Wichita Valley Ry. Co. v. Brown

• Citation: 274 S.W. 305
• Decision Date: 10 June 1925
• Docket Number: (No. 2510.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: WICHITA VALLEY RY. CO. et al. v. BROWN.
• Court: Court of Appeals of Texas

Page 305

274 S.W. 305

WICHITA VALLEY RY. CO. et al. v. BROWN.

(No. 2510.)^*

Court of Civil Appeals of Texas. Amarillo.

June 10, 1925.

Rehearing Denied July 1, 1925.

Appeal from District Court, Clay County; Paul Donald, Judge.

Action by C. L. Brown against the Wichita Valley Railway Company and others. From a judgment for plaintiff, defendants appeal. Modified and affirmed.

Thompson, Barwise & Wharton, of Fort Worth, and Taylor, Muse & Taylor and J. L. Lackey, all of Wichita Falls, for appellants.

J. A. Templeton, of Fort Worth, for appellee.

RANDOLPH, J.

This suit was filed by C. L. Brown against the Wichita Valley Railway Company, and the Ft. Worth & Denver City Railway Company, to recover damages to a shipment of cattle. A trial was had before a jury, and upon issues submitted to and answers returned by the jury the trial court rendered judgment in favor of plaintiff and against defendants, from which judgment appeal was taken to this court.

The appellants' first proposition assigns error in permitting certain witnesses, among them the plaintiff, to testify that in their judgment the live stock, in so far as it affected all but the calves, had depreciated to the extent of $10 per head as to some of them, and, on an average, that all of them had depreciated $2 per head, for the reasons that such testimony was a conclusion of the witnesses, and that such question was a mixed one of law and fact, and they cite Fort Worth & D. C. R. Co. v. Gatewood (Tex. Civ. App.) 185 S. W. 932; Harle v. Fort Worth & D. C. R. Co. (Tex. Civ. App.) 240 S. W. 1004; Hines v. Edwards (Tex. Civ. App.) 228 S. W. 1117; H. & T. C. R. Co. v. Roberts, 101 Tex. 418, 108 S. W. 808; K. C., M. & O. R. Co. v. James (Tex. Civ. App.) 190 S. W. 1137.

The plaintiff, in answer to the question, "To what extent, in your judgment, were these cattle which were not injured depreciated per head, if they were depreciated by reason of the handling which they received in transit?" was permitted to testify, over seasonable objection made by the defendants, "that it would be hard to say, but at least an average of $10 per head." It does not appear that there was any objection to the testimony of the witness, on the ground that he was not shown to have been qualified to testify, and upon the grounds assigned we hold that the testimony was admissible. Texas & P. R. Co. v. Prunty, 111 Tex. 162, 230 S. W. 396; Id. (Tex. Civ. App.) 233 S. W. 625-630; Fort Worth & D. C. R. Co. v. Harle (Tex. Civ. App.) 240 S. W. 1004-1006, 1007 (writ denied).

This holding also applies to appellants' proposition No. 2.

Proposition No. 3 raises the question that the court erred in rendering judgment in favor of appellee on the findings of the jury in this case, for the reason that the findings of the jury on the instruction submitted to them by the court are contrary to the law and the evidence, in that there is no legal or competent evidence showing what is the usual and customary time of handling a shipment of live stock between Holliday, Tex., and Sylvania, Tex., and, this being one of the essential elements of liability, that the usual and customary time be shown, and there being no such evidence in this case, the trial court erred in so rendering such judgment.

Appellee replies to this, and says that the evidence amply supports the verdict and judgment thereon, but that, even if the evidence had failed to show what was the usual and customary time for the transportation of the cattle from point of origin to point of destination, the negligent delays and rough usage of the cattle, shown by the evidence and found by the jury, were sufficient to sustain the judgment rendered, without proof as to what was the usual and customary time required for the transportation of the cattle. In other words, appellee, as we understand his counter proposition, insists that, if there was failure of the proof on the question of the customary and usual time for delivery, yet the evidence upon the other elements of damage will sustain the amount of the jury's verdict, and that this question would thereby practically be eliminated, or rendered immaterial. However, it seems to us that the statement in appellants' brief is a little bit broad when they say:

"There was no proof in this case at all of what was the usual, reasonable, and ordinary time necessary for a shipment of cattle from Holliday, Tex., to Sylvania, Tex."

The plaintiff testified:

"The usual and customary time for a shipment of cattle, say 15 cars, to reach Fort Worth, when there is no unusual delay in transit, is about 12 hours."

J. B. Brewer testified that he knew the usual and customary time for the delivery of such shipments from Holliday to Fort Worth over the lines these cattle of plaintiff moved, when they are subjected to no unusual delays in shipment, and that such time was about 6 hours. Metcalf testified that it was 6 or 7 hours. Erickson says that the usual and customary time was 11 to 13 hours. We overrule this proposition.

Appellants' proposition No. 4 alleges error in the refusal to give to the jury their special instruction No. 4, which special instruction is in words as follows:

"Gentlemen of the Jury: In this case you are instructed that, when cattle are delivered to a defendant railway company for shipment, it is the duty of such railway company to have on hand means with which said cattle may be shipped, to ship the same, and in the transportation of said cattle to transport the same within a reasonable time after such shipment is accepted; that it is further the duty of the defendant to exercise that degree of care which a reasonably prudent person would exercise under the same or similar circumstances, and to transport said cattle without any unusual or unreasonable delay or rough handling; and if you find and believe from the evidence that any of said cattle got down in said car by reason of having become chilled, and that, having gotten down, the same subsequently resulted in death or injury to said cattle, and you further find that the defendant company was not negligent in permitting said cattle to become chilled and to get down in said cars, and if you find that they were so chilled and did get down in...