Gulf, C. & S. F. Ry. Co. v. Harrell
| Decision Date | 02 May 1923 |
| Docket Number | (No. 6574.) |
| Citation | 270 S.W. 187 |
| Parties | GULF, C. & S. F. RY. CO. et al. v. HARRELL et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Coleman County; J. O. Woodward, Judge.
Action by C. K. Harrell and others against the Gulf, Colorado & Santa Fé Railway Company and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with instructions.
Snodgrass & Dibrell, of Coleman, and Terry, Cavin & Mills and O. B. Wigley, all of Galveston, for appellants.
Baker & Weatherred, of Coleman, for appellees.
Findings of Fact.
Appellees shipped three cars of sheep from Denver, Colo., to Santa Anna, Tex. They were reshipped, under a new contract, at Amarillo, Tex., to the same destination. Appellees alleged that some of the sheep were killed, some were lost, and the remainder were damaged by negligence of appellants. The case was submitted upon special issues as follows:
The evidence sustains the verdict of the jury. There were some special issues requested by defendants and given by the court, which are immaterial for the purposes of this decision.
Opinion.Appellants' first and second propositions are:
Propositions Nos. 3, 4, and 5 present this same issue. The objection urged by appellants would be well taken if they had made such objection to the charge of the court. Under our statute, all objections not presented before the case is submitted to the jury are to be deemed as waived.
The objections urged to special issues Nos. 1 and 2 were that the question submitted was on the weight of the evidence, in that it assumes that the carrier was negligent, and submits more than one issue of fact, to wit, the question of negligence and the question of injuries. The first objection that the charge is upon the weight of the evidence is not submitted under any of appellants' propositions. The second objection, it will be seen, does not present the issue in proposition No. 1 as to submitting the different grounds of negligence alleged, but only that the two issues of fact submitted were as to negligence and as to injuries.
While it has been uniformly held that under our statute (article 1971) not more than one issue of fact should be submitted to the jury in one question, it has been held by this court, in Railway v. Blackstone, 217 S. W. 210, that, where one of the issues embraced in the question is as to an undisputed fact, the same will not be considered as an issue submitted to the jury. In the instant case the undisputed evidence showed that the sheep were injured; and therefore this was not an issue of fact to be submitted to the jury. This being eliminated, the only issue submitted in questions Nos. 1 and 2 was as to the negligence of the appellants.
Appellants assign as error permitting witness Featherston to testify as to the market value of sheep at Santa Anna. Market value is at best only a matter of opinion, and considerable liberality has been shown by the decisions in this state, and we think properly so, as to the qualification of the witness to speak as to market value. We do not think there was any error in admitting this testimony; and also that other evidence of qualified witnesses was sufficient to establish the market value of sheep at Santa Anna at the time alleged.
Appellants assign error upon the refusal of the court to permit them to introduce a...
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