Gulf, C. & S. F. Ry. Co. v. Drahn

163 S.W. 330, 1913 Tex. App. LEXIS 657

• Court: Court of Appeals of Texas
• Decided: December 20, 1913
• Status: Published

Opinion

SPEER, J.

This is an ordinary cattle shipment case, in which J. F. Drahn and Edgar Kerr, plaintiffs, recovered against the Gulf, Colorado & Santa Fé Railway Company for the negligent handling of two ears of cattle, originating at Beaumont and High Island, respectively, and destined to North Ft. Worth. The defendant company appeals.

The charge of the court is first criti-cised because of the definition of negligence given. It is as follows: “Negligence is the failure to exercise care that would be exercised by a person of ordinary prudence under the same or similar circumstances.” We find no fault with this definition. Lacking perhaps the word “that” or “such” preceding the word “care,” the charge is in the usual and approved form.

The court properly permitted the ap-pellee Drahn to testify that the cattle in question were the property of himself and Edgar Kerr even though they were not formal parties to the contract of shipment, since the rule is in such a case that the real parties in interest are proper parties plaintiff, and such owners are entitled to recover in their own right even though the contract of shipment is made in the name of another person. This being true, the court did not err in refusing to instruct a verdict for the defendant.

Neither did the court err in permitting this witness to testify as to the usual and customary time which it took to transport stock by railway the distance these cattle were transported as against the objections that the same would be an opinion, and would involve a mixed question of law and of fact. True, the answer was an opinion, but that constitutes no legal objection to its admissibility, and no objection is made that the witness was not qualified to express an opinion upon the subject inquired about. What is the usual and customary time is not, as we understand it, a mixed question of law and fact, and in no manner involves a consideration of the question of negligence, and, therefore, not within the condemnation pronounced in the authorities forbidding a witness to express an opinion on a mixed question of law and fact.

There is no error in the judgment, and it is affirmed.