Opinion
Decided March 27, 1907.
Railway — Killing Stock — Negligence — Lookout.
It was error to charge the duty of those operating a train to be to keep a lookout for stock at places where it was not required to fence; such charge made the duty an absolute one and failure therein negligence in law.
Appeal from the County Court of Robertson County. Tried below before Hon. J. W. Woods.
Baker, Botts, Parker Garwood A. P. McCormick and Kinard Goodman, for appellant.
Lane Woods, for appellee.
This is a suit brought by the appellee against the appellant to recover damages for injuries to a certain mule, owned by appellee, alleged to have been caused by the negligence of appellant. Appellee recovered judgment in the court below upon a trial before court and jury in sum of $125.
There was no positive error in the paragraph of the court's charge complained of in appellant's first assignment of error. The charge of the court complained of in appellant's second assignment of error made it the absolute duty of the appellant's employes to keep a lookout for stock while passing through places not required to be fenced. This instruction was erroneous, as the duty required of appellant under such circumstances was the exercise of ordinary care in keeping a lookout for stock. (Houston T. C. Ry. Co. v. Red Cross Stock Farm, 22 Texas Civ. App. 117[ 22 Tex. Civ. App. 117], 53 S.W. Rep., 834; Galveston, H. S. A. Ry. Co. v. Dyer, 46 S.W. Rep., 841.)
For this error the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.