Kansas City, M. & O. Ry. Co. of Texas v. Worsham , 1912 Tex. App. LEXIS 726 ( 1912 )

W. B. Worsham and J. W. Wishon filed this suit in the county court of Foard county against appellant and the Ft. Worth Denver City Railway Company to recover for damages to a shipment of cattle from Crowell to Ft. Worth, Tex. Appellees recovered a judgment for the sum of $314.25 against the Kansas City, Mexico Orient Railway Company, and judgment was rendered in favor of the Ft. Worth Denver City Railway Company.

The first assignment complains of the action of the court in admitting the account sales offered by plaintiff, because the same had not been identified and the correctness of the statements contained therein established by the testimony of any witness. The record does not sustain this assignment. Appellee Wishon testified, in substance, that he saw the cattle weighed, stood there all the time while they were being weighed, saw the statement made out, stood there and waited until it was made, and stated positively that he knew the statement gave the correct weight. He detailed the method in which the weighing was done by the weigher, how the entries were made upon his book, and by him passed to the bookkeeper of the commission company at the office, from which book or slip of the weigher the account sales itself was made up. We think this was sufficient as a basis for its admission in evidence.

Under the second assignment, appellant complains of the action of the court in admitting two copies of the Ft. Worth Live Stock Reporter. The record does not sustain this assignment. Prior to the introduction in evidence of the newspaper, the witness Wishon testified that he knew the market price of the cattle in question on the market on the 7th and 8th of the month, and stated what that price was, and that he received the market price for them when sold. He further stated that he had the market reports, and knew what the market was. We think this testimony was a sufficient predicate for the introduction of the newspapers themselves; but, if we are mistaken in this, the error is harmless, because the facts shown by the account sales were sufficiently established by the testimony of the witness, independent of the newspapers, and his qualification to testify upon that point was not challenged. T. P. Ry. Co. v. Isenhower, 131 S.W. 297; Houston Packing Company v. Griffith, 144 S.W. 1139.

The third assignment of error is: "The court erred in his general charge to the jury, because said charge as a whole does not state the law, or any part or principle of law, applicable to the issues and facts herein." This assignment is too general to require consideration. I. G. N. Ry. Co. v. Biles Ruby, 56 Tex. Civ. App. 193,120 S.W. 952; Schneider v. McCoulsky, 6 Tex. Civ. App. 501, 26 S.W. 170.

The fourth assignment is: "The court erred in failing to charge the jury that the burden was on the plaintiff to prove the material allegations in his petition." This charge need not be given by the court, unless requested. Cooper v. Lee, 1 Tex. Civ. App. 9, 21 S.W. 998.

The fifth assignment complains of the failure of the court to charge the jury upon the measure of damages, in the event plaintiff should be entitled to recover. A failure to charge upon the measure of damages in this sort of a case is affirmative error, and defendant is not required to ask a special charge, before it can be heard to complain of the omission. The failure to so charge will require a reversal of the judgment. H. T. C. Ry. Co. v. Buchanan, 38 Tex. Civ. App. 165,84 S.W. 1073.

The sixth assignment insists that the court should have charged the jury that they were the exclusive judges of the facts proven, credibility of the witnesses, and the weight to be given their testimony. The omission to so charge is not reversible error, unless such a charge is specially requested.

In the second paragraph of the general charge, the court shifts the burden of proof upon the question of damages to the defendant, requiring it to prove, by a preponderance of the evidence, that defendant did use ordinary diligence, and that said cattle were not damaged, and that the damages were not caused by the negligence of the defendants. This is reversible error.

The ninth assignment complains that the verdict of the jury is contrary to the law and the evidence, and is not supported by the evidence, and is excessive in amount. This assignment is too general, and is objectionable because of multifariousness. I G. N. Ry. Co. v. Miller, 124 S.W. 109; Texas, etc., Ry. Co. v. Norman, 91 S.W. 594; I. G. N. Ry. Co. v. McVey, 81 S.W. 991.

No error is assigned upon that part of the verdict and judgment in favor of the Ft. Worth Denver City Railway Company, and no brief is filed for the appellees, Worsham and Wishon. The judgment, in so far as it is rendered in favor of the Ft. Worth Denver City Railway Company, is affirmed, and in all other respects the judgment is reversed, and the cause remanded.