Chicago, R. I. & G. Ry. Co. v. Latham

• Decision Date: 09 January 1909
• Citation: 115 S.W. 890
• Court: Texas Court of Appeals
• Parties: CHICAGO, R. I. & G. RY. CO. v. LATHAM.

115 S.W. 890

CHICAGO, R. I. & G. RY. CO. v. LATHAM.

Court of Civil Appeals of Texas.

January 9, 1909.

Rehearing Denied February 6, 1909.

Appeal from Wise County Court.

Action by T. S. Latham against the Chicago, Rock Island & Gulf Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Lassiter & Harrison and T. J. McMurray, for appellant. R. E. Carswell and Trabue Carswell, for appellee.

DUNKLIN, J.

On May 20, 1907, a mare of the market value of $150, belonging to T. S. Latham, was run over and killed by a passenger train of the Chicago, Rock Island & Gulf Railway Company within the switch limits and depot grounds of that company in Newark, a town of about 500 inhabitants in Wise county. The company was sued by the owner in the justice court for the loss of the animal, and from a judgment there rendered in his favor for $150 the defendant appealed to the county court, which court also rendered a judgment in favor of plaintiff for $150, and, from the latter judgment, defendant has appealed to this court.

Plaintiff's pleading was in writing, and, following an allegation of negligence in general terms, negligence was specially pleaded in the following language: "That defendant was grossly negligent in operating said train at an excessive rate of speed and failing to keep a proper lookout, and that said mare was killed by reason of defendant's said negligence" —and there was a further allegation that the mare was worth $150. The undisputed testimony shows that the accident occurred at night, that the train was a through passenger train not scheduled to stop at Newark, and that on the occasion in controversy it ran through that town at a speed of 35 or 40 miles per hour. No one testified to seeing the animal immediately prior to the accident except the engineer in charge of the engine. His testimony upon that issue was to the effect that he saw the form of some object, which he supposed was an animal, suddenly dash on the track just ahead of the engine; that he felt the engine run over it; that the animal came from a ravine or depression in the right of way, and that he did not sound the stock alarm, for the reason that he had not time to do so after he saw the object go on the track. He further testified that he was leaning out of the cab window, and keeping a diligent lookout ahead of the engine at that time, and saw no other animal on the track on that occasion. In the trial court plaintiff sought to discredit the testimony of the engineer above referred to, as to seeing an animal suddenly dash on the track, by introducing in evidence his written report of the accident made to the company shortly after it occurred; which report contains no statement that the engineer saw the animal at all, and is subject to an interpretation contrary to the testimony of the engineer on the witness stand. If this testimony of the engineer is discredited, as...