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

• Citation: 118 S.W. 759
• Parties: CHICAGO, R. I. & G. RY. CO. et al. v. JONES.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 25 March 1909
• Court: Court of Appeals of Texas

118 S.W. 759

CHICAGO, R. I. & G. RY. CO. et al. v. JONES.^†

Court of Civil Appeals of Texas.

March 25, 1909.

Rehearing Denied April 22, 1909.

Appeal from District Court, Jack County; J. W. Patterson, Judge.

Action by C. W. Jones against the Chicago, Rock Island & Gulf Railway Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

N. H. Lassiter, Robert Harrison, and Stark & Cox, for appellants. Sporer & McClure, for appellee.

WILLSON, C. J.

December 5, 1906, appellee delivered to the Chicago, Rock Island & Gulf Railway Company, at Jacksboro, Tex., for transportation over its line of road, and over the Chicago, Rock Island & Pacific Railway Company's line of road to Pueblo, Colo., 29 head of horses, consigned to J. H. Jones at La Junta, Colo., a station on the Atchison, Topeka & Santa Fé Railway. The horses should have reached their destination within three or four days from the time they were received by the Chicago, Rock Island & Gulf Railway Company at Jacksboro. On account of its negligence and the negligence of the Chicago, Rock Island & Pacific Railway Company the horses did not reach Pueblo until December 14th, where one of them died, and the others did not reach La Junta until December 15th. As a result of the negligence of said Chicago, Rock Island & Gulf Railway Company and said Chicago, Rock Island & Pacific Railway Company in delaying the carriage of the horses, and in roughly handling while transporting them, one of the horses died en route, and the others were injured, and appellee thereby was damaged in the sums found by the jury, and adjudged in appellee's favor by the court below.

The action of the court in admitting as evidence certain testimony of the witness Jones is made the basis of appellants' first assignment of error. There is a discrepancy between the question propounded to the witness and the grounds of the objection to it as stated in the statement of facts, and the question and grounds of objection to it as stated in the bill of exceptions. In appellants' brief the ruling is presented as it is shown by the latter. But the statement of facts is an agreed one, and we should allow it to control in disposing of the assignment. Bryan Press Co. v. H. & T. C. Ry. Co. (Tex. Civ. App.) 110 S. W. 100. With reference to the value of the horses at La Junta, according to the statement of facts, the question was: "What was the market value of these horses at that time if they had been transported properly, and had arrived there without any unnecessary delay?" The grounds of appellants' objection to the question were that "it calls for the opinion of the witness, is hearsay, is not the proper measure of damages, and invades the province of the jury." The answer of the witness was: "I think they were worth $100 per head, if they had arrived there in proper condition." From other testimony given by the witness it appeared that he had been engaged all his life in breeding, growing, and handling horses; that he had shipped horses from Jacksboro to La Junta; that he was acquainted with the horses in question, and their condition at the time they were shipped from Jacksboro; that they were then in good condition; and that he was acquainted with the value of such horses in La Junta. We do not think the court erred in refusing to exclude as evidence the answer of the witness. The measure of appellee's damages was the difference between the market value of the horses at La Junta in the condition in which they would have arrived there but for appellants' negligence and their market value in the condition in which, by reason of such negligence, they did arrive there. G., C. & S. F. Ry. Co. v. Stanley, 89 Tex. 42, 33 S. W. 110. The fact that they were not to be transported by appellants all the way to their destination did not change the measure of appellee's damages as stated. E. T., V. & G. Ry. Co. v. Johnston, 75 Ala. 596, 51 Am. Rep. 494. Market value is largely a matter of opinion, and it was not error to permit the witness to state his opinion as to the market value of the horses at La Junta had they arrived there in proper condition; it appearing that he was acquainted with the market value at that place of such horses. T. & P. Ry. Co. v. Donovan, 86 Tex. 378, 25 S. W. 10. The answer did not "invade the province of the jury." It merely stated the opinion of the witness as to the market value of the horses at La Junta, if they had arrived there in "proper condition." Whether they did arrive there in that condition or not was left, so far as the answer of the witness was concerned, without suggestion one way or the other, to the jury.

Appellee asked his witness McGowen the following question: "Do you know what was the difference in the market value of the said horses in the condition they arrived and the condition they should have arrived?" Over appellants' objection the witness was permitted to answer: "If these horses were shipped in good condition, and the shape I saw them in when they arrived here, the difference in their market value would have been at least $50." By their second assignment of error appellants complain of the refusal of the court to exclude as evidence the answer of the witness. The grounds urged in the motion to strike out the answer of the witness were that it "is hearsay, and only an opinion of the witness, and does not form a proper basis for estimating damages in this case, and the said answer invades the province of the jury." The witness testified that he was a "raiser, breeder, and dealer in horses" at La Junta, that he saw the horses in question on the morning after they had been unloaded at La Junta, and that he was...