Red River, T. & S. Ry. Co. v. Dooley
| Decision Date | 02 April 1904 |
| Citation | 80 S.W. 566 |
| Parties | RED RIVER. T. & S. RY. CO. v. DOOLEY.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from Denton County Court; I. D. Ferguson, Judge.
Action by L. L. Dooley against the Red River, Texas & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.
McReynolds & Hay, for appellant. J. D. Cottrell, for appellee.
Appellee sued appellant to recover the sum of $250 for the killing of two horses belonging to him. The negligence relied upon consisted of carelessness in the operation of the train of cars which killed said horses, defective stock gap or cattle guard over which the animals entered, failure to keep a proper lookout to discover the stock upon the track, and, lastly, failure to use the means at hand to prevent such killing after the animals were discovered upon the track. The appellant replied that, if appellee's horses were killed by it, they were running at large contrary to the stock law in force in Denton county as provided by the act of 1899. There was judgment for appellee in the sum of $150.
We think the court erred in admitting the testimony of the witnesses Dooley, Smith, and Walker with reference to the condition of the stock gap on appellant's right of way, over which the animals in question are shown to have crossed immediately prior to the killing. In view of the undisputed fact that there is in force in Denton county the general stock law, making it unlawful for appellee's horses to be allowed to run at large, such testimony was irrelevant and immaterial. Liability could not be predicated upon such negligence. Appellant cannot be held liable for killing these horses upon the ground that it had failed to fence in its track, within the meaning of the statute defining the liability of railroad companies for killing stock, because it is undisputed that appellant had fenced in its track at the point where such horses entered and were killed. The evidence indicates a want of ordinary care to keep such fence in repair, and, if this were material in the present case, the testimony above referred to would, of course, be proper. But we understand the rule to be, in this state, that where stock not permitted by law to run at large go upon a railroad track which has been fenced in, and are there killed by a locomotive or cars of a railroad company, such company can only be held liable in damages upon alleging and proving negligence upon the part of its train operatives in failing to prevent the injury after the discovery of the presence of such animals on or dangerously near the track, or otherwise showing such gross negligence as would be...
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