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

• Decision Date: 30 May 1890
• Citation: 14 S.W. 158
• Parties: GULF, C. & S. F. RY. CO. v. HUDSON.
• Court: Texas Supreme Court

14 S.W. 158

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

Supreme Court of Texas.

May 30, 1890.

Appeal from district court, Johnson county.

Smith & Davis and J. W. Terry, for appellant. Geo. D. Green, J. F. Henry, and Crane & Ramsey, for appellee.

STAYTON, C. J.

Appellee owned, and was driving, a large herd of cattle, along the public highways from Texas to the Indian Territory, when at night he stopped them on uninclosed land more than one-half mile from appellant's road. During the night there was heavy rain, accompanied with thunder and lightning, and the cattle, despite the efforts of the servants of appellee to prevent it, drifted to and upon the railway; and while there, the night being very dark, many of them were killed and crippled by collision with a train on appellant's road, which was unfenced. To recover damages for the loss thus occasioned, this action was brought, and appellee recovered a judgment for $775.13. During the trial, appellant proposed to ask a witness, shown to be familiar with the handling, of cattle, "what effect, if any, as to checking or holding in check a herd of cattle when they are in herd and stampeded, will an ordinary wire fence have on such herd under such circumstances," expecting to prove that such a fence would not have prevented cattle so situated from entering on the road-way. To this evidence, appellee objected, and the court sustained the objection. This ruling is assigned as error.

The statute provides that "each and every railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company in running over their respective railways, which may be recovered by suit before any court having competent jurisdiction of the amount. If the railroad company fence in their road, they shall only then be liable in case of injury resulting from the want of ordinary care." Rev. St. art. 4245. As said in Railway Co. v. Childress, 64 Tex. 349, the statute "clearly intended to provide, first, what should make out a case for recovery on the part of the plaintiff, and then what should constitute the only defense which the defendant could set up to defeat it. * * * The clear meaning of the statute, as derived from its language, is that, if the owner of the stock proves that it has been killed or injured by the cars of the company, he shall recover damages, unless they prove that their road was fenced, in which event he shall not recover unless the injury resulted from want of ordinary care on the part of the railroad company." There may be another exception, not now necessary to consider. The offer was to prove by the opinion of a witness that the exercise of that care prescribed by the legislature, which must exist before an inquiry will be entered into as to the existence or non-existence of ordinary care, would have been unavailing. We are of opinion that a railway company that has not fenced its road has no right to enter into an inquiry whether the injury would have occurred had its road been properly fenced. If a railway company does not fence its road, the law makes this such negligence as fixes liability on the company for injury to stock by locomotives and cars running on the road at any place where the...