St. Louis Southwestern Ry. Co. of Texas v. Cox ( 1923 )

HAMILTON, J.

This suit for damages was instituted by appellee for the recovery of the value of two mules alleged to have been killed on the right of way of the St. Louis Southwestern Railway Company of Texas. It was alleged that the death of each of the mules was caused by reckless and careless operation of the trains which struck and killed them.' One of the mules was alleged to have been killed on the 25th day of September, 1919, and. the other on the 20th day of October, 1919. The amount of damages alleged to have been occasioned by the killing of one of the mules was $225, and the amount of damages alleged to have resulted from the killing of the other was $150.

The first proposition presented on this appeal is to the effect that the suit as pleaded involves a misjoinder of causes of action, because the wrongful acts are alleged to have occurred on different dates without any connection between the two; one of them being in an amount within the jurisdiction of the county court and the other in an amount within the jurisdiction of the justice of the peace’s court. This does not constitute a misjoinder of causes of action, and the proposition cannot be sustained. The pleading clearly presents a cause of action alleged for two separate and distinct torts committed by the same instrumentality and substantially in the same way and under identical circumstances. 'it was proper to combine them in one cause of action, as was done by appellee. Where the several causes of action are “in the ■ plaintiff in the same capacity and against the defendant in the same capacity” they may be joined in one suit.

Appellee sufficiently alleged negligence, and the proof was sufficient to support a finding of negligence on the part of appellant. There was proof to the effect that the train in each instance was being run at a very rapid rate, and that it passed through the town of Murchison, within the limits of which one of the mules was killed, and within, or very near, the limits of which the other mule was -killed also. The proof is uneontradieted that the trains did not slacken their speed, and that no signal or alarm of any kind was given, such as the ringing of the bell and the blowing of the whistle. The engineer on the train which is alleged to have killed the animal on October 20, 1919, testified that he was keeping a lookout, and that he did not see either animal on the right of way, and that so far as he knew he did not strike either one. This evidence, however, was to be considered by the jury with evidence of a contradictory nature, and it was within the province of- the jury to determine from the whole of the testimony bearing on the question as to whether or not the engineer was negligent. The cause was submitted to the jury upon special issues, which were as foliows:

“What was the market value of the mule killed on the east side of the depot at Murchison in 1919?

‘What was the market value of the mule killed on the west side of the depot at Murchison in 1919?

‘Was the stock gap just this side or west of the depot in the town of Murchison out of repair at the time the mules were killed?

“Did the defendants’ servants in the operating of the train that killed the mule on the east side of the depot ring the bell, blow the whistle, or make any noise to scare said mule when the same was killed?”

The evidence shows that one of the mules was killed within the fenced portion of the right-of way, and there was testimony which showed that the cattle guard was in such condition through lack of repair that animals could pass across it into the inclosure made by the right of way fence; and that the other mule was killed inside the limits of the switchyard in the town of Murchison, where there could be no fencing done or required. Such being the -circumstances -in each instance, liability could not be fixed without allegations and proof of negligence. Where it is necessary to allege and prove negligence, and the ease is tried before a jury upon conflicting evidence, it is indispensable that the court in submitting the facts to the jury, whether on a general charge or special issues, should define negligence, and should also submit to the jury the question of fact as to whether or not the killing was caused through negligence.

In this case appellant excepted to the charge of the court because negligence was not defined and because the question of whether or not the killings resulted from negligence was not submitted.

The court having failed and refused to define negligence, and having failed to submit to the jury the question of fact as to whether or not the killings were the direct .and proximate result _ of appellants’ negligence, the judgment urns erroneous, and accordingly it is reversed, and the cause is remanded to the trial court.