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4. TRIAL OM355(2)-ANSWER TO SPECIAL IS-, laying rails, and to do all necessary grubbing, SUE SUFFICIENT FOR BASIS OF JUDGMENT. clearing, and grading, which included the

In action against railroad for loss of cattle lands leased by plaintiff, and described in his through openings in fence on railroad's right of petition. In doing this work it was necessary way, where jury, in answer to special issue for the construction company to cut the as to whether 17 head of cattle had escaped fences of plaintiff's pastures as the work through openings comp ned of, had answered “Yes; at least 10 head," answer of jury in progressed to those premises. The construcresponse to issue as to reasonable value of "said tion company began work in the fall of 1910, cattle,” if former question was answered in the in the latter part of October or eariy in Noaffirmative, of certain amount, without specify-vember, and in the course of the work, and ing as to whether such amount was for 10 or before its acceptance by appellant, the undis17 head of cattle, was sufficient on which to puted facts show that the construction gang base judgment, in view of the pleadings, evi- broke the fences of plaintiff's pastures at sevdence, and instructions of the court, warranting verdict for such amount for loss of 10 eral different places along the right of way, head.

rendered necessary in the performance of

such work. 5. NEGLIGENCE OM 136(5)–CAUSE OF DAMAGE

At the time plaintiff placed his cattle in the
QUESTION FOR JURY.
In action of tort where it is not shown there. The grass was good, and there was a

leased pastures there was no other stock
with absolute certainty that any of the damage substantial wire fence around the pastures.
sustained was caused by defendant's wrongful
acts, but where it is shown with reasonable cer-

The cattle remained in the pastures during tainty that some of the damage was sustained the summer and fall of 1910, but 90 head by reason thereof, plaintiff is entitled to have were sold by plaintiff about the latter part jury pass on the evidence, consider all the facts of August, and they were delivered early in and circumstances of the case, and make the November. There were three pastures, called most intelligent and proper estimate which the nature of the case will permit as to damages the east pasture, the horse pasture, and the resulting from defendant's act.

northwest pasture. There were five breaks 6. RAILROADS 114(2)-EVIDENCE WARRANT

made in plaintiff's fences by the construction ING ALLOWANCE OF DAMAGES FOR CATTLE gang on the right of way, and at least anLOST AFTER ESCAPING THROUGH OPENINGS other break in the east pasture southi and off IN FENCE DURING RAILROAD CONSTRUCTION. the right of way, and plaintiff had placed a

In an action against a railroad for loss gate in the east pasture fence. of cattle escaping through openings made in

Up to the time these breaks were made plaintiff's fence during railroad construction, evidence as to extent of damages held sufficient none of plaintiff's cattle had been escaping to warrant verdict as to amount.

from the pasture, and no other stock had

been getting in. At different times while Appeal from District Court, McCulloch the railroad was building through the pasCounty; J. O. Woodward, Judge.

ture plaintiff missed cattle. At the time he Action by J. T. Baker and L. M. Baker made delivery of the 90 head referred to against the Gulf, Colorado & Santa Fé Rail- above he found them at various places; some way Company. Judgment for last named of them in lanes, some in an adjoining pasplaintiff, and defendant appeals. Affirmed.

ture, and some around the town site of Mel

vin, which was near by, and others near Eden Terry, Cavin & Mills, of Galveston, Sam and Brady, something like 10 miles west of McCollum, of Brady, and Lee, Lomax & his pasture. During this time plaintiff found Smith, of Ft. Worth, for appellant.

other cattle in his pasture belonging to difF. M. Newman, of Brady, and Wilkinson ferent owners nearly every day from the & McGaugh, of Brownwood, for appellee.

time the construction work began up to Jan

uary; and after the breaks were made in Findings of Fact.

the fences plaintiff rode his fences every day, BRADY, J. The appellee, L. M. Baker, who and frequently built up the gaps to keep was plaintiff below, and one J. T. Baker were cattle out of his pasture and to keep his own the lessees of about 4,200 acres of land, sit from escaping. He often saw cattle tracks uated partly in McCulloch and partly in at the gaps in question. During this time Concho counties, Tex. The lease began April | the construction gang were at work, some15, 1910, and ended April 15, 1911, and the times around the gaps and sometimes not. land was leased for grazing and pasturage ! Plaintiff notified the foreman of the construcpurposes. After acquiring the lease the plain- tion gang of the gaps being open, and comtiff placed in the pastures 393 head of cattle. plained of the failure to close them, but the During the fall of 1910 appellant, in the gaps continued to be left open. construction of the roadbed for its line of Among the cattle escaping, plaintiff failed railway between Brady and Eden in Texas, to find 17 head, 11 of which were coming two employed a construction company to prepare year old steers, and the remainder coming and complete its roadbed, in preparation for three year old steers. Plaintiff employed his

1

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 S.W.) own time, and hired extra help to hunt these, the remainder of the cattle escaped through cattle, and paid them a reasonable sum for the openings in the fences “so made and left their services. The reasonable market value open by defendant"; that he frequently put of the two year old steers was from $20 to up the fences during that time, but that they $30, and for the three year old $34 each. were often torn down by the parties grading

The pasture was capable of sustaining 500 the road for defendant, and that plaintiff's head of cattle until spring in a good condi- cattle escaped through these openings, and tion, and the cattle were in good shape when other stock entered the pasture and destroyed the railroad company began to construct the the grass; that plaintiff frequently comroadbed and right of way through the pas- plained to the parties grading the road for ture. Late in 1910, after plaintiff had re- defendant not to take down the fences, and moved the 90 head from the pasture, he to keep them up and not to permit stock to moved some 160 or 170 head to other pas- go in and out; that by the acts of defendant, tures for grass, because the grass in the its employés, and agents plaintiff was damleased pasture had been eaten out pretty aged in the loss of the cattle not recovered, well and was not sufficient to sustain the and in other particulars substantially as alcattle, which had already started to fall leged later in the amended ion. Plainaway in flesh. He later removed other cattle tiff averred that defendant tore down the for the same reasons, leaving about 100 head fences around the pastures in as many as in the pasture. The 100 head left in the pas- eight places, and left them down. ture came through the winter in hard shape,

On February 24, 1915, there was filed the but plaintiff lost none of them. The differ- third amended original petition; L. M. Bakence in value of these cattle, due to the er alone being plaintiff. In this petition the shortage in grass through other cattle hav- contract between appellant and the construcing grazed on the pasture, was from $3 tion company was specifically alleged, and it to $5 a head, and the grass was worth from was claimed that the fences were torn down 25 to 35 cents an acre.

by the construction company, acting under The evidence did not disclose just when or its contract with appellant, at several points where the 17 bead escaped, nor through where the right of way entered into and which of the gaps they went. They might emerged from said pasture, and specifically have gone through one of them or all of alleged that the fences were so torn down them. There was positive evidence, how- in as many as five different places where the ever, that some cattle got in and out of the line of railway entered the pastures or ispasture through openings made by the con- sued therefrom. The other averments are struction company during the fall of 1910, substantially as contained in the former and some of them were plaintiff's cattle. pleadings, and it is not necessary to make There was a lane opening into the Brady and any further statement of the amended pleadEden public road, which road was on the ing, except to say that plaintiff charged his north side of the pasture, and there was a damages to have accrued from the negligence gate in the lane which was sometimes left of the defendant and the construction comopen. There was testimony that there were pany. places in the fence close to the northwest The case was submitted to the jury upon corner of the pasture that were not in good special issues; the questions and answers condition, and the fence was down in one being as follows: place there some 20 or 30 steps wide. The railroad was between a quarter and half leged in plaintiff's petition, tear down the

“Question No. 1. Did the contractors, as almile from that fence, and the track was fences of the plaintiff at the places where the about a mile from the west corner of the said roadbed of the defendant went through northwest pasture. The mail carrier, who plaintiff's fences? Answer this question 'Yes' traveled this road going to Eden, reported to or 'No.' plaintiff that he saw 7 head of cattle on the “Answer: Yes. Brady and Eden road about a mile and a “Question No. 2. Did the 17 head of cattle half north of the north gate on such road. alleged in plaintiff's petition escape through They were young steers and had plaintiff's these openings or gaps on the right of way of

the defendant's road? Answer this question brand on them.

'Yes' or 'No.' The plaintiff filed his original petition

“Answer: Yes; at least 10 head. June 29, 1912, joined by J. T. Baker as plain "Question No. 3. Did the plaintiff ever retiff. In this petition he alleged, among other cover or receive the 17 head of cattle so althings, that before the delivery of the 90 leged by him in his petition to have been perhead of cattle in the fall of 1910 appellant manently lost? Answer this question 'Yes' or commenced grading its road, and that "the

'No.' employés and people grading said road for

“Answer: No. defendant tore down the fences around said 2 in the affirmative, then you will answer

“Question No. 4. If you answer question No. pastures and left them down, and permitted the following question, but, if you answer ques. plaintiff's said cattle to escape from said pas- tion No. 2 in the negative, you need not answer tures and scatter in every direction"; that the same. State what was the reasonable fair

market value of said cattle at the time and i Upon the verdict the court entered judgplace, if you find they did so escape through' ment for plaintiff for the damages found said openings or gaps?

by the jury, with legal interest, aggregating Answer: $300.

$881.45. "Question No. 5. Did any cattle or other live stock enter into plaintiff's said pastures through

Opinion. the openings made in the fences on defendant's

[1] Among the questions presented upon right of way by the persons engaged in constructing its roadbed and during the time of its this appeal is the point that this suit was construction? Answer this question Yes or originally instituted by J. T. and L. M. 'No.'

Baker, and that by amended petition L. M. "Answer: Yes.

Baker alone prosecuted the suit, alleging that “Question No. 6. If you answer question No. before the damages had accrued he had pur5 in the affirmative, then state whether or not chased from J. T. Baker all his interest in any grass in said pasture was consumed or the lease contract and all rights thereunder, destroyed by said stock so entering said pas. and also all of J. T. Baker's right, title, and tures? Answer this question 'Yes' or 'No.'

interest in the cattle. The precise point is "Answer: Yes. "Question No. 7. If you answer question No.

that the amended pleading set up a new 6 in the negative, you need not answer the cause of action, which was barred by the following question, but if you answer it in the two-year statute of limitation, because of affirmative, you will answer same. If you find the change made therein, seeking recovery that any grass in plaintiff's pasture was con- in the name of J. T. Baker alone, whereas sumed or destroyed by live stock by reason recovery had theretofore been sought in the of the openings in his fences made by persons name of the joint plaintiffs, J. T. and L. M. constructing said roadbed, then you will find Baker. The identical question was ruled the market value of such grass so consumed upon by this court adversely to this contenand destroyed at the time and place it was tion in the former appeal of this case, re consumed and destroyed, if any. "Answer: $210.

ported in 184 S. W. 257. We have again "Question No. 8. Did the plaintiff make a considered the matter, and have concluded reasonable effort to find and gather the cattle, to adhere to the former holding of this court, that is the 17 head of cattle that he alleged and refer to the reasons given and authorwas lost from said pastures, if you find that ities reviewed in the opinion on the former any escaped through the openings upon said appeal. Therefore the assignment raising right of way? Answer this question 'Yes' or this question is overruled. 'No.'

It is also claimed that the third amended "Answer: Yes. “Question No. 9. Did plaintiff incur and pay

original petition set up a new cause of acany expenses in a reasonable effort to find tion, which was barred by the two-year statsaid cattle that escaped, including those that ute of limitation, for that in the original were permanently lost, if you find that any petition the plaintiff sought recovery for the escaped and were lost as alleged in plaintiff's acts of defendant's agents and employés in petition. Answer this question 'Yes' or 'No.' breaking and leaving open the fences at "Answer: Yes.

points around plaintiff's inclosure, but such "Question No. 10. If you answer question points not being definitely described or idenNo. 9 in the negative, you will not answer the tified as being on the right of way, as to following question, but if you answer it in the which a statutory duty was imposed on de affirmative, then you will find what amount was fendant, whereas the amended petition set reasonable and necessary in the way of expenses incurred in looking after and gathering up that the fences were broken by the servsaid cattle.

ants of an independent contractor at points "Answer: $100.”

on the right of way only, and sought to hold

appellant liable on that account for the violaIn addition to the questions propounded to tion of a statutory duty. the jury, the court gave this precautionary

[2] After a careful consideration of the instruction:

question, we are of the opinion that the con

tention is without merit. The original pe"You are instructed that, if you believe from tition charged the breaking of the fences at the evidence that the cattle of the plaintiff

several different places, the allegation being escaped through other openings in said pas. tures and not through the openings made by in not less than eight places, but failed to the construction company on defendant's right state the points where made. This averment of way, you will not be authorized to return was broad enough to include breaks on the damages for the escape of said cattle, if any, right of way and also openings at other through said openings, if any; or if other cat-places, but certainly embraced the former. tle other than plaintiff's cattle got into plain. The amended pleading made a more specific tiff's pastures through other openings other

or definite statement, and confined the allethan those on the right of way, if any, and gations of breaking to the right of way. We damaged plaintiff's grass, you will not be authorized to return à verdict for damages in think there was clearly in the amended pe any sum whatever against the defendant for tition a retention of the cause of action althe destruction of plaintiff's grass."

leged in the original petition, at least as

(218 S.W.) to the five gaps alleged in the amendment As to the question of remittitur, this is diswhich were confined to the right of way. posed of by the holding just made, assuming Furthermore, even if it be conceded that the that the evidence warranted a verdict for railway company would not be liable for the damages for at least 10 head of the escaping acts of the servants and employés of the con- cattle, which will be hereafter discussed unstruction company in breaking and leaving der other assignments. openings in appellee's fences off the right of In the next assignment of error in the brief way because they were servants of an inde- it is insisted that the judgment rendered in pendent contractor, the situation would not this case on the findings of the jury is excesbe different, because the original pleadings sive, because in special issue No. 2 the jury alleged not only that the eight openings in

were asked to find whether the 17 head of the fences complained of were made by de cattle alleged in the petition escaped through fendant, its agents, and employés, but also openings on the right of way, and they an. specifically alleged the grading of the road swered that at least 10 head had so escaped. through the pastures in question, and that in the next question the jury were asked to “the people grading the road for defendant" say whether plaintiff ever recovered the 17 tore down the fences and left them down. It head, and this is followed by question No. was also averred that appellee frequently 4, in which the jury were required to find complained to the “parties grading the road the market value of "said” cattle. The jury for defendant” not to take down the fences, having found, in response to question No. 4, and to keep them up, and not permit the that the market value of "said” cattle was stock to go in and out. The amended plead- $300, it is urged that this answer must be ing merely made these allegations more spe- construed to have been a finding by the jury cific, and gave the name of the contracting or that the fair market value of the entire 17 construction company. As to the five breaks head was $300, instead of the value of the in the fences relied upon by amendment, they 10 head which they had found so escaped. were undoubtedly included in the broad aver. Moreover, it is claimed that the judgment, in ments of the original petition, and under the any event, as to the cattle alleged and found pleadings the railroad company, as to these to have been lost, can only be 10/17 of the breaks, could have made exactly the same total value of the 17 head, and that the judgdefenses. In none of the rules laid down in ment is excessive in the sum of $123.53, with Phænix Lumber Co. v. Houston Water Co., interest, which should be required to be re94 Tex. 456, 61 S. W. 707, for determining the mitted. identity of causes of action, is there any The point is persuasive and, at first blush, ground for holding the two pleadings in impressive; however, while it must be conquestion to have stated different causes of ceded that the court submitted to the jury action, when fairly construed, so as to bar the question of the market value of the enby limitation the action asserted in the last. tire 17 head, alleged to have escaped and Without further discussion of the matter, we not recovered, not having in mind that the overrule the contention.

jury would answer that only a part of them [3] By another assignment of error it is escaped through the openings on the right urged that the jury's answer to question No. of way, yet the jury evidently referred in 2 was not responsive to the question; that their answer to the value of the 10 head they were required to answer the question which they had found, in answer to question “Yes” or “No”, which they were manifestly No. 2, had escaped through the openings on unable to do, and did not do; and that there the right of way. This is made clear by the fore the case should be reversed, or the ap pleadings and the state of the evidence upon pellee required to enter a remittitur for the the question of market value. The petition damages awarded for the 10 head of cattle alleged that 6 of the 17 head of cattle escapfound by the jury to have escaped, under ing and not recovered were two year old their answer to question No. 2.

steers, worth $26.50 per head, and that the It is true that the court, in this question, remaining 11 head were three year old steers, did submit the issue whether the 17 head of worth $30 per head. The testimony of appelcattle alleged in plaintiff's petition escaped lee was undisputed that the market value of through the openings on the right of way, the two year old steers was from $28 to $30, and that the jury were instructed to answer and three year old steers $34. this question “Yes” or “No." The answer The court in submitting question No. 4 was "Yes; at least 10 head.” While the not only asked the jury to find the value of answer is not strictly and technically respon- "said cattle,” referring to the 17 head, but sive, we think, in the nature of the case and the question also embraced the idea that they the state of the proof, it was a substantial | should find the value of the cattle that "did compliance with the spirit of the statute, and so escape through said openings or gaps.” would authorize the entry of a judginent [4] The court expressly instructed the jury based thereon as to the 10 head actually that they would not be authorized to return found by the jury to have escaped through damages for the escape of the cattle through such openings.

openings not made by the construction com

pany on appellant's right of way. When we ference from other facts as by a more diconsider the pleadings, the evidence on mar-rect means of proof. He also maintains that ket value, the charge of the court, the several j in order to fix liability for an injury by torfindings of the jury upon this subject as a tious acts it is only necessary to show with whole, and the liberal rules obtaining in reasonable certainty the cause from which construing verdicts of juries, we think there the injury proceeds, and that the jury had can be no real doubt that the jury's estimate the right to infer, from the testimony in this of $300 for the value of the lost cattle had case, that appellee's loss was to some extent reference to the value of the 10 head which caused by appellant's negligence and wrongthey had previously found escaped through ful acts. Specifically, it is claimed that in acsuch openings. Taking this view of the mat-tions for tort, if it is impossible to distinter, the pleadings, evidence, charge, and the guish between the damages arising from findings all harmonize; whereas the contrary the wrong or injury complained of and daminterpretation is at variance therewith. In age which has another origin, the jury should support of the conclusions reached in deter- he permitted to make the best estimate in mining the two assignments just considered, their power, from the best evidence that the as to the proper interpretation of the jury's nature of the case admits of, and award comverdict, we cite the following authorities: pensation accordingly; and that the difficulty Wells v. Barnett, 7 Tex. 584; Darden v. Mat- of separating the damages due to different thews, 22 Tex. 320; Robinson v. Moore, 1 causes will not operate to deny a recovery Tex. Civ. App. 93, 20 S. W. 994; Stahl v. for substantial damages. Askey, 81 S. W. 79; City of San Antonio v. The difficulty lies, not so much in deterL. A. Marshall & Co., 85 S. W. 315; Rushing mining the correct legal principle determinav. Lanier, 51 Tex. Civ. App. 278, 111 S. W. tive of these questions, but in the application 1089; Sovereign Camp W. O. W. v. Wagnon, of the rules to the facts of this case. Per164 S. W. 1082; Gibson v. Dickson, 178 S. W. haps as fair a statement of the law as any to 44; 20 Ency. Pl. & Prac. pp. 344, 368; 22 Ency. be found is that announced in 17 Corpus Pl. & Prac. pp. 877, 878, 955, 960.

Juris, pp. 755–757. It is there stated thatThis brings us to the discussion of the

"Where it is not shown with reasonable cerprincipal and most difficult questions involved tainty that the harm or loss resulted from the on this appeal, which are presented in the act complained of, there can be no recovery first four assignments.

of compensatory damages therefor. This, howThe contentions of appellant, under these ever, is but a statement in another form of the assignments, may be summarized as follows: rule requiring that damages be the natural and That the case should not have been submitted proximate consequences of the wrongful act.” to the jury, but the peremptory instruction

After pointing out that the rule against the requested by appellant should have been

recovery of uncertain damages generally has given, because appellee relied for recovery been directed against uncertainty as to upon the alleged violation of a statutory cause rather than uncertainty as to measure duty by appellant, in failing to erect cattle or extent, the same authority states this guards or stops at the points where its right

rule: of way entered his pastures, and there is no evidence to show that the damages sustained

"Where the evidence clearly shows some subby appellee were proximately caused by ap he is not confined to a recovery of mere nomi

stantial damages to which plaintiff is entitled, pellant's negligence or violation of duty, in nal dàmages by a failure to show as to all of respect to either of the three items of dam- the items of damages that defendant was reage submitted to the jury. It is claimed that sponsible therefor; and in the case of concurthe testimony offered upon this point is so rent torts by several the difficulty of ascertainweak as to amount to nothing more than a ing with exactness the proportion of damage mere "scintilla" of evidence, and that as to caused by each tort-feasor is not a ground for the 17 head of lost cattle the testimony shows denying the right to recover a substantial sum,

where the best evidence of which the case is no more than that the cattle might have es

susceptible, reasonably tending to show the relcaped through the openings in the fences on

ative proportion, is adduced.” appellant's right of way, and does not establish that they did so escape. In short, it Appellant cites several authorities in its is urged that the evidence was insufficient brief, including Telegraph Co. v. Brown, 62 to show that appellant's wrongful acts caus- Tex. 540, Weed v. Ry. Co., 21 Tex. Civ. ed appellee's damages, that there was a App. 689, 53 S. W. 357, Fleming v. Pullen, 97 total failure to show the extent of the dam- S. W. 110, and St. Louis Cattle Co. v. Cholage sustained by appellee though any viola- son, 30 S. W. 269, tending to support the rule tion of statutory duty by appellant; and that that where a loss is not shown with reasonthe verdict of the jury necessarily rested up- able certainty to have resulted from the on mere conjecture or guesswork.

wrongful acts of the defendant, no recovery On the other hand, appellee contends that will be allowed. An examination of the negligence, like any ultimate fact in issue, facts of these cases, however, will show that may be established as well by reasonable in- none of them is conclusive in the present

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