Missouri, K. & T. Ry. Co. v. Orr

• Citation: 272 S.W. 343
• Decision Date: 04 April 1925
• Docket Number: (No. 11130.)
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. ORR.
• Court: Court of Appeals of Texas

272 S.W. 343

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

(No. 11130.)

Court of Civil Appeals of Texas, Fort Worth.

April 4, 1925.

Appeal from Tarrant County Court; H. O. Gossett, Judge.

Action by L. R. Orr against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Thompson, Barwise & Wharton, and B. V. Thompson, all of Fort Worth, for appellant.

Samuels & Brown and David W. Stephens, all of Fort Worth, for appellee.

BUCK, J.

Appellee sued appellant in the justice court for the recovery of $175 as by reason of the death of a mare owned by him, valued at $125, and the subsequent death of her colt, valued at $50. He recovered $175, and on appeal to the county court, in a trial before a jury, he recovered damages for $125 for the death of the mare, but recovery was denied him for the death of the colt. The defendant has appealed.

The theory upon which the recovery was had was that the right of way fence was down between plaintiff's pasture and the railroad right of way, and that the mare crossed over the defective fence onto the right of way, and got scared, probably at the approach of a train, attempted to run down the embankment, and injured herself so that she died. It is not shown, nor is it claimed by appellee, that the mare was hit by defendant's train or a locomotive. Plaintiff testified that he found the mare standing near the fence, but inside of his inclosure, one morning as he was going to work, on May 5, 1924; that her left hind foot was not touching the ground. Plaintiff testified:

"She was not standing up the day she died. She was bruised all under the back of her legs and also the front part of her legs, and she got so I couldn't get her up. I continued to administer to her, but little worms got to working in these sores and I used gasoline. I noticed that the fence was down along the right of way. I noticed a place there where she might have fallen, a smooth place in the embankment, 10 or 12 feet. I am just guessing about that because I didn't measure it. About half way I should judge from the track to the bottom was a smooth place just like an imprint where a side or shoulder would fall, indicating where this mare had fallen, when she was knocked from the track."

Robert Orr, son of plaintiff, testified that the mare's leg was broken. Charles Smallweed testified, for defendant, that he was working under the section foreman, Mr. H. E. Miller. He said:

"I went out to work with Mr. Miller, and Mr. Miller stopped out there and said there was a mare hurt here yesterday, and we looked at the tracks to see if it was done on the railroad or where. We looked along the embankment there by the bridge, but didn't see anything at all. We saw this mare on the bank near the little bridge, about 30 or 35 feet, I would call it, on the bank standing there with her ankle broke, left ankle I think it was, and a little baby colt beside her. This was on the bank of the creek in Mr. Orr's pasture. We looked along that bank and we saw where the horse slipped there a day or so before, or whenever it was. It was fresh dirt down that bank. It was kind of rocky in the bed of that creek."

H. E. Miller testified that he was the foreman in charge of that section, and that, when he learned from Mr. Orr that his mare had been hurt, he walked 500 feet, each way, along the track, but found no signs of blood or hair, indicating that an animal had been hit by a moving train; that he looked along the bank of the creek, where the mare was standing at the time (she having been driven some 100 feet from where she was standing when Orr first found her, to a pool of water in the creek bed), and that, about 50 feet from where the animal was standing, he saw where a horse had slipped a distance of about 15 feet; that this place was not on the defendant's right of way, but about 150 feet therefrom over in plaintiff's pasture. He said he "compared the hoof prints with those of the mare," evidently meaning that they were the same size and shape.

We are of opinion that, in order to sustain the judgment below, we must first presume that the mare crossed the defective fence and got into the defendant's right of way; second that she slipped down the embankment, by reason of becoming frightened at a passing train or from some other cause; and third, that she was injured thereby. No one saw the mare on the right of way, and no one was able to say by what means she was injured. A presumption of fact cannot rest upon a fact presumed. Fort Worth Belt Ry. Co. v. Jones, 106 Tex. 345, 166 S. W. 1130; G., C. & S. F. Ry. Co. v. Davis (Tex. Civ. App.) 161 S. W. 932, writ refused; 16 Cyc. 1057; Mo. Pac. Ry. Co. v. Porter, 73 Tex. 307, 11 S. W. 324. Moreover, we are of the opinion that a railway company is not liable for injury to stock getting on its right of way by reason of a defective fence, unless the injury is caused by coming in contact with a moving locomotive or car, or unless negligence of the railway proximately contributing to the injury is shown, further than allowing its fence to become defective. Article 6603, Rev. Civ. Statutes, reads as follows:

"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. Such liability shall also exist in counties and subdivisions of counties which adopt the stock law prohibiting the running at large of horses, mules, jacks, jennets and cattle: Provided, however, that in all cases, if the railroad company fence its road, it shall only be liable for injury resulting from a want of ordinary care."

I. & G. N. Ry. Co. v. Hughes, 68 Tex. 291, 4 S. W. 492, says:

"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 employees, provided its road is not fenced. * * *

"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. * * *

"We do not wish to be understood to hold that in no case could a recovery be had for an injury to animals where there is no collision with a moving engine or car; for cases may occur in which the injury, without collision may be the proximate result of the negligence of a railway company or its employees, but in such a case the recovery would not be based on the statute, and proof of negligence would have to come from the party alleging it. In the case before us, there is no proof of such negligence."

In S. A. & A. P. Ry. Co. v. Tamborello (Tex. Civ. App.) 67 S. W. 926, the court says:

"It is only when stock is killed or injured by the locomotives and cars of railroads in running over their...