Houston & T. C. R. W. Co. v. Terry

• Court: Texas Supreme Court
• Writing for the Court: DEVINE
• Citation: Hous. & T. C. R. W. Co. v. Terry, 42 Tex. 451 (Tex. 1874)
• Decision Date: 01 January 1874
• Parties: HOUSTON & T. C. R. W. CO. v. JAMES TERRY.

42 Tex. 451

HOUSTON & T. C. R. W. CO.

v.JAMES TERRY.

Supreme Court of Texas.

1874.

ERROR from Harris. Tried below before the Hon. James Masterson.

Suit to recover the value of a mare and colt alleged, the former to have been killed, and the latter so injured as to make it worthless, by collision with appellant's train of cars, within the corporate limits of the city of Houston.

The petition alleged that the cars are inhibited, by an ordinance of the city, from running at a greater rate of speed than six miles an hour within the city limits; that at the time of the injury complained of, the cars were running at a much greater rate, and without signal of either whistle or bell; that while so running, the engine struck the mare and colt, and the running of the engine in this manner, and the appellant's negligence, caused the injury complained of; and that appellant's road was not fenced.

Appellant went to trial on the general issue, when appellee recovered judgment for one hundred and fifty dollars for the mare and fifty dollars for the colt. There was a motion for new trial for error of law in the charge to the jury, and because the verdict was contrary to the weight of evidence; which being overruled, appellant assigns for error the law as given in the court's charge, and that the court erred in overruling motion for a new trial.

On the trial, appellee examined two witnesses only, who testify to having seen the killing. The first said he was sixty yards or farther from the mare at the time she was struck; that she was feeding on the north side of the track, and when the train was within about twenty feet of her, she started to cross the track in front of the engine, and did not seem to be in a hurry, when the pilot caught her and threw her on the south side of the track on some car wheels and killed her. When he went to look at the mare, the colt ran.

The other witness was about the same distance from the animals, and said the mare was on the north side of the track, and when struck by the locomotive, was crossing the track seemingly in a walk; she was thrown on some car wheels on the south side, but the colt ran on ahead of the train; he saw it kick back at the train once, but don't know whether it got hurt or not.

This was all the testimony of appellee as to the killing, and the manner of killing.

Appellant, in defense, examined three eye-witnesses as to the alleged killing, the first of which was the engineer of the train. He testified he was coming in on time, blew the whistle when within a mile and a half of the depot, and then had twenty minutes within which to reach the depot in the city; that after getting within the corporate limits, he had the bell ringing until he reached the depot; that it was ringing at the time the mare was killed, and he was then running four or five miles an hour. He says he saw the mare, and she was on the south side of the track, and remained on that side; that she did not cross the track, and could not have done so without being seen by him; that she ran on the south side in advance of the engine, and did not seem much frightened until about the time the engine got nearly opposite her, when she jumped and fell on some truck wheels on the same side. He stated positively that neither the mare nor the colt was on the track ahead of him at any time, and no part of the train touched either of them.

Other witnesses testified that the animals were not touched by the train.

The court instructed the jury:

First.“If defendant's cars or locomotive ran against the mare and colt, both or either--then find for plaintiff the value of the animal killed or injured, according to the proof.”

The second instruction, among other things, told the jury that, “if the evidence satisfy you that defendant's...