Houston & T. C. R. Co. v. Ney

• Decision Date: 11 April 1900
• Citation: 58 S.W. 43
• Parties: HOUSTON & T. C. R. CO. v. NEY.
• Court: Texas Court of Appeals

Page 43

58 S.W. 43

HOUSTON & T. C. R. CO. v. NEY.

Court of Civil Appeals of Texas.

April 11, 1900.

Appeal from Travis county court; A. S. Walker, Judge.

Action by Elizabet Ney against the Houston & Texas Central Railroad Company to recover for goods damaged in transit. From a judgment for plaintiff, defendant appeals, and assigns, among others, the following errors: "The court erred in the fourth paragraph of its general charge to the jury, which reads substantially as follows: `You are instructed that it was the duty of the Galveston, Laporte & Houston Railway Company and of the defendant to use ordinary care in carrying the shipment, each over its own line of railroad; and in case you find from the evidence that the defendant or said Galveston, Laporte & Houston Railway Company failed to use ordinary care (that is, such care as an ordinarily prudent person would use under like circumstances) in carrying the boxes shipped, and that as a result of such failure the property shipped was injured, then you will find for the plaintiff, and fix the amount of the damages as hereinafter instructed.' The court erred in the sixth paragraph of its main charge to the jury, which reads substantially as follows: `And in case you do not find from a preponderance of the evidence that the injuries, if any, occurred while the shipment was in the possession of the defendant or the Galveston, Laporte & Houston Railway Company, then you will find for the defendant.'" Affirmed on rehearing.

Frank Andrews, for appellant. Fiset & Miller and J. W. McClendon, for appellee.

FLY, J.

Appellee, the wife of Edmund Montgomery, prosecuted this suit alone, under the name of Elizabet Ney, to recover damages from appellant for the breakage of certain plaster busts and sketches, in the sum of $840. The cause was tried by a jury, and a verdict was returned for the full amount claimed, and from the judgment based thereon this appeal is prosecuted.

It was in evidence that the boxes containing the property were shipped from Munich, Bavaria, to Galveston, Tex., at which place they were received by the agents of appellee and delivered to the Galveston, Laporte & Houston Railway Company for shipment over its line and that of appellant to Austin, Tex. The property was damaged when it reached Austin. The evidence is sufficient to show that the property had no market value in Austin, or perhaps anywhere else, and the court charged the jury as follows: "In case you find in favor of the plaintiff under the foregoing, from the undisputed evidence that the property shipped had no market value, you will look to the original cost of the articles injured or broken, and to the probable cost of reproducing or replacing or repairing same, as shown by the testimony, and determine from the evidence on those points the amount of damages, if any, plaintiff may be entitled to." One of the grounds of objection to the charge was that there was no evidence of the original cost of the articles injured. The objection is well taken. What appellee may have received for such articles from Bismark or the king or queen of Bavaria did not tend to indicate what the original cost of the broken busts was, nor does any fact testified to by appellee tend to prove such cost. In the absence of such evidence, the charge was erroneous. Railway Co. v. Curry, 64 Tex. 87; Railway Co. v. Simcock, 81 Tex. 503, 17 S. W. 47. In this cause the property injured or destroyed being nonmarketable, the measure of damages, in case the property could be reproduced or replaced, would be the cost of reproducing or replacing the...