Houston & T. C. R. W. Co. v. Terry

Devine, J. The assignments of error in this case are that, First. “ The court erred in the first paragraph of its charge, “ in that it makes defendant liable for its cars striking the ani“mals, regardless of the conduct of the animals, and in the “ second paragraph, defendant is made liable, although its cars “ may not have touched the animals.” Second. “The court erred in overruling motion for new “ trial.” We perceive no error in the first paragraph of the charge. The second paragraph is open to the objection that it presented a material question for the consideration of the jury, which was not raised by the pleadings in the suit. The appellee, James Terry, sued appellant in the District Court of Harris county, to recover' damages for a mare killed, and colt injured, by defendant causing its engine and cars to run over [454] the mare and kill her, and in like manner, seriously to injure her colt. Defendant’s cars and engine being run at a greater rate of speed than six miles an hour (to wit, twenty miles an hour) within an unfenced portion of corporation limits of the city of Houston, and contrary to the municipal regulations of the same; that while so running, no bell was rung nor whistle blown; that the injury was caused by the negligence and willful misconduct of defendant, and that the train while so running, not only struck said tnare and colt, but forced them from the track, and threw said mare upon iron car wheels, causing the death of said mare, There was evidence tending to prove that the colt was injured, and that the mare was killed by being thrown by the “ cow-catcher ” on some iron car wheels lying near the track, and that the train was running at a high rate of speed on an unfenced part of the railroad track within the corporate limits of Houston. There was also some evidence for the defendant tending to prove that the train was running at a less rate of speed than six miles an hour; that the animals were not on the track on which the train was running ; that the mare was not touched or struck by the train, but was killed by reason of her jumping among the car wheels, being near the track, on the approach of the train. Under the charge of the court, the jury found for the plaintiff. The second paragraph of the charge directed the jury to find for the plaintiff, if from the evidence they believed the train was moving at a greater rate of speed than six miles an hour within the corporation limits of Houston, and if by reason of such high rate of speed, the mare was killed, and the colt injured itself, even though “ the mare killed herself, and the colt injured herself,” and the animals were not touched by the “ cow-catcher,” or cars of defendant, provided the high rate of speed was the direct cause of the death and injury to the animals ; if the jury were not so satisfied, the instruction was to find for defendant. It is not necessary to say what in our opinion would be the liability of the defendant in this suit, [455] if the pleadings of the plaintiff presented this question. Ho such question was before them. The error of the court in the charge given may be illustrated by supposing a suit brought to recover damages for injuries sustained by reason of the gross negligence and misconduct of the person driving a carriage, the petition alleging, that by reason of the unlawful driving and great speed of the horses, he was thrown down and trampled on by the horses, and run over by the carriage, and forced and thrown down by the horses and vehicle, by reason of which he sustained great injury. It will not be contended, that a charge directing the jury to find for the plaintiff, even though he might not have been touched by the horses or carriage, provided the jury believed from the evidence, that “ the high speed at the time of the accident was the direct “ cause of the ” injury to plaintiff, even if, in his efforts to escape, the plaintiff injured himself, a proper instruction ; such a charge would certainly be error. The charge presented a question for the jury outside of the case as made by the pleadings, and as such is a material error, for which the judgment must he reversed, and the cause remanded. Reversed and remanded.