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

• Decision Date: 02 December 1911
• Citation: 143 S.W. 298
• Parties: TRUE BROS. v. ST. LOUIS, B. & M. RY. CO. et al.
• Court: Texas Court of Appeals

143 S.W. 298

TRUE BROS. v.ST. LOUIS, B. & M. RY. CO. et al.

Court of Civil Appeals of Texas. Ft. Worth.

December 2, 1911.

Rehearing Denied January 13, 1912.

Appeal from District Court, Wise County; J. W. Patterson, Judge.

Action by True Bros. against the St. Louis, Brownsville & Mexico Railway Company and others.Judgment for defendants, and plaintiffs appeal.Reversed and remanded.

Templeton & Agerton and R. E. Carswell, for appellants.Claude Pollard, McMurray & Gettys, and C. M. Robards, for appelleeSt. Louis, B. & M. Ry. Co. Terry, Cavin & Mills and McMurray & Gettys, for appelleeGulf, C. & S. F. Ry. Co. N. H. Lassiter, Robt.Harrison, and McMurray & Gettys, for appellee Chicago, R. I. & G. Ry. Co.

SPEER, J.

This is an action of damages for injuries received by a shipment of cattle forwarded by True Bros. over the lines of the St. Louis, Brownsville & Mexico Railway Company, the Gulf, Colorado & Santa Fé Railway Company, and the Chicago, Rock Island & Gulf Railway Company from Norias to Ringgold.A jury trial resulted in a verdict and judgment for defendants, and the plaintiffs have appealed.

The questions presented for the most part arise on the trial court's rulings in admitting or excluding evidence.It is sufficient for the purposes of our opinion to state that one of the sharply contested issues in the case was whether or not the cattle were in such physical condition as to stand shipment; the contention of appellees being that the loss, which was heavy, resulted from the inherent weakness of the cattle.Appellants offered the following interrogatory and answer from the deposition of the witness Marion Sansom: "Q.If these cattle involved in this suit had been handled with such care and dispatch as is usually used in making such shipments, what in your judgment should have been the percentage of loss in said shipments?A.Not more than 1 per cent.I should say if the cars were properly bedded and the cattle given a good run."The question and answer were excluded upon the objections that the answer was "a conclusion of the witness not based upon any experience of his, and cannot be based upon any experience with any degree of certainty."We think the court erred in this ruling.The witness testified that he was in the cattle business, and had been buying, selling, and shipping for about 35 years.He testified that he had had quite a large experience in shipping such cattle as these in controversy by rail from Southwest Texas to North Texas and Oklahoma points.He saw the shipments in controversy before they were loaded at Norias.This we think was sufficient to qualify the witness as an expert and to make admissible his opinion as to the probable loss...