William Custard v. Giles H. Burdett, 15 Tex. 456

Wheeler, J. The question upon this appeal is whether the verdict was warranted by the evidence. And we are of opinion that it was not; but was manifestly contrary to the evidence. The counsel for the appellee is mistaken in his statement of the testimony of the witness Case. He did not state what the actual value of the horse was, either before or after the alleged trespass : but said, in a certain event, about which he did not profess to know, he would have considered Mm worth from four to five hundred dollars.

He did not profess“a knowledge of the facts necessary in Ms own estimation, to enable him to judge of the value of the horse ; and of course, his hypothetical opinion, unless the assumed hypothesis had been established by evidence—which it was not—was no evidence of his value. There was no witness that spoke of the relative value of the horse before and after the trespass complained of, who did not state that he was of equal or more value afterwards than before.

The preponderance of the evidence seems to have been to the effect, that he was worthless, and worse than worthless, because mischievous, before, if not after the alleged trespass. There was, in a word, no evidence of any injury sustained by the plaintiff by reason of the alleged wrongful act of the defendant. And there consequently was no evidence to warrant a verdict for more than nominal damages, if a trespass in fact was proved ; and that is at least doubtful.

The evidence showed, beyond question, that the horse was a dangerous animal to run at large; and that the plaintiff notwithstanding was accustomed to suffer him to run at large. He annoyed the neighborhood to such an extent that one of the witnesses was afraid to let his children ride out about his own premises. A witness, who sold the horse to the plaintiff, was aware of his unsafe character. He did not consider him a safe animal to run at large. Is it to be supposed the plaintiff was unaware, and needed to be informed of it ?

Is it to be supposed that any man could be ignorant of the fact, that an animal of the description of which this is shown to have been, and which he had owned long enough to learn his qualities, was not a safe animal to be suffered to run at large in a neighborhood, where persons of all ages and sexes are passing to and fro beyond the protection of their houses and inclosures? We very much question whether the defendant can be said to have committed any trespass, under the circumstances ; but we will not prejudge, without argument upon the point, a question which may arise upon another trial.

If there was a trespass, there was no injury ; and it is not too much to say that it is matter of surprise, not only that the jury should have found such a verdict, but that they should have found a verdict at all for the plaintiff, upon the evidence before them. The judgment is reversed, and the cause remanded for a new trial. Reversed and remanded.