75 S.W. 328 | Tex. App. | 1903
Appellee sued appellant and recovered judgment in the sum of $75 for the value of a mule alleged to have been negligently killed by the railroad company. The evidence shows that the animal was killed within the appellant's station grounds in the town of Miami, and at a place where it is not required by law to fence its right of way. Gulf C. S.F. Ry. Co. v. Blankenbeckler, 13 Texas Civ. App. 249[
"In this case the plaintiff has adduced evidence tending to show that the railway company in the establishment of its stock yards and fencing, or of fencing, has so arranged them as that horses may go into what has been termed by the witnesses as `a pocket,' from which there are but two ways of egress, one of which is alleged by the plaintiff in his evidence to be the railway track. Now I instruct you that if, within the knowledge of the defendant company, such a place has been maintained by the company, and if you find this, and also find by a preponderance of the testimony that the same is dangerous to stock, to horses, and that they may be induced, on the passing of trains, to go across the railroad track, from such point, in an effort to escape trains, and should be killed thereby, that it would be negligence on the part of the railroad company in maintaining such a place at such a point."
Now it can not be said as matter of law that the maintenance by a railroad company of a "dangerous" place is negligence, and the court erred in so telling the jury in this instance. The jury should be left to determine this matter in view of all the surrounding circumstances. See Allen v. Frost, 31 Texas Civ. App. 232[
It was also error to permit appellee's witnesses to testify to their conclusion that the place was a "dangerous" place for killing stock, and that the same could be closed up by a fence constructed in a particular manner. This was an invasion of the province of the jury. International G.N. Ry. Co. v. Kuehn, 2 Texas Civ. App. 210[
In one portion of the charge the jury were told that if the animal was killed at a point at which the railway company "had no right" to fence in its right of way, then the testimony of the plaintiff must go further and show negligence, etc. This, if a charge upon that question was called for at all, should have been to the effect that if the killing occurred at a point where the railroad company "was not required to fence" its right of way, then the testimony of the plaintiff must go further as indicated in the charge. The jury would probably understand from this charge that although the company was not required by law to fence its right of way at this particular place, yet it had the right to do so, and a failure in this respect would render it liable for the killing, irrespective of other acts of negligence. But there is no occasion for a charge upon the duty of fencing the right of way if the evidence all shows the killing to have occurred within the switch limits or station grounds of appellant in the town.
The appellee was properly allowed to prove the qualities of his mule as affecting its value. Whether the actual or the market value be considered as the measure of damage, the facts that the animal was well broken and a good lead mule were admissible in evidence. See O. M. Ry. Co. v. Stribling,
We are not to be understood as holding that the train operatives having in charge the train which killed appellee's mule were not themselves negligent. Appellee testified that "the train came through like a bat out of hell," and while this language is probably highly figurative, it nevertheless might tend to indicate that the train was running at a very high speed. We simply express no opinion upon that branch of the case.
For the errors indicated the judgment is reversed and the cause remanded.
Reversed and remanded. *595