Missouri-Kan.-Tex. Ry. of Tex. v. Wells

^* Writ of error refused November 18, 1925. Appellant's contention, that it was not liable in any event for damage to appellees' land, caused by seed carried thereto from Johnson grass on the right of way during the year 1922, is on the theory that its agreement in conformity to the requirement of articles 6624 and 6625, Vernon's Statutes, to take and hold the property and franchises of the Missouri, Kansas Texas Railway Company of Texas subject to the payment of subsisting liabilities and claims "for loss of and damage to property sustained in the operation of the railroad, by the company or by any receiver thereof," did not include damage arising from a violation of articles 6601 and 6602, Vernon's Statutes, set out in the statement above. The argument is that such damage was not "damage sustained in the operation of the railroad" within the meaning of said articles 6624 and 6625. One of the meanings of the word "operation," according to the Century Dictionary, is "the course of action or series of acts by which some result is accomplished." We think it should be held that the word was used in that sense in the statute. The result to be accomplished by the operation of a railroad is the moving of trains carrying persons and things from one point to another. Trains cannot move until a way for them to pass over is provided, and they cannot continue to move unless the way provided is maintained. Therefore, we think, the maintenance of the way in conformity to the requirements of the law enters into and is a part of the "operation" of a railroad. That the Supreme Court of Kansas entertained a like view of the matter is indicated by their statement as follows in Railway Co. v. Merrill, 40 Kan. 404, 19 P. 793:

"The roadway and track of the company are as essential to the operation of the railroad as the locomotives or the other equipment. * * * In our opinion the care and maintenance of the roadway and track is fairly included as a part of the operation of a railroad."

If the contention just discussed is not tenable, as we think, the court below did not err when he refused appellants special charge No. 3, that the burden was on appellees to adduce testimony which would enable the jury to separate the damage to the land in 1922 from the damage thereto in 1923 by seed carried thereto from the right of way. If appellant was liable for the damage so caused to appellees in 1922 as well as 1923, it did not devolve on appellees to show what part of the damage they suffered arose from a violation of the law in 1922 and what part arose from a violation thereof in 1923.

The trial court propounded questions as follows to the jury:

"(3) What amount of damage, if any, was caused to plaintiffs' land by Johnson grass being caused to grow thereon, if it was, from seed which matured on the right of way of the M. K. T. Ry. Company of Texas during the year 1922?

"(4) What amount of damage, if any, was caused to plaintiffs' land by Johnson grass being caused to grow thereon, if it was, from seed which matured on the right of way of the defendant, the Missouri-Kansas-Texas Railroad Company of Texas, if any, during the year 1923."

The questions were objected to on grounds stated in appellants' brief as follows:

"Because there is no evidence of any damage, and the evidence is insufficient to warrant the submission of damages, or to show with any certainty what damage, if any, was done plaintiffs' land by Johnson grass being caused to grow thereon from the seed which matured on the right of way in 1922, and no evidence to show with sufficient certainty the damage, if any, that was done to plaintiffs' land by Johnson grass being caused to grow thereon from seed which matured on the right of way of the defendant during the year 1923, and any attempt of the jury, under the evidence, to fix such damages would be mere speculation."

The objection plainly was not tenable so far as it was based on the claim that there was no evidence showing damage to appellees' land, and as plainly the objection should have been overruled so far as it was based on the claim that the evidence did not show with certainty the damage to the land in 1922 as distinguished from that it sustained in 1923, and vice versa, if the conclusion reached by us that appellant was liable to appellees for damage to their land for 1922 as well as 1923, resulting from seed carried thereto from the right of way, is correct. The remaining ground of the objection, to wit, that the testimony as to the damage to the land did not warrant the submission to the jury of a question as to the amount of the damages suffered by appellees, seems to be based on testimony which would have authorized a finding that seed were carried to the land from the Andrews and Carter farms as well as from appellant's right of way, and the difficulty, if not impossibility, of distinguishing with certainty between damage for which appellant was liable and damage for which it was not liable. There was testimony showing (the jury had a right to say) that all the Johnson grass on appellees' land, except a few small patches which could have been destroyed at a cost of about $40, was on the part thereof next to the right of way. That fact, we think, authorized the jury, reasoning as to the "preponderance of probabilities" (Conner v. State, 34 Tex. 659; 23 C.J. 18), to conclude that practically all the seed propagated on appellees' land in 1922 and 1923 were carried there from grass on the right of way. If they might have done that, then plainly it was not error to submit the questions complained of to the jury over appellant's objection thereto on the ground in question. The uncertainty as to the amount of damage to the land from seed from the right of way arose from a situation for which appellees were not responsible, and which appellant might have avoided by complying with the law.

It appears from a bill of exceptions in the record that after appellees' witness C. L. Wells had testified that he "knew the market value of farms in the community of plaintiffs' land, and knew same in the year 1923 and this year," appellees asked him this question:

"What is the value of the farm as it is now, with the seed that got on it in 1923?"

It appears from the bill, further, that the court permitted the witness to answer —

"that the value of the land as it is now, with the seed that got on it in 1923, is $100 an acre, and that it would be worth now, if that Johnson grass had not gotten on there in 1923, $115, an acre."

The ground of the objection to the testimony was that —

"The proof showed that the grass on the farm, if it was carried there from the railway right of way, was not all carried there in 1923, and that the question was not a proper one and confined to the conditions involved in this suit."

We do not think the court erred when he refused to exclude the testimony on the objection urged to it. It may be it should have been excluded had the objection been on the ground that it did not appear that the witness knew, or could have known, to what extent the value of the land was affected by seed carried thereto from the right of way in 1923 as distinguished from the damage to it from seed carried to it at other times and from other places.

After he had testified that he was acquainted with appellees' land and the market value of lands in the neighborhood in which it was situated, and, further, that he did not know whether appellees' land was infested with Johnson grass in 1922 and 1923 or not, the witness King, over appellant's objection, was permitted to testify that in his opinion appellees' land was worth $100 an acre in June, 1922, and $10 or $15 an acre less afterward, if seed were carried to it from the right of way in 1922 and in 1923. The ground of the objection was that it appeared the witness did not know the condition of the land with reference to Johnson grass in either 1922 or 1923. While it appeared from other testimony that parts of appellees' land were infested with Johnson grass prior to 1922, it also appeared that the opinion of the witness as to value of the land in June, 1922, was on the assumption by him that same was not then infested with such grass. It reasonably appears, we think, that the testimony of the witness, in effect, was merely as to the value of the land if not infested with Johnson grass and its value if infested with such grass, and that the jury so understood it. If that was the effect of the testimony, we think the trial court did not err when he overruled the objection urged to it.

What has been said with reference to appellant's complaint about the testimony of the witness King applies as well to its complaint about testimony of the witnesses Gordon, Myrick, and Sears admitted over its objection.

We think error requiring a reversal of the judgment has not been shown. Therefore it is affirmed.