| Tex. App. | Jan 9, 1909
On May 20, 1907, a mare of the market value of one hundred and fifty dollars belonging to T. S. Latham was run over and killed by a passenger train of the Chicago, Rock Island Gulf Railway Company within the switch limits and depot grounds of that company in Newark, a town of about five hundred inhabitants in Wise County. The company was sued by the owner in the Justice Court for the loss of the animal, and from a judgment there rendered in his favor for one hundred and fifty dollars the defendant appealed to the County Court, which court also rendered a judgment in favor of plaintiff for one hundred and fifty dollars, and from the latter judgment defendant has appealed to this court.
Plaintiff's pleading was in writing, and, following an allegation of negligence in general terms, negligence was specially pleaded in the following language: "That defendant was grossly negligent in operating said train at an excessive rate of speed and failing to keep a proper lookout, and that said mare was killed by reason of defendant's said negligence," and there was a further allegation that the mare was worth one hundred and fifty dollars.
The undisputed testimony shows that the accident occurred at night; that the train was a through passenger train not scheduled to stop at Newark, and that on the occasion in controversy it ran through that town at a speed of thirty-five or forty miles per hour. No one testified to seeing the animal immediately prior to the accident except the engineer in charge of the engine. His testimony upon that issue was to the effect that he saw the form of some object, which he supposed was an animal, suddenly dash on the track just ahead of the engine; that he felt the engine run over it; that the animal came from a ravine or depression in the right of way and *212 that he did not sound the stock alarm for the reason that he had not time to do so after he saw the object go on the track. He further testified that he was leaning out of the cab window and keeping a diligent lookout ahead of the engine at that time and saw no other animal on the track on that occasion. In the trial court plaintiff sought to discredit the testimony of the engineer above referred to, as to seeing an animal suddenly dash on the track, by introducing in evidence his written report of the accident made to the company shortly after it occurred; which report contains no statement that the engineer saw the animal at all and is subject to an interpretation contrary to the testimony of the engineer on the witness stand. If this testimony of the engineer is discredited, as contended by appellee in his brief, then we have no proof whatever in the record from which to conclude that anyone saw the animal immediately prior to the accident.
Plaintiff introduced proof showing that the engine was equipped with an oil headlight instead of an electric headlight. Defendant objected to this evidence on the ground that it was at variance with plaintiff's pleading, and to the admission of the testimony exception was reserved. In his brief appellee contends that this testimony was admissible in support of the allegation in his pleading that defendant failed to keep a proper lookout, but we think that the admission of the testimony was error. The testimony of the engineer that he was keeping a diligent lookout ahead at the time of the accident was not contradicted in any manner. Some of the witnesses testified that the night was dark; others that it was a moonlight night. Defendant's track was not fenced at the place of the accident, but in his brief appellee admits that appellant owed no duty to fence it at that locality.
The facts and testimony recited above are substantially all the evidence introduced tending to sustain the plaintiff's allegations of negligence, and appellant insists that the same are insufficient to support the finding of negligence by the court. In support of this contention numerous authorities are cited, among which are: Gulf, C. S. F. Ry. v. Blankenbeckler, 13 Texas Civ. App. 249[
The trial was before the court without the intervention of a jury and no findings of fact were filed. Assuming, for purposes of argument, that the court sustained plaintiff's allegations of negligence in both the particulars pleaded, and that such findings were supported by the testimony, we have been unable to find any evidence in the record tending to show that such negligence was the proximate cause of the accident complained of. If the engineer was guilty of negligence in running the train at the speed it was run, or if he failed to keep a proper lookout and in such failure was guilty of negligence, then in order to determine that such negligence was the proximate cause of the accident it would be necessary to first find that the animal was on the track under such circumstances as would support the conclusion that the accident was the natural and probable consequence *213
of such negligence, and that an accident of that character ought reasonably have been foreseen as such a consequence in the light of the attending circumstances. (Texas P. Ry. Co. v. Bigham,
No evidence appearing in the record to support the finding of the court that the negligence found was the proximate cause of the death of the animal, the judgment of the trial court is reversed and judgment is here rendered in favor of appellant.
Reversed and rendered.