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

• Court: Texas Court of Appeals
• Writing for the Court: Rice
• Citation: Missouri, K. & T. Ry. Co. of Texas v. Crews, 120 S.W. 1110, 54 Tex. Civ. App. 548 (Tex. App. 1909)
• Decision Date: 24 March 1909
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. CREWS.

120 S.W. 1110

MISSOURI, K. & T. RY. CO. OF TEXAS v. CREWS.

Court of Civil Appeals of Texas.

March 24, 1909.

Appeal from District Court, Hays County; L. W. Moore, Judge.

Action by Cullen Crews against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Fiset & McClendon, for appellant. O. T. Brown, for appellee.

RICE, J.

Appellee sued appellant for the recovery of $1,825, the alleged value of six mules, two mares, and one mule colt, alleged to have been killed or injured by appellant in such manner as to render them of no value, on account of the negligence of appellant, which negligence was alleged to have consisted in the failure on the part of appellant to provide and maintain cattle guards or stops at the point where its roads crossed a certain lane leading into the inclosures on each side thereof. Appellant answered by general demurrer and general denial. There was a jury trial, resulting in a verdict and judgment for appellee in the sum of $1,190, from which this appeal is prosecuted.

On the trial appellant, after the conclusion of the evidence, requested the court to peremptorily instruct a verdict in its behalf, and, in its first assignment, urges that the court erred in refusing to give said instruction, on the ground that the evidence was insufficient to show that the animals were killed by the railway company. After a careful review of the evidence, we are inclined to believe that the charge was properly refused. The animals were found on the right of way, some of them within a few feet of the railway track, at which point the right of way was fenced. Some of them were killed outright, and others so seriously injured as to render them valueless. While it is true that there was no eyewitness to the killing, nor any evidence showing the recent passage of trains, nor anything to indicate at what point along the track they were struck, such as the signs of blood or of their having been dragged, still the circumstances are such, it seems to us, as to satisfy any reasonable mind that they were struck and killed by appellant's locomotive and cars. One of the animals was cut in two, parts of which were found on different sides of the track, and all of them were badly wounded and mangled, leaving the inference that nothing except contact with a locomotive could likely have produced the serious injuries shown. We therefore overrule this assignment.

On the trial plaintiff was asked by his counsel what in his opinion the two brood mares were worth to him, and testified that the bay mare was worth $375 and the sorrel mare $175. Appellant objected to the question and answers, on the ground that the same were irrelevant, incompetent, and immaterial, and did not furnish the proper measure of damages, and because there was no predicate for any measure of damages to said animals other than their market value, and the action of the court in admitting said evidence over appellant's objection is assigned as error. The allegation in the petition relative to the value of the mares is as follows: "That at the time said mares were so killed they were then and there each respectively of the reasonable value as follows, viz.: One of the mares was of the value of $375, and the other mare was of the value of $175." While the evidence perhaps fails to disclose that there was any market value for the animals in that neighborhood at the time they were killed, still the evidence does show what the same were reasonably worth, and they had an intrinsic and real value in contradistinction to what might be termed their market value. Under this allegation, in the absence of an exception thereto, we are inclined to think proof, either of their market value or of their intrinsic value, could have been offered.

In the case of H. & T. C. R. R. Co. v. Tisdale (Tex. Civ. App.) 109 S. W. 413, Judge Fisher, in discussing the following allegation, "The cow killed was of the reasonable intrinsic and market value of $300, and the two that were injured were each of the reasonable and intrinsic market value of $100," said: "It seems from this that the purpose was to allege the reasonable and also the market value of the animals killed and injured. There was no exception to this pleading, and we are inclined to the opinion that the pleading raised the issue as to both characters of value."

In 29 Am. & Eng. Ency. Law (2d Ed.) p. 575, it is said: "The word `value,' when applied without qualification to property of any description, necessarily means the price which it will command in the market. ...