109 S.W. 428 | Tex. App. | 1908
Appellees recovered judgment for $125 against appellant for injuries to a mule. At the time in question the mule was in a field through which appellant's railroad extended. It was found under the cattle guard with one leg broken.
We overrule all of the assignments of error, except the second, which complains of the following paragraph of the court's charge: "Now, if you believe from a preponderance of the testimony in this case that defendant failed to use ordinary care in the construction and maintenance of its cattle-guard, and that its said cattle-guard was not a good and sufficient one, or was negligently constructed, so as to form a chute or pocket, and you further believe that the construction, condition or location of said cattle-guard was the proximate cause of the injury to plaintiffs' mule, you will find for the plaintiffs."
The undisputed testimony shows that the cattle-guard where the animal was injured was located at the point where the railroad crossed the field fence, as required by statute, and therefore, as to the owner of the field or any one using the same, its location was immaterial and should not have been referred to in the charge in the manner that it was. Appellant having located the cattle-guard at the place required by law, its location can not be considered as a factor in determining whether or not appellant is liable for the injury done to the appellees' mule.
For this error in the charge of the court the judgment will be reversed and the cause remanded.
Reversed and remanded.