
    HOUSTON BELT & TERMINAL RY. CO. v. KING.
    (No. 372.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 16, 1918.)
    Damages <&wkey;113 — Measure — Injury to Horse.
    In action for the value of a horse, which fell because of a spike extending several inches above a tie in defendant’s railroad crossing, and broke its leg, and for veterinary services procured at defendant’s request, the value of plaintiffs horse just prior to the accident and its value subsequent to the accident after a reasonable time had elapsed within which the injury might have developed was not the correct measure of damages.
    Appeal from Harris County Court; W. E. Monteitli, Judge.
    Suit in justice court by L. G. King against the Houston Belt & Terminal Railway Company. There was a judgment for plaintiff in both the justice and county courts, and defendant appeals.
    Reversed and remanded.
    Andrews, Streetman, Burns & Logue, and M. E. Kurth, all of Houston, for appellant. Geo. F. Howard, Vinson & Elkins, and H. L. Nicholson, all of Houston, for appellee.
   BROOKE, J.

This suit was filed by plaintiff to recover from the defendant, Houston Belt & Terminal Railway Company, the sum of $100 as the value of a horse alleged to have been owned by him and injured by defendant’s negligence, and for the further sum of $49 as veterinary services, for which he alleged himself to be liable by reason of the injury to such horse. The suit was begun in the justice court, precinct No. 1, Harris county. The judgment was in favor of plaintiff against the defendant for $149.

In the county court at law the case was submitted on a general charge, which resulted in judgment for plaintiff for $129. The allegation was that plaintiff was the owner of the horse in question, and while he was driving across the tracks of defendant, in the city of Houston, the horse stepped on a spike extending several inches above the tie, and fell and broke its leg; that defendant’s claim agent instructed him to send the horse to a veterinary, which he did. The ground of negligence alleged was that defendant did not keep its crossing in repair. Plaintiff further alleged that he was liable for $49 as doctor’s bill and care of said animal on account of said injury ; the'horse having been sent to the veterinary at the request of defendant’s agent.

The first assignment of error is that the court erred in instructing the jury on the measure of damages, as follows:

“You are instructed that the measure of damages in this case will be the value of the horse just prior to such accident and the value of the horse subsequent to the accident, after a reasonable time had elapsed within which his injury, if any, might have developed, showing the damages sustained.”

This measure of damages is not correct, and, without further comment, the case must be reversed and remanded.  