Gulf, Colorado & Santa Fe Railway Co. v. Ware & Walker , 34 Tex. Civ. App. 455 ( 1904 )

KEY, Associate Justice.

Ware & Walker brought this suit to recover damages from the railroad company on account of delay and rough handling of a shipment of cattle from Belton to Fort Worth. From a verdict and judgment in favor of the plaintiffs, the railroad company has brought the case to this court by writ of error.

In stating the measure of damages, the court instructed the jury as follows: “The measure of damages in this case, if any you find, would be the difference in market value in Fort Worth of said cattle in the condition in which they were sold, or in which they reached Fort Worth, and the market value - of said cattle in the condition in which they should have reached said place or sold, if shipped with due caution, care and dispatch.”

This charge is assigned as error, and we sustain the assignment. The testimony shows that some of the cattle were not sold until three days after they reached Fort Worth and were delivered to the consignee, and it is not shown that the market had not declined during the three days referred to. The correct measure of damages was the difference between the market value of the cattle at the time and in the condition they were in on their arrival at Fort Worth, and at the time and condition in which they should have arrived there, regardless of the time they were sold. As a matter of fact, if the record is correct, no proof was made of the market value of such cattle at the time the plaintiffs alleged they should have reached their destination; and therefore the jury had no proper standard by which to determine the amount of damages the plaintiffs had sustained.

Judgment reversed and cause remanded.

Reversed and remanded.