The opinion
On Rehearing.
HIGGINS, J.
[9]
In his motion for rehearing appellee has pointed out testimony of the witness Good with reference to the condition of the Navasota cattle upon their arrival at Sweetwater, which was admitted without objection upon the part of the appellants, and, in substance, is the same as that complained of in their third assignment of error. In the original opinion it was held error to admit testimony showing the relative condition of the Navasota cattle when they reached Sweetwater as compared with the condition of the Humble cattle, but, inasmuch as other testimony to substantially the same effect appears to have been admitted without objection, the error was therefore harmless, and the assignment should have been overruled. Railway Co. v. Harlan, 62 S. W. 971 ; Railway Co. v. Kennedy, 51 Tex. Civ. App. 466 , 112 S. W. 339 . Appellee in his brief filed in the cause did not call our attention to this additional testimony, and it was therefore not discovered by us. As to the testimony of the witness Van Tuyl, our attention is also called to the fact that he was permitted elsewhere to testify to substantially the same facts which he would have testified to had he been permitted to answer the question referred to in the bill of exception upon which the eighth assignment is predicated, and this assignment should also have been overruled. Williamson v. Railway Co., 122 S. W. 897 ; Lodge v. Rampy, 45 S. W. 422 . This matter was called to our attention by. appellee in his brief, and should have been noted by us.
[10]
As to the testimony of the witness Hughes, the exclusion of which was made the basis of the seventh assignment, it is also contended that he was thereafter permitted to testify to the same effect substantially as he would have testified in answer to the question referred to in the bill of exception. However, we do not concur in their contention that he elsewhere testified to substantially the same facts that he would have
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testified to had he been permitted to answer the question shown by the bill, and we therefore adhere to the view that the seventh assignment was properly sustained, and therefore overrule the motion for -rehearing.