127 S.W. 849 | Tex. App. | 1910
Plaintiff in error instituted this suit to recover damages in the sum of four thousand dollars because of an alleged negligent failure on the part of defendant in error to seasonably furnish cars for a shipment of some 850 three to four year old steers from Albany, Texas, to Dublin and Hico, Texas, and also because of alleged negligence in the transportation of such cattle in the month of November, 1906. After the introduction of the testimony the court peremptorily instructed the jury to find in favor of defendant in error, and a verdict and judgment in accordance with this instruction followed.
We think the court erred as assigned in giving the peremptory *282
instruction. It is well settled that to authorize the court to take the case from the jury that the evidence must be such that ordinary minds can not differ from the conclusions to be drawn from it, and that it is error to peremptorily instruct the jury for a defendant where there is any evidence tending to establish the facts put in issue by the plaintiff. See Mustain v. Stokes,
Defendant in error insists that it was released from all damages prior to the loading of the cattle by the terms of a written contract duly executed by plaintiff in error and unimpeached; and also that there is an entire absence of evidence as to the difference in the market value of the cattle in the condition in which they arrived at Dublin and Hico and the condition in which they should have arrived at these alleged points of destination. As to these suggestions we deem it sufficient to say that a careful search of the record fails to disclose any pleading on the part of defendant in error to support the claim for the release of damages mentioned; besides, there yet remained the issue of negligence in the transportation. Several witnesses testified to the effect that delays and treatment of cattle such as detailed by the witnesses would cause a deterioration in their market value and condition, and plaintiff in error testified in substance that cattle, such as the ones in controversy that were delayed in pens and in transit as these cattle had been, would cause them to decline in weight and flesh and that they could not be put back in the original condition for less than two or three dollars per head. The witness Harrold testified in substance that the cattle in controversy would have been worth two dollars and a half more per head *283
had they received prompt shipment than they were by reason of delay and treatment received, and this was because it would cost that much more to get them back in the condition they would have been had they received prompt and careful shipment. The witness Brown testified that said cattle would have been worth two dollars per head more had they been handled properly, that is, that in the condition they were described to be in by some of the testimony they were worth two dollars less than they would have been had they been loaded, transported, and delivered with reasonable promptness. The witness Robertson testified to the effect that such treatment of cattle would be to damage them from seventy-five cents to one dollar per head. There was no objection so far as has been called to our attention to any of this testimony, and while it is undoubtedly true that generally the proper measure of damages under the allegations of the plaintiff's petition is the difference in the market value of the cattle in controversy in the condition in which they arrived at Dublin and Hico and the condition in which they should have arrived at these places (see Gulf, C.
S. F. Ry. v. Stanley,
It is ordered that the judgment be reversed and the cause remanded.
Reversed and remanded.