
    ROBBINS v. BELL et al.
    (No. 7725.)
    (Court of Civil Appeals of Texas. Dallas.
    March 17, 1917.
    Rehearing Denied June 2, 1917.)
    1. Railroads >@=>412(4) — Fencing Against Stock — Statute.
    A railway fence so out of repair that it will not exclude live stock is no fence within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6603, making railroads absolutely liable for the value of all live stock killed or injured by locomotives or cars unless the company has fenced its road, in which event it is liable only for injuries resulting from want of ordinary care.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1456, 1457.]
    
      2. Railhoads <§=3443(2) — Killing Stock — SUFFICIENCY OF EVIDENCE.
    In an action against a railroad for killing a mule, evidence held sufficient to justify the inference that defendant’s train actually struck the mule.
    . [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1608%.]
    3. Railroads <§=>446(2) — Killing Stock — Question for Jury.
    In. an action against a railroad for death of a mule alleged to have been struck on the road’s right of way, whether it was impossible for a locomotive or cars to have inflicted such injury as the animal received held a question of fact for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1628.]
    4. New Trial <§=>102(3) — Newly Discovered Evidence — Diligence.
    In an action against a railroad for killing a mule, the court properly denied defendant new trial for newly discovered evidence, materially affecting the controlling issue whether the mule was struck by defendant’s train, where the same diligence that secured the evidence after trial would have secured it before trial, the new witness being the son of a witness for defendant, and two of defendant’s counsel, prior to trial, having on one or more occasions conferred with him concerning his father’s testimony, during which counsel did not ask him concerning any knowledge he himself had of the matter.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 212.]
    ■ Appeal from Limestone County Court; J. E. Bradley, Judge.
    ■Suit by Mrs. J. P. Bell and others against J. W. Robbins, receiver of the Trinity & Brazos Valley Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Thompson & Barwise, of Ft. Worth, and 6. Scott Reed and C. S. Bradley, both of Groesbeck, for appellant. A. B. Rennolds, of Mexia, for appellees.
   RASBURY, J.

This is a suit for damages for the value of a mule alleged to have been negligently killed by appellant. The suit originated in justice court, and upon trial there resulted in verdict for appellees for $175. Appeal was had to the county court, where upon trial de novo before jury verdict was again for appellees, but for $85, followed by similar judgment, from which this appeal is taken.

The negligence alleged was that the fence inclosing appellant’s line of railway was out of repair, thereby permitting appellees’ mule to enter upon appellant’s right of way, and that said mule while thereon was struck by one of appellant’s locomotives and trains, so injuring him that he died as a result thereof.

It will not be necessary to recite appellant’s pleading since counsel for appellant concede appellees’ ownership of the mule and that the fence was negligently permitted to be out of repair. It is contended, however, that the facts developed- by the evidence are wholly insufficient to support or justify the verdict of the jury that the mule was injured by appellant’s moving train, and that the court should have directed verdict for appellant, which was requested and refused by the court; such action being properly assigned as error. The verdict of the jury finds its support in the testimony of several witnesses, and the material facts fairly deducible from their testimony are in substance these; Preceding the injury appellees’ mule was at large in a cornfield or pasture adjacent to and separated from appellant’s right of way by its fence. Subsequent to the alleged injury ap-pellees received word that the mule was injured, and commenced a search for it and an investigation of how it was injured.. The mule was found dead in the pasture, having died presumably from loss of blood. In support of appellees’ theory that it was injured' on the railway track four or five panels of the right of way fence between the pasture and appellant’s right of way were down so as to permit the entry of stock. Witnesses-were able to track the mule due to the fact that his hind feet were and his front feet were not shod. They tracked him from the pasture through the fence where it was down onto the right of way to a gate beyond where he entered, and thence on and in the center of the railroad tracks, where they discovered a few drops of blood. From this point they found his tracks where he came off the track. Also at said point they found inside the rails a sliver or piece of the animal’s hoof. About 15 feet from where the mule went off the tracks they found on the right of way a small pool of blood. Just before the mule got to the gate (which was used as a means of ingress and egress to and from appellees’ pasture across appellant’s track), and which the animal had passed in going upon the tracks, witnesses found another pool of blood. At the gate on the inside of appellees’ pasture they found another and a large pool of blood. From there the mule went about 250 yards and laid down in the road. From the last point the mule went to a tank for water, and thence to a little ravine, where he was found dead. An examination of the mule’s injuries disclosed that the leg was cut or mashed off just above the hoof. The skin was split, the bone cut, and the hoof was held to the leg by a tendon or ligament. There were no other wounds or abrasions on the body of the mule. A train passed through Mexia and over the place where it was claimed ap-pellees’ mule was injured about 8 or 9 o’clock p. m. preceding the night of the day appellees discovered the injured mule.

In contradiction of appellees’ theory of the cause of the injury much testimony was adduced tending to show that appellees’ mule was suffering with foot rot; that the joint or hoof was pulled apart or from its socket, and not cut or mashed; that no bones in the foot, leg, or joint were broken; also testimony tending to sbow that, due to the construction of the cowcatcher attached to the locomotive, it was impossible for such injuries to have been inflicted upon the animal as were inflicted. We do not detail the facts deducible from such testimony for the reason that, while it would have supported a verdict for appellant, it cannot be of assistance in determining whether appellees’ testimony is sufficient to support the jury’s verdict. Recurring then to appellant’s proposition, are the facts related wholly insufficient to show that the mule was struck and injured by one of appellant’s trains? In such connection it is to be remembered that by article 6603, Vernon’s Say les’ Oiv. Stats., railways are absolutely liable for the value of all livestock killed or injured by their locomotives or ears, unless such company has fenced its road, in which event it shall be liable only for injuries resulting from a want of ordinary care. Appellant’s road was fenced, but it is admitted that it was out of repair and would not exclude live stock.

A railway fence in such condition is no fence. M., K. & T. Ry. Co. v. Tolbert, 100 Tex. 483, 101 S. W. 206. As a consequence, unlike those cases where stock are injured upon public crossings while at large, or where they are by the negligence of others upon a fenced right of way, no question of negligence can arise, since by the statute the railroad is absolutely liable. Railway Co. v. Tolbert, supra. The sole inquiry in such cases is: Was the animal injured or killed by the locomotives or ears of the railroad company? Such is the inquiry here. Appellant relies upon the case of T. & P. Ry. Co. v. King, 45 Tex. Civ. App. 215, 99 S. W. 1031, decided by this court, where it was held that the verdict was unsupported by the facts. The facts in that case and the one at bar are, however, quite dissimilar. First, it may be said that in the case cited there was the issue of negligence vel non, since the animal in that case was killed in the corporate limits of the town of Terrell, wherein stock was by valid ordinance prohibited from running at large, and the opinion, in effect, states there was no evidence tending to show that, if the mule was struck, it was due to the negligence of the railway. See, also, G., C. & S. F. Ry. Co. v. Anson, 101 Tex. 198, 105 S. W. 989. Further, in King’s Case, supra, on the issue of whether the railway locomotives or cars actually struck the animal, it appears that, while tracks similar to those of the injured animal were found upon the tracks, together with hair and signs of blood, there was a total absence of injury or abrasion of any character upon the animal or any evidence tending to show that a train had passed during the time it was shown the animal was probably" injured. We made a similar holding upon similar facts in Stewart v. T. & P. Ry. Co., 165 S. W. 559. In the case at bar, however, the testimony is not wanting in the essential facts shown by the cases cited. Here, not only is as much shown as was in those eases, but in addition it is shown not only that the animal’s tracks and blood were upon the railroad tracks, but also a sliver or portion of its hoof. Further, a train was shown to have passed the point where the animal was injured at the time it probably was injured. Also there was upon the animal wounds and abrasions that could have been inflicted by a train, since it was shown that the skin at the place of injury was split, the leg bone cut, and a part of the hoof cut off. Further, unlike the cases cited, the progress of the mule from the track where the first blood and the sliver was found was plainly marked with blood.

To hold that from such facts and circumstances the jury could not legitimately draw the inference that appellant’s train actually struck the animal would not, in our opinion, be warranted in view of the limitations imposed upon appellate courts concerning the weight to be attached to questions of evidence. The jury’s finding cannot, as argued, be said to be mere conjecture, when the character of the injuries and the tracks, the blood, and the portion of the hoof upon the tracks are considered. It seems to us that any explanation other than contact with the locomotive and cars would be equally conjectural. But we also believe that a finding either way would find support in the facts and circumstances disclosed at trial, and that it cannot, as a consequence, be said that the verdict is founded on conjecture.

Whether it is impossible for a locomotive or cars to have inflicted such an injury on the animal as was inflicted, as is maintained by counsel for appellant, it seems to us, is itself a question of fact for the jury. They could’ have said it was. We cannot, in the light of the testimony, say it was not. It is conceivable that all manner of railway accidents may happen by which animals may lose leg or foot. In the light of observation and common knowledge, we know that railway accidents are constantly depriving human creatures, who are assumed to have greater intelligence than animals, of arm or hand or leg or foot. That similar accidents might occur to animals does not seem to us impossible.

It is next urged that the court erred in not granting appellant a new trial because of newly discovered evidence materially affecting the controlling issue in the case. All of the testimony tended to show that the only train which could have struck appellees’ mule passed the pasture between 8 and 9 o’clock p. m. After trial Mason Vestal, by affidavit, deposed, in éffect, that he was at the residence of appellee when said train passed through her pasture, and at that very time the mule alleged to have been injured was near the barn of appellees in plain sight of affiant. Mason Testal was tlie son of A. A. Testal, a witness for appellant. Two of counsel for appellant prior to trial had on one or more occasions conferred with Mason Testal concerning the testimony of his father, during which counsel did not interrogate him concerning any knowledge he had of the matter, nor did said Mason Testal himself divulge the facts recited in his affidavit. It occurs to us that the facts fail to show any diligence on the part of appellant. The same diligence that secured the evidence after trial would have secured it before trial. The opportunities to have secured it before trial were the same as those after trial. It is elementary that diligence before trial must be shown. Further, much force is, and should be, given the trial judge’s action in such cases.

Finding no reversible error in the record, the case is affirmed. 
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