Fort Worth & Denver City Railway Co. v. Hodge

DUNKLIN, Associate Justice. — One of the trains of the Fort Wortli & Denver City Bail way Company killed five head of cattle and injured another, all belonging to Hodge & Speer. The owners filed suit in the Justice Court to recover damages therefor, and judgment was there rendered in plaintiffs’ favor. The case having been appealed to the County Court plaintiffs again recovered, and from that judgment defendant has appealed to this court. Appellees suggest that the amount in controversy in the suit was less than one hundred dollars and upon that ground insist that this appeal should be dismissed for want of jurisdiction of this court to determine the issues involved. While the transcript of proceedings in the Justice Court shows that plaintiffs sued to recover ninety-nine dollars as damages sustained by them on July 19, 1907, and does not show that there was any specific claim for interest on that amount, yet by their pleadings in the County Court they did claim damages in the sum of ninety-nine dollars with interest thereon from the date of the accident to the date of the judgment, and the judgment was there rendered in their favor for ninety-nine dollars principal and eight dollars and eight cents interest. The accident happened July 19, 1907; suit was instituted in the Justice Court January 22, 1908, and was tried in the County Court November 28, 1908. This showed the amount in controversy to be in excess of one hundred dollars. (Schulz v. Tessman, 92 Texas, 488; Ft. Worth & D. C. Ry. v. Everett, 95 S. W., 1085.) The action of plaintiff in remitting the interest after judgment was rendered is not material to the question now under discussion. (Pecos & N. T. Ry. Co. v. Canyon Coal Co., 102 Texas, 478.) The motion to dismiss the appeal is therefore overruled. The evidence conclusively showed that the cattle were injured within the defendant’s switch limits in the town of Quanah. In the case of Gulf, C. & S. F. Ry. v. Blankenbeckler, 13 Texas Civ. App., 249 (35 S. W., 333), this court held that at such places a railway company is not required by law to fence its track. Under the facts as above shown plaintiffs could not, in any event, recover without proof of negligence on the part of defendant resulting in the injury complained of. The cattle were injured at night and no one witnessed the accident. The engineer' in charge of the locomotive testified that he felt his engine strike something at or about the place where the cattle were found, but did not see them before striking them. This afforded no proof of negligence and there was no other evidence to establish the charge of negligence. Mc-Cutchen v. Gorsline, 39 Texas Civ. App., 146 (86 S. W., 1044); Gulf, C. & S. F. Ry. v. Anson, 101 Texas, 198. *542 The court instructed the jury that the measure of plaintiffs’ damages would be the reasonable cash market value of the cattle killed and injured with the interest thereon at the rate of six percent per annum from the date of the accident. As to the animal that was injured but not killed unquestionably this charge was erroneous. For the errors above indicated the judgment of the trial court • is reversed and the cause remanded for another trial. Reversed and remanded.