
    CHICAGO, R. I. & G. RY. CO. et al. v. KNOX.
    (Court of Civil Appeals of Texas. Texarkana.
    May 11, 1911.)
    Trial (§ 191) — Instructions—Province or J ury — Negligence.
    An instruction that, if the jury believe by any of certain specified acts of negligence of defendant plaintiff’s cattle were injured and depreciated in value, plaintiff was entitled to recover therefor, was erroneous, as assuming that the acts stated constituted negligence as a matter of law.
    [Ed. Note. — For other cases, see Trial, Cent.' Dig. §§ 420-435; Dec. Dig. § 191.]
    Appeal from District Court, Jack County; J. W. Patterson, Judge.
    Action by S. W. Knox against the Chicago, Rock Island & Gulf Railway Company and others. Prom a judgment for plaintiff against the St. Louis & Santa Fé Railway Company, it appeals.
    Reversed and remanded.
    Andrews, Ball & Streetman, Chapman & Lockett, and Stark & Cox, for appellant
    Sporer & McClure, for appellee.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   LEVY, J.

The suit is for damages to a shipment of cattle from Jaeksboro to St. Louis, due to alleged negligent delay and handling over the lines of three defendants. The verdict was in favor of appellee against the St. Louis & San Praneisco Railway Company, and in favor of the other two companies. A special demurrer was sustained to paragraph 3 of appellants’ answer. This was reversible error. See case of Railway Co. v. Rich, 138 S. W. 223, this day decided by this court.

The court’s charge assumes that the acts stated and on which negligence is predicated constituted negligence as a matter of law. It reads: “And if you believe by any of such acts of negligence of said defendant the plaintiff’s cattle were injured and depreciated in value, and plaintiff was damaged, you will find for the plaintiff against the defendant St. Louis & San Praneisco Railway Company for such damages.” This was reversible error.

The judgment as to this appellant was ordered reversed and the cause remanded. The judgment in favor of the Chicago, Rock Island & Gulf Railway Company and the Chicago, Rock Island & Pacific Railway Company, not being appealed from, will remain undisturbed.  