238 S.W. 367 | Tex. App. | 1921
The suit is by appellant to recover the value of a Jersey bull alleged to have been killed through negligence in the operation of a train of the Texas Pacific Railway Company. The case was submitted to the jury on special issues, and upon the answers of the jury a judgment was entered in favor of the defendant. The jury made the following answers to the questions submitted: (1) That the bull was struck and killed on the public road-crossing by a train of the defendant, and (2) that the defendant was "guilty of gross negligence in striking said bull," but (3) "such gross negligence" was "not the proximate cause of the injury complained of."
The finding by the jury that the bull "was struck" and killed through "gross negligence" in the operation of the train is conflicting with the further finding that the negligence was "not the proximate cause" of striking and killing the bull. Evidently, if the bull was struck and killed through gross negligence in operating the train, it follows necessarily that the sole producing cause of the animal's death was the negligent operation of the train. And the further finding that the negligence was "not the proximate cause" of the bull's being struck and killed would clearly be a conflicting finding of fact with the previous finding that through gross negligence the bull was struck and killed. In view of these findings of the jury, was the court authorized to render a judgment, as he did, for the defendant? Where a special verdict of the jury is rendered, the court must enter a judgment thereon. Article 1990, R.S.; Scott v. Bank (Tex. Civ. App.)
It is suggested, in view of another trial, that the court should have given the special charge, properly worded, in respect to limitation of part of the evidence of the witness Allen, to be considered on the question only of credibility.
The judgment is reversed, and the cause remanded for another trial.