
    G., C. & S. F. R’y Co. v. Jacques Tacquard.
    (No. 2243.)
    Appeal from Galveston County.
    Ballinger, Mott & Terry, for appellant.
    Wheeler & Rhodes, for appellee.
   Opinion by

Hurt, J.

§ 250. lieconvention; plea in held good; case staled. Appellee sued appellant in justice’s court to recover $19.50, the alleged value of a beef steer killed by appellant’s train. Among other defenses, appellant interposed the following, in substance:

“That the animal was killed on a road-crossing on appellant’s premises; ’ that appellant’s road was properly fenced for a number of miles on both sides of said crossing; that the road-crossing was made and the opening of the fence left there for the convenience and benefit of dppellec and at his special instance and request, and that he expressly contracted and agreed with appellant that he would keep his cattle off and keep said crossing clear of his cattle and stock, and that if any of his cattle were killed on said crossing that appellant should not be liable therefor; that appellee, in violation of his said contract and agreement, allowed said animal to stray and get upon said crossing; that the engineer, when he perceived the animal upon the crossing, having previously blown the whistle and caused the bell to be rung for said crossing, applied the air-brakes and caused defendant’s train to slacken its speed, but that before said train could be stopped it came in collision with said animal; that the loss of steam and air and momentum of the train caused appellant damage and loss in the sum of $25, and appellant was further damaged in the loss of time of its employees on said train in the .sum of $10, and that the collision damaged the locomotive in the sum of $25. Appellant asks judgment in reconvention for $60.”

A trial in justice’s court resulted in a judgment for appellee for the amount sued for by him. Appellant appealed to the county court, where, upon exceptions made by appellee to the aforesaid plea, the same ivas. stricken out, and the appeal was dismissed for want of jurisdiction in said court to hear and determine it. Held error. The matter pleaded grew out of the same transaction, and the facts alleged in said plea constitute a valid'cause of action. The exceptions to said plea should have been overruled, and as the amount claimed therein conferred appellate jurisdiction upon the county court, the cause should have been tried de novo in that court.

March 3, 1887.

Eeversed and remanded.  