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Click here for the full text of this decision FACTS:In 1970, Harold and Alice Perry executed an easement contract in Lipscomb County to Phillips Petroleum Co., which, among other things, required Phillips to pay the Perrys damage to crops, fences and livestock that could result from Phillips’ operation of a pipeline on the easement. The easement was eventually assigned to Duke Energy Field Services. In 1994, the Perrys’ family trust made a two-year surface lease for agricultural purposes to Glendell Meyer. Eddith Hinkle soon took over title to the property and orally extended Meyer’s lease to 928 acres on which Meyer raised 45 cows. In January 2001, Meyer observed the cows standing in a circle around a leak of black-green oily product, which they were licking and rubbing their noses in. Meyer moved the cows and put up temporary fencing around the leak, as requested by Duke. Around March 1, when the cows who had been bred were expected to start calving, Meyer observed several cows heaving and noticed some had aborted their calves, though he could not find the aborted calves. On Jan. 2, 2002, Meyer and Hinkle sued Duke for damage to the cows and to the surface. Meyer assigned his cause of action to Hinkle under Property Code �12.014, and the case went to the jury. Among other things, Hinkle alleged that Duke’s negligence was the proximate cause of the damage. Related to this theory, the trial court agreed to give the jury an instruction on res ipsa loquitur that allowed the jury to make a finding based on circumstantial evidence. Duke did not object. The jury found in response to one instruction that Duke’s negligence was a proximate cause of injury to the cows. In response to another question, the jury found that Duke’s failure to comply with the easement agreement was also a proximate cause of damages to the cows. The trial court denied Duke’s partial motion for new trial. Duke now challenges the legal and factual sufficiency of the evidence regarding causation. HOLDING:Affirmed in part; reversed and remanded in part. Noting the facts above, including the high percentage of cows who had birthing problems, plus the evidence submitted at trial from a veterinarian who said drinking oil can cause cows to abort their calves, the court finds that an inference of causation has been presented, i.e., the evidence is legally sufficient. The court rejects Duke’s argument that expert testimony was necessary to establish causation, noting that Duke did not object to the testimony presented. The court, however, agrees ultimately that the evidence was factually insufficient. The court notes evidence of blood tests showing, among other things, that the cows were poorly nourished, and that that could have caused the birthing problems; that another veterinarian said he could not conclude that Meyer’s calves died because of the cows’ ingestion of oil; and that afterbirth of the cows was not tested for traces of petroleum. “[B]ecause the evidence suggests that several conditions or events could have caused the cows to abort their calves and where, as here, circumstances are consistent with either of two or more facts and nothing shows that one is more probable than the other, neither fact may be inferred. . . . Considering all of the evidence as a whole, we find the evidence factually insufficient to support a finding that in reasonable probability the ingestion of the oil by the cows caused injuries to them.” OPINION:Reavis, J.; Quinn, CJ, Reavis and Campbell, JJ.

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