242 S.W. 764 | Tex. App. | 1922
The contentions of the appellant will be disposed of in the order they are presented in his brief.
1. It appears from the record that the cattle were unloaded at Fort Worth. Over appellant's objection the trial court permitted the witness Young to testify that it should not take longer than 30 or 40 minutes to unload a car of cattle after it reached the yards of the St. Louis Southwestern Railway Company of Texas in that city. The ground of the objection was that the testimony was "the opinion and conclusion of the witness on a mixed question of law and fact." As supporting his contention appellant cites Ry. Co. v. Roberts,
"Some of the facts from which the conclusion in this case was drawn might doubtless have been shown by opinions of witnesses, such * * * time required for particular things, etc., but not the ultimate conclusion as to negligence or ordinary care."
2. After testifying that he had made shipments of cattle from Sherman to points in the vicinity of Seymour, the witness Grover Sullivan was permitted to testify over appellant's objection that it was irrelevant, immaterial, and mere opinion that, from his (the witness') experience "in shipping and handling cattle from Greenville to beyond Seymour, in that community out there, if they were handled with ordinary care and reasonable dispatch and diligence, they would arrive there in good shape." If the testimony was subject to the objection urged to it, we do not think the judgment should be reversed for error in admitting it, for appellant himself offered, and the court admitted, testimony by other witnesses to substantially the same effect.
3. The insistence that the trial court erred when he refused to instruct the jury to return a verdict in appellant's favor is on the theory that it could not be determined from the testimony what the cattle would have been worth in Seymour had they been handled with proper care in transporting them to that place, nor what they were worth in Seymour in the condition they were in when they arrived there. The argument is that there was therefore no basis for finding as to the amount of the damages appellees sustained. We do not agree that the testimony was insufficient in the particulars claimed, and overruled the contention. Nor do we agree with appellant that the refused peremptory instruction should have been given because the testimony did not warrant a finding that the carrier was guilty of *766 negligence as charged. As we construe it, the testimony in that respect was amply sufficient.
4. In the third paragraph of his charge the court instructed the jury to find for appellees if they believed from the testimony that the carriers failed to transport the cattle to Seymour "within a reasonable time"; or believe the train carrying them was operated "in an unnecessarily and unusually rough manner"; and further believed that as a proximate result of such rough handling, or delay, if any, of the train, some of the cattle were dead and others injured when they reached Seymour. Appellant insists that the instruction authorized the jury to find for appellees if they believed the cattle were injured by rough handling without respect to whether the rough handling was due to negligence on the part of the carrier or not, and that the instruction was therefore erroneous. It is argued that "rough handling" is not necessarily "negligent handling," which, of course, is true (Ry. Co. v. James,
"If appellants handled appellee's horses and mules unnecessarily rough * * * then it cannot be said that they acted as an ordinarily prudent person would have acted under the circumstances and were necessarily guilty of negligence."
5. In the instruction given by the court referred to above it will be noted that he authorized the jury to find for appellees if they believed that the cattle were injured because of a failure of the carrier to transport them to Seymour "within a reasonable time" after it received them at Greenville. The court refused a special charge requested by appellant that "reasonable time," as used in the instruction given, meant that the carrier in transporting the cattle "should exercise that degree of care which an ordinarily prudent person would have exercised under the same or similar circumstances in the matter of time used in transporting the cattle." Appellant insists the refusal of the charge was error which entitles him to a reversal of the judgment. We do not think so, in view of undisputed testimony showing that more than 90 hours were consumed in transporting the cattle from Greenville to Seymour, a distance of 248 miles, and in the absence of testimony showing any reason why the cattle were held longer than 40 hours in Fort Worth, except that they were unloaded and fed and watered there, and longer than 17 hours in Wichita Falls. In that state of the testimony appellant would have had no right to complain had the court instructed the jury outright that the transportation of the cattle was negligently delayed.
6. In the first paragraph of his charge the court told the jury it was "the duty of railroad companies, upon receiving live stock for shipment, to carry the same to their destination with reasonable promptness and dispatch, and they are liable to the owners of said property for any damages resulting from delay and injuries from other causes, except such injuries as may result from the act of the owner, the act of God, or to inherent qualities of the animals themselves." The instruction is attacked as erroneous because it did not "charge the jury that a railroad company is not liable for damages unless such damages be caused by the negligence of the railway company." If the instruction as a mere abstract statement of the law was erroneous, which may be doubted (Ry. Co. v. Tradwick,
7. We do not agree that the testimony did not warrant a finding that the amount of appellees' damages was as great as the jury determined it to be, and therefore overrule the assignment presenting that contention.
The judgment is affirmed. *767