
    SAN ANTONIO & A. P. RY. CO. v. HARRISON.
    (Court of Civil Appeals of Texas. San Antonio.
    April 10, 1912.)
    1. Railkoads (§ 411) — Animals on Track-Cattle Guards.
    Sayles’ Ann. Civ. St. 1897, arts. 4523, ■ 4525, 4527, requiring cattle guards where a ■railroad enters a field or inclosure, and making the company liable for any damages from its failure to supply them, did not require a railroad company to place cattle guards at the entrance of á planked trestle at the edge of a-switch yard connected with the station, beyond-which the right of way was fenced on both sides to an unplanked trestle.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. § 411.]
    2. Railroads (§ 411) — Fences — Injury to Animals — Liability. '
    
    Where a railroad company leaves the right' of way unfenced, and animals go upon the track and are injured, the company is liable when the injury results from the cattle coming in contact with trains, but not otherwise, unless it results from negligence on the part of the' company.
    [Ed. Note. — For other .cases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. § 411.]
    3. Railroads (§ 443) — Injury to Animals —Evidence—Sueíticiency.
    In an action for injury to animals at a railroad trestle, after going upon the right of way at a point not fenced, evidence held insufficient to show that they were struck by a train.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.]
    Appeal from Jim Wells County Court; W. R. Perkins, Judge.
    Action by A, Z. Harrison against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff,’ defendant appeals.
    Reversed and remanded.
    Kleberg & Stayton, of Corpus Cbristi, for appellant. E. L. Twing, of Alice, for ap-pellee.
    
      
      For other cases seo samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key No'. Series & Rep’r indexes
    
   JAMES, C. J.

The petition of Harrison, alleges that La Fruta is a station, having a station house, shed, water tank, a side track and a spur track, switches, etc.; that about 20 feet north of the north switch is-a trestle 60 feet long, which trestle is railed and planked over, so that defendant’s employes could use same in the performance of their duties; that defendant had no cattle guards at said trestle to keep stock from going thereon; that from said trestle northward defendant maintains fences upon each side of its right of way; that about 300 or 400 feet north of said trestle is. another trestle, about 200 feet in length, ■ and from. 1 to 20 feet high, constructed of timbers, cross-ties, and tracks of the railway; that defendant maintains a cross fence across its right of way under each of said trestles, maintained for the purpose of keeping stock off its right of way thereon and thereat; that about April 19, 1911, during the nighttime, two of plaintiff’s horses went over said planked trestle and upon defendant’s track and right of way, and in and upon the other unplanked trestle, and fell off, or were thrown off, said trestle to the ground by defendant’s train, and so injured that one had to be killed, and the other received a sprained shoulder and was badly bruised and injured, said horses being worth $150 each; that plaintiff has expended and agreed to expend $25 for medicine and medical attendance upon said horses, and has spent 20 days in caring for the horses, to his damage $40, and the live horse has been damaged $50; that it was the cluty of defendant to erect, maintain, and keep in order suitable cattle guards or stops at and near the said north switch, and at the south end of said bridge, or at the south end of said long trestle, and to keep same in good repair.

As explanatory of plaintiff’s case, the brief states:

“From the fact that there were fences along each side of the railroad right of way, and also cross fences across the right of way, one under the planked bridge, and one running across under the trestle, making a complete inclosure and trap, the only way for cattle or horses to get into this inclosure was to walk across the floored bridge; there being no cattle guards or stops to prevent them from so doing. The fences were in good repair along its right of way, and also the cross fehces. There was no way for stock to get into said inclosure, except to walk across the bridge.
“The bridge was wide enough for five or six horses to be driven abreast across the bridge. It had railings three or four feet high on each side. Stock or animals could walk across this floored bridge the same as any wagon bridge; there being no cattle guard or stop at the end of said bridge to keep animals from getting into said inclosure or trap. There was no cattle guard or stop at the south end of the long trestle.
“After Harrison’s horses crossed the bridge, they ran north along the railroad track onto the trestle. One horse went out about four feet and the other horse three bents (meaning 30 feet). There were marks on the ground on each side of the trestle where these horses struck the ground, some 10 or 12 feet below. There were prints of hoofs of the horses on the ties in the trestle, and also hair and hide; looked like they had been dragging. Mr. Harrison alleges in his petition ‘that the horses fell off, or were thrown off, of said trestle to the ground by one of appellant’s trains.’ One horse was badly injured, and tbe other received a broken leg and bad to be killed.
“J. D. Ivring bad worked for tbe railway company, and is familiar witb tbe decked bridge and also tbe trestle at La Fruta, and on reeross-examination says: T know wbat a cattle guard is. I worked for tbis railroad in tbe capacity of a carpenter. I know what it takes to keep cattle out of tbe right of way in the shape of a cattle guard. In my opinion, I would say that ordinarily a cattle guard would be necessary in front of a trestle like that to keep tbe cattle from going across tbe trestle, when the inelosure is fenced on both sides.’ ”

Defendant pleaded exceptions and a general denial. A verdict for $150 was returned for tbe plaintiff.

Tbe court, in its charge, set forth articles 4523, 4525, and 4527, and then told tbe jury that, “if it was tbe duty of defendant to maintain cattle guards or stops at the entrance of said inelosure or' field, as set forth in plaintiff’s petition, under-the law, and if tbe jury find from tbe evidence in tbis case, under tbe rules of law I have just given you, that plaintiff’s horses were injured by tbe failure of tbe defendant to construct and maintain proper cattle guards or stops at tbe entrance of tbe inelosure or field, as set forth in plaintiff’s petition, and that such failure to maintain such cattle guards or stops, as aforesaid, was tbe proximate cause of tbe injuries complained of, then your verdict may be for tbe plaintiff. * * * If you find that there was no in-elosure or field, as contemplated by tbe law just given to you, or if you find from tbe evidence that there was an inelosure or field, and further find that there was a cattle guard or stop, as provided by law, then your verdict should be for tbe defendant.”

Tbe court refused to give a peremptory instruction for the defendant, but gave charges requested by defendant and joined in by plaintiff, which were, in substance: (1) That if tbe horses were injured by reason of tbe condition of defendant’s bridge, trestle, or premises, but were not injured by coming in contact witb one of defendant’s trains, or a part thereof, to find for defendant. (2) That tbe jury were not to allow plaintiff anything for loss of time in treating bis horses, nor for expenses in treating tbe horses in excess of $25, nor for loss of services of the horse that survived.

We conclude, after considering tbe briefs: (1) The articles referred to in tbe charge bad nothing to do with tbe case. (2) There was no duty imposed by law on tbe defendant to construct a cattle guard to keep straying animals from getting upon its track at tbis place; and it bad a perfect right to not nave cattle guards or stops there.

To tbe extent it left the way open, defendant bad its track unfenced at that place, and, under our statute, was'liable absolutely for injury to animals going upon its track, if injured by contact witb its trains. If not injured in that way, defendant would be liable only upon proof of some negligence on tbe part of • defendant causing them injury.

Tbe '-testimony is insufficient, in our judgment, to show that these horses were injured by contact with a train. Tbe inclosure under and between the trestles does not appear, from any testimony, to have been tbe cause of tbe injuries. these horses sustained. In fact, one of tbe requested charges, concurred in by tbe plaintiff, elinú inated tbis issue, and all issues, except whether or not tbe animals were struck by one of defendant’s trains. Under tbe testimony in this case, it is clear that that was tbe only theory of liability that could be claimed.

Plaintiff’s testimony was as follows: “1 made an investigation as to bow my horses bad gotten to this inelosure. I could see tbe tracks along tbe railroad bed. I saw tbe tracks probably 100 yards, and maybe more, south of tbe north trestle; The tracks appeared to me as if they had been running. I went up on top of tbe trestle that morning. I found where tbe horses bad been' up there. There was hair and blood there. They were all skinned up; one of them witb a broken leg. I found hoof marks on the trestle. * * * Tbe marks of tbe horses that I found there indicated that they were running north. They ran on tbe trestle, one of them went out about four feet and tbe other one three bents, going north. * * * I saw marks of where tbe horses’ legs bad slipped through between tbe ties on the trestle and skinned themselves on tbe edges of tbe ties. * * * There were marks of where tbe horses bad struggled witb their hoofs to get back on tbe ties.”

The witness Sparks testified: “I saw Mr. Harrison’s horses when T arrived that morning. Two of tbe horses I saw were injured! One of them bad its leg broken just above tbe knee joint, right at tbe knee joint, and was partly skinned up on its legs; you could hardly tell the break from tbe joint. Tbe other one bad no hurt. I could only see skinned places on its legs; but it was so stiff in its shoulder that it could hardly walk. It just dragged one of its fore feet all the time.” This witness also testified that he and Mr. Harrison went up to the long trestle that morning; that be could see tbe prints of hoofs of horses where they' bad been on the ties; looked like they had been dragging and left tbe signs of their hoofs there, and there was a considerable amount of hair on the cross-ties. There was other similar testimony In behalf of plaintiff.

Not one of plaintiff’s witnesses testified that the animals had any marks on them indicating that they had been struck by a train. On the contrary, the section foreman testified that the next morning he saw the' animals in Mr. Harrison’s lot, and Harrison claimed they bad been hurt by being run into a railroad bridge. This was not contradicted by Harrison. This witness testified, also, that he had seen plenty of animals that had been struck by a train, and it was a part of his business to .pull them off of the track, if they were in the way; that he generally knew the effect of an animal being struck by a train; that he did not think that these animals were struck by a train. They did not have the marks of a train on them. It appears that only two trains passed La Fruta that night, and the engineers of both testified they did not run into any animals on that trestle.

The case should have been submitted on the question whether or not the animals were caused to fall from the trestle by being struck by a train of defendant’s, and on no other.

The testimony may be more fully, developed on this issue upon another trial. We are' not willing to sustain such a finding on the testimony before us. Even if the testimony on this point were sufficient to leave an inference that the horses received their injury from being struck by a train, we would have to reverse this judgment on account of the erroneous and misleading instruction contained in the main charge of the court.

Reversed and remanded.  