Texas & P. Ry. Co. v. Slator
| Decision Date | 04 May 1907 |
| Parties | TEXAS & P. RY. CO. v. SLATOR. |
| Court | Texas Court of Appeals |
Appeal from Ector County Court; Branch Isbell, Judge.
Action by J. D. Slator against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.
H. E. Crowley, for appellant. A. S. Hawkins, for appellee.
J. D. Slator instituted this suit against the Texas & Pacific Railway Company for damages to a shipment of cows and calves made about November 4, 1905, from Odessa to Ft. Worth. While there were several grounds of negligence alleged, the issues were narrowed down at the trial to that of negligence in furnishing insufficient pens at the shipping point for the accommodation of plaintiff's cattle. The trial resulted in a judgment in favor of plaintiff for the sum of $450, with interest, and the defendant has appealed.
If appellant negligently failed to maintain adequate pens for the accommodation of cattle to be shipped over its line, it would be liable to appellee for damages sustained by him in consequence thereof, whether it had ever been served with notice that its shipping pens were inadequate and insufficient, or not. Necessarily, if the defect in the pens consisted of their insufficiency as to size, appellant had notice thereof.
Upon the trial of the case appellee, Slator, testifying in his own behalf, stated: This evidence was admitted by the court, over appellant's objections that the same was a conclusion and the opinion of the witness. We think the ruling was erroneous. It was an invasion of the province of the jury for the witness to be permitted to state his conclusion that the pens were insufficient. This was peculiarly the question for the jury's determination. So. Kan. Ry. Co. of Tex. v. Cooper, 75 S. W. 328, 32 Tex. Civ. App. 592. Whether appellant's pens were such as a person of ordinary prudence would have provided, and this is the test of liability, was the question to be decided (Ft. W. & Rio G. Ry. Co. v. Cage Cattle Co. [Tex. Civ. App.] 95 S. W. 705), and to permit witnesses to testify that the pens were or were not sufficient would be to take that question away from the jury entirely.
There was no...
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