
    KING v. HOUSTON BELT & TERMINAL RY. CO.
    (No. 822.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 2, 1922.
    Rehearing Denied June 21, 1922.)
    1. Railroads <&wkey;344(2) — Pleading failing to show character of crossing insufficient.
    An owner of a horse injured by a projecting spike at a crossing cannot recover on a pleading which fails to state that the crossing is a public crossing.
    2. Railroads <&wkey;350(3)— Evidence of defective crossing held insufficient for jury.
    Evidence on the issue of a railroad’s negligence in permitting a spike to extend above a rail at a crossing held insufficient to go to the jury; neither the existence of a public crossing nor knowledge of the condition being shown.
    Appeal from Harris County Court; John W. Lewis, Judge.
    Action by L. G. King against the Houston Belt & Terminal Railway Company. From judgment for defendant, plaintiff appeals.
    Affirmed.
    A. C. Allen, of Houston, for appellant.
    Andrews, Streetman, Logue & Mobley, of Houston, for appellee.
   HIGHTOWER, C. J.

The appellant, King, filed suit in the county court at law of Harris county against appellant for the value of a horse alleged to have been injured hy ap-pellee’s negligence, and also for the expenditure of money in the treatment of the horse by a veterinary surgeon.

It was claimed that appellee was guilty of negligence, in that it permitted a spike to extend an inch or more above the flange of one of its rails at a point where appellee’s track is crossed by Leona street. It is not stated in the pleading whether this street was a public street or the crossing a public crossing, either by dedication or because of the use made of it by the public, nor is there any evidence in the entire record showing such facts. It is not even shown by the evidence or by the pleading that Leona street is within the corporate limits of the city of Houston, and we are left to infer these things, without any such allegation of fact or evidence supu porting them. The evidence does show that appellee was a bill collector living in the city of Houston in Harris county, and that on the day of the accident he was crossing appellant’s track where the same intersects and crosses Leona street (wherever that street is), and that his horse stepped on a spike which was exposed some half or three-quarters of an inch above the flange of the rail that it was supposed to fasten, and that the shoe on the horse’s foot became fastened under the head of the spike, and he was caused to fall and his leg was broken. The value of the horse was sufficiently proven, as was also the money expended by appellee in his treatment of the horse. .

Upon conclusion of the testimony the trial judge instructed the jury to return a verdict in favor of the appellee, Houston Belt & Terminal Company.

Appellant, King, complains of this action on the part of the trial court, and contends, substantially, that there was evidence raising the issue of negligence on the part of appellee in permitting the spike to be in the position it was in at the time of the injury, and that the jury should have been permitted to pass on the question. As we have shown, there was no evidence, even had there been a pleading to the effect that this was a public crossing or that Leona street was a public street, either by dedication or by use of the public, and, in fact, there was no evidence to show that the point where the accident occurred was within the corporate limits of the city of Houston. Neither was there any testimony showing how long the spike had been exposed as it was at the time of the accident, and none showing or tending to show that appellee knew of the condition of such spike or that by the use of ordinary care it ought to have known of same. The case seems to have been very carelessly tried by appellant, and is in such shape that we are compelled to affirm the judgment, both because of a lack of pleading and a lack of evidence showing negligence on the part of appellee. Stephenson v. Railway Co. (Tex. Civ. App.) 164 S. W. 1125; Railway Co. v. Hollan, 49 Tex. Civ. App. 55, 107 S. W. 642; Railway Co. v. Crabb (Tex. Civ. App.) 136 S. W. 825; Railway Co. v. Cason, 59 Tex. Civ. App. 823, 129 S. W. 394.

The judgment is affirmed. 
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