T. P. Ry. Co. v. King Bros , 45 Tex. Civ. App. 265 ( 1907 )

This is a suit by appellees against the appellant to recover for the value of one mule alleged to have been killed by a train of appellant. A trial was had before the court, a jury being waived, which resulted in a judgment in favor of plaintiffs, from which judgment the defendant appeals.

The facts show that plaintiffs' mule escaped one night from their enclosure and next morning it was found dead on defendant's right of way, where fenced. Near where the mule was killed was a street crossing, which was left open, and a cattle guard erected on the side to prevent the entrance of stock on the right of way, but said guard was defective and not sufficient to turn stock. The mule had been freshly shod and mule tracks similar to those of the mule of appellees were found near the cattle guard and indicated that the mule had passed over it. There were signs of blood and hair on the track, but there were no signs of an abrasion or injuries on the mule testified to. No testimony that a train had passed during the night; nor was there any other evidence tending to show that a train had struck the mule, or tending to show any negligence on the part of defendant's servants in regard to the killing. The mule was found dead in the corporate limits of the city of Terrell, in which city there existed at that time a valid ordinance prohibiting stock from running at large.

The evidence is totally insufficient to warrant a recovery and the judgment is reversed and judgment here rendered for appellant.

Reversed and rendered.