Fort Worth & Denver City R'y Co. v. Burton , 4 Willson 292 ( 1891 )

Opinion by

White, P. J.

§ 193. Suit for damages for frightening g team, etc.; evidence tohich did not show a cause of action; case stated. This suit was instituted iñ a justice’s court, and from thence was appealed to the county court. In this latter court, plaintiff amended his cause of action as follows, viz.: “ Plaintiff claims from the defendant the sum of $200 damages to him by said defendant, a corporation duly incorporated, and operating a railroad in said county, through its lawful employees and agents, on or about May 20, 1889", negligently, carelessly and unlawfully operating an engine on its railroad track, causing plaintiff’s horse to become frightened and run away, to its injury, and causing plaintiff to be frightened and injured, and'therefore asks judgment against defendant for the sum of $200 damages, and costs of suit.” On the trial, judgment was rendered for plaintiff for $100 and costs.

We are of the opinion the evidence does not support the judgment, or show any cause of action on the part of plaintiff. In substance, it appears that plaintiff’s team was driven between a switch track and the main track of the road, when the train came down the main track and stopped, leaving the engine near the crossing of the road on which plaintiff was traveling, but not obstructing the crossing. Plaintiff’s team was frightened át the engine. An ox team accompanying plaintiff’s horse team did cross safely in front of the engine, and plaintiff’s horse team followed, though they were badly-frightened, and though they could, according to plaintiff’s witness Duval, have been turned round and gone back without crossing in front of the engine. As it was, they were driven in front of the engine, and ran away because the horses were frightened at the engine. As to the proof of his injuries and damages, the plaintiff himself testified, on cross-examination: “Neither my horse nor myself were hurt or injured, except by fright. My wife and a part of my children were in the wagon with me, but got out before the accident occurred. I do not know how much the horse was worth, or how much he was damaged. I do not know how much I was damaged.” The evidence wholly fails to support the judgment, and in our opinion it fails to establish any cause of action.

January 14, 1891.

Reversed and remanded.