Campbell v. Trimble

12 S.W. 863, 75 Tex. 270

• Court: Court of Appeals of Texas
• Decided: November 29, 1889
• Docket: No. 2891
• Status: Published

Opinion

HENRY, Associate Justice.

This suit was brought in the District Court of Navarro County by Frank Trimble against W. T. Campbell, J. T. O’Connor, and W. M. C. Hill, who reside in Dallas County, and Kit Davis, who resides in Denton County, Texas, for damages for the value of a certain colt owned by plaintiff, and alleged to have been kicked by defendants’ horse, on the fair grounds in the city of Corsicana, from which injury said colt afterwards died.

The defendants, by demurrer, objected to the jurisdiction of the court on the ground that the petition showed that none of them resided in Navarro County.

As a trespass charged to have been committed in said county was the foundation of the suit the jurisdiction existed, and the demurrer was properly overruled.

The court charged the jury as follows: “If you find that said horse was a vicious animal, and that defendants owned said animal, and that said animal was at the time of kicking the plaintiff’s colt in charge of the servant of defendants, and that said servant knew, or by reasonable diligence could have known of said vicious character of said animal, then the leading by said servant of such animal within a few feet of or very close to plaintiff’s colt, whereby said animal kicked said colt and broke the leg of said colt, would be such negligence and carelessness on part of said servant as would make the defendants liable.”

The objection to this charge is that it decides as matter of law what facts constitute negligence, when under repeated decisions of this court that question ought to have been left to the decision of the jury under proper instructions. Railway v. Murphy, 46 Texas, 336; Railway v. Hill, 71 Texas, 459.

Appellants contend that the verdict is not sustained by the evidence, .because it was proved that at the time the injury was inflicted their horse had been temporarily put in charge of another person by their servant who had charge of him, without their knowledge or consent. We do not think this fact should in any manner affect the result.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Delivered November 29, 1889.