Opinion
Decided March 19, 1903.
Killing Live Stock — Railroads.
Where plaintiff's jack was found dead near the railroad track without any mark or bruise on him, proof that there was nothing else about that could have killed him would not sustain a verdict against the railway company, as he might have died of disease or old age.
Appeal from the County Court of Harris. Tried below before Hon. E.H. Vasmer.
Baker, Botts, Baker Lovett and Thos. H. Botts, for appellant.
J.H. Davenport, for appellee.
This suit was brought by the appellee against the railway company in a justice court in Harris County for the recovery of $200, the value of a jack alleged to have been killed by a train or locomotive on appellant's railway near Edgewater, in Galveston County. There was a judgment in the justice court in favor of the appellee for the sum of $125. On appeal to the county court judgment again was in favor of the appellee, and the company has appealed to this court.
There was no evidence that the jack was killed by a train or locomotive of the appellant. The animal was found dead at a distance from the track of from 50 to 300 yards, as estimated by the witnesses, and near a dirt road crossing. The carcass was still warm when found, and bore no bruise or mark of violence or injury as the cause of the death of the animal. There was no sign at the crossing of its having been struck there, nor was there any sign of its having been dragged to the place where it lay. There was some evidence of struggle, and it appeared that the animal lay where it had fallen. Appellant's track was fenced, and the crossing, though not of a public road, was made for a road used by the public generally, and was put in for the convenience of the people of the neighborhood. The appellee seeks to sustain the verdict of the jury on the ground that the road had not been laid out as a public road, and, as testified by two witnesses, that there was nothing else about which could have killed the jack except the railroad. It is needless to say that such evidence was not sufficient to support the verdict. The animal might have died of some disease, or even of old age, so far as the evidence discloses the cause of its death. The judgment of the court below will be reversed and judgment will be rendered here in favor of the appellant.
Reversed and rendered.