I. & G. N. R. R. Co. v. Cocke

• Decision Date: 12 May 1885
• Docket Number: Case No. 5454.
• Citation: 64 Tex. 151
• Court: Texas Supreme Court
• Parties: I. & G. N. R. R. CO. v. KATE COCKE ET AL.

64 Tex. 151

I. & G. N. R. R. CO.

v.KATE COCKE ET AL.

Case No. 5454.

Supreme Court of Texas.

May 12, 1885.

APPEAL from Bexar. Tried below before the Hon. G. H. Noonan.

On the 12th of July, 1883, Mrs. Kate Cocke, joined by her husband, brought suit in the district court of Bexar county, Texas, against the I. & G. N. R. R. Co. for damages caused by the killing and injury of stock, and recovered judgment for $300. A motion for a new trial being overruled, defendant appealed.

McLeary & Barnard, for appellant, on remote damages, cited: Brandon v. Manufacturing Co., 51 Tex., 128; Sedg. on Meas. Damages, 66.

On the instructions of the court, they cited: R. S., arts. 1317, 4245; 13 Amer. & Eng. R. R. Cases, 578, and note.

Cocke, Denman & Franklin, for appellees, on remote damages, cited: Willis v. Donac, 61 Tex., 588.

On the instructions of the court, they cited: Dill. Mun. Corp., vol. 1, secs. 250, 251, and notes; Cooley's Const. Lim. (4th ed.), pp. 235, 236, 241, 242, 257, 258; City Charter, Special Acts Legislature,August 13, 1870; Brownson v. Scanlan, 59 Tex., 222;Wells v. Barnett, 7 Tex., 584; W. & W. Ct. App. Civ. Cases, secs. 1006, 1148 and 1171; W. & W. Ct. App. Civ. Cases, secs. 263, 844; Willson's Com. App. Cases, vol. 2, parts 3 and 4, sec. 374; Dill. Mun. Corp., sec. 346, note 2, sec. 350; Wade on Retroactive Laws, sec. 172.

STAYTON, ASSOCIATE JUSTICE.

It is immaterial what may have been the defect in the citation, and what may have been the ruling of the court on the motion to quash it, for the motion was filed September 23, 1883, and the cause was not tried until the second term thereafter.

If the motion had been sustained, the cause would have stood for trial at the term at which it was tried, and even at the preceding term, without further service of citation; consequently the appellant could not possibly have suffered any injury from the ruling of the court, even if erroneous. I. & G. N. R'y Co. v. Brett, 61 Tex., 486.

If, in consequence of the wrong of the appellant, the cow of the appellee was so injured as to render it necessary to incur expense in taking care of and curing her, then the appellant was liable for such reasonable expenses as were necessarily incurred in this respect, and the court correctly so charged. Watson v. Proprietors of Lisbon Bridge, 14 Me., 205; Gillett v. Western R. R. Corporation, 8 Allen, 563; 2 Sedgwick on Measure of Damages, 315, note a.

The court instructed the jury, in effect, that the appellees were entitled to recover damages if the animals were injured by the cars of appellant, without making the liability of the appellant in any respect to depend upon whether the injury resulted from the negligence of the appellant or its employees.

The statute declares that “each and every railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company, in running over their respective railways, which may be recovered by suit before any court having competent jurisdiction of the amount. If the railroad company fence in their road, they shall only then be liable in cases of injury resulting from the want of ordinary care.” R. S., 4245.

Under the first subdivision of this article the question of negligence on the part of a railway need not be presented by evidence, for the law presumes that it exists if the railway be not fenced, i. e., that the failure to fence is conclusive evidence of the want of the exercise of due care.

If, however, the road be fenced, then the burden of proving the want of due care rests upon a plaintiff who sues to recover for injuries done to his stock.

Under statutes in effect the same as in force in this state, it has been held that the general terms used in such statutes imposing a liability on railway companies for injuries done to animals, unless their railways are fenced, do not apply to such places as public necessity or convenience require should be left unfenced, as the streets of a city or town, depot and contiguous grounds, the crossings of highways and other like places. R. R. Co. v. Shriner, 6 Ind., 141;R'y Co. v. Rowland, 50 Ind., 353; R. R. Co. v. Kinney, 8 Ind., 402; Soward v. R. R. Co., 30 Iowa, 552; Soward v. R. R. Co., 33 Iowa, 387; Davis v. R. R. Co., 26 Iowa, 551; R. R. Co. v. Lull, 28 Mich., 510;Iba v. R. R. Co., 45 Mo., 473; I. & G. N. R. R. Co. v. Leuders, White & Willson's Condensed Cases, § 314; I. & G. N. R. R. Co. v. Smith, Id., § 844.

This construction is manifestly correct, and would be necessary to harmonize the article in question with other parts of the act of which it is a part, and with other statutes in force in this state.

Article 4170, Revised Statutes, declares that “such corporation shall have the right to construct across, along or upon any stream of water, water-course, street, highway, plank-road, turnpike or canal, which the route of said railway shall intersect or touch; but such corporation shall restore the stream, water-course, street, highway, plank-road, turnpike or canal thus intersected or touched, to its former state, or to such state as not to unnecessarily impair its usefulness, and shall keep such crossings in repair.”

Any other construction would make article 4245 in conflict with articles 4362, 4363, and with article 405 of the Penal Code.

It appears that the animals were injured within the corporate limits of the city of San Antonio; but whether this occurred in such part of the city limits that it would have been impracticable or unlawful for the railway company to fence is not conclusively made to appear by the evidence.

There is, however, some evidence tending to show that the injury was inflicted at a point on the appellant's railway at which it could not properly have fenced.

The city of San Antonio embraces an area of thirty-six square miles, and the mere fact that the railway passes through the corporate limits of the city would of itself furnish no reason why it should be relieved from the responsibility imposed by the general statute if the road be not fenced; but the evidence, while not very full, tends to show that the injury occurred at the place where the railway crosses the Fredricksburg road.

Where an injury, such as is complained of in this case, occurs within the limits of a town or city, it rests with the railway company to show that the place at which the animal entered was one which under the law it would not be permitted to fence. R. R. Co. v. Lull, 28 Mich., 510.

This fact, however, is one to be established like any other fact, and where there is evidence before a jury from which the inference may reasonably be drawn that such was the character of the place, then a jury should not be instructed to find for the plaintiff, upon proof of the injury, without reference to whether the defendant had exercised due care; for if the injury occurs at a place where there is no right to fence, then the railway company is liable only for a failure to exercise reasonable care. Davis v. R. R. Co., 26 Ia., 552.

As there was evidence from which the jury might have found that the animals were injured at a place at which the appellant was not required to fence its road, it was error for the court to make the right of the appellee to recover depend upon whether the animals were injured by the train of appellant, without reference to the degree of care used.

The appellant asked several instructions which were refused, and the rulings in this respect are assigned as error.

The first instruction asked by the defendant was as follows:

“If the jury believed from the evidence that the animals killed and injured were so killed or injured while running at large within the city limits, then the plaintiffs cannot recover, unless they show that there was gross negligence on the part of the employees of the railroad company.”

It was not error to refuse this charge, for the cattle may have been lawfully running at large within the city limits, and injured at a place which might have been fenced by the appellant; and if so, it was liable if it did not use ordinary care.

They may have been lawfully running at large when injured, and if so, even though injured...