Benedict v. Chicago, R. I. & P. Ry. Co.
| Decision Date | 10 January 1906 |
| Citation | 91 S.W. 811 |
| Parties | BENEDICT v. CHICAGO, R. I. & P. RY. CO. et al. |
| Court | Texas Court of Appeals |
Appeal from El Paso County Court; Jos. U. Sweeney, Judge.
Action by A. J. Benedict against the Chicago, Rock Island & Pacific Railway Company and another. Judgment for defendants, and plaintiff appeals. Reversed.
Brown & Terry and U. S. Goen, for appellant. Hawkins & Franklin and Patterson, Buckler & Woodson, for appellees.
The appellant sued appellees to recover $262.00 damages, for their failure to deliver him at destination in as good condition as when received, certain household goods consisting of secondhand furniture, books, etc., shipped over appellees' lines of railway to be delivered to him at Tombstone, Ariz. His right of recovery being put in issue by appellees' pleadings, he introduced testimony showing the shipment of the goods over appellees' lines of road, the loss and destruction of some of the articles, and the damaged condition of others when received from the terminal carrier. After making this proof, the appellant undertook to prove the difference between the market value of the goods at Tombstone in the condition they should have been received and their damaged condition when delivered there. Upon objection by appellees, that the witnesses were not qualified to testify to the market value of the goods at Tombstone, by reason of inadequate knowledge of such value of the goods there, the testimony as to the value of the goods was excluded from the jury. Whereupon appellant asked leave to withdraw his case from the jury and applied for a continuance, for the purpose of enabling him to procure testimony to prove such value. Upon the court's overruling his motion, he took a nonsuit; and afterwards moved the court to set aside the judgment entered thereon and reinstate the case. Such motion was overruled, and this appeal is prosecuted from the judgment.
It has been steadily held from the days of the Republic (Holderman v. Craft, by Supreme Court of the Republic; Easterling v. Blythe, 7 Tex. 210, 56 Am. Dec. 45; Austin v. Townes, 10 Tex. 24; Osborne v. Scott, 13 Tex. 59; G. C. & S. F. Ry. Co. v. F. W. & N. O. Ry. Co., 68 Tex. 98, 2 S. W. 199, 3 S. W. 564; Boyd v. Kimball, 21 Tex. Civ. App. 7, 50 S. W. 634; Sanchez v. A. T. & S. F. Ry. Co. [decided November 29, 1905, by this court] 90 S. W. 689) that where the plaintiff has been surprised by the decision of the court in ruling out his testimony, he shall not be...
To continue reading
Request your trial
-
Pecos & N. T. Ry. Co. v. Porter
...if sold by the owner) is not the market value, but the actual value. I. & G. N. Ry. Co. v. Nicholson, 61 Tex. 550; Benedict v. C., R. I. & P. Ry. Co., 91 S. W. 811; Wells Fargo Express Co. v. Williams, 71 S. W. It is also contended under this assignment that the court erred in permitting th......
-
Atchison, T. & S. F. Ry. Co. v. Smythe
...market value, is now too well settled to require discussion. Express Co. v. Williams (Tex. Civ. App.) 71 S. W. 314; Benedict v. Railway Co. (Tex. Civ. App.) 91 S. W. 811; Railway Co. v. Wilson Hack Line (Tex. Civ. App.) 101 S. W. 1024; Railway v. Nicholson, 61 Tex. 550. The assignment is ov......
-
Missouri, K. & T. Ry. Co. of Texas v. Hailey
...etc. Wells Fargo Express Co. v. Williams, 71 S. W. 314; Railway Company v. Seale, 28 Tex. Civ. App. 364, 67 S. W. 437; Benedict v. Railway Company, 91 S. W. 811; Railway Company v. Smythe, 55 Tex. Civ. App. 557, 119 S. W. 892; Railway Company v. Nicholson, 61 Tex. 550; Railway Company v. Co......
-
Pittman v. Fort Worth Warehouse & Storage Co.
...to make available proof of actual value. Wells Fargo Express Co. v. Williams (Tex. Civ. App.) 71 S. W. 314; Benedict v. C., R. I. & P. Ry. Co. (Tex. Civ. App.) 91 S. W. 811; I. & G. N. Ry. Co. v. Nicholson, 61 Tex. 550; A., T. & S. F. Ry. Co. v. Smythe, 55 Tex. Civ. App. 557, 119 S. W. 892,......