Kansas City, M. & O. Ry. Co. of Texas v. Mayfield

• Decision Date: 13 February 1908
• Citation: 107 S.W. 940
• Parties: KANSAS CITY, M. & O. RY. CO. OF TEXAS v. MAYFIELD.
• Court: Texas Court of Appeals

Page 940

107 S.W. 940

KANSAS CITY, M. & O. RY. CO. OF TEXAS v. MAYFIELD.

Court of Civil Appeals of Texas.

February 13, 1908.

Appeal from Jones County Court; Jas. P. Stinson, Judge.

Action by I. H. Mayfield against the Kansas City, Mexican & Orient Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed.

John W. Scott and W. R. Chapman, for appellant. C. C. Ferrell, for appellee.

WILLSON, C. J.

During the years 1905 and 1906 appellee, as the tenant of one Moore, grew crops of corn, oats, cotton, etc., on certain land in Jones county. About November 1, 1905, appellant constructed its line of railway upon and across the land, and in doing so tore down a portion of the fence inclosing it, and afterwards constructed cattle guards at the points where its line of railway entered and left the inclosure. Alleging that the cattle guards so constructed were insufficient, and that as a result of their insufficiency cattle crossed the same into his inclosure and damaged and destroyed his crops, appellee brought his suit in the county court of Jones county and recovered a judgment against appellant for the sum of $533.33 as the damages suffered by him as a result of the depredations of the cattle on his crops. Appellant answered by a general denial, and specially alleged that during the years 1905 and 1906 the fence surrounding appellee's inclosure was torn down and remained down at various places not on its right of way, and that, if appellee's crops were damaged, as alleged, by the depredations of cattle thereon, such damages were caused by cattle entering appellee's inclosure over the insufficient fence surrounding it. The testimony was uncontroverted that the stock guard was insufficient, and that cattle went over it into appellee's inclosure. As to the fence around his inclosure, on the part of appellee the testimony was that it was a good one, and that during the years mentioned it was kept in good repair; and on the part of appellant, that during the winter of 1905 and 1906, on the south side of appellee's inclosure next to the town of Hamlin, it was in bad repair, and that stock frequently went over it into appellee's field.

In his charge the court instructed the jury that the burden was on appellant to prove that appellee's fence "was torn down and left down, and that said stock were permitted to go through and over said fence at various places not on the right of way of said defendant." We think the charge is subject to the criticism urged to it by appellant's third assignment of error. If the damage suffered by appellee was caused by cattle which did not enter his field over appellant's cattle guard, but over a portion of his fence appellant was under no obligation to keep in repair, it would be of no importance whether they so entered at one or at "various" places in such portion of his fence. Appellant would be as free from liability if they entered at one as it would be had they entered at a number of such places. The burden on it, therefore, would have been discharged had it shown that the cattle entered the field at one such place; and, in placing the burden on it to show that the cattle entered at more than one such place, the charge of the court was erroneous, and, in view of the evidence, materially so.

The court charged the jury that "the measure of damages to a matured crop is the market value of the same at the time and place of its damage or destruction, after deducting the expense of gathering and transporting same to market; and, if a matured crop has been gathered, the measure of damages is the market value of such crop at the time and place of its destruction or damage, less the expense of transporting same to market." And further instructed them that "the measure of damages to a growing crop damaged or destroyed is the difference between the value of the...