On Motion for Kehearing.
Appellee, in urging his motion for rehearing, cites Railway v. Drahn, 163 S. W. 330, Railway v. Gray, 145 S. W. 729, and Railway v. Gunter, 44 Tex. Civ. App. 480, 99 S. W. 152, in support of his contention that this court erred in sustaining the assignment to the admission, over objection, of the following question propounded to plaintiff and his answer thereto:
“Q. What, in your opinion, is a reasonable time to run from Jasper to Bridgeport? A. Thirty hours.”
In the cases cited the question as to what would constitute “a reasonable time” for the run was not asked. In the Drahn Case, opinion by Justice Speer of this court, the witness testified “as to the usual and customary time,” which character of testimony is admissible where the witness shows himself qualified. In Railway v. Davidson, 127 S. W. 895, opinion by Chief Justice Conner, the witness testified as to the time “usually-made” between the given points. In Railway v. Meyer, 155 S. W. 309, cited by appel-lee, the witness testified to the time required for “a good, ordinary run.” There is a marked difference in the import of the question as to what would constitute “a reasonable time” for a good run and the time “usually” or “ordinarily,” or “customarily,” taken. The first is an expression of opinion and conclusion of the witness upon a mixed question of law and fact and upon a question of fact to be found by the jury; the second a statement of fact. “Keasonable time” is defined to be:
“So much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. * * * In determining what is a reasonable time or an unreasonable time, regard is to be had to the * * * facts of the particular case. * * * A reasonable time, when no time is specified, is a question of law, and depends on the subject-matter and the situation of the parties.” Words and Phrases (citing Colfax County v. Butler County, 83 Neb. 803, 120 N. W. 444).
The distinction between “reasonable time” and “usual or customary time” as used in this connection, we do not think, as appellee urges, is “technical and shadowy,” but is a distinction substantial, and well established by the authorities.
But appellee urges that, inasmuch as this cause was tried before the court, it will not be presumed that the court considered the evidence complained of, or that appellant suffered any injury by its improper admission. Defendant’s bill of exception No. 1, directed to the admission of this testimony, duly approved by the court, states that:
“Said answer was thereupon considered by the court as part of the evidence authorizing and supporting the judgment rendered.”
Thus, it affirmatively appears that the court did consider this testimony. Even where there is other evidence in the record to sustain the finding of the court upon any particular issue, if it affirmatively appears from the record, i. e., from the court’s findings of fact or the bills of exception, that the court did consider the objectionable testimony, the case will be reversed. Neitch v. Hillman, 29 Tex. Civ. App. 544, 69 S. W. 494; Gaither v. Lindsey, 37 Tex. Civ. App. 149, 83 S. W. 225; Railway v. Brashears, 91 S. W. 594.
In answer to the statement in our original opinion that “our attention has not been directed to, nor do we find, any other evidence tending to show what was the usual and customary time to make this run of 333 miles,” appellee refers us to and quotes from the testimony of plaintiff as to “a tie-up” overnight at San Augustine of the train containing his cattle, and his testimony that “the stop at San Augustine was what injured them.” There is nothing in the record to show that the stop overnight at San Augustine was not necessary, or was not usual and customary, or in the course of the regular schedule for the movement of the train in question. While it might be urged that the burden of proof was on the defendant to explain the cause of such delay, the complaint made by appellee to the conductor at the time was not because of the delay, but because the conductor would not permit the cattle to be unloaded, watered, and fed.
But even though it be conceded that this other testimony is proof that an unreasonable time was taken in transporting the cattle, which we question, yet since it affirmatively appears, as before stated, that the court did consider the inadmissible testimony, we do not feel justified in concluding that our former judgment was erroneous.
Motion for rehearing overruled.