Gulf, Colorado & Santa Fe Railway Co. v. McGowan

73 Tex. 355 | Tex. | 1889

Henry, Associate Justice.—

Appellee filed his original petition on March 30, 1886, to recover from appellant damages for destruction of crops in the years 1884 and 1885 alleged to be caused by an overflow of the Brazos River produced by the negligent construction of defendant's railroad.

The original petition charged that the crops destroyed belonged to and were cultivated by plaintiff and his tenant George Moore, and that he had purchased and received a transfer from said Moore of his interest in the crops and his claim for damages.

In the original petition the crops destroyed in 1884 are described as growing on one hundred and twelve acres in Fort Bend County on part of what is known as the Yandel Feris place, it being part of the old Thompson place, near what is called Thompson's Switch, on the Gulf, Colorado & Santa Fe Railway, to the west of and adjacent to the point where said railway crosses the Brazos River in Fort Bend County, and situated to the south and west of said river and between it on the north and the road bed of said railway on the south. The western line of said lands between the river above and the road bed below being about one mile, and said river forming the northern and eastern boundary of said land.

The original petition gives substantially the same description of the lands cultivated and overflowed in 1885.

On June 19, 1886, plaintiff filed an amended original petition in which substantially the same description of the overflowed lands and crops were given as in the original petition, except that the original petition alleged that the whole was part of the Yandel Feris place, while the amended petition charged that part of it was known as the Yandel Feris place and part as the Bricé farm.

On a former appeal of the case it was reversed on account of variance between the allegation that all of the crops were owned and cultivated by plaintiff and his tenant George Moore and the evidence showing that George Moore was only plaintiff’s tenant of part of the land and that the crops on the other part were exclusively owned and cultivated by plaintiff.

In the District Court plaintiff filed his second amended original petition changing his allegations so as to show how much land was cultivated each year by himself in connection with his tenant and how much exclusively by himself. In other respects the lands and the crops are described substantially as in the first amended petition.

There was a verdict and judgment for plaintiff, from which the defendant appeals and assigns as error:

1. The court erred in overruling the defendant’s first special exception to the plaintiff’s second amended original petition, said exception being in substance as follows: “For special exception to said petition defendant says that it appears therefrom that the plaintiff’s cause of action as to all of the crops described in the petition as having been overflowed on or about May 26, 1884, except the forty acres of corn and ten acres of cotton in which George Moore is alleged to have been interested with the plaintiff, is barred by the statute of limitations, it appearing from the second amended original petition in connection with the original petition and the first amended original petition that this suit as to such crops was not instituted in the two years' after the cause of action accrued and not till long after the expiration of said two years, and the defendant here pleads the statute of limitations as to all of such crops of the year 1884, with the exception above stated.”

2. The court erred in overruling the second special • exception of the defendant to the plaintiff’s second amended original petition, which exception is in substance as follows: “For further and special exception to said second amended original petition defendant says that it appears therefrom that the plaintiff’s cause of action as to all crops described in said petition as having been overflowed on or about June 10, 1885, is barred by the statute of limitations, except as to the forty acres of corn and thirty acres of cotton in which George Moore is alleged to have been interested with plaintiff, it appearing from said second amended original petition in connection with the original petition and the first amended original petition that as to all of said crops, with the exception above stated, this suit was not instituted within two years after plaintiff’s cause of action accrued, and not until a long time after the expiration of said two years.”

We do not think these objections are well taken. It is evident that the lands described and the crops sued for in the original-petition are the same that are described and sued for in both amended petitions.

The relation that George Moore bore to the crops and the designation, of the lands otherwise sufficiently described as part of the Tan del Ferie place in the original petition and parts of the Tandel Feris and Brice places in the amended petitions do not constitute new or different causes of action. With these allegations entirely omitted the cause of action is sufficiently described to apprise the defendant of what he is called upon to answer to. The amendments were in the line of precedent and proper.

The crops were destroyed while growing, and before they had matured. As part of his evidence to establish their value at the time and place they were destroyed plaintiff was permitted to prove the value of corn and potatoes of that year's crop in the fall after they had matured and were ready for market.

We think the evidence was properly admitted. The only correct criterion for ascertaining the value of a growing crop at any period of its existence is to prove what that character of crop wras worth at or near the place where it was grown when matured, and to make proper estimates and allowances from ascertained or ascertainable facts for the contingencies and expenses attending its further cultivation and care.

“While the witness Wilson was being examined he was asked by plaintiff's counsel the following question: ‘ When you rebuilt those culverts that were washed out after the overflow of 1885, what width did you make them?' To which said question defendant objected, because the same) sought to elicit evidence that was irrelevant, incompetent, and illegal,, and which would tend to confuse and mislead the jury, and because it was an attempt to make the acts of the defendant after the time of the alleged damage to plaintiff’s crops an admission that the culverts were not theretofore sufficient for the purpose for which they were intended, and because the negligence of the defendant was to be judged by the facts as they were before the overflow and not by subsequent experience; which said objection was by the court overruled and the witness was permitted to answer as follows: ‘We lengthened some of them• in 1885 I lengthened culvert To. 83 from 42 to 70 feet, and in 1888 it was lengthened to 126 feet, and culvert To. 84 was lengthened the same;’ to which said ruling of the court in overruling said objection and admitting said evidence the defendant duly excepted.

“The court also over same objections and exceptions permitted the witness John Muí ver hill to testify that after the overflow of 1885 ‘we did not make any more culverts or put in additional culverts, but we enlarged those that had been there—I suppose about 50 feet, and it may be more.'”

Authorities conflict as to the admissibility of such evidence.

In this court in the case of the Texas & Pacific Railway Company v. Burns it was held that such evidence was improper, Watts, J., saying: “As a general rule, upon principle as well as matter of public policy, such evidence ought not to be admitted. It is a matter of common knowledge that railroad tracks and machinery as well as all other instrumentalities used in operating trains are continually undergoing repairs and being improved. Undoubtedly the public is greatly interested in the continuance of such improvements. Where accidents have directed the attention of the company to a particular portion of the road bed or other instrumentality that by additional safeguards would be rendered more safe, to hold as a general rule that if the desired improvement is made that the company thereby admits that it had been negligent would result in deterring the company from promptly making the improvement. Indeed it would be a harsh rule if every change for the better is to he considered as evidence showing former negligence.” 4 Texas Law Rev., 54, 56; Morse v. Railway Co., 30 Minn., 465.

Without undertaking to say that this rule should be applied in all cases we do not hesitate to say that it is a proper one to apply in cases of the character of the one before us.

It was required of the defendant to so construct its road when built as to meet the demands upon it as far as they could be then foreseen and provided for. If it negligently or unskillfully failed to do that, it was liable; but on the other hand if the evidence showed that as the conditions existed and could have been by the exercise of ordinary care and skill ascertained at the time the culverts were constructed they were then made sufficient, and if nothing had occurred between their construction and the date of the injury to plaintiff to develop their insufficiency, the defendant would not be responsible, notwithstanding they were in fact insufficient as then for the first time developed, and notwithstanding such, insufficiency in fact was acknowledged by the defendant, as then ascertained, by changing and enlarging them.

Though constructed so carefully originally as to exempt defendant from liability, if subsequent developments proved them insufficient it would then become the duty of defendant to improve them, failing in. which the original construction would not he a defense against an injury occurring after the defect became known. The act of improvement or reconstruction we think affects the future and not the past.

It is objected that the court erred in refusing to give the first special charge requested by the defendant, which is in substance as follows: “If you believe from the evidence that only the twenty acres of land on the Brice place, as testified to by the engineer, was overflowed on account of the presence of the railroad, then the plaintiff having failed to show you what crops were growing upon or what damages were done to such crops, you are instructed to find for the defendant;” and in giving to the jury a charge in lieu of defendant’s said special charge, which charge so given is as follows: “If you believe from the evidence that only the twenty acres of land on the Brice place was overflowed, as testified to by the engineer, on account of the presence of the railroad, then if the plaintiff has failed to show what crops were growing thereon or damage done to said crops, you are instructed to reject the same from your calculations if you should find that the plaintiff is entitled to damages on his other allegations of proof.”

We do not think the evidence justified any charge on the particular issue. The charge given and the one refused were both incorrect as the case is presented by the record.

The judgment is reversed and cause remanded.

Reversed and remanded.

Delivered March 19, 1889.