
    GATEWOOD v. FORT WORTH & D. C. RY. CO.
    (No. 3089.)
    (Supreme Court of Texas.
    June 22, 1921.)
    1. Evidence <§==5472(10)-— Opinion as to difference between market value of delayed cattle as they arrived and as they would have arrived admissible.
    In suit against a railroad for damages through negligent delay in a shipment of cattle, testimony of qualified witnesses as to the difference between the market value of the cattle in the condition in which they arrived at destination and that in which they would have arrived but for defendant railroad’s negligence was admissible.
    2. Courts <S=488(I) — Where dissent giving Supreme Court jurisdiction relates to admissibility of portion of evidence only, admissibility of other evidence not considered.
    In action for negligent, delay in shipment of cattle, the only ground for reversal of judgment of the Court of Civil Appeals presenting a question within the jurisdiction of the Supreme Court is a point of the admissibility of evidence as to which one judge of the Court of Civil Appeals dissents; questions of the admissibility of other evidence, as to which all the members of the Court of Civil Appeals were agreed, and of the insufficiency of the evidence to warrant the judgment, on which they were also agreed, being exclusively within the jurisdiction of such court.
    
      Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by R. E. Gatewood against the Fort Worth & Denver City Railway Company and another. Prom judgment against the named defendant, it appealed to the Court of Civil Appeals, which reversed and remanded (185 S. W. 932), and plaintiJEE brings error.
    Judgment of the Court of Civil Appeals affirmed.
    Johnson & Harrell, of Cleburne, and S. C. Padelford, of Port Worth, for plaintiff in error.
    Brown & Lockett, of Cleburne, and Thompson & Barwise and G.- W. Wharton, all of Port Worth, for defendant in error.
   PHILLIPS, C. J.

In this case — one for damages growing out of negligent delay in a shipment of cattle — certain witnesses on the trial were asked in substance to state the difference between the market value of the cattle in the condition in which they arrived at destination and that in which they would have arrived but for the negligence of the defendant. The witnesses, it appears, were qualified to give their' opinion upon the subject, and- the trial court permitted their answers to the questions. The ' honorable Court of Civil Appeals for the Second District because of the admission of this testimony, among other grounds, .reversed the judgment of the trial court and remanded the cause, Chief Justice Conner dissenting from the holding of the court as to the admissibility of the testimony. We granted the writ of error because of the dissent.

We have recently determined the same question in Texas & Pacific Railway Co. v. Prunty, 230 S. W. 396, holding such testimony as to market value to be admissible. That decision settles the question in this case.

This is the only ground of the reversal of the judgment by the Court of Civil Appeals which presents a question within our jurisdiction; and' we have jurisdiction of this only because of the dissent. In addition to its holding upon this question, the Court of Civil Appeals reversed the judgment on account of the admission of other evidence, as to which the members of the court were agreed, and because in ⅜ opinion the evidence was insufficient to warrant the judgment. These latter questions are exclusively within the jurisdiction of the Court of Civil Appeals.

The case is withdrawn from the Commission of Appeals, to which it has been heretofore referred, and is here determined. We disapprove the holding of the Court of Civil Appeals on the testimony above indicated, but since it reversed the judgment of the trial court upon other grounds as to which its jurisdiction is exclusive, its judgment is affirmed. 
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