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

• Decision Date: 03 February 1915
• Docket Number: (No. 5438.)
• Citation: 175 S.W. 708
• Parties: HOUSTON & T. C. R. CO. v. LINDSEY et al.
• Court: Texas Court of Appeals

175 S.W. 708

HOUSTON & T. C. R. CO. v. LINDSEY et al.

(No. 5438.)

Court of Civil Appeals of Texas. Austin.

February 3, 1915.

Rehearing Denied March 17, 1915.

Appeal from Llano County Court; A. H. Wilburn, Judge.

Action by J. E. Lindsey against the Houston & Texas Central Railroad Company and another. From a judgment for plaintiff against defendant named, the latter appeals. Affirmed.

Baker, Botts, Parker & Garwood, of Houston, and Garrett & Garrett, of Austin, for appellant. J. H. McLean, of Llano, for appellees.

RICE, J.

This suit was brought by appellee Lindsey against the appellant and the Gulf, Colorado & Santa Fé Railway Company, to recover damages alleged to have been sustained by him to a shipment of 140 head of cattle from Ft. Worth to Llano, on the 11th of November, 1913, on account of delay, rough handling, and causing the same to be unloaded and held in insufficient pens at Lampasas. Appellant answered by general denial, and specially that said shipment was delivered to it by the Santa Fé Company at Lampasas at about 5:30 o'clock p. m. on November 12, 1913, and that according to its regular published schedule, known to plaintiff, it had no train leaving Lampasas for Llano until the early morning of November 13th, whereby it became necessary to unload, feed, and water said cattle, which was done by it at Lampasas, where the same were given reasonable care and attention; that the cattle were reloaded next morning, and taken from thence to Llano on its regular train, and delivered to plaintiff in good condition. A jury trial resulted in a verdict and judgment in favor of the Gulf, Colorado & Santa Fé Company, for which reason it is unnecessary to state its pleadings, but against appellant in favor of appellee Lindsey for the sum of $280, from which this appeal is prosecuted.

We do not think any error was committed in permitting appellee to prove the appearance and condition of the cattle at Ft. Worth, as well as their appearance and condition when received at Llano, without first showing their condition at Lampasas, where they were received by appellant from the Santa Fé Company, since the court expressly charged the jury that the appellant was only responsible for damages, if any, occasioned by its own negligence.

Nor do we think there was an error committed in permitting plaintiff to testify that the cattle were in worse condition when they reached Llano, the point of destination, than they would have been had they been transported in the usual and ordinary way, because it appears that he was a cattleman, having had considerable experience in shipping cattle, having made many shipments from Llano to Ft. Worth over the lines of railways in question, and therefore was qualified to express his opinion. Besides this, it appears that other testimony of the same import was admitted without objection.

The cattle were unloaded and kept all night in the railway pens at Lampasas. The plaintiff testified, over appellant's objection, that the cattle were injured by reason of the pens being insufficient in size. It is urged by appellant that the court erred in permitting the witness to express his opinion as to the sufficiency of the pens, claiming that this was a matter wholly for the determination of the jury under the facts, citing Railway v. Slator, 102 S. W. 156; Railway v. Cage Cattle Co., 95 S. W. 705; Railway v. Cooper, 32 Tex. Civ. App. 592, 75 S. W. 328. While in the Slator Case it was ruled that evidence of this character was inadmissible, still that case and the other cases cited are distinguishable from this in that in the present case the witness, before expressing his opinion, detailed the facts as to the sufficiency of the pens, stating, among other things, that he and the agent of the company went out to look at the pens, and upon their return the agent himself wired appellant's officials that the pens were not large enough to hold the bunch of steers, but they told him to put them in there anyway, whether it would hold them or not; that the cattle were unloaded into pens about 40 or 50 feet square, very small; that the cattle were crowded into the pens, were unable to eat and rest, and had no room to lie down. We think it is unquestionably the law that a nonexpert witness is allowed to express his opinion, when in so doing he at the same time details the facts and circumstances upon which the same is based. See Gulf, Colorado & Santa Fé Ry. Co. v. Richards, 83 Tex. 203-205, 18 S. W. 611; American Construction Co. v. Caswell, 141 S. W. 1013-1017; American Const. Co. v. Davis, 141 S. W. 1019; M. B. of America v. Jordan, 167 S. W. 794, 795; Guerra v. S. A. S. P. Co., 163 S. W. 669; Johnson v. Griffiths & Co., 135 S. W. 683; St. L. & S. F. Ry. Co. v. Sizemore, 53 Tex. Civ. App. 491, 116 S. W. 403-408; S. A. & A. P. Ry. Co. v. Barnett, 27 Tex. Civ. App. 498, 66 S. W. 474.

Even if appellant's contention were true, the admission of such evidence was harmless, because similar testimony, without objection, was admitted. For which reasons we overrule the third assignment.

These cattle were stock cattle, shipped for the...