Ford v. Wichita Falls & S. Ry. Co.

• Decision Date: 02 June 1923
• Docket Number: (No. 10311.)
• Citation: 253 S.W. 932
• Court: Texas Court of Appeals
• Parties: FORD et al. v. WICHITA FALLS & S. RY. CO.

253 S.W. 932

FORD et al. v.WICHITA FALLS & S. RY. CO.

(No. 10311.)

Court of Civil Appeals of Texas. Fort Worth.

June 2, 1923.

Appeal from District Court, Young County; H. R. Wilson, Judge.

Action by H. M. Ford and others against the Wichita Falls & Southern Railway Company.From a judgment for plaintiffs in insufficient amount, they appeal.Reformed and affirmed.

Stine & Stine, of Henrietta, and J. A. Moore, for appellants.

Bullington, Boone, Humphrey & Hoffman. of Wichita Falls, and Arnold & Arnold, of Graham, for appellee.

BUCK, J.

H. M. and D. A. Ford filed suit in the district court of Young county against the Wichita Falls & Southern Railway Company, alleging that H. M. Ford was the owner of 500 acres of land situated in Young county, and that as such owner he leased in January, 1921, 75 acres thereof to D. A. Ford, his son, who planted and cultivated the same as follows: 20 acres of wheat, 20 acres of corn, and 12 acres of oats.He alleged that under ordinary conditions in existence in that community he would have made 200 bushels of oats, 260 bushels of wheat, and 700 bushels of corn.The value per bushel of each kind of grain was alleged, and that D. A. Ford was to have one-fourth of the crop and H. M. Ford was to have three-fourths.It was alleged that during the months of May, June, and July, 1921, defendant constructed a railroad in and across plaintiffs' land, and that while so constructing said railroad defendant carelessly and negligently tore down the fence around the farm of H. M. Ford and that stock entered said land and destroyed the crops of plaintiffs to the damage to H. M. Ford in the sum of $500, and to D. A. Ford in the same amount.It was further alleged that, through the negligence and carelessness of the defendant, stock were caused and permitted to enter the pasture of the plaintiffs containing 400 acres of grass, and that said stock ate and destroyed the grass of plaintiffs, for which they asked damages in the sum of $500.

The defendant answered by way of a general demurrer and a general denial, and specially pleaded that during the time in question and prior thereto there was a great deal of work going on in and about the premises of the plaintiff, such as laying pipe lines, scouting wells, and other general oil field work, and that said work was at the solicitation of the plaintiff either directly or indirectly or with the consent of the plaintiff either directly or indirectly, and that if any damage was done to the plaintiff that same was done on account of the acts and conduct of those engaged in the oil field work.

The cause was tried by a jury on special issues, and in response to the issues submitted the jury found:

(1) That the defendant was guilty of negligence in maintaining the fences on plaintiff's premises and that such negligence was the proximate cause of the damage to plaintiff's crops and grass.

(2) That the plaintiffs would have produced, if such corn had been allowed to mature, 225 bushels, and that the reasonable market value thereof at the time it would have matured was 70 cents a bushel, and that the reasonable cost of cultivating, gathering, and marketing said corn would have been $75.

(3) That plaintiffs would have produced, if the wheat had been allowed to mature, 144 bushels, and, at the reasonable market value thereof at the time of maturity, it would have cost to harvest, thresh, and market $74.

(4) That plaintiffs' oats would have produced 160 bushels, and that the reasonable market value of such oats at the time of maturity was 40 cents a bushel, and that the cost of harvesting, threshing and marketing said oats would have been $29.98.

(5) That 50 per cent. of the damages done to plaintiffs' crops and grass was done by other people or causes than the defendant and its employés.

(6) That the defendant's employés in the exercise of ordinary care could have reasonably foreseen and anticipated that, as a result of their failure to maintain the fences over their right of way, the plaintiffs would sustain damage to their crops, and that such negligence was the direct and proximate cause of the stock getting into plaintiffs' land.

(7) That the reasonable market value of the grass on plaintiffs' land just before the defendant began the construction of its railroad was 50 cents an acre, and 25 cents an acre when defendant completed the construction of its railroad.And that there was 400 acres of grass damaged; that the acts of defendant and its employés caused 50 per cent. of this damage.

Upon this verdict, the court entered a judgment for plaintiffs in the sum of $193.26, together with all costs of the suit, one-fourth to H. M. Ford and three-fourths to D. A. Ford.The plaintiffs have appealed.

Under their first proposition, appellants complain of the failure of the trial court to submit the value of the oats and wheat straw as an item separate from the value of the threshed oats.Another proposition complains of the failure of the court to submit to the jury the issue of the value of the wheat and oat stubble.A sufficient answer to these propositions is that plaintiffs did not plead that they suffered any damage by reason of the destruction of the straw and stubble.Therefore they could not recover for such items, and it would have been improper to submit to the jury such issues.They specially alleged the number of bushels of the several kinds of grain which they would have raised per acre, and the reasonable market value per bushel thereof.In a case tried upon special issues it is the duty of the court to submit the cause upon such special issues as are raised by the pleadings and evidence in the case.Article 1985, Rev. Statutes;Dermott Townsite Co. v. Wooten(Tex. Civ. App.)193 S. W. 214;Patterson v. Bushong(Tex. Civ. App.)196 S. W. 962, 964, writ denied.

Another proposition objects to the submission by the court to the jury of the following special issue:

"State whether or not any part of plaintiffs' oats, wheat, or corn was destroyed by plaintiffs' own stock, and, if so, what portion?"

The objection to the submission of this issue is that the issue is irrelevant and immaterial, and tended to mislead the jury, etc.While in the absence of negligence on the part of plaintiffsthe defendant would be liable for any damage to the growing crops caused by plaintiffs' cattle as well as the cattle of other persons, yet, in view of the finding of the jury that defendant was liable for all of the damage done and caused by the defendant and its employés tearing down the fences or leaving the gaps open, we think the submission of this issue was harmless error.

The court submitted this issue:

"What was the reasonable market value of said grass just before the defendant began the construction of its railroad over plaintiffs' land, and what was the reasonable market value of said grass after the defendant completed the construction of said railroad?"

Appellants objected to the submission of this issue on the ground that the submission of said issue was irrelevant, immaterial, and calculated to confuse and mislead the...