Gulf, C. & S. F. Ry. Co. v. Lampkin

• Decision Date: 03 February 1909
• Citation: 116 S.W. 128
• Court: Texas Court of Appeals
• Parties: GULF, C. & S. F. RY. CO. v. LAMPKIN.

116 S.W. 128

GULF, C. & S. F. RY. CO. v. LAMPKIN.

Court of Civil Appeals of Texas.

February 3, 1909.

Appeal from Milam County Court; John Watson, Judge.

Suit by W. S. Lampkin against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Terry, Cavin & Mills and A. H. Culwell, for appellant. Monta J. Moore and E. A. Camp, for appellee.

KEY, J.

This is a suit for damages growing out of a shipment of cattle and hogs from Cameron to Galveston, Tex. There was a jury trial, resulting in a verdict and judgment for the plaintiff, and the defendant has appealed.

We overrule all the assignments of error except the eighth and ninth, which are sustained. The two assignments referred to challenge the rulings of the trial court in permitting the plaintiff to testify that he had received from the commission house at Galveston to whom the stock was shipped $90 for 10 head of cattle, part of the shipment involved in this suit, and in not striking from the account of sales, which was put in evidence, the item showing that 9 head of cattle, not sold by weight, sold for $10 per head and for a total amount of $90. The plaintiff was present in Galveston when the other animals were sold, and as to these, in connection with the testimony given by the plaintiff, we think the account of sales was admissible, though it was not proved up by any other witness. But, according to the plaintiff's own testimony, the 9 head of cattle embraced in the account of sales as sold, not by weight, but at $10 per head, were not sold while the plaintiff was in Galveston, nor until after he left there, and no witness testified that the account of sales in that respect was correct; nor was there any other testimony as to how much the 9 head of cattle were sold for. It is true, as stated by the judge in qualifying the bill of exceptions that the plaintiff testified that the market value of the 9 head of cattle on their arrival at Galveston was $10 per head, and that, if they had been moved in reasonable time and been properly handled, they would have been worth $20 per head. But the plaintiff was an interested witness, and the jury was not compelled to accept his testimony as true, and as the item in the account of sales, showing that the 9 head of cattle were sold for $10 per head, tended to corroborate the plaintiff's testimony as to their value, it was material, and its admission cannot be treated as harmless error. That it was error...