International & G. N. R. Co. v. Hughes

• Decision Date: 17 May 1887
• Parties: INTERNATIONAL & G. N. R. CO. v. HUGHES.
• Court: Texas Supreme Court

4 S.W. 492

INTERNATIONAL & G. N. R. CO. v. HUGHES.

Supreme Court of Texas.

May 17, 1887.

Appeal from Medina county.

Elias Edmonds, for appellant. Price & Merriweather, for appellee.

STAYTON, J.

The evidence was conflicting as to whether the animal belonging to the appellee was injured by actual contact with the locomotive on the appellant's railway, but there was sufficient evidence to justify the submission of that question to the jury, as was correctly done by the first paragraph of the charge given. The jury would, however, have been authorized to find from the evidence that there was no contact between the animal and the train, and that the animal through fright ran upon the trestle, and was thus wounded. The appellant asked an instruction to the effect that the appellee was not entitled to recover unless his animal was struck by the engine or cars, and this instruction was qualified by the following words: "Unless you further believe, as before instructed, that she was forced by defendant's train to jump upon the trestle-work, and thereby injured herself so as to necessitate her killing," — and then given. The second paragraph of the charge given was as follows: "If you believe from the evidence that the mare was not run upon and killed by the train, or if you believe that the killing was not caused by defendant's train forcing the animal on the track, and upon the trestle-work, you will find for the defendant." It is urged that the giving of this paragraph of the charge and the qualification made to the charge asked were erroneous.

These charges involve the proposition that a railway company, under the laws of this state, is liable for an injury to an animal which may be caused otherwise than by actual contact with the engine or cars, and without fault of the company or its employes, provided its road is not fenced. The statute provides 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 case of injury resulting from the want of ordinary care." Rev. St. art. 4245. This statutory liability is based on an injury caused by locomotives and cars. It certainly was never intended that such a liability should exist, even in case of contact between a locomotive or car and an animal, if the contact was caused by the movement of the animal while the engine or car was stationary; and, to make clear the manner in which the injury must be caused by the locomotive or car, the statute declares that it must be incurred in running over their respective railways. This involves the idea of contact between a running engine or car and the animal, and not an injury resulting in some indirect manner from the operation of a railway.

The statute of Indiana provides "that, whenever any animal shall be killed or injured by the cars or locomotive or other carriages used on any railroad in this state, the owner thereof may sue the railroad company before a justice of the peace." It further directs that, on hearing, judgment shall be given in favor of the owner of the animal injured or killed, without regard to whether the injury was the result of willful misconduct or negligence, or the result of unavoidable accident. It also makes the law inapplicable when a railway is securely fenced. Under this statute it has been steadily held that a railway company was not liable for an injury which resulted from an act of the injured animal caused by fright induced by the cars, and not from...