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: 451
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1875.] HOUSTON & T. C. R. W. Co. v. TERRY. 451
Statement of the case.
HOUSTON & T. C. R. W. Co. v. JAMES TERRY.
1. RAILWAY COMPANY, LIABILITY FOR KILLING STOCK. A railway company,
is liable for damage resulting from injury or killing of stock by its
train on the railway track, when the train is moving at a greater rate.
of speed than allowed by law.
2. CHARGE OF COURT. Vhen a charge presents a question outside of the
case as made by the pleading, and upon which the verdict might have
been found, a judgment based on such verdict will be reversed.
ERROR from Harris. Tried below before the Hon. James,
Suit to recover the value of a mare and colt alleged, the
former to have been killed, and the latter so injured as to
make it worthless, by collision with appellant's train of ears,
within the corporate limits of the city of Houston.
The petition alleged that the cars are inhibited, by an ordinance
of the city, from running at a greater rate of speed than
six miles an hour within .the city limits; that at the time of
the injury complained of, the cars were running at a much
greater rate, and without signal of either whistle or bell; that
while so running, the engine struck the mare and colt, and the
running of the engine in this manner, and the appellant's negligence,
caused the injury complained of; and that appellant's
road was not fenced.
Appellant went to trial on the general issue, when appellee
recovered judgment for one hundred and fifty dollars for the
mare and fifty dollars for the colt. There was a motion for
new trial for error of law in the charge to the jury, and because
the verdict was contrary to the weight of evidence; which being
overruled, appellant assigns for error the law as given in the
court's charge, and that the court erred in overruling motion
for a new trial.
On the trial, appellee examined two witnesses only, who
testify fo having seen the killing. The first said he was sixty
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Texas. Supreme Court. 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., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/459/: accessed December 17, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .