G., C. F. Ry. Co. v. Simpson , 41 Tex. Civ. App. 125 ( 1905 )

Appellee sued appellant in the Justice Court to recover the value of two animals alleged to have been killed by the trains of appellant company. The case was subsequently carried to the County Court by appeal, and a trial there resulted in a verdict and judgment in appellee's favor for the sum of $105, from which judgment this appeal is prosecuted.

Among other things the court instructed the jury as follows: "You are instructed that a railroad company is liable to the owner for the value of stock killed by its locomotive and cars in running over its railway. If the railroad company fence in its road, it shall only be liable for injury resulting from want of ordinary care on its part. If a railroad kills stock at a public or private crossing it is not liable unless such killing resulted from the failure on its part to exercise ordinary care to prevent same." The first part of this charge is not applicable to this case. It appears to be a statement of the statute defining the liability of railway companies for stock killed by their trains. In this case it is undisputed that appellant had fenced its right of way, and for the court to instruct the jury, notwithstanding this, that a railroad company is liable to the owner for the value of stock killed by its locomotives and cars in running over its railway, is possibly misleading, and such feature should be omitted from the charge in another trial. Whether the same would itself work a reversal of the case we need not decide.

There was error in the following section of the court's charge: "If you believe from the evidence that about March 17, 1903, and June 5, 1903, the defendant in McLennan County, Texas, ran its locomotive or cars against and killed plaintiff's horses, or either of them, as alleged, and at a point where its right of way was not fenced and where public necessity or convenience did not require that it be unfenced, you will find for plaintiff in such sum," etc. We think the effect of the undisputed evidence is to show that the place where the animals entered upon the track was such a public crossing as appellant would not be allowed to fence up, and the issue submitted in the charge, therefore, was not raised by the evidence. Under it the jury was authorized to find against appellant if it could have fenced the crossing.

We have also been unable to find in the record any evidence sufficient to justify the court's charge, imposing upon the operatives of appellant's train the duty to exercise ordinary care to avoid running down appellee's horses after they were discovered on the track. No witness testified to having seen the animals killed. The track is straight for a great distance on either side of the crossing at or near which they were killed, but that circumstance is not itself sufficient, even when aided by the presumption that appellant's servants were performing their duty in keeping a lookout ahead, to raise the inference that they saw appellee's horses on the track in time to have avoided injuring them. There is a complete absence of evidence to show that the horses, or either of them, had been on the track for such a length of time as to warrant the inference that appellant's employes operating the train, saw them. On the contrary, the testimony tends to show that the animals had just gone upon the track at the point where it enters an enclosure, and were in the act of crossing over appellant's defective stock gap, when they were struck, the one by a northbound and the other by a southbound train. Both animals seem to have been at or near the same point when killed. The same remarks also apply to the latter part of the same paragraph of the charge, wherein the company's operatives were required to use "ordinary care to prevent injuring them, if it appears they are likely to put themselves in a place of danger."

Under the facts as shown in this record, appellee would only be entitled to recover upon a finding to the effect that appellant was negligent in maintaining its stock gap in a defective condition, and that its negligence in this respect was the proximate cause of the injury to his horses. The question of negligence upon the part of appellant's train operatives at the time of the accident seems not to be raised by the evidence.

For the errors discussed, the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.