On Motion for Rehearing.
Upon consideration of appellant’s motion, for rehearing, we are constrained to hold that we erred in the former opinion filed herein on March 29, 1912, in not sustaining appellant’s fourth assignment of error, which complains of the charge of the trial court upon the measure of damages.
We adhere to the conclusion expressed in the former opinion that the general rule, which fixes the measure of damages for the loss of property as the market value of the property at the time and place of the loss, is not applicable in this case. There was no market for the logs at the place at which the rafts were broken, and the exact place of the loss of each log is from the very nature of the case impossible of ascertainment, unless the place at which the rafts were bro ken and the control of the logs lost by ap-pellee should be considered the place of the loss of each and all of said logs that were not subsequently recovered.
. The logs were being floated to market at Beaumont at the time their passage was obstructed and appellee’s control of them lost by appellant’s negligent construction of its bridge across the stream down which they were being rafted. We think the proper measure of appellee’s damages for the loss •of his logs would be their market price at Beaumont, less what it would have cost him to have gotten them there, and this was doubtless the measure intended to be applied by the charge of the court.
[9] But the language of the charge is so involved and confusing that we cannot say that the jury could understand therefrom how appellee’s damage should be measured. They were told, in effect, that they should find the market value of all of the logs at Beaumont that would have gotten there but for the negligence of appellant, together with the additional cost of handling the logs, and from this amount they should deduct the usual cost of running the logs to Beaumont and the amount received by appellee for the logs that did reach Beaumont, or that would have reached there if appellee had used proper care in looking after them after they were scattered by appellant’s negligent obstruction of the stream. As awkwardly as the charge is expressed, if the jury had been told to deduct from the market value of the logs that appellee would have gotten to Beaumont but for appellant’s negligence and the additional cost of handling them, the market value at Beaumont and the usual cost of transportation of those which did reach Beaumont or should have reached there if appellee had used proper care, he would, in effect, have submitted the measure of damage which we think applicable.But he tells the jury to deduct from the market value of all the logs that should have reached Beaumont, not the market value of those that reached that place, but the amount appellee received for those sold or that could have been sold by due diligence on his part. This is manifestly an incorrect,' if not impossible, measure of damage. It is hard to tell what the jury would understand from the expression “the amount received by him for logs which he afterwards sold or-should have sold.” Appellee, of course, received nothing for the logs he should have sold, and the court doubtless intended to instruct the jury to deduct the amount received by appellee for the logs he sold and the amount he would have received for logs that he could have gotten to market and sold by proper diligence.
[10] If we can assume that the jury so understood the charge, it is nevertheless incorrect and misleading, because the market value of the logs sold, and not what appellee may have received for them, was the proper amount to deduct in order to ascertain the market value of the logs that he lost.
[11] We are further of opinion that we erred in our former decision in overruling appellant’s fifth assignment of error, which complains of the verdict on the ground that the evidence failed to show with any degree of certainty the number of logs lost by ap-pellee. There is no evidence from which the jury could tell how many logs were lost by the jam which occurred in June, 1909, and how many in the jam which occurred in February, 1910. As pointed out in the main opinion, they could have ascertained from the evidence the total amount of logs lost by both jams; but under the charge of the court plaintiff could only recover for the logs lost by the 1909 jam, and, in the absence of any evidence from which the loss by the two jams could be apportioned with some reasonable degree of accuracy, the finding of the jury as to the number lost by the 1909 jam must have been a matter of guess or speculation and should not be sustained. Plaintiff could doubtless have shown the estimated proportional loss by each jam with a sufficient degree of certainty to authorize the jury to proportion said loss; but, as before stated, we find no such evidence in the record.
For the errors indicated, the motion for rehearing is granted, the judgment of affirmance heretofore rendered by this court is set aside, and judgment now rendered reversing the judgment of the court- below and remanding the cause for new trial.