Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 453

1875.] HOUSTON & T. C. R. W. Co. v. TERRY. 453
Opinion of the Court.
The court instructed the jury:
First. "If defendant's cars or locomotive ran against tie
" mare and colt, both or either-then find for plaintiff the
"value of the animal killed or injured, according to the proof."'
The second instruction, among other things, told the jury
that, " if the evidence satisfy you that defendant's car was going
"at a great rate of speed, exceeding six miles an hour, if with"
in the corporate limits of Houston, and if by reason of such
" high rate of speed, the mare was killed and the colt injured,
"then find for the plaintiff, even if the mare killed herself and
" the colt injured itself."
The giving of these instructions was assigned for error.
Baker & Botts, for appellant.
Crank & Weebb, for appellee, contended, that if the animals
were killed by the railway cars or train, the company would be
liable without regard to what would generally be deemed contributory
negligence on the part of the owner, citing Sher. and
Red.. on Neg., 456; they also insisted that there being evidence
to sustain the verdict considered with reference to the allegations
of the petition, the judgment should not be disturbed.
DEVINE, J. The assignments of error in this case are that,
First. " The court erred in the first paragraph of its charge,
' in that it makes defendant liable for its cars striking the ani"mals,
regardless of the conduct of the animals, and in the
"second paragraph, defendant is made liable, although its cars
" ma not have touched the animals."
Second. "The court erred in overruling motion for new
"trial." We perceive no error in the first paragraph of the
charge. The second paragraph is open to the objection that it
presented a material question for the consideration of the jury,
which was not raised by the pleadings in the suit. The appellee,
James Terry, sued appellant in the District Court of Harris
county, to recover damages for a mare killed, and colt
injured, by defendant causing its engine and cars to run over