
    Houston & Texas Central Railroad Company v. White & Baskin.
    Decided March 18, 1908.
    Railroad — Cattle Guard — Injury to Live Stock.
    When a railroad company, in building its road through a private- enclosure, locates a cattle guard at the point where its track crosses the fence of the enclosure, as required by statute, the location of the cattle guard can not be considered as a factor in determining the liability of the company to the owner of the enclosure for injury to his live stock at the cattle guard, and a charge which authorizes the jury to consider the location of the cattle guard in determining the liability of the company in such case is reversible error.
    Appeal from the County Court of Robertson County. Tried below before Hon. J. W. Woods.
    Ho briefs reached the reporter.
   KEY, Associate Justice.

-Appellees recovered judgment for $125 against appellant for injuries to a mule. At the timé in question the mule was in a field through which appellant’s railroad extended. It was found under the cattle guard with one leg broken.

We overrule all of the assignments of error, except the second, which complains of the following paragraph of the court’s charge: “How, if you believe from a preponderance of the testimony in this case that defendant failed to use ordinary care in the construction and maintenance of its cattle-guard, and that its said cattle-guard was not a good and sufficient one, or was negligently constructed, so as to form a chute or pocket, and you further believe that the construction, condition or location of said cattle-guard was the proximate cause of the injury to plaintiffs’ mule, you will find for the plaintiffs.”

The undisputed testimony shows that the cattle-guard where the animal was injured was located at the point where the railroad crossed the field fence, as required by statute, and therefore, as to the owner of the field or any one using the same, its location was immaterial and should not have been referred to in the charge in the manner that it was. Appellant having located the" cattle-guard at the place required by law, its location can not be considered as a factor in determining whether or not appellant is liable for the injury done to the appellees’ mule.

For this error in the charge of the court the judgment will be reversed and the cause remanded.

Reversed and remanded.  