
    FT. WORTH & R. G. RY. CO. v. FLEMING.
    (No. 6219.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 7, 1919.)
    1. Carriers @=>228(5) — Carriage of Live ' Stock — Evidence — Sufficiency—Conjecture.
    In action for delay in delivery of shipment of horses, shippers’ testimony as to death of mare from lockjaw that, “I suppose that this was caused by placing the horses in this hot pen and feeding them on this coarse sedge grass hay,” without evidence as to real cause of mare’s death, was insufficient basis for judgment of damages, since contraction of lockjaw from such source, being contrary to general rule, should have been established by something more than mere supposition.
    2. Evidence @=13 — Judicial Notice — Lockjaw.
    It is well known that tetanus, or lockjaw, usually, if not invariably, arises from wounds inflicted under certain peculiar circumstances.
    3. Appeal and Error @=31177(7) — Disposition — Remand.
    Where plaintiff was led to believe by trial courts that he had made a perfect case, appellate court in reversing for insufficient evidence will remand case. to give him opportunity to produce legal testimony to sustain ease, if he can do so.
    Appeal from Menard County Court; J. D. Scruggs, Judge.
    Action by J. S. Fleming against the Ft. Worth & Rio Grande Railway Company. Judgment for plaintiffi, and defendant appeals.
    Reversed and remanded, with directions.
    Andrews, Streetman, Burns & Logue, of Houston, J. L. Lockett, Jr., of Ft. Worth, and Sam McCollum, of Brady, for appellant.
    F. T. Neel, of Menard, and M. E. Blackburn, of Junction, for appellee.
   FLY, C. J.

This is a suit instituted by ap-pellee in the justice’s court to recover damages to a shipment of horses. The justice of the peace, a jury not being demanded, rendered judgment in favor of appellee for all he sought to recover, and upon appeal to the county court a jury was again waived, and the county judge rendered judgment in favor of appellee for all he sued for.

Appellee was the only witness to sustain the damages which, he claimed, arose from a delay of the animals in Ft. Worth, Tex. He swore that the horses had been consigned to him at Vicksburg, Miss., but when he ascertained at Ft. Worth that the animals were required to be dipped for ticks, before they could go to Vicksburg, he decided to change the point of destination to Wells, Tex., and eventually sent them there. He swore the animals were not roughly handled, but were damaged fcy being held at Ft. Worth for two days. One mare died in Ft. Worth from lockjaw, and appellee testified:

“I suppose that this was caused by placing the horses in this hot pen and feeding them on this coarse sedge grass hay.”

She naturally was the highest priced animal in the lot of 38. He swore she. was worth ⅞80 at Menard, where she began her journey, and $75 at Ft. Worth, where the sun’s rays and sedge grass developed a case of tetanus or trismus that culminated ■ in death. The other mares were worth only $70 a head, and “they were worth about $2 to $2.50 per head less.” He meant after they had stayed in Ft. Worth two days.

No pretense was made by appellee that he knew anything about the actual or market value of his animals either in Menard or in Ft. Worth, and no effort was made to show any such actual or market value".

What really killed the mare was not disclosed by the evidence. The hypothesis of appellee that she died from lockjaw caused by heat and food was not based on any knowledge of any one, and had no scientific basis, at least shown by the evidence. It is well known that tetanus, or lockjaw, usually, if not invariably, arises from wounds inflicted under certain peculiar circumstances, and if, contrary to the general rule, heat of the sun and coarse hay will produce it, the exception should be established by something more than the supposition of a shipper of horses.

As said by the Court of Civil Appeals at Ft. Worth, in Railway v. Kerr, 184 S. W. 1058, where the evidence was that—

“If the cattle had reached Ft. Worth in good condition they would have bee,n worth on the market from $1.50 to $2.50 per head more than they were worth in the condition they were in when they reached their destination,” and no knowledge of the market value was shown. “Under the circumstances, the estimate of damages so given by the witness necessarily involved a mere guess, and the objection urged to it should have been sustained.”

As in that case, so in this, there was nothing but conjecture as to the amount each of the animals was injured by delay at Ft. Worth. There was no basis for even an intelligent or reasonable guess.

The evidence showed- that at least 24 hours of the delay in Ft. Worth could not be laid at the door of appellant, but was caused by another railroad company, and yet all the bad results of all the delay was charged to appellant. It is apparent that this was unjust.

We are not disposed to render a judgment in favor of. appellant, from the fact that appellee was led to believe by the two trial courts that he had made a perfect ease, and- we think he should have an opportunity to produce legal testimony to sustain his case, if he can do so.

The judgment will be reversed, and the cause remanded for a trial upon the law as herein indicated. 
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