Shook v. Newsome

228 S.W. 1118, 1921 Tex. App. LEXIS 826

Opinions

This case presents a suit for damages for the negligent killing of a mule, of the agreed value of $200, brought by appellant, Newsome, against appellant, Shook. The special issues upon which the case was submitted to the jury sufficiently show the matters in controversy.

Under the issues submitted the jury found that Shook borrowed the mule in question from Newsome; that the death of the mule was caused by the negligence of Shook, his agents or employees. Following the above issue the court, in the general charge, properly defined negligence, and placed the burden of proof upon plaintiff, Newsome, to establish the affirmative of the foregoing issues.

Appellant then presented to the court his special charge, as follows:

"You will answer the following issue or question: Did the mule in controversy in this case die as the direct or proximate result of any act of negligence on the part of the defendant or his agent or employees? Answer yes or no."

The court gave the charge as submitted. The jury answered "yes."

The only question presented on this appeal is the failure of the court to extend the burden of proof and make it apply to the issue submitted in the above special charge. The court had already placed the burden of proof on the issue of negligence on plaintiff.

The special charge was not a resubmission of the issue of negligence. There was no controversy in the evidence as to the cause of the death of the animal. The only controversy was on the first issue as to whether Moore borrowed the animal. All of the evidence as to the cause of the death of the animal came from the defendant's witnesses, and it only remained for the jury to determine whether the use and the manner of the use of the hackamore, by defendant's employees, in handling the animal, under all of the facts and circumstances disclosed by the evidence, was negligence. In other words, on the issue of negligence the plaintiff, under the circumstances disclosed by the record, was not called upon to show by other additional and preponderating evidence any fact or circumstance other or different from that disclosed by the defendant's employees then handling the animal. It was not a question of comparison of evidence between conflicting statements of witnesses, but the question was: Does the undisputed evidence of defendant's employees show negligence in their manner of handling the animal?