St. Louis, B. & M. Ry. Co. v. Wood Bros.

• Decision Date: 17 April 1912
• Citation: 147 S.W. 283
• Parties: ST. LOUIS, B. & M. RY. CO. v. WOOD BROS.
• Court: Texas Court of Appeals

147 S.W. 283

ST. LOUIS, B. & M. RY. CO. v. WOOD BROS.

Court of Civil Appeals of Texas. San Antonio.

April 17, 1912.

Rehearing Denied May 15, 1912.

Appeal from Victoria County Court; J. P. Pool, Judge.

Action by Wood Bros. against the St. Louis, Brownsville & Mexico Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Claude Pollard and C. M. Robards, both of Kingsville, for appellant. T. R. Wood, of Victoria, for appellees.

MOURSUND, J.

Appellees filed a motion to dismiss the appeal because of appellant's failure to file briefs within the time prescribed by rule 39 (142 S. W. xiii). It appearing from the motion that a copy of appellant's brief was received by attorney for appellees 12 days before the day set for submission, and it also appearing that such brief contains only one assignment of error, we hold that appellees had ample time in which to answer the same, and overrule the motion. San Antonio & Aransas Pass Ry. Co. v. Holden, 93 Tex. 211, 54 S. W. 751; Freeman v. Taylor, 130 S. W. 733. This suit was instituted by appellees against appellant to recover damages in the sum of $951 for failure to furnish cars as agreed upon, and for injury, delay, and rough handling of a shipment of 409 head of stock cattle shipped from Woodsboro, Tex., to Keeran, Tex. Upon trial the jury returned a verdict for appellees for $754, and judgment was rendered accordingly, from which appellant has perfected its appeal.

The only assignment of error is one complaining of the admission of the testimony of R. H. Wood, one of the appellees, to the effect that the depreciation in the market value of the cattle at Keeran, Tex., was $1.50 per head. This evidence was objected to (1) because such an opinion of the witness involved a mixed question of law and fact upon which he was not qualified to give an opinion, and the witness was not properly qualified to give such an opinion as an expert (2) because it was a question for the jury to decide upon all the facts and circumstances surrounding the movement and handling of the cattle in question. It appears from the bill of exceptions that the question and answer were as follows: "Q. From your knowledge of the condition of the cattle, and your knowledge of the market value of such cattle at Keeran, Tex., what, in your opinion, was the depreciation, per head, in the market value at Keeran, Tex., of the 394 head of cattle which arrived at Keeran? A. The remaining 409 head of cattle, less the 15 dead ones, were injured, and the market value depreciated about $1.50 per head. I am familiar with the market value of such cattle, and in my opinion the remaining 394 head were worth $1.50 less per head in the condition in which they did arrive than in the condition in which they should have arrived at Keeran. I make this statement because I know the condition of the cattle and the market value of such cattle." The witness had already testified that he was familiar with the cattle,...