On Rehearing.
Appellee has filed herein his motion for rehearing, supported by an elaborate argument, insisting that the court erred in reversing and remanding the judgment in this cause. We have duly considered each of the assignments so made, and have arrived at the conclusion that the same are correct and should be sustained.
We believe, in the absence of evidence showing the size and character of the cars used in shipping the cattle from Nelagony to market, as well as the size of those used in shipping from Llano to Nelagony, and also in the absence of evidence showing or tending to show the relative compactness of the cattle in the cars in each of said shipments, that we erred in holding that the court improperly excluded evidence as to the number of head of cattle loaded in each car when the same were shipped from Nelagony to market. We think, as suggested by appellee, that “a showing of the relative sizes of the cars in the two shipments, as well as the relative compactness of the shipment in each instance, was essential to show the relevancy of the proposed testimony, and that the onus of showing these additional facts necessary to the relevancy of the proposed testimony was upon the defendants.” See 16 Cyc. 1110, 1112; Compton v. Young, 26 Tex. 649. Without these additional facts there was no predicate from which the jury might have deduced a logical inference. Even if it was technical error to exclude said evidence, still we are inclined to the belief that it was not such as would justify the court in a reversal of the judgment. As said by Judge Stay-ton in Lockett v. Schurenberg, 60 Tex. 614: “To reverse the judgment * * * on such grounds (the exclusion of evidence) this court should ordinarily be able to see not only that the court had erred, but that such error must, with reasonable certainty, have produced a substantial injury to the party in his cause. An abstract error upon a point of law applicable to the evidence is not enough. It should appear manifestly to have been a wrongful error in reference to the cause of action or defense.” See McCarty v. Wood, 42 Tex. 39; M. P. Ry. Co. v. Edwards, 75 Tex. 336, 12 S. W. 853; Stonebraker v. Friar, 70 Tex. 204, 7 S. W. 799; Atchison, T. & S. F. Ry. Co. v. Lochlin, 87 Tex. 469, 470, 29 S. W. 469; Goodale v. Douglas, 5 Tex. Civ. App. 697, 24 S. W. 966; 16 Cyc. 1114.
Justice Brown, in Trinity County Lumber Co. v. Denham, 88 Tex. 206, 30 S. W. 857, discussing the point under consideration, says: “It is error to exclude from the jury testimony which is relevant, material, and admissible under the pleadings in a case on trial. Whether such error will require the reversal of a judgment depends upon the probable effect of such evidence upon the result of the trial, if it had been admitted. If the evidence in the case upon the issue on which the excluded evidence was offered be conflicting, and if it does not appear that the evidence, if admitted, could not properly have influenced the jury to render a different verdict, the exclusion of such evidence be*461comes material error, and the judgment must he reversed.”
The late Chief Justice Fisher, applying this rule in the case of Ft. Worth & D. C. Ry. Co. v. Greathouse, 82 Tex. 108, 17 S. W. 834, held that the testimony admitted, though illegal, was not reversible error, because the same facts were testified to by other witnesses, and the evidence on the particular point was not conflicting.
So in the case at bar, if the proposed evidence was relevant, without showing the necessary additional facts (which we do not admit) as to the character and size of the cars and the compactness in loading, still, since there was no conflict in the evidence with reference to the appearance and condition of the cattle at the time they were shipped from Nelagony to market, it was harmless error, in our judgment, to exclude the evidence offered.
With reference to the exclusion of the testimony of the witness Reilly, we are inclined to believe that the proposed testimony offered by him was properly excluded, because it appeared that he did not know anything about the condition of the cattle prior to or at the time of their shipment from Llano. For aught that he knew, the cattle may have been in the condition mentioned by him when they left Llano. Besides this, he admitted during his examination that when cattle arrive at their destination “you cannot look at them and, by judging of their appearance, tell very much about whether they have had a hard trip or not.” Furthermore, this witness had fully testified to all he knew with reference to the appearance and condition of the cattle upon their arrival. So that, if we consider the lack of knowledge on his part and the condition of his testimony just outlined, which is in conflict with the opinion sought to he elicited, it would appear that the exclusion of his opinion was not reversible error.
We likewise think we were in error in holding that the court below improperly excluded the proposed testimony of the witness Love-lett, to the effect that,' in his opinion, it would ■be quicker for a north-bound cattle train to take the siding for five south-bound freight trains, instead of having the five south-bound freight trains take the siding for the northbound cattle train, because it will be recalled that this witness was not with the train that was side-tracked for the five south-bound freights, and knew nottdng of the relative position of said trains, nor the location, capacity, or accessibility of the side tracks, and the hypothetical question submitted to him did not embrace any of these matters, without which we are inclined to believe his opinion was not admissible. A hypothetical question should embrace sufficient facts to enable the witness to give an intelligent answer. See 17 Cyc. 242 et seq.; Cooper v. State, 23 Tex. 335 et seq.
Believing, therefore, that we erred, for the reasons indicated in reversing the judgment of the court below, the motion for rehearing will be granted, our former judgment set aside, and the judgment of the court below affirmed.