Atchison, T. & S. F. Ry. Co. v. Boyce

Citation171 S.W. 1094
Decision Date28 November 1914
Docket Number(No. 680.)
PartiesATCHISON, T. & S. F. RY. CO. et al. v. BOYCE et al.
CourtCourt of Appeals of Texas

Appeal from Dallam County Court; T. S. Mills, Judge.

Action by J. H. and L. H. Boyce, partners as Boyce Bros., against the Atchison, Topeka & Santa Fé Railway Company and others. From a judgment for plaintiffs, certain defendants appeal. Affirmed.

Terry, Cavin & Mills, of Galveston, Madden, Trulove & Kimbrough and H. C. Pipkin, all of Amarillo, Thompson & Barwise, of Ft. Worth, and Moore & Powell, of Dalhart, for appellants. W. Boyce, of Amarillo, for appellees.

HUFF, C. J.

This is an action instituted by the appellees, Boyce Bros., a copartnership composed of J. H. and L. H. Boyce, against the Atchison, Topeka & Santa Fé Railway Company, the Southern Kansas Railway Company of Texas, and the Ft. Worth & Denver City Railway Company, for damages alleged to have been sustained by reason of the delay in the shipment of 59 head of cattle, under a contract of through shipment from Hartley, Tex., to St. Joseph, Mo., over the lines of the defendant railways. Trial was had in the county court of Dallam county, and judgment rendered for appellees against the Ft. Worth & Denver City Railway Company and in its favor against the Atchison, Topeka & Santa Fé Railway Company.

The appellant the Atchison, Topeka & Santa Fé Railway Company presents its first assignment that the court erred in refusing its third specially requested instruction to the jury, which charge is to the effect, after defining "act of God" and "unprecedented flood," if appellant exercised ordinary care to build and maintain a bridge across Driftwood creek at the point of the washout, to accommodate the ordinary and usual flow of water thereunder and floodwaters, and so constructed and maintained said bridge, that it was sufficient to withstand and accommodate ordinary and usual floodwaters and such as had been before known in that country and might have been reasonably anticipated by the exercise of caution, prudence, and foresight, and if the jury found —

"on or about the 5th day of August, A. D. 1911, there came an unprecedented and unexpected flood down said stream and under said bridge, so that it washed out a portion of said bridge, so that it made said bridge impassable by trains of this defendant, and if you further find and believe from the evidence in this case that such washout was of such an unprecedented nature that it was the act of God, as same is above defined, and you further find and believe from the evidence that said defendant exercised ordinary care to properly prepare said bridge for transportation of said shipment thereover at the earliest time after said washout in the exercise of ordinary care, and if you further believe and find from the evidence that the delay of said cattle or any part thereof was caused directly and proximately by said unprecedented flood washing out said bridge, then in that event you will find for the defendant for all the damages, if any, by reason of the delays to said shipment incident to said unprecedented flood and washout of said bridge."

The appellant, by its answer, with reference to the matter of the washout of the bridge, alleged that the bridge was a good and substantial one maintained for many years prior to August, 1911; that it had neved been washed out by the rising or flooding of the stream; that by reason of an extraordinary heavy rain or cloud-burst it became flooded as never before. The flood was unusual, unprecedented, and could not, in the exercise of ordinary care, prudence, and foresight, have been foreseen, anticipated, etc.

The appellees, Boyce Bros., by a supplemental petition, alleged in reply thereto that, if such washout was caused by an unprecedented flood, nevertheless the railroad would be responsible, because said washout occurred before the cattle were loaded at Hartley, and before they were accepted by the Santa Fé lines at Amarillo, and that such fact was well known to the defendants at the time of acceptance of such shipment, and was unknown to appellees.

The defendant the Ft. Worth & Denver City Railway Company alleged that it notified the other defendants of such shipment, and that the other defendants accepted said shipment for transportation. The evidence shows that the cattle were loaded at Hartley, Tex., at 12:50 p. m. August 5th, and that they arrived at Amarillo over the Denver road, and were by it delivered to the Southern Kansas Railway Company of Texas at 5:30 p. m. the same day. The Ft. Worth & Denver City Railway Company gave the Atchison, Topeka & Santa Fé Railway Company advance notice of the loading of the shipment at 12:50 p. m. August 5th. The shipment left Amarillo August 5, 1911, over the line of the Southern Kansas Railway Company of Texas, at 6:40 p. m., and reached Canadian, a distance of 99 miles, at 9:55 p. m. that day. It left Canadian, Tex., at 10:50 p. m. August 5th, and arrived at Wynoka, Okl., at 10:20 a. m. August 6, 1911, and on account of the washout there were no trains, outside of work trains, taken out of Wynoka August 6, 1911. The cattle were unloaded at Wynoka and held there until the succeeding day, leaving that point at 12:45 p. m. August 7, 1911. The bridge was washed out at 10:30 a. m. August 5, 1911, and the superintendent of that road had notice of such fact at 11 a. m. on that date. The first train passed over the bridge after its repair at 12:10 p. m. August 7th. The evidence introduced by appellants tends to show that the flood was an unusual one and unprecedented in that neighborhood. It also tends to show that it used ordinary care in constructing and maintaining a bridge across the stream, giving to the bridge sufficient strength to withstand an ordinary and usual flood on the creek at the point where its line of road crossed. Boyce Bros. had no notice of the washout at the time they loaded out the cattle for shipment. The trial court instructed the jury as follows:

"Although you may find said shipment of cattle was delayed in course of transportation, still, if you should further find and believe from the evidence that such delays, if any, or any part thereof was caused by a washout on the line of the Atchison, Topeka & Santa Fé Railway Company, as alleged, and you should further find that said washout was caused by an unprecedented flood, then the defendant the Atchison, Topeka & Santa Fé Railway Company and its connecting line would not be liable to the plaintiffs for damages caused by any delay resulting from said washout, unless you should further find that the defendant the Southern Kansas Railway Company of Texas, in accepting said shipment at Amarillo, Tex., had notice of the fact of the...

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