Texas & P. Ry. Co. v. Crowley

• Decision Date: 22 March 1905
• Citation: 86 S.W. 342
• Parties: TEXAS & P. RY. CO. v. CROWLEY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

86 S.W. 342

TEXAS & P. RY. CO. v. CROWLEY.^*

Court of Civil Appeals of Texas.

March 22, 1905.

Appeal from Midland County Court; L. M. Murphy, Judge.

Action by R. E. Crowley against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Ellis Douthit, for appellant. Camp & Caldwell, for appellee.

FLY, J.

This is a suit by appellee to recover damages to a shipment of cattle from Midland, Tex., to Bazar, Kan., alleged to have been injured on appellant's line of railway between the initial point and Ft. Worth, Tex. Appellant, among other things, pleaded that the injury did not occur on its lines, but on the lines of connecting carriers, and they were made parties on its plea. Afterwards the connecting carriers were dismissed from the cause on their pleas to the jurisdiction, and no objection was made to that action by either party, and the case will be treated as though they were never made parties to the cause. There was a verdict and judgment in favor of appellee for $907.61.

The first assignment of error complains of the testimony of A. F. Crowley in regard to the market value of cattle at Bazar, Kan., and the bill of exceptions shows that the witness was not in a position to testify as to the market value of cattle at that place. In the statement of facts, however, the evidence showing the lack of knowledge on the part of the witness does not appear.

In the second assignment of error complaint is made of the action of the court in permitting James Goff to testify as to the market value of cattle in Bazar, Kan. The witness knew nothing about the value of cattle in that place, except what he heard from a Mr. Coker there, and from two men who lived at Strong City, another point in Kansas. In the case of Railway v. Maddox, 75 Tex. 300, 12 S. W. 815, the question in point was passed on by the Supreme Court, and it was said: "In proving value it often becomes necessary to receive the opinion of witnesses, but in such cases it should appear that the witnesses have had opportunity to form correct opinions. The witness saw no mules sold in the Los Angeles market, heard no offer made for any, and only knew what prices persons told him had been paid for some mules he saw, what prices were asked for others; in fact had no information as to the value of mules in that market other than such as he derived from statements made by others. He only remained in Los Angeles a few days, and did not pretend to base his opinion on knowledge actually acquired through observation of the market, but upon statements made to him by others." The witness Goff had no knowledge of the market at Bazar, and was testifying merely to hearsay statements made to him. His evidence should have been excluded. The admission of this testimony cannot be held to have injured appellant because legitimate evidence to the same effect was introduced by appellee.

Voliva, a witness, who seems to have been introduced as an expert as to what effect it had on cattle to have them standing in cars along the route, as to the usual time it takes to run from Midland to Ft. Worth, and as to the effect that jerking the cars has on cattle in them, as illustrative of his opinions and theories was permitted, over appellant's objection, to state the effect that such...