Missouri, K. & T. Ry. Co. of Texas v. Rogers

• Decision Date: 29 November 1911
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. ROGERS.
• Court: Texas Court of Appeals

141 S.W. 1011

MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. ROGERS.

Court of Civil Appeals of Texas. Austin.

November 29, 1911.

Appeal from Hays County Court; J. B. Wilson, Judge.

Action by W. J. Rogers, Jr., against the Missouri, Kansas & Texas Railway Company of Texas and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Fisher & Fisher and Baker, Botts, Parker & Garwood, for appellants. Will G. Barber and T. C. Johnson, for appellee.

JENKINS, J.

Appellee brought suit to recover damages alleged to have been sustained through the negligence of appellants to a shipment of hogs from Seguin to Fowcete, alleging that by reason of insufficient pens at Seguin five head of hogs escaped and were lost, and by reason of the manner in which said hogs were shipped plaintiff was damaged in the amount sued for. Judgment for appellee for the sum of $384.13.

1. The first assignment of error is as to the refusal of the court to allow the appellant Galveston, Harrisburg & San Antonio Railway Company to inquire of the persons summoned to serve as jurors as to whether or not any of them were indebted to plaintiff's attorney for any money. If such had been the fact, it would not have been cause for challenge; but the privilege of peremptory challenge given by the statute is a valuable one, and a party has the right to inquire of the jurors as to such matters as would enable him to intelligently exercise such privilege. This inquiry is within the discretion of the judge, but it is a legal discretion, subject to review; and while the inquiry should be kept within proper bounds, and an impertinent and irrelevant question should not be permitted, yet we think the question propounded was a proper one, the answer to which might well influence a party in making peremptory challenges. Proverbs, xxii, 7; Davis v. Bank, 29 S. W. 926; Saller v. Friedman Bros., 130 Mo. App. 712, 109 S. W. 796; Stone v. Const. Co., 135 Ky. 659, 117 S. W. 369; Marrow v. State, 56 Tex. Cr. R. 519, 120 S. W. 419.

2. A witness was permitted, over objection of appellants, to state that it was cold and raining at Seguin during the late afternoon and night preceding plaintiff's shipment out of that station. The evidence shows that appellants contracted to ship the hogs from Seguin by 5 or 6 o'clock in the evening, and that they did not get them out until next morning; but there was no allegation that the hogs were injured by reason of such delay, for which reason it was error to admit such testimony. Lumber Co. v. Lee, 7 Tex. Civ. App. 522, 27 S. W. 161; Middlebrook v. Zapp, 73 Tex. 31, 10 S. W. 732.

3. Appellants requested special charges Nos. 4 and 7, to the effect that the jury should disregard the evidence as to damages by reason of delay in the shipment. Appellee objects to a consideration of special charge No 4, because it does not appear from the record that the same was presented to the court, and either given or refused. In this connection, we wish to say that the clerk has not properly made up the record as to any of the special charges. With the exception of No. 4, he has simply written under the requested charge "given," or "refused"; but the record does not show the signature of the presiding judge, nor that any of the special charges were filed. No objection is made, however, to any of these charges except as to No. 4. In the state of the record we cannot consider special charge No. 4 as having been requested. Special charge No. 7, however, should have been given.

4. Error is assigned on the charge of the court from which we make the following excerpt: "If either of the defendants failed to exercise ordinary care in the handling of the train to avoid any unnecessary and unusual jarring or jolting of the cars, and if as the direct and proximate result thereof injury occurred to the animals, then for such injury the defendant failing to exercise such care would be responsible to plaintiff, even though it transported and delivered the hogs with reasonable care and dispatch." Appellee insists that the whole charge, taken together, shows that the court meant to instruct the jury that they could find for appellee as to damages which may have been suffered by delay in transportation and as to damages which may have been suffered by reason of the rough manner in which the animals were transported, and that these items of damages were to be considered separately, and that the words, "even though it...