Fort Worth & D. C. Ry. Co. v. Hogsett

• Citation: 4 S.W. 365
• Parties: FORT WORTH & D. C. RY. CO. v. HOGSETT.
• Decision Date: 29 April 1887
• Court: Supreme Court of Texas

4 S.W. 365

FORT WORTH & D. C. RY. CO. v. HOGSETT.

Supreme Court of Texas.

April 29, 1887.

Appeal from Wise county.

J. M. O'Neal, for appellant. Hogsett & Greene, for appellee.

WILLIE, C. J.

Hogsett brought this suit against the appellant to recover damages for the burning of the grass upon a tract of land belonging to him, and permanently injuring the land upon which the grass was growing, all of which was alleged to have been caused by the negligence of the appellant in operating its engines, and keeping them in repair, and in allowing grass and weeds and other combustible matter to remain upon their right of way through appellee's land. The appellant pleaded a general denial, and Hogsett, before jury, recovered a verdict for $1,200. Judgment having been rendered against the appellant for that amount, it has taken an appeal therefrom to this court.

In proof of the market value of the grass, plaintiff below introduced as a witness George W. Short, who was asked as to its market value for pasturage and hay purposes. To this question the defendant objected, because it restricted the witness to special purposes in his statement of the market value. It is difficult to conceive for what other purpose the grass could have had any market value; but, if there were purposes to which it could be applied which gave it a higher market value, the defendant cannot complain that the witness was not asked as to these; for it was to its advantage that the highest market value should not be proved; and, if there were purposes to which it could be applied for which it was less valuable, the question was proper, for the plaintiff was entitled to the highest market value of his property destroyed by the negligence of the appellant. This objection is abandoned in this court, and it is insisted that the answer was improper, because a cross-examination of the witness developed the fact that he was merely giving his opinion as to the value of the grass. But an assignment of error to the admission of evidence must, in this court, rest upon the same objection taken to it below. Sharp v. Schmidt, 62 Tex. 263. Moreover, it has been held that evidence as to market value is not objectionable because it is in a measure the opinion of a witness. Railway Co. v. Knapp, 51 Tex. 592. That the answer to the question is shown to be an opinion is no ground for ruling out the question before it is answered. If the illegality of the answer is not developed till cross-examination, the proper practice is to have it excluded from the jury. The appellee was sworn as a witness in his own behalf, and, among other things, was asked to state how much less the land was worth immediately after the fire than it was before, and to state upon what he based his estimate. This question was objected to because it called for an improper measure of damages. The objection was overruled, and the witness proceeded to answer, giving facts upon which he based his calculation as to the amount of damages incurred by him. The bill of exceptions recites that the defendant excepted to the answer, making objections several times as the witness proceeded with his answer. The petition claimed damages, not only for the destruction of the grass growing upon the land, but for permanent injuries to the land itself, caused by the destruction of the sod and roots of the grass, and diminishing the capacity of the land to produce crops of grass, to which it was best adapted, for future...