harmless error. If the fire did not originate from the negligence of the appellee, the appellant was not entitled to recover, and contributory negligence becomes a mere academic question, which can in no wise influence the judgment that should be rendered on the facts found. The most that can be said by appellant is that under a proper charge as to the burden of proof the jury might have found that they were not guilty of contributory negligence. But, if such be conceded to be the fact, still the appellee cannot be held liable if it was guilty of no negligence in causing the fire. That it was guilty of negligence which might have caused the destruction of the cotton, but in fact did not, is immaterial.
In view of the matters above stated, the issue of discovered peril is eliminated from this case, but the majority of this court take this occasion to say that, notwithstanding the able dissenting opinion of the Chief Justice of this court, they adhere to the views expressed in their opinion herein, and, should occasion hereafter arise, they stand prepared to give additional reasons and cite additional authorities in support of their views.
For the reasons herein stated, the motion for a rehearing is granted, the judgment hereinbefore rendered by this court reversing and remanding this cause is set aside, and the judgment of the trial court herein is affirmed.
On Rehearing. In overruling the motion for a rehearing in this case, we deem it due attorneys for *Page 1034 appellants to say that they were not at fault as to the condition of their brief criticised in the opinion herein. It appears that they filed copies of their brief in this court and in the trial court; that thereafter the record was withdrawn; and that, when the same was returned, three incomplete copies of their brief were inadvertently returned with it, and that the same were the ones in our hands when we had this case under consideration.