
    INTERNATIONAL-GREAT NORTHERN R. CO. v. COULTER.
    No. 1924.
    Court of Civil Appeals of Texas. Beaumont.
    April 8, 1930.
    
      Foster & Williams, of Conroe, and Andrews, Streetman, Logue & Mobley, Wm. Streetman, and Jas. E. Kilday, all of Houston, for appellant.
    Strode & Pitts, of Conroe, for appellee.
   O’QUINN, J.

This suit originated in the justice court, Precinct No. 3, Montgomery County, Tex. Appellee sued appellant for damages in the sum of $150, and for $20 attorney's fees. The damagtes alleged were for the value of two horses killed by a train of appellant on May 20, 1928. Judgment in the justice court was for appellee for the damages and attorney’s fee. The ease was appealed to the county court of Montgomery county. Ap-pellee filed no written pleadings in the county court. Appellant filed written answer “consisting of a general demurrer, a special exception to the effect that the citation in the justice court (the only pleadings of appellee in the case) was insufficient because it did not state the county in which the accident occurred, a general denial, and special pleas setting up: (a) That the killing of the horses occurred at a place where the railroad was not required or permitted to fence its premises; (b) that the horses were killed within switching limits; and (c) that said horses were killed at a place where the safety of the railroad employees and the convenience of the public required that the railroad be not fenced.

The case was tried to the court without a jury, and judgment rendered for appellee for $150 damages and $20 attorney’s fee. From this judgment, appellant has appealed. There is an agreed statement of facts proven on the trial.

Appellant presents two assignments of error. They are:

“First Assignment of Error.
“The trial court erred in rendering judgment herein for the plaintiff, George Coulter, because there are no facts in the evidence that show, or tend to show, any act of negligence on the part of the operatives of defendant’s train.
“Second Assignment of Error.
“The trial court erred in rendering judgment herein for plaintiff, George Coulter, because there are no facts in the evidence that show, or tend to show, “that, even admitting negligence, such negligence was the proximate cause of the damage complained of.”

Appellee’s counter proposition to the above assignments is:

“Operating a train through a town and over public Crossings at a rapid rate of speed and failing to ring the bell or blow the whistle at a place where stock are accustomed to graze and run at large, constitutes negligence and the railroad company is liable for any damages resulting from such negligence.”

The evidence, as reflected by the agreed statement of facts, is quite brief. It is:

“Lee Miner testified:
“My name is Lee Miner. I live in Montgomery County, Texas, near the town of Magnolia, and have lived there about 28 years. I worked for the International-Great Northern Railroad Company, as section foreman, for about 25 years.
“I am familiar with the depot'and grounds of the International-Great Northern Railroad at Magnolia. The railroad track at Magnolia runs east and west and is straight. There are no obstructions in the way and a person on an engine coming towards Magnolia from the west could see stock on the track at least four or five hundred yards before getting to the depot.
“The International-Great Northern Railroad Company maintains switch tracks at Magnolia, extending' both east and west from the depot. There are three railroad tracks there, consisting of the main track,' the switch track and loading track. The switch track is about four hundred yards long, extending1 about two hundred yards each way from said railroad depot. The loading track is about two hundred yards long and it extends about one hundred yards each way from the railroad depot.
“The town of Magnolia has a population of about two hundred people, and there are residences and people live on both sides of the railroad track where the depot is located and for some distance west and east of it. I did not say the horses were struck by the train. A street or road crosses the railroad tracks on both sides of the depot about fifty feet from the depot. The roads or streets run north and south across the railroad at that place and are used by people crossing the railroad tracks. The inhabitants of the town use these streets or roads in going from one part of the town to the other. The main business part of the town is across the street- from the depot south of it.
“Stock habitually graze on the right of way of the railroad at Magnolia near the depot and on the west side of it. I knew the mares belonging to the plaintiff that were killed, but do not know the market value of them. They were good stock. One of them Mr. Coulter used as a family horse, driving her to his buggy, but the other he did not use much.
“J. W. Turner testified:
“My name is J. W. Turner. I live in the town of Magnolia, about two hundred and fifty or three hundred feet west of the International-Great Northern Railroad Company’s depot, on the north side of the track. I remember about the time Mr. Coulter’s two mares were killed by tbe train at Magnolia. I beard tbe train coming; it seemed to be running very fast, and I beard a commotion at tbe depot and borses running, and looked out to see wbat it was. I bad some borses in tbe buncb was tbe reason I looked out. When I looked out tbe train bad passed tbe depot going east and was running forty or forty-five miles per bour. It did not slacken its speed or stop, and tbe whistle was not blown nor tbe bell rung, at least I did not bear any bell or whistle.
“When I looked out I saw that tbe borses had been struck and I went on down there in just a few minutes. When I got there one of them was dead and the other one died soon afterwards. One of tbe mares was lying up against tbe depot and tbe other one was lying at tbe south corner of tbe depot platform. Both of them showed to have just been struck and were struck at tbe depot of tbe . International-Great Northern Railroad Company at Magnolia early in tbe morning about sunup. I don’t know if there is a market value for mares of that kind at Magnolia or not.
“I did not see tbe borses killed, but I went out there in about three minutes, not over five minutes, after they bad been struck. The borses were killed on tbe depot g’rounds at tbe depot, in the switch limits of Magnolia.
“George Coulter testified:
■ “I live about one mile from tbe town of Magnolia in Montgomery County, Texas. I am tbe plaintiff in this suit. I bad two mares killed by being struck by a train on tbe International-Great Northern Railroad at Magnolia, on or about tbe 20th day of May, 1928. One of the mares was about eight years old and the other ten or eleven. They were blooded stock, both being sired by very fine sires. There was no market at Magnolia for that kind of animals. I bad sold some of tbe same kind a few years before these were killed, and I got more than I am claiming for these two. Tbe mares were worth to me, for the purposes I used them, at least Seventy Five Dollars each. I would not have sold them for that. They were not for sale. I did not see them killed. I was notified next morning and went down to see them. I told tbe section foreman to kill tbe one that was not yet dead. I suppose be killed her. They were killed right at tbe depot within tbe switch yards of tbe railroad at Magnolia.
“I filed a claim against tbe railroad with tbe agent at tbe town of Magnolia for $75.00 apiece for tbe mares. I filed tbe claim more than thirty days before I bad suit filed in tbe justice court against tbe railroad company for tbe value of said mares, and I employed Strode & Pitts to bring a suit to collect tbe value of tbe mares that were killed and I agreed to pay them $20.00 for their services.

A. A. Turney testified:

“My name is A. A. Turney. I am a lawyer and have been in active practice for about three years. I live at Conroe in Montgomery County and am at present county attorney 'of this county. A fee of Twenty Dollars for prosecuting a suit of this kind for tbe amount of $84.50 is a reasonable fee and is tbe usual customary fee in such cases.”

It is seen that the accident occurred at a place where appellant was neither required to ,nor permitted to fence its premises. If it be conceded that operating tbe train through the town at tbe rate of speed it did, and failing to ring tbe bell and to. blow tbe whistle, was negligence, still we do not 'believe that such negligence was shown to be tbe proximate cause of tbe killing of tbe animals. Proof of negligence without proof that such negligence was tbe proximate cause of tbe killing of tbe animals is not sufficient to support tbe judgment. It was not shown bow tbe animals were killed, that is, just bow the collision* of tbe train with the animals occurred; whether they were seen by tbe operatives of tbe train upon tbe track at such distance from tbe train as to enable them, by tbe exercise of proper care, to check tbe speed of tbe train and prevent tbe collision, or whether tbe animals ran suddenly and unexpectedly upon tbe. track in front of tbe engine at such time and in such manner as to render it impossible for tbe operatives of tbe train to check the same in time to avoid the collision. In other words, it was not shown that operating tbe train through tbe town at tbe rate of speed complained, without blowing the whistle or ringing tbe bell, over the unfenced track, if conceded to be negligence, was tbe proximate cause of tbe killing of tbe animals, and, since no causal connection between tbe conceded act of negligence of those operating tbe train and tbe killing of appellee’s stock is shown, tbe judgment must be reversed. Payne v. Wittenberg (Tex. Civ. App.) 239 S. W. 224; Railway v. Peterson (Tex. Civ. App.) 227 S. W. 747; Lancaster v. Eidson (Tex. Civ. App.) 234 S. W. 708; Railway v. Atkinson (Tex. Civ. App.) 254 S. W. 1028; Davis v. Wilson (Tex. Civ. App.) 241 S. W. 562; Railway v. Anson, 101 Tex. 198, 105 S. W. 989.

Tbe judgment is reversed, and tbe cause remanded.  