Missouri, Kansas & Texas Railway Co. v. Wetz

87 S.W. 373, 38 Tex. Civ. App. 563, 1905 Tex. App. LEXIS 531

• Court: Court of Appeals of Texas
• Decided: March 29, 1905
• Status: Published

Opinion

EIDSON, Associate Justice.

This suit was instituted against the appellant by appellee in the District Court of Comal County for the sum of $500, alleged damages, for failure of appellant to place cattle-guards at the points where appellant’s right of way enters appellee’s enclosure.

Appellant filed general and special exceptions to plaintiff’s petition, which were overruled by the court; also a general denial was pleaded by appellant. The cause was tried before a jury, which resulted in a verdict and judgment in favor of appellee for the sum of $200.

Appellant’s first assignment of error complains of the action of the court in overruling and in not sustaining appellant’s general demurrer to plaintiff’s original petition. Under this assignment appellant submits the propositions that appellee’s petition was insufficient, because it fails to allege that appellee is the owner of the premises, damage to Avhich he seeks recovery for, and because it does not describe the property, damage to Avhich recovery is sought. Appellee’s petition alleges “that the defendant’s said line of railroad passes through and over and across the enclosed premises of plaintiff at a point about two miles north of Landa’s station, in said Comal County, Texas; and, although plaintiff has requested defendant to place proper cattle-guards and stops, and" to keep the same in repair, as required by law, at the points where defendant’s said railroad track enters the said enclosed premises of plaintiff, defendant has failed and refused, and still refuses, to erect and maintain said cattle-guards, etc.” And further, “that he has a valuable pasture on one side of said railroad track, and a farm and residence Avhere he resides on the other; that said pasture is fenced off from said residence by fence and railroad tracks erected by defendant, and plaintiff can not use or get any benefit or revenue from said pasture unless he employs two additional hands, besides himself, to drive his stock (including cattle, horses and mules) across said track twice each day, at great expense, labor and trouble, all on account of the negligent failure and refusal on the part of defendant to erect proper cattle-guards and stops at the point of entering plaintiff’s said enclosed premises as aforesaid. Plaintiff further states that, unless he employs two or three additional hands, the cattle will pass to the right or left of said right of way, and off outside of plaintiff’s premises, to his great damage, etc.” We think these allegations sufficiently allege ownership in appellee of the premises involved, and sufficiently describe same, especially as against a general demurrer.

Appellant’s second assignment of error complains of the action of the court below in overruling what it denominates its special exception number 2 to appellee’s original petition, which exception is as follows: “This defendant further excepts to the allegations of said petition, and says that the same are vague, indefinite and uncertain, and are riot- sufficiently specific to put defendant upon notice of plaintiff’s cause of .action and how to answer same, and of this defendant prays judgment of the court.” This is only a general demurrer or exception,' and the action of the court in overruling the same was not error, for the reasons stated in disposing of appellant’s first assignment of error.

Appellant, by its third assignment of error, contends that the court below erred in overruling its third special exception to appellee’s original petition. Said exception is as follows: “This defendant further excepts to the allegations of said petition, insofar as the same seeks to recover of defendant damages for having fenced off defendant’s right of way, and depriving plaintiff of the benefit of his pasture or revenue therefrom, unless he employs two or more hands to drive his stock across defendant’s track twice each day, at great expense and trouble, because (a) said damages, if any, are not the proximate result of failing to place cattle-guards at the points where defendant’s right of way enters plaintiff’s enclosure; (b) because said allegations do not show that such damages resulted proximately from such failure; (c) because defendant has a legal right to fence off its right of way and place gates, and said petition does not show that said damages would not result to plaintiff, if defendant had complied with the law and placed said cattle-guards or stops; (d) because the damages complained of can only be obviated by placing an open crossing in plaintiff’s pasture, and this is not a suit for such open crossing, or failure to provide same.”

Article 4523, Revised Statutes, provides as follows-: “That each and every railroad company, whose railway passes through a field or enclosure, is hereby required, to place good and sufficient cattle-guards or stops at the point of entering such field or enclosure, and keep them in good repair.” Article 4527, Id., reads as follows: “Should any such company neglect to construct the proper cattle-guards and stops, and keep the same in repair, as required by law, such company shall be liable to the party injured by such neglect for all damages that may result from such neglect, to be recovered by suit in any court having jurisdiction.” Appellee’s petition alleges appellant’s duty to provide the cattle-guards ‘and stops, as required by law, and its failure to so provide same, and alleges the damages sustained by him resulting from such failure, and, in our opin ion, this is sufficient. (Clark v. Dyer, 81 Texas, 343, 16 S. W. Rep., 1063; Missouri, K. & T. Ry. Co. v. Wetz, 97 Texas, 581, 80 S. W. Rep., 988; Id., 81 S. W. Rep., 1276.) The statute imposes the duty upon the railway company to provide cattle-guards or stops whether its right of way is fenced or not, and the appellee would be entitled to recover damages occasioned by such failure to so provide cattle-guards, although appellant’s right of way was fenced. (Missouri, K. & T. Ry. Co. v. Wetz, 97 Texas, 581, 80 S. W. Rep., 988.)

There was no error in the refusal of the court below to give to the jury appellant’s first special charge, because the evidence, as shown by the record, was sufficient to support the verdict of the jury.

By its fifth assignment of error appellant complains of the refusal of the court below to give its second special charge, which it as follows: “The jury are instructed that if, under the evidence and charge of the court, jou find for plaintiff in any sum, then, in estimating such sum, if any, you are not authorized to take into consideration the amount, if any, which plaintiff would have had to pay for hiring help in driving his stock across defendant’s right of way, had he seen fit or been compelled to hire such help.”

The testimony as to the expense incurred on account of the hire of additional help by appellee, for the purpose of driving his stock across appellant’s right of way, was competent and material to be considered by the jury in estimating the amount of damages, if any, to which appellee was entitled.

Appellant’s sixth and seventh assignments of error complain of the charge of the court in reference to the damage to which appellee would be entitled and in reference to the measure of such damage. In our opinion the charge of the court, when construed in its entirety, is not subject to the criticisms of appellant, and is a correct enunciation of the law applicable to the case, in view of the pleadings and the evidence.

Appellant’s eighth and ninth assignments of error complain of the action of the court in permitting the appellee to testify that it would require two or more hands to drive his cattle, morning and evening, across appellant’s right of way, without the cattle-guards at the points where same enters his pasture, than it would require if said cattle-guards had been placed at said points, and that said additional trouble is worth $10 per month, and, if he had to hire hands, he guessed it would take $20 to hire two men to take the cattle down in the evening and out in the morning for a month; and that the pasture mentioned in his petition was worth at least $10 or $12 per month; appellant’s contention being that this testimony was incompetent, immaterial and irrelevant. We do not agree with this contention of appellant. In our opinion, the testimony was admissible and material, as tending to show that appellee was damaged by the failure of appellant to construct and maintain proper cattle-guards or stops, as required by law, at the points where its road entered appellee’s enclosure, and the amount of such damage.

- There being no reversible error pointed out in the record, the judgment of the court below is affirmed.

Affirmed.