Galveston Land & Improvement Co. v. Pracker

WILLIAMS, Associate Justice. A horse belonging to appellee escaped from his lot at night and entered an enclosure belonging to appellant, known as the “ Denver Resurvey,” within the corporate limits of the city of Galveston, by breaking through a barbed wire fence which surrounded such enclosure. The horse was found there next morning, badly injured by hurts received from the wires in passing through it. This suit is brought to recover for damage to the value of the horse and for expense and trouble in treating him. It was shown at the trial that the fence consists of three wires, upon posts thirty feet apart, with no guard rails or boards between the posts. The fence encroached three or four feet upon the street, in order to protect shade trees which appellant has set along the sidewalk, and ran parallel with the remainder of the street. There was an ordinance of the city, in force at the time, making it unlawful for horses to run at large within the corporate limits. Verdict and judgment were rendered in favor of appellee for $100. The court erred in submitting to the jury the question, whether or not appellant was guilty of negligence in having its fence in the street. If appellant had no right to have its fence there, appellee had no right to have his horse at large, and the horse would not have been injured by the fence had it been confined. Railway v. Cocke, 64 Texas, 151. Another reason is, that there is no evidence that the fact that the fence encroached upon the street helped in any way to cause the injury. In all *263 probability the horse would have been hurt just as it was had the fence not been in the street. A new trial should have been granted, because the verdict is unsupported by the evidence. Beversed and remanded. Delivered May 11, 1893.