ST. LOUIS SOUTHWESTERN RAILWAY COMPANY V. T. T. SMITH.

Decided November 14, 1903.

1.-Negligence-Definition in Charge.

A charge defining negligence as "the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances, or doing what such a person under the existing circumstances would not have done," does not present reversible error in the absence of request for a more explicit and accurately worded definition.

2.-Evidence-Admission-Claim for Damages.

In an action of damages against a railroad company for injury to cattle during shipment, plaintiff's claim for the damages as originally presented, in a sum less than sued for, and at a time when no controversy had arisen as to the amount of defendant's liability, can be given in evidence against him as an admission, and a charge that the jury should not consider it, if it was an offer to compromise, was uncalled for and erroneous.

3.-Live Stock Shipment-Measure of Damages.

In an action of damages for injuries to stock in transit to market it was error for the court to charge that the jury, in estimating the damages, should first determine what was the reasonable value of the stock in the market at the time they should have arrived, "without reference to the injury or damage sustained by them," and from this deduct their value in the condition in which they did arrive, as this would allow plaintiff damages for such injuries as were necessarily received by the stock in transit.

Appeal from the County Court of Taylor. Tried below before Hon. D. G. Hill.

J. M. Wagstaff, for appellant.

Bowyer & Tillett, for appellee.

SPEER, ASSOCIATE JUSTICE.-Upon the trial of this cause, which was an action to recover damages for injuries to a car of horses occasioned by the negligence of appellant, the court defined negligence to be "the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done." To this charge the first error is assigned.

While we are not disposed to sanction the use of the words "a reasonable and prudent person," rather than the often approved expression "a reasonably prudent person," in defining negligence, yet in view of some of the decisions we are not prepared to hold the same in this instance to be reversible error, especially when the entire definition is read and the failure of appellant to request a more specific instruction is considered. See Houston & T. C. Railway Co. v. Oran, 49 Texas, 341; Fort Worth & D. C. Railway Co. v. Partin, 32 Texas Civ. App., -, 8 Texas Ct. Rep., 266; Texas & P. Railway Co. v. Curlin, 36 S. W. Rep., 1003; San Antonio & A. P. Railway Co. v. Safford, 48 S. W. Rep., 1105; Texas & N. O. Railway Co. v. Black, 44 S. W. Rep., 673. Be

sides, if the charge was not as clear and explicit as appellant desired, it should have requested a better one.

The judgment must, however, be reversed for errors appearing in other portions of the charge. Upon the effect to be given by the jury to a certain written claim for damages presented by appellee, the court charged as follows: "You are further charged that if you should find from the evidence that the claim put in to the defendants for damages was in the nature of a compromise and settlement of his claim for damages, and not as a true and correct amount of damages for the damages sustained by reason of said shipment, then the plaintiff is not bound by said claim as amount of his damages, and you will not consider it for that purpose."

Appellee caused to be made a detailed statement of the injuries inflicted upon his stock and the amount of his damages in consequence, and presented the same to the Texas & Pacific Railway Company, one of the defendants in this suit. This was done at a time, it seems, when there had been no negotiations pending between the parties looking to a settlement, and the amount then claimed, $95.00, purported to be the entire amount of his damages. Although the appellee then and at the time of trial denominated the transaction an offer to compromise, it does not appear to have been such. As said in an Indiana case: "A party can not render an admission incompetent by testifying that he intended it to bring about a compromise, unless there was in fact an honest controversy between the parties and a treaty, pending or proposed, to settle it without resort to litigation." Steeg v. Walls, 30 N. E. Rep., 312; Hood v. Tyner, 28 N. E. Rep., 1033. The evidence was competent as tending to contradict appellee's statements as to the extent of the injuries received and the amount of damages he had sustained. Fort Worth & D. C. Railway Co. v. Leek, 30 Texas Civ. App., 426, 70 S. W. Rep., 456. And, being admissible, it was an invasion of the province of the jury for the court to say the evidence should have this or that effect. The jury, and not the court, should say whether, considering appellee's other testimony explaining that the injuries to his stock had not developed at that time, his admissions were binding upon him, since, as we think, the evidence was more in the nature of an admission of fact than of an offer to compromise. Compromise involves the idea of making a concession for the sake of peace, but rendering a statement of one's injuries with a demand for the utmost farthing is quite another thing.

Again, the court used the following language in his charge upon the measure of damages: "7. You will first determine from the evidence what the reasonable value of said stock was in the market at Dyersburg, Tenn., at the time they would have arrived by the usual and customary time taken to transport said stock from Abilene, Texas, to Dyersburg, Tenn., without reference to the injury or damage sustained by them, if any. 8. You will then find from the evidence the reasonable value of said stock in the market at Dyersburg on the date of their arrival in

their injured and damaged condition, if you should find that any of said stock were killed, injured and damaged in value, caused by the negligence and carelessness as alleged in plaintiff's pleadings, and if this last amount is less than the value found under the preceding subdivision number 7 of this charge, such difference, if any in said amounts, will be the amount of your verdict for the plaintiff, if you should find for the plaintiff."

Appellant complains that under this instruction the jury was authorized to allow appellee damages for the injuries necessarily received by his stock in transit, irrespective of the carrier's negligence, and the contention is not without merit. This, of course, was not in the trial court's mind, but the charge was well calculated to mislead the jury. The jury should have been instructed to determine from the evidence in the first place what the reasonable market value of appellee's stock would have been in the market at Dyersburg, Tenn., at the time, and in the condition they would have arrived, but for the negligence of the defendants, if any, and then as directed in the eighth subdivision above quoted.

For these errors the judgment is reversed and the cause remanded.

Reversed and remanded.

R. A. ALLEN V. MINNIE B. HAZZARD.

Decided November 18, 1903.

1. Costs-Court Stenographer.

Under article 1421 of the Revised Statutes the trial court did not err in refusing to compel the court stenographer to transcribe the evidence on the trial for the benefit of the plaintiff in error in default of his payment of the cost of same.

2.-Evidence-Bill of Exception.

An objection to evidence admitted, not presented by bill of exception, will not be considered on appeal.

3. Same-City Ordinance-Animais at Large.

A horse turned loose in the streets of the city of El Paso by its owner to go unattended and unrestrained to a livery stable is a horse running at large in the streets within the meaning of the ordinance of the city of El Paso, and such ordinance was competent evidence in this case.

Error from the District Court of El Paso. Tried below before Hon. J. M. Goggin.

Patterson & Buckler, for plaintiff in error.

No appearance for defendant in error.

JAMES, CHIEF JUSTICE.-Plaintiff (defendant in error) alleged that defendant was accustomed to turn his horse loose in the city of El Paso for the purpose of permitting him to go alone to a certain livery stable, and on August 17, 1900, turned him loose, knowing that it was accustomed to run and trot rapidly along the street towards the stable; that when plaintiff came into that street on a bicycle she saw the horse coming rapidly down the street towards her, and in the direction she was going, and she, through fear and excitement in attempting to avoid. being run over by turning out of the way, lost control of her wheel which fell, throwing her to the ground and injuring her. Her petition also alleged two city ordinances, one against driving or riding at a faster gait than six miles an hour;-the other declaring it unlawful for horses, mules, etc., to run at large in the city, both ordinances providing penalties for their infraction. Judgment was for $1500.

There is no statement of facts, and the first assignment of error is to the refusal of the court to order the stenographer (appointed to take the evidence in the trial) to file the evidence for the use of plaintiff in error in preparing a statement of facts. The bill of exceptions makes it appear that counsel did not charge his memory with the testimony on account of there being a stenographer to take it down, and did not remember it sufficiently to properly prepare a statement from memory; that he moved the court that she be ordered to transcribe the testimony from her notes and file same. It appears further from the bill she had not filed same because the court had directed her not to do so, having stated that it would tax as costs only her per diem of $10. She was

willing to file it provided an order was made fixing her compensation therefor to be taxed as costs. It also appeared that the defendant had no property in El Paso County, nor in Texas, and had disposed of all his property in Texas, and was at the time residing in England.

Under article 1421, Sayles' Revised Statutes, defendant would have been liable to the stenographer for this expense. The court may have been influenced in its decision of this motion by the fact that no costs could be made out of defendant by its process, if at all. The court was ready to grant the motion of the.applicant if he would assure payment for this particular work, which was refused. Under the circumstances we believe appellant can not complain.

Moreover plaintiff in error does not appear to have been prejudiced by the refusal. There is only one other bill of exceptions in the record, and in this bill, and at plaintiff in error's instance, we find given what purports to be all the evidence introduced upon the trial "for the purpose of showing the negligence of defendant, or that the horse was running at large." This was practically all there was in the case, except the extent of plaintiff's injuries and the measure of damages.

We notice that the motion for new trial does not complain of the damages as excessive, and question only one ruling in regard to the evidence admitted as to injuries sustained, and this objection is not supported by a bill of exceptions and could not have been considered with a statement of facts.

The third and fourth assignments contend that the court erred in admitting the two ordinances. They are based on the bill in which the testimony concerning negligence, etc., was set forth. The ordinance declaring it unlawful for horses to run at large in the city of El Paso was objected to because it had no application to this case, as there was no evidence that the horse was running at large in the sense of the ordinance. It appeared from the evidence that the horse had a saddle and bridle on and was galloping rapidly along the street, that plaintiff was frightened and thought the horse had thrown its rider and was vicious, that she thought the horse would run over her, and attempted to get out of its way, and in doing so met with her injury. Plaintiff admitted to her he had turned the horse loose. There was no direct testimony that defendant had turned it loose to go to the livery stable, but such is its effect as claimed by plaintiff in error, and plaintiff so alleged in her petition. Upon this assignment we are of opinion that the horse was running at large within the meaning of the ordinance. The fact that it may have been accustomed or trained to return to the stable when turned loose, would not except it from the ordinance. It was allowed to go through the streets unattended and unrestrained, and therefore it was at large. The assignment will accordingly be overruled, and this view of the law also necessitates the overruling of the second assignment which questions the charge of the court as asuming that defendant was