McIntyre Hampton shipped a car of horses from Abilene, Tex., to Philadelphia, Pa., and instituted this suit against the Texas
Pacific Railway Company, the Pennsylvania Railway Company, and the St. Louis, Iron Mountain Southern Railway Company to recover damages for injuries to the horses occurring by reason of rough handling and negligent delay in the shipment. Judgments were rendered in plaintiff's favor against the two defendants first mentioned, who have appealed, and in favor of the defendant last mentioned.
L. D. McIntyre, one of the plaintiffs, testified as follows: "We got into the west yards at Philadelphia I believe they said said about 10 o'clock, when they cut loose there, on Wednesday night, and they never unloaded until about 3 o'clock Thursday morning. That was the second Thursday after we left here (Abilene) on Tuesday. * * * I am familiar with the effect on the market value of a horse that a delay in transportation will have on a horse and the market value of him. As to what effect a delay in transit would have on the market value of horses of this character, they just draw, the present shape they are in, and it would decrease their value. I know what effect that the rough handling of horses in transit, bumping them together in the manner I have described, would have on the market value of horses of this character. It would decrease the value of them. I stayed in Philadelphia about ten days."
After so testifying, the following question and answer were admitted over objections urged by the two defendants, against whom judgment was rendered, to wit: "Q. Suppose, then, Mr. McIntyre, these horses had been shipped from Abilene, Tex., to Philadelphia, Pa., and had been transported within a reasonable time, and without injury, what would these horses have been worth in the market at Philadelphia at the time they arrived there in your opinion? A. Three thousand four hundred dollars." The grounds of the objections were that "the question did not call for the proper measure of damage and the answer did not give the proper measure of damage, and the question and answer included a mixed question of law and fact, and called for a conclusion of the witness on the question of whether or not there was negligence." Those defendants here insist that such injuries to the animals as were naturally and necessarily incident to so long a trip were included in the question and answer, and that the same should have been expressly eliminated. We are of opinion that the witness did not so understand the question, especially as it does not seem that the contrary was shown by crossexamination. But the majority are of the opinion that the question and answer should have been excluded on the ground that the same involved the conclusion of the witness upon a mixed question of law and fact, the determination of which was exclusively the province of the jury under proper instructions from the court. In order to answer the question intelligently, the witness would be required first to determine in his own mind what would be a reasonable time to be consumed in such a shipment from Abilene to Philadelphia, and then to estimate the damages sustained by reason of the delay beyond the period of time so determined by him. His answer to the question, therefore, necessarily included his conclusion upon the question whether or not the time that was consumed in the shipment was reasonable. This was a question of negligence, and one of the grounds of negligence alleged in plaintiffs' petition, and submitted in the court's charge, together with alleged negligent rough handling as a basis for a recovery. H. T. Ry. v. Roberts,101 Tex. 418, 108 S.W. 808; T. P. v. Jones, 124 S.W. 194; Bryan Press Co. v. H. T. C. Ry., 110 S.W. 101; Williams v. Livingston,52 Tex. Civ. App. 275, 113 S.W. 787; St. L. S. F. Ry. v. May,53 Tex. Civ. App. 257, 115 S.W. 900; St. L., I. M. S. Ry. v. Smith, 135 S.W. 597; St. L., I. M. S. Ry. v. Hurst, 135 S.W. 599; K. C., M. O. Ry. v. Beckham (No. 7,552) 152 S.W. 228, by this court; K. C., M. O. Ry. v. Bigham, 138 S.W. 432. Appellees cite the case of K. C., M. O. Ry. Co. v. West, 149 S.W. 206, as an authority to show that the admission of the question and answer noted above was not error. In that case the question propounded to the witness and discussed in the opinion related to the value of cattle at destination of shipment if they had been "handled with reasonable care, or in the ordinary way." While the Court of Civil Appeals for the Third Supreme Judicial District held that there was no error in admitting the answer to the question, yet from some expressions used in the opinion it would seem that the question was interpreted as meaning no more than an inquiry relative to the market value of the cattle at their destination "if they had been handled in the usual or ordinary way in transit." At all events, we do not think that the decision is necessarily in conflict with our conclusion above noted.
Substantially the same question as that propounded to plaintiff McIntyre was also propounded to plaintiff Hampton, except that the question eliminated all injuries received by the horses in transit, except those occasioned by delay in shipment and rough handling. Appellants urged the same objections to this question and answer thereto as were urged to the one propounded to McIntyre and noted above, and to the action of the court in overruling the objections error has been assigned. For the reasons given already, this assignment is sustained.
Plaintiffs have also prosecuted an appeal from the judgment rendered in favor of the St. Louis, Iron Mountain Southern Railway Company. By the one and only assignment of error presented by them they insist that the trial court erred in overruling their motion for a new trial as against the railway company last mentioned because the evidence showed without controversy damage to some of the horses at least by reason of delay and rough handling while in transit over the railway of that company. The only evidence cited in plaintiff's brief to support that assignment is the testimony of plaintiff McIntyre, in effect, that after leaving Texarkana on the St. Louis, Iron Mountain Southern Railway the horses were unloaded at Hoxie on that road, and further: "I noticed that two horses were hurt when we got to Texarkana, and when we got to Hoxie I noticed that two other horses were hurt; that made four in all. They were all hurt more or less." No contention is made that any other evidence was introduced to prove that the horses were roughly handled by the company last named, or that they were unreasonably delayed in transit over the railway of that company notwithstanding the fact that both the plaintiffs accompanied the shipment from Abilene to Texarkana. At all events, it cannot be said that the testimony of McIntyre noted proved conclusively that the Iron Mountain Railway Company unreasonably delayed the shipment or roughly handled the horses. It may be that the injuries discovered by McIntyre at Hoxie were due to causes other than delay and rough handling, such as some inherent vice or natural propensity of the animals. Tex. Pac. Ry. Co. v. Arnold, 16 Tex. Civ. App. 74,40 S.W. 829; Martin v. Kansas City, M. O. Ry., 139 S.W. 615.
For the reasons noted, the judgments against appellants Texas
Pacific Railway Company and the Pennsylvania Railway Company are reversed, and the causes of action asserted against those two companies are remanded for a new trial; and the judgment in favor of the St.
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McIntyre Hampton shipped a car of horses from Abilene, Tex., to Philadelphia, Pa., and instituted this suit against the Texas
Pacific Railway Company, the Pennsylvania Railway Company, and the St. Louis, Iron Mountain Southern Railway Company to recover damages for injuries to the horses occurring by reason of rough handling and negligent delay in the shipment. Judgments were rendered in plaintiff's favor against the two defendants first mentioned, who have appealed, and in favor of the defendant last mentioned.
L. D. McIntyre, one of the plaintiffs, testified as follows: "We got into the west yards at Philadelphia I believe they said said about 10 o'clock, when they cut loose there, on Wednesday night, and they never unloaded until about 3 o'clock Thursday morning. That was the second Thursday after we left here (Abilene) on Tuesday. * * * I am familiar with the effect on the market value of a horse that a delay in transportation will have on a horse and the market value of him. As to what effect a delay in transit would have on the market value of horses of this character, they just draw, the present shape they are in, and it would decrease their value. I know what effect that the rough handling of horses in transit, bumping them together in the manner I have described, would have on the market value of horses of this character. It would decrease the value of them. I stayed in Philadelphia about ten days."
After so testifying, the following question and answer were admitted over objections urged by the two defendants, against whom judgment was rendered, to wit: "Q. Suppose, then, Mr. McIntyre, these horses had been shipped from Abilene, Tex., to Philadelphia, Pa., and had been transported within a reasonable time, and without injury, what would these horses have been worth in the market at Philadelphia at the time they arrived there in your opinion? A. Three thousand four hundred dollars." The grounds of the objections were that "the question did not call for the proper measure of damage and the answer did not give the proper measure of damage, and the question and answer included a mixed question of law and fact, and called for a conclusion of the witness on the question of whether or not there was negligence." Those defendants here insist that such injuries to the animals as were naturally and necessarily incident to so long a trip were included in the question and answer, and that the same should have been expressly eliminated. We are of opinion that the witness did not so understand the question, especially as it does not seem that the contrary was shown by crossexamination. But the majority are of the opinion that the question and answer should have been excluded on the ground that the same involved the conclusion of the witness upon a mixed question of law and fact, the determination of which was exclusively the province of the jury under proper instructions from the court. In order to answer the question intelligently, the witness would be required first to determine in his own mind what would be a reasonable time to be consumed in such a shipment from Abilene to Philadelphia, and then to estimate the damages sustained by reason of the delay beyond the period of time so determined by him. His answer to the question, therefore, necessarily included his conclusion upon the question whether or not the time that was consumed in the shipment was reasonable. This was a question of negligence, and one of the grounds of negligence alleged in plaintiffs' petition, and submitted in the court's charge, together with alleged negligent rough handling as a basis for a recovery. H. T. Ry. v. Roberts,101 Tex. 418, 108 S.W. 808; T. P. v. Jones, 124 S.W. 194; Bryan Press Co. v. H. T. C. Ry., 110 S.W. 101; Williams v. Livingston,52 Tex. Civ. App. 275, 113 S.W. 787; St. L. S. F. Ry. v. May,53 Tex. Civ. App. 257, 115 S.W. 900; St. L., I. M. S. Ry. v. Smith, 135 S.W. 597; St. L., I. M. S. Ry. v. Hurst, 135 S.W. 599; K. C., M. O. Ry. v. Beckham (No. 7,552) 152 S.W. 228, by this court; K. C., M. O. Ry. v. Bigham, 138 S.W. 432. Appellees cite the case of K. C., M. O. Ry. Co. v. West, 149 S.W. 206, as an authority to show that the admission of the question and answer noted above was not error. In that case the question propounded to the witness and discussed in the opinion related to the value of cattle at destination of shipment if they had been "handled with reasonable care, or in the ordinary way." While the Court of Civil Appeals for the Third Supreme Judicial District held that there was no error in admitting the answer to the question, yet from some expressions used in the opinion it would seem that the question was interpreted as meaning no more than an inquiry relative to the market value of the cattle at their destination "if they had been handled in the usual or ordinary way in transit." At all events, we do not think that the decision is necessarily in conflict with our conclusion above noted.
Substantially the same question as that propounded to plaintiff McIntyre was also propounded to plaintiff Hampton, except that the question eliminated all injuries received by the horses in transit, except those occasioned by delay in shipment and rough handling. Appellants urged the same objections to this question and answer thereto as were urged to the one propounded to McIntyre and noted above, and to the action of the court in overruling the objections error has been assigned. For the reasons given already, this assignment is sustained.
Plaintiffs have also prosecuted an appeal from the judgment rendered in favor of the St. Louis, Iron Mountain Southern Railway Company. By the one and only assignment of error presented by them they insist that the trial court erred in overruling their motion for a new trial as against the railway company last mentioned because the evidence showed without controversy damage to some of the horses at least by reason of delay and rough handling while in transit over the railway of that company. The only evidence cited in plaintiff's brief to support that assignment is the testimony of plaintiff McIntyre, in effect, that after leaving Texarkana on the St. Louis, Iron Mountain Southern Railway the horses were unloaded at Hoxie on that road, and further: "I noticed that two horses were hurt when we got to Texarkana, and when we got to Hoxie I noticed that two other horses were hurt; that made four in all. They were all hurt more or less." No contention is made that any other evidence was introduced to prove that the horses were roughly handled by the company last named, or that they were unreasonably delayed in transit over the railway of that company notwithstanding the fact that both the plaintiffs accompanied the shipment from Abilene to Texarkana. At all events, it cannot be said that the testimony of McIntyre noted proved conclusively that the Iron Mountain Railway Company unreasonably delayed the shipment or roughly handled the horses. It may be that the injuries discovered by McIntyre at Hoxie were due to causes other than delay and rough handling, such as some inherent vice or natural propensity of the animals. Tex. Pac. Ry. Co. v. Arnold, 16 Tex. Civ. App. 74,40 S.W. 829; Martin v. Kansas City, M. O. Ry., 139 S.W. 615.
For the reasons noted, the judgments against appellants Texas
Pacific Railway Company and the Pennsylvania Railway Company are reversed, and the causes of action asserted against those two companies are remanded for a new trial; and the judgment in favor of the St. Louis, Iron Mountain Southern Railway Company is affirmed.