139 S.W. 926 | Tex. App. | 1911
Appellee was a commission merchant in Gainesville. In December, 1905, and at frequent intervals thereafterwards until September 11, 1907, he made shipments of chickens and turkeys to New Orleans by appellant's line of express. He claimed that many of the chickens and turkeys died en route, as the result of negligence on the part of appellant, and sought a recovery against appellant of the sum of $225 as his damages. A judgment in his favor for the sum of $144 was affirmed by this court, without a written opinion. The record is again before us on a motion for a rehearing.
Appellee testified: "I have been shipping stuff over defendant's line about 16 years. If an express car is not properly ventilated, chickens will smother." The witness Eckelberger testified: "He," referring to appellee, "usually shipped in a common ordinary express car. I do not think they were well ventilated. They had a little ventilation on the top of the car; side doors and end doors; all the ventilation I ever noticed was in the top of the car. They used this kind of car until some time ago and after plaintiff's shipments were made, when they made a change, putting in what they called a ventilated car, which was a better ventilated car. This car had ventilation running along the side. * * * The ventilation of the car is a great deal — in fact almost everything — to the chickens. If the cars are not well ventilated, it has a very bad effect on the chickens. No, they are not particularly delicate, still, at the same time, if you crowd them in the coops and put them in a car where all conceivable matter is placed in front and behind them, it is a matter of fact they will suffer. It takes about 35 hours to go from Gainesville to New Orleans." Appellee's suit was commenced December 17, 1907. The trial in the lower court was had April 22, 1910.
The statement quoted of the witness Eckelberger, that after appellee had suffered the loss he complained of appellant discontinued the use of the kind of car it used in carrying his shipments and began to use another kind of car in carrying like shipments, was objected to as irrelevant and immaterial. The action of the trial court in *927
overruling the objection was assigned as error. The action of this court in overruling the assignment is vigorously assailed in the motion; the contention being that the ruling made is in conflict with rulings made by the Supreme Court in Railway Co. v. McGowan,
The judgment is reversed, and the cause is remanded for a new trial.