Chicago. R. I. & G. Ry. Co. v. Word

• Decision Date: 31 May 1913
• Citation: 158 S.W. 561
• Parties: CHICAGO, R. I. & G. RY. CO. v. WORD.
• Court: Texas Court of Appeals

158 S.W. 561

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

Court of Civil Appeals of Texas. Amarillo.

May 31, 1913.

Rehearing Denied June 21, 1913.

Appeal from District Court, Potter County; J. N. Browning, Judge.

Action by C. T. Word against the Chicago, Rock Island & Gulf Railway Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Gustavus & Jackson, of Amarillo, and N. H. Lassiter and Robt. Harrison, both of Ft. Worth, for appellant. W. Boyce, of Amarillo, for appellee.

HUFF, C. J.

The appellee, Word, obtained judgment against appellant, the Chicago, Rock Island & Gulf Railway Company, in the district court of Potter county for the sum of $918. The cause of action was based upon the burning of grass on the 22d day of February, 1909, alleged to be in appellee's pasture, containing six sections of land, where he held 500 head of cattle to winter. It is alleged, among other things, that there was a fine coat of grass in the pasture, and that the same had not been pastured in the previous summer and fall, but was held for winter pasture, and that a few days previous to the fire appellee had turned 500 head of cattle into the pasture, and that the grass would have furnished ample spring and winter pasturage for the cattle, all of which facts were or should have been known to the appellant. And further alleged: "(4) That, as above stated, the plaintiff had saved said pasture to be used as a winter pasture, and had just turned 500 head of cattle therein for the purpose of wintering them on the grass; that said grass, on account of not having been grazed during the previous season was in fine condition, and that but for said fire his 500 head of cattle would have wintered in good shape in said pasture without the necessity of feed; that on account of the destruction of said grass there was not remaining in said pasture sufficient grass to winter said cattle, and the use of said pasture for grazing purposes was greatly impaired on account of the burned areas of land extending through the same, necessitating the cattle, when moving from place to place therein, to walk over considerable distances without anything on which to graze, which is not good for cattle, and which condition greatly reduced the value of the pasture remaining unburned as aforesaid; that by reason of the burning of said grass and the injuring of said pasture it was necessary for the plaintiff, in order to properly winter his said cattle, to feed them during the balance of the winter and until the coming of grass in the spring; that it was necessary to begin feeding said cattle immediately after the fire, and continue feeding them until about the 18th day of April, a period of about 55 days; that during said time plaintiff fed said cattle about 27½ tons of cotton seed cake, which was of the reasonable market value of the sum of $28.76 per ton, and that is what it cost the plaintiff; that plaintiff was at an expense of about $5 per day for the hire of men and teams to feed said cattle, so that plaintiff was out a total expense of about the sum of $1,065.90 for the feeding of said cattle during said time; that said expenses were reasonable and made necessary by the wrongful acts of said defendant in burning said grass; that said cattle, notwithstanding said feeding, did not winter in any better condition than they would have wintered but for said fire, and that by reason of the premises the plaintiff has been damaged in the said sum of $1,065.90, with interest thereon at the rate of 6 per cent. per annum from February 22, 1909. (5) That said grass at the time and place stated had no market value, that the reasonable value of the same to the plaintiff at the time and under the circumstances was the sum, to wit, of $1,065.90."

The facts established by the jury are that appellee, C. T. Word, had about six sections of land fenced in a pasture to itself, about 2,000 acres of grass therein was destroyed by fire, negligently communicated by one of appellant's passing engines, February 22, 1909. The land was leased at about six cents an acre. Appellee had in this pasture 500 head of 2-year old heifers. By reason of the burning of the grass, it was necessary for appellee to feed the cattle in such pasture, and by reason thereof he did feed the cattle cotton seed cake, of the market value as found by the jury, and other expenses in feeding the same. The evidence is sufficient to support the amount found by the jury. The appellee did not at that time have other pastures into which he could turn the cattle, and there were no other pastures which could be leased at that season of the year in that part of the country. The lands were leased by the year, and the lease was made to expire in July of each year. Cotton seed was about the cheapest feed that he could obtain at that time. The expenses in feeding the cattle were reasonable and necessary, and were proximately caused by the negligent burning of the grass by appellant. The market value of the leased land was about six cents per acre when they were leased, but the evidence is sufficient to support the finding that there was no market value at that time of the year. Appellant's road ran through a pasture country in a mile or so of the pasture in question, and the fire was communicated from the passing train of appellant to land adjacent to its road, and thence on to the particular pasture lands in question. The pasture at that time was stocked with cattle, dependent on the grass for sustenance, and up to the time of the fire had not been fed. The trial court submitted to the jury the following charge on the measure of damages: "If under the foregoing instructions you find for the plaintiff, and you further find that as a proximate result of the burning of the grass in the plaintiff's pasture it became and was reasonably necessary for him to furnish feed, and that he did furnish feed, to the cattle owned by him in said pasture in order to avoid greater loss and damage thereto, and in order to winter them, then you will find for the plaintiff as damages such sum of money as you believe from the evidence it was reasonably necessary for him to pay for and did pay out for feed for said cattle with the reasonable and necessary expenses incurred by him in feeding and caring for said cattle in order to winter them, together with 6 per cent. interest thereon from the 22d day of February, 1909."

Appellant assigns error in this charge, which is presented by the first assignment. Under this assignment, appellant presents the proposition: "The charge is error because the plaintiff was not entitled to recover the amount that was necessary for him to pay out for feed for the cattle which he did pay, but his proper measure of damages was the value of the grass destroyed." It may be stated as a general rule that the value of the grass destroyed is the measure of damages; but we think, if the wrongful act caused other damages, that also may be recovered. If injury accrues from a negligent act, the damages which the injured party is entitled to recover are such as will compensate him for the injury as might reasonably have been anticipated under the circumstances, such as in the usual and ordinary course of events would have been expected. The exact injury need not have been anticipated, nor the particular manner in which it occurred, if by the exercise of reasonable care it might have been foreseen that some like injury would have occurred. Railway Co. v. McKinsey, 78 Tex. 298, 14 S. W. 645, 22 Am. St. Rep. 54; Seale v. Railway Co., 65 Tex. 278, 57 Am. Rep. 602; T. & P. Ry. Co. v. Carlin, 111 Fed. 777, 49 C. C. A. 605, 60 L. R. A. 462; Railway Co. v. Bingham, 90 Tex. 223, 38 S. W. 163; 29 Cyc. 495; Sutherland on Damages ...