
    QUANAH, A. & P. RY. CO. et al. v. GALLOWAY.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 22, 1913.)
    1. Appeal and Error (§ 216) — Objections in Lower Couri>-Instructions — Necessity of Bequest — Measure of Damages.
    Failure to charge on the measure of damages is an exception to the rule that omission to charge cannot be complained of unless a special charge was requested.
    [Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 216.]
    2. Carriers (§ 137) — Injury to Live Stock Shipment — Measure of Damages — Instructions.
    An instruction, in an action for injury by a carrier of a live stock shipment giving; no measure of damages other than that the jury shall assess plaintiff's damage at such sum as they believe from the evidence he has sustained, or suffered, is erroneous.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 594, 595; Dec. Dig. § 137.]
    3. Trial (§ 194) — Instructions—Weight of Evidence.
    An instruction, assuming that the alleged rough handling by a carrier of a shipment of live stock was negligence, is on the weight of the evidence, and an invasion of the province of the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    4. Evidence (§ 244) — Declaration of Em-ployé — Predicate.
    A notation, made by an employé of a carrier on the expense bill: “Eight cows more or less stove up. * * * Some few skinned, apparently caused by rough handling” — is admissible in an action for injury to the live stock shipment; á predicate being laid by a showing of authority in such employé to make the notation.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 916-936; Dec. Dig. § 244.]
    5. Trial (§ 261) — Instructions—Bequests.
    Defendant, under the pleadings and evidence, being entitled to have the issue of contributory negligence submitted, it was error not to charge thereon; the charge requested, though incorrect, being sufficient to direct the mind of the court to the issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ '660, 671, 675; Dec. Dig. § 261.]
    ■6. Appeal and Error (§ 1170*) — Harmless Error — Substantial Justice Bule.
    The substantial justice rule, Bule 62a (149 S. W. x), is not a panacea for all ills which afflict cases brought to the appellate court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4540-4545; Dec. Dig. § 1170.]
    Appeal from Cottle County Court; W. E. Prescott, Judge.
    Action by W. W. Galloway against the Quanah, Acme & Pacific Bailway Company and another. Judgment for plaintiff, and defendants appeal.
    Beversed and remanded.
    See, also, 140 S. W. 368.
    Decker & Clarke and B. B. Fleming, all of Quanah, for appellants. B. D. Browne, of Paducah, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HALL, J.

Appellee Galloway sued appellant in the county court of Cottle county for the loss of certain cows and damage to the remainder of the cows, in a shipment from Ft. Worth to Paducah, Tex. There was a verdict and judgment in appellee’s favor of $225.

Appellant first assigns error upon the failure of the court to charge the jury upon the measure of damages. While the general rule is that omission on the part of the court to charge cannot be made the basis of an assignment of error in the appellate court unless a special charge has been requested by the appellant, a failure to charge upon the measure of damages seems to be one exception to the rule. H. & T. C. Ry. Co. et al. v. Buchanan, 38 Tex. Civ. App. 165, 84 S. W. 1073; Murchison v. Warren, 50 Tex. 27; K. C., M. & O. Ry. v. Worsham, 149 S. W. 756; Hazelwood v. Pennybacker, 50 S. W. 199; Beeman St. Clair Co. v. Carradine, 34 S. W. 980; G., H. & S. A. Ry. Co. v. Schrader, 1 White & W. Civ. Cas. Ct. App. § 1147.

The second, third, fourth, and fifth assignments of error complain of the court’s charge. The first paragraph of • the charge is as follows: “If you find from a preponderance of the evidence that the plaintiff delivered his cattle to the defendants, or either of them, in good and sound condition in Ft. Worth, Tex., for shipment to Paducah, Tex., and that the said cattle were injured and damaged by reason of the rough treatment and handling by the defendants, and that said rough treatment of said cattle, if any, was the proximate cause of .the damage to said cattle, if any, then you will find for plaintiff, and assess his damage at such sum as you believe from the evidence he has suffered.” The fourth paragraph is as follows: “If you believe from the evidence that the cattle would not have been damaged or lost if defendants had transported them with reasonable care, and that the failure of the defendants to exercise reasonable care in the transportation of said cattle was the proximate cause of their loss or damage, then you will find for the plaintiff, Galloway, such a sum as you believe from the evidence he has sustained, and unless you so find, you will find for the defendants.” It will be seen that the jury is left to fix the amount of the plaintiff’s damages, if any, at such sum as they think he has “sustained” or has ‘'“suffered.” This is manifestly error, because the measure of damages for injuries to and for the loss of live stock, when transported by common carriers, is too well settled to require the citation of authorities. Without considering appellants’ assignments of error in detail, appellants contend that the charges quoted are erroneous because they waive the question of negligence on the part of appellants, and seem to have been given upon the theory contended for by appellee in his brief that appellants were insurers. The charges seem to assume that the alleged rough handling was negligence, without submitting the issue to the jury for its determination, and to that extent is upon the weight of the testimony and invades the province of the jury. The liability of a common carrier depends upon negligence, and the charge of the court which assumes that any alleged fact is negligence constitutes reversible error. The court fails to define negligence in any part of the charge, and having in effect told the jury that there was a failure on the part of the defendants to exercise reasonable care, the error cannot be disregarded.

The sixth and seventh assignments of error complain of the action of the court in permitting the witness Bishop to testify with reference to a notation made by him upon the expense bill, as follows: “Eight cows, more or less stove up and stiff in walking. Some few skinned, apparently caused by rough handling.” These assignments are not well taken, since the record shows that a sufficient predicate had been laid for the introduction of this testimony. Q., A. & P. Ry. Co. v. W. W. Galloway, 140 S. W. 368.

The defendants pleaded specially as their sole defense the contributory negligence of appellee, and requested the court to give the jury a special charge tendered upon that issue, which the court refused, and this forms the basis of the eighth assignment of error. The pleadings and evidence show that appellants were entitled to have this issue submitted to the jury; and, while the particular charge requested by appellants is incorrect, it was sufficient to direct the mind of the court to the issue and require at his hands a proper charge. We think this is also reversible error.

Appellee, in the concluding remarks of his brief, insists that while there may be errors, the “substantial justice” rule is an “antidote,” and should be applied to this judgment, and the same affirmed. If, pathologically considered, this case is sick — desperately sick — and saturated with the poison injected into it via the errors discussed above, a careful diagnosis convinces us that even a drastic dose of Rule 62a (149 S. W. x), the substantial justice rule, would not neutralize the venom of the noxious elements with which it has been inoculated in the trial court. Besides, we are not veterinarians, and must decline to administer the remedies according to that pharmacopoeia. During this clinic,, we will advise the bar that Rule 62a is not a panacea for all the ills which afflict eases brought here for treatment. The rule is an ancesthetic and a sedative, rather than an antitoxin or a purgative. It is concocted to render the patient insensible to the scarification during the process of bloodletting, rather than to remedy the condition requiring cupping; and it is especially efficacious in cocaining bodies corporate when it is desired to remove several hundred dollars worth of cuticle.

The rule has reacted in this case, however, and substantial justice demands that the judgment be reversed, and the cause remanded, and it is so ordered.  