This suit was brought by appellee, J. V. Prunty, in the county court of Wise county for the sum of $360, damages alleged to have been occasioned to a shipment of 20 head of mares and horses and 16 head of colts moved from Toyah, Tex., to Decatur, Tex., over the Texas Pacific and Fort Worth Denver City Railways, via Fort Worth, said damages being alleged to have occurred in the switchyards at Fort Worth, and both of the railway companies being made parties defendant.
Defendants answered, denying all of plaintiff's allegations, and alleging that plaintiff's said stock consisted of wild-range stock, mostly mares heavy with foal, which condition and wild nature constituted inherent defects; that, there being only one car of said stock, they necessarily had to be transported on a local freight train, which necessarily had to be frequently stopped along the route to take on and leave freight and to pass other trains; and that if any of plaintiff's said stock were injured or damaged, such damage was occasioned by reason of said inherent vice of the animals, and by reason of the ordinary jolts and jars necessarily incident to the movement of a local freight train.
Plaintiff by supplemental petition denied all the allegations in defendants' said answer.
The case was tried before a jury, and resulted in a verdict and judgment for plaintiff in the sum of $287.07 against the defendant Texas Pacific Railway Company, and denying any recovery against the Fort Worth Denver City Railway Company. From this judgment the Texas Pacific Railway Company appeals.
The first six assignments of error complain of the admission, over objection, of certain questions and answers, and involve the same question of law. The first assignment complained that —
"The court erred in permitting plaintiff's counsel to ask him, `What was the difference, if any, between the reasonable market value of the mares at the time and in the condition in which they did arrive and the condition in which they should have arrived, handled with ordinary care and diligence?' To which plaintiff answered, `I think it was any where from $20 to $25 difference.' "
The objection made by defendant was that said question and answer called for and Involved a conclusion of the witness which he was not qualified to state and concerning a matter properly for the jury and not for the witness, because same involved a mixed question of law and fact, and because there was no allegation to support it, and because it was incompetent, irrelevant, and immaterial. The other questions propounded are very similar to this one, and the objections made thereto were, in substance, the same as here made. We are of the opinion that the assignments should be sustained. As to what constitutes ordinary care and diligence is a question for the jury. H. . T. C. Ry. Co. v. Roberts,101 Tex. 418, 108 S.W. 808; M., K. T. Ry. Co. v. Brown, 155 S.W. 979; H. T. C. Ry. Co. v. Davis, 50 Tex. Civ. App. 74, 109 S.W. 422; G., C. S. F. Ry. Co. v. Kimble, 49 Tex. Civ. App. 622, 109 S.W. 235; I. G. N. Ry. Co. v. Hamon, 173 S.W. 613; 17 Cyc. 57, 58; G., C. S. F. Ry. Co. v. Bogy, 178 S.W. 597. In the case of Railway v. Roberts, supra, the question of error presented was as to the following question, propounded to plaintiff by his counsel, and the answer thereto, to wit:
"From your own knowledge and experience as a cattleman, and from your experience in shipping cattle to the territory and vicinity over these roads, having gone with several shipments over the roads that these cattle were shipped, what is a reasonable time with which to transport a train of cattle from Llano to Fairfax, when they are transported with ordinary care and diligence?"
To this question and any answer that might be made thereto the defendants objected, on the ground that such question was the mere opinion of the witness on a mixed question of law and fact, and that the determination of what was a reasonable time was one for the jury to reach from all the facts. But the court overruling such objection, the witness made the following answer:
"`I have had to make it in 34 hours, and I was thoroughly satisfied anywhere from 30 to 36 hours' (would be a reasonable time to make the trip). In addition to the objection that the witness could not testify to what was a reasonable time within which to transport said cattle, counsel [in the cited case] urged that it was not permissible for the witness to testify what in his opinion is or is not ordinary care and diligence, and that what is ordinary care and diligence was likewise a mixed question of law and fact, to be determined by the court or jury from all of the facts of the particular case; and to permit a witness to give his opinion thereon would be to submit the determination of the very issue of the case to a witness, instead of to the court or jury."
In answer to certified question from the Court of Appeals for the Third District, the *Page 627 Supreme Court held that the questions and answers submitted did involve a mixed question of law and fact, citing G., H. W. Ry. Co. v. Hall,78 Tex. 170, 14 S.W. 259, 9 L.R.A. 298, 22 Am. St. Rep. 42, and further the court said:
"In answering, if he answered intelligently, the witness must have determined for himself what would constitute ordinary care, and then have deduced, from a consideration of all the elements that would, in his opinion, enter into the question of the time reasonably necessary for the transportation in the exercise of such care, a conclusion as to what that time should be. The elements or facts which should be considered were first to be determined in part by the court in the admission and exclusion of evidence; and the conclusion to be drawn from them, as to the time reasonably required to carry the cattle to their destination with ordinary diligence was then to be drawn by the jury by applying to the facts admitted in evidence their own judgment as to what would constitute ordinary diligence and a reasonable time."
In the instant case the witness would have to decide in his own mind what constituted handling with ordinary care and diligence on the part of the railway company, and the condition the horses would have been in if so handled, before he would be able to intelligently answer the question propounded.
The only case cited by the appellee which seems to be in conflict with the cases hereinabove cited is K. C., M. O. Ry. Co. v. West, 149 S.W. 209, by the Austin Court of Appeals, opinion by Justice Rice. In that case the witness did not answer the question containing the feature objected to in the instant case, and therefore the expression of the opinion by Justice Rice that said question, if it had been answered, would not have been objectionable, is in the nature of obiter dicta. But, be that as it may, we think the question has been definitely and unmistakably decided contrary to the expressions contained in the opinion in the West Case, and we are forced to conclude that the trial court erred in admitting this testimony, and that assignments 1 to 6 inclusive, should be sustained.
We think it doubtful as to whether the witness Hub Dillehay sufficiently qualified to admit the testimony complained of in the seventh assignment. But we do not determine whether or not the question raised in said assignment, if standing alone, would justify a reversal.
The court in his charge gave the following definition, to wit:
"`Inherent vice' in an animal is some quality or characteristic of the animal that brings about its own injury or destruction without fault on the part of any other supervening cause."
The objection made in the trial court and here urged in the eighth assignment is:
"Because same is not a correct definition of `inherent vice,' but is ambiguous, unintelligible, misleading, and confusing in a manner calculated to be prejudicial to defendant."
We do not think in its assignment appellant points out any error in this charge, and for that reason we might properly refuse to consider it (McGraw v. Railway, 182 S.W. 417), but if we should consider the assignment, while some change might have been advantageously made in the definition given, we think said definition in the main is correct, and that no probable error is shown by its submission.
We do not find any error in the failure of the court to give the special charge requested by defendants, to the exclusion of which error is assigned in the ninth assignment, especially in view of the fact that in addition to the definition of inherent vice given in the main charge the court gave, at the request of plaintiff, special charge No. 2, and at the request of defendant special charges Nos. 1 and 2, covering virtually the same instruction as requested in the refused charge.
In its tenth assignment appellant urges error to the refusal of the court to give the following charge:
"Even if you should find that the Texas Pacific Railway Company negligently handled the stock en route and thereby caused them to be damaged and depreciated in value upon their arrival at Decatur, yet if you find that the injuries and depreciation in value were only temporary, and that the stock recovered from such condition thereafter during the time plaintiff kept them, you will take into consideration such recovery or regaining of value in determining the value of the stock at Decatur."
We think such charge would have been upon the weight of the evidence. G., C. . S. F. Ry. Co. v. Stanley, 89 Tex. 44, 33 S.W. 109; M., K. T. Ry. Co. v. Mulkey Allen, 159 S.W. 114; P. N. T. Ry. Co. v. Holmes, 177 S.W. 505; H. T. C. Ry. Co. v. Lindsey, 175 S.W. 709. In the case of Railway v. Mulkey Allen, supra, the Dallas Court of Appeals, in an opinion by Justice Rasbury, and in discussing an assignment based upon the refusal to give a similar charge, says:
"The court below correctly charged the jury on the measure of damages, and permitted the broadest kind of inquiry into the condition of the cattle at the time of their shipment, at the time of their arrival, as well as their condition and improvement while being fed and before they were sold. As we understand it, these are inquiries going to prove or disprove the actual damages, and may be, and doubtless were, considered by the jury in the instant case; but we do not understand that proof of such matters is authority for the court to suggest to the jury in his charge that such facts have been proven and may be considered by the jury in estimating the actual loss. Their admission in evidence is the warrant for their consideration, but the court may not seek out that particular fact, and especially direct the *Page 628 attention of the jury to the fact that that particular testimony may be considered. The rule is that the actual loss is recoverable; and what the actual loss is is a question to be determined by the jury from all the facts taken and considered as a whole, without special reliance on any particular fact or circumstance" — citing Railway v. Word,51 Tex. Civ. App. 206, 111 S.W. 753.
We need not consider the question raised in the eleventh assignment as to newly discovered evidence, inasmuch as the case has been reversed for the reasons heretofore given, and this question will not be presented in another trial.
Judgment reversed, and the cause remanded as to appellant, but undisturbed as to the Fort Worth Denver City Railway Company.