BUCK, J.
J. M. Malone recovered in the trial court damages for the killing by the railroad of four four year old steers, valued at $175 each; four three year old steers, valued at $150 each, and injury to three three year old steers, whose market value was alleged and proven to have been depreciated $50 each, thus making a total of $1,450 damages alleged and proven.
Upon the trial, plaintiff introduced a part of defendant's superseded answer as follows:
"The defendant, Walker D. Hines, Director General of the Fort Worth & Denver City Railway Company, shows to the court his cross-action against the Southwestern Telegraph & Telephone Company, a corporation duly incorporated and having an agency in Tarrant county, Tex., and hereinafter called defendants in this cross-action. The said Walker D. Hines, as Director General of the Fort Worth & Denver City Railway Company, shows to the court that the plaintiff's cattle were killed and injured as a direct and proximate result of the unlawful acts and negligence of said Southwestern Telegraph & Telephone Company and the said Humble Oil & Refining Company, in this, and that the said two companies, just prior to the time the plaintiff's cattle were killed, were repairing their telephone lines along the right of way of the Fort Worth & Denver City Railway Company, and while so engaged the said companies through their agents, servants and employees, without the consent of the Forth Worth & Denver City Railway Company director or any of its agents, unlawfully removed some staples from the right of way fence of the said railway company, and negligently failed to repair said fence, but left same in such a condition that the plaintiff's cattle could easily pass over into the right of way of said railway, and as a result of the said wrongful and negligent acts of said two companies the said cattle of the plaintiff did enter the right of way of said railway company where the said fence had been left down with the staples out as aforesaid, and the engineers of said railway company did not know that said fence was left in said condition, and did not know that any cattle were in the right of way, and it being nighttime when said cattle were killed the engineer or engineers operating the engine that killed said cattle could not see said cattle in time to avoid injuring same, and the said engineers or engineer, as the case may be, were not guilty of any negligence in killing of said cattle, but the killing of said cattle was the direct and proximate result of the unlawful and negligent acts of the agents, servants, and employees of the Southwestern Telegraph & Telephone Company and the Humble Oil & Refining Company, as hereinbefore set out.
"Wherefore the said Walker D. Hines, Director General of the Fort Worth & Denver City Railway Company, prays that the said companies above mentioned be cited to answer this cross-action, and if the defendant, Walker D. Hines, Director General of the Fort Worth & Denver City Railway Company, is held liable to the claim for the value of the cattle killed by reason of the right of way not being fenced within the meaning of the statutes of this state, then that he have judgment over and against the said Southwestern Telegraph & Telephone Company and the Humble Oil & Refining Company for such amount as he may be adjudged to pay the claims herein, for costs of suit and general relief."
Plaintiff in his petition had alleged that said cattle were run over and killed by a Fort Worth & Denver City Railway Company's north-bound passenger train. No proof of the manner in which said cattle were killed and injured is contained in the statement of facts, except the portion of defendant's answer copied above. Appellant objects to the admission of this abandoned pleading.
In H. E. & W. Texas Ry. Co. v. De Walt, 96 Tex. 121, 70 S. W. 531, 97 Am. St. Rep. 877, the Supreme Court had under consideration this question, and said:
"A defendant has the right to plead inconsistent defenses, and where in one part of an answer he denies or otherwise puts in issue a fact and in another part alleges its existence, the answer cannot be taken to be an admission of such fact. Duncan v. Magette, 25 Texas, 246. Many other rulings of this court affirming this proposition might be cited. But this is true, not because admissions in pleading are not admissible against the party making them, but because a plea, in one part denying a fact and in another part affirming it, cannot, under our statute, be treated as an admission of the fact. Abandoned pleadings when offered in evidence should doubtless be construed in the same way, and not be admitted as conceding a fact both affirmed and denied. But this rule has nothing to do with the admissibility of pleadings in evidence as tending to show a fact which they distinctly allege. If a fact be admitted in the pleadings on which the case is tried, it is, in general, assumed without other evidence to be conclusively established for the purposes of the trial. Ogden v. Bosse, 86 Texas, 344. The same rule cannot be applied to pleadings superseded by amendment, but it does not follow that distinct admissions in them of particular facts cannot be used as evidence against the party who filed them. The admission of a party thus made is admissible against him under the rule of evidence which allows admissions against interest. Of course they are open to explanation or...
