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

• Citation: 40 S.W. 745
• Court: Court of Appeals of Texas
• Decision Date: 03 April 1897
• Parties: HOUSTON & T. C. R. CO. v. JONES.

40 S.W. 745

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

Court of Civil Appeals of Texas.

April 3, 1897.

Appeal from Grayson county court; J. H. Wood, Judge.

Action by A. Jones against the Houston & Texas Central Railroad Company. Plaintiff recovered judgment, and defendant appeals. Reversed.

Beaty & Culver, for appellant.

RAINEY, J.

This suit was brought in justice court by appellee against the railway company to recover for the value of one mule, alleged to be of the value of $150, and alleged to have been killed by the negligence of appellant's servants, by being struck by a train. Appellant pleaded general denial, and that the animal killed was at a place where appellant was not bound to fence its road, and that appellee was guilty of negligence in allowing the mule to run at large contrary to the ordinances of the city of Sherman. Judgment was rendered for appellee, and an appeal taken to the county court, where a like result was had, and from the judgment of the county court this appeal is taken.

Over the objection of appellant, the court permitted the appellee to show by two witnesses the usual speed of defendant's train, before and after the killing of said mule, at the place where said mule was killed. We think this objection should have been sustained. The proof of the rate of the speed of the train should have been confined to the speed of the train at the time the mule was killed. Whether negligence exists must be determined by the facts in the very case in which the question arises. In cases like this it is not permissible to show custom or habitual conduct of the defendant in order to show the existence or absence of negligence at a given time. Railway Co. v. Evansich, 61 Tex. 3; Railway Co. v. Rowland, 82 Tex. 166, 18 S. W. 96; Railway Co. v. Payne (Tex. Civ. App.) 35 S. W. 297; Sills v. Railway Co. (Tex. Civ. App.) 28 S. W. 908.

Appellant complains of the fourth paragraph of the court's charge, which is as follows: "If you find for plaintiff, the measure of damages will be the reasonable market value of said mule in the city of Sherman at the date it was struck, with 6% interest on said amount from that time to the present time. If you find for defendant, simply say so." The objection urged is that the measure of damages was the value of the animal at the time of the killing, and that the plaintiff would not be entitled to recover interest before the rendition of the judgment. We are of opinion that the court did not err in this particular. We are aware that in one case, to wit, Railroad Co. v. Muldrow, 54 Tex. 233, our supreme court took a different view, which case has been followed by two of the courts of civil appeals in this state. Railway Co. v. Cunningham, 4 Tex. Civ. App. 262, 23 S. W. 332; Railway Co. v. Dromgoole (Tex. Civ. App.) 24 S. W. 372. In the Muldrow Case the court based its opinion upon what we consider a wrong construction of the statute. The statute provides that "each and every railway company shall be liable to the owner for the value of all stock killed or injured by the locomotive and cars of such railway company in running their respective railways, which may be recovered by suit in any court having competent jurisdiction of the amount. If the railway company shall fence in their road, then they shall only be liable for injuries resulting from want of ordinary care." The court construed this article to limit the right of recovery to the value of the stock killed or injured, without reference to the time of the recovery had. We think this construction wrong. The object of the statute, in our opinion, was not to change the common-law liability, which fixed the measure of damages for the wrongful killing of stock by a railway company at the value of the stock killed, with interest. We do not think the statute intended to change the rule in that respect, but the object was to absolutely fix liability upon the railway company for the killing of stock at any place where it could fence its road; and, where the road was fenced, it would only be responsible in cases of injury resulting from the want of ordinary care. We think, under the statute, that when stock is killed the owner thereof has a fixed money demand, which is due and payable from and after the time of the killing, and, if delay is made in the payment...