Gulf, C. & S. F. Ry. Co. v. Bredthauer ( 1928 )

This is a suit by appellee against appellant to recover damages for loss and injury to a carload of cattle, shipped by appellee over appellant railway from the town of Morgan, in Bosque county, to the town of Burton, in Washington county. This is the second appeal of the case. The opinion of this court on the first appeal is reported in 293 S.W. page 311. On the trial from which this appeal is prosecuted, appellee recovered a judgment against appellant upon the verdict of a jury for the sum of $287.50.

The case was submitted to the jury upon special issues, and in response to the questions propounded by the charge the jury found that two of the cows, two of the calves, and one yearling were not delivered by appellant at Burton. The value of these animals, as shown by the undisputed evidence, was: The two cows or heifers, $50 each; the two calves, $5 each; and the other undelivered animal, $50 — a total of $160. The jury further found that five of the grown cattle and one yearling were in an injured condition when they reached the city of Brenham, where they were reshipped to Burton.

The undisputed evidence shows that the damage to the cattle found by the jury to have been injured in shipment through the negligence of appellant did not exceed the sum of $92.50. This amount, added to the value of the cattle lost in shipment, makes the sum of $252.50. From this statement of the findings of the jury and the undisputed evidence, it is manifest that the verdict and judgment is excessive in the amount of $35. Appellee has cured this excess in the verdict and judgment by filing a remittitur of $35.

Other errors that may be shown by the record as presented in appellant's brief are not deemed so material as to require a reversal of the judgment. The pleadings and evidence are sufficient to sustain a judgment in appellee's favor for the sum of $252.50, and the judgment will be accordingly reformed, and, as so reformed, is affirmed, with costs of appeal adjudged against the appellee.

Reformed and affirmed.