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

• Decision Date: 11 March 1908
• Citation: Houston & T. C. R. Co. v. Roberts, 108 S.W. 808, 101 Tex. 418 (Tex. 1908)
• Parties: HOUSTON & T. C. R. CO. et al. v. ROBERTS et al.
• Court: Texas Supreme Court

108 S.W. 808

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

Supreme Court of Texas.

March 11, 1908.

Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.

Action by W. H. Roberts and others against the Houston & Texas Central Railroad Company and others.Judgment for plaintiffs, and defendants appeal to the Court of Civil Appeals, which certified a question to the Supreme Court.Question answered.

S. R. Fisher, S. W. Fisher, J. H. Tallichet, and Baker, Botts, Parker & Garwood, for appellants.McLean & Spears, for appellees.

WILLIAMS, J.

Certified question from the Court of Civil Appeals for the Third District as follows:

"This was a suit by W. H. Roberts and C. E. Shuets, plaintiffs in the court below, against the Houston & Texas Central Railroad Company, the Gulf, Colorado & Santa Fé Railway Company, and the Atchison, Topeka & Santa Fé Railway Company, defendants in the court below, to recover damages for delay and rough handling of a shipment of about 29 car loads of cattle from Llano and Marble Falls, Tex., to Fairfax, in the Indian Territory, and to Oklahoma.The case being tried before a jury, there was a verdict and judgment in the trial court for appellees against all of appellants, the whole amount of which was apportioned between them.W. H. Roberts, one of the plaintiffs in the court below, after having testified that he had been engaged in the cattle business about 25 years, during which time he had had experience in the shipment of cattle from Llano and vicinity into Oklahoma Territory and the vicinity of Fairfax; that he had shipped for himself this year to the territory, and had been with several train loads for other people; that he had shipped one train of cattle from Llano to Fairfax by way of Lampasas over the Houston & Texas Central Railway from Llano to Lampasas, and over the Gulf, Colorado & Santa Fé Railway from Lampasas to Shawnee, and over the Atchison, Topeka & Santa Fé Railway from Shawnee; that he had made four or five trips over these roads as far as Shawnee, was asked by his counsel on direct examination the following question, to wit: `From your own knowledge and experience as a cattleman, and from your experience in shipping cattle to the territory and vicinity over these roads, having gone with several shipments over the roads that these cattle were shipped by, what is a reasonable time within which to transport a train of cattle from Llano to Fairfax, when they are transported with ordinary care and diligence?'To which said question and any answer that might be made thereto the defendants then and there in open court objected, on the ground that such testimony was the mere opinion of the witness on a mixed question of law and fact, and that the determination of what was a reasonable time was one for the jury to determine from all the facts.But the court overruled said objection, and permitted said witness to make, and the witness did make, the following answer, to wit: `I have had them to make it in 34 hours; and I was thoroughly satisfied anywhere from 30 to 36 hours'(would be a reasonable time to make the trip).

"In addition to the objection that the witness could not testify to what was a reasonable time within which to transport said cattle, counsel also urged that it was not permissible for the witness to testify what in his opinion is or is not ordinary care and diligence, and that what is ordinary care and diligence was likewise a mixed question of law and fact, to be determined by the court or jury from all the facts of the particular case, and to permit a witness to give his opinion thereon would be to submit the determination of the very issue of the case to the witness, instead of to the court or jury.The question was properly raised by an assignment of error, was material, and from the record it possibly influenced the verdict of the jury.In view of the conflicting opinions in this state upon the admissibility of this character of testimony, especially the cases of T. & P. Ry. Co. v. Ellerd(Tex. Civ. App.)87 S. W. 362, T. & N. O. Ry. Co. v. Walker(Tex. Civ. App.)95 S. W. 743, Chicago, R. I. & T. Ry. v. Carroll, 36 Tex. Civ. App. 359, 81 S. W. 1020, andSame v. Kapp(Tex. Civ. App.)83 S. W. 233, holding that such testimony is admissible, and the following cases holding to the contrary, to wit: P. & N. T. Ry. Co. v. Evans-Snider-Buell Co.(Tex. Civ. App.)93 S. W. 1024;H. & T. C. R. R. v. Schuttee(Tex. Civ. App.)91 S. W. 806;S. A. & A. P. Ry. Co. v. Jackson(Tex. Civ. App.)85 S. W. 446;T. & P. Ry. v. Lee(Tex....