175 S.W. 708 | Tex. App. | 1915
This suit was brought by appellee Lindsey against the appellant and the Gulf, Colorado Santa Fé Railway Company, to recover damages alleged to have been sustained by him to a shipment of 140 head of cattle from Ft. Worth to Llano, on the 11th of November, 1913, on account of delay, rough handling, and causing the same to be unloaded and held in insufficient pens at Lampasas. Appellant answered by general denial, and specially that said shipment was delivered to it by the Santa Fé Company at Lampasas at about 5:30 o'clock p. m. on November 12, 1913, and that according to its regular published schedule, known to plaintiff, it had no train leaving Lampasas for Llano until the early morning of November 13th, whereby it became necessary to unload, feed, and water said cattle, which was done by it at Lampasas, where the same were given reasonable care and attention; that the cattle were reloaded next morning, and taken from thence to Llano on its regular train, and delivered to plaintiff in good condition. A jury trial resulted in a verdict and judgment in favor of the Gulf, Colorado Santa Fé Company, for which reason it is unnecessary to state its pleadings, but against appellant in favor of appellee Lindsey for the sum of $280, from which this appeal is prosecuted.
We do not think any error was committed in permitting appellee to prove the appearance and condition of the cattle at Ft. Worth, as well as their appearance and condition when received at Llano, without first showing their condition at Lampasas, where they were received by appellant from the Santa Fé Company, since the court expressly charged the jury that the appellant was only responsible for damages, if any, occasioned by its own negligence.
Nor do we think there was an error committed in permitting plaintiff to testify that the cattle were in worse condition when they reached Llano, the point of destination, than they would have been had they been transported in the usual and ordinary way, because it appears that he was a cattleman, having had considerable experience in shipping cattle, having made many shipments from Llano to Ft. Worth over the lines of railways in question, and therefore was qualified to express his opinion. Besides this, it appears that other testimony of the same import was admitted without objection.
The cattle were unloaded and kept all *710
night in the railway pens at Lampasas. The plaintiff testified, over appellant's objection, that the cattle were injured by reason of the pens being insufficient in size. It is urged by appellant that the court erred in permitting the witness to express his opinion as to the sufficiency of the pens, claiming that this was a matter wholly for the determination of the jury under the facts, citing Railway v. Slator, 102 S.W. 156; Railway v. Cage Cattle Co., 95 S.W. 705; Railway v. Cooper,
Even if appellant's contention were true, the admission of such evidence was harmless, because similar testimony, without objection, was admitted. For which reasons we overrule the third assignment.
These cattle were stock cattle, shipped for the purpose of placing them upon pasturage. There was testimony to the effect that they were hooked up, damaged, and injured by reason of the delay en route and placing them in insufficient pens at Lampasas; also that many of them were foot-sore, stiff, badly drawn, and scarcely able to travel upon their arrival at destination. There was also testimony to the effect that some of the cattle recuperated in a short time after they were placed upon pasturage, while others did not get well for quite a while, and some did not get over their injuries entirely. In this connection appellant requested, and the court refused to give, its special charge No. 6, wherein the jury were instructed that if they should find from the evidence that the cattle were stock cattle, and not shipped for market but for pasturage, and should believe and find from the evidence that said cattle were put on good grass, with water, and further find that they afterwards recovered any loss in weight or shrinkage, they were authorized to take such fact into consideration in estimating any damages, if any, which they should find plaintiff sustained; and the refusal of this charge is assigned as error, citing Quigley v. Railway, 142 S.W. 633; Railway v. Godair,
"As we understand it, these are inquiries going to prove or disprove the actual damage, and may be, and doubtless were, considered by the jury in the instant case; but we do not understand that proof of such matters is authority for the court to suggest to the jury in its charge that such facts have been proven and may be considered by the jury in estimating the actual loss. Their admission in evidence is the warrant for their consideration, but the court may not single out that particular fact, and especially direct the attention of the jury to the fact that that particular testimony may be considered. The rule is that the actual loss is recoverable, and what the actual loss is, is a question to be determined by the jury from all the facts taken and considered as a whole, without special reliance on any particular fact or circumstance. Railway Co. v. Word,
While the case of Quigley v. Railway, supra, seems to authorize the giving of the charge in question, and indicates that its refusal was error, still we are not prepared *711 to follow it, and believe that the better doctrine is the one announced by Mr. Justice Rasbury, as above mentioned, for which reason we hold that the court did not err in refusing to give the requested charge, and therefore overrule the fourth assignment.
The fifth assignment urges that the court erred in failing to give appellant's special charge No. 7, as follows:
"If the jury believe that the employes of the Houston Texas Central Ry. Co. at Lampasas used ordinary care as defined to you, in caring for said cattle at Lampasas, then on the issue as to the handling of the same at said point you should find for said defendant."
• insisting that said charge specially submitted the issue of negligence vel non in the handling and care of the cattle by appellant at Lampasas, for which reason the court erred in refusing same, this issue not having been submitted in the main charge, defendant having pleaded that the cattle were given proper care and attention at Lampasas, supporting such pleading by proof. We do not think there was any error in refusing this charge, because, if submitted, it would have ignored the question of the insufficiency of the pens in which the cattle were unloaded, and, further, because the court in its general charge had covered the feature of the case with reference to the care required on the part of appellant in handling said shipment, telling the jury, in effect, that appellant was not required to use any higher degree of care or diligence than that of ordinary care.
The remaining assignments relate to the insufficiency of the evidence to support the verdict, which was a question, we think, entirely for the determination of the jury; and as there was evidence upon which the jury could have predicated their verdict, we are not willing to set the judgment aside.
Believing that the court committed no reversible error upon the trial, its judgment is in all things affirmed.
Affirmed.
