Ft. Worth & D. C. Ry. Co. v. Daggett

• Decision Date: 26 November 1894
• Citation: 28 S.W. 525
• Court: Texas Supreme Court
• Parties: FT. WORTH & D. C. RY. CO. v. DAGGETT.

28 S.W. 525

FT. WORTH & D. C. RY. CO. v. DAGGETT.

Supreme Court of Texas.

November 26, 1894.

Error from court of civil appeals of Second supreme judicial district.

Action by J. P. Daggett against the Ft. Worth & Denver City Railway Company and the Wichita Valley Railway Company. There was a judgment of the court of civil appeals affirming a judgment for plaintiff, and the Ft. Worth & Denver City Railway Company brings error. Reversed.

Stanly, Spoontz & Meek and Carrigan & Hughes, for plaintiff in error. C. C. Cummings, for defendant in error.

DENMAN, J.

Plaintiff, J. P. Daggett, sued the Wichita Valley Railway Company and the Ft. Worth & Denver City Railway Company on their common-law liability as common carriers to recover damages resulting to plaintiff on a shipment of 259 head of beeves, from Dundee, Archer county, Tex., to Chicago, Ill., by reason (1) of delay in shipment, the market being alleged to have declined during the delay; (2) of mixing the cattle which had been classified for market and (3) of failure to feed and water the cattle during transit. Defendants pleaded that the cattle were shipped under a special contract, whereby plaintiff (1) released the carriers from any damage resulting from delay, and (2) agreed at his own risk to feed and water, load and unload, the cattle whenever they should be unloaded and reloaded for any purpose during transit. Defendants also pleaded, among other things, that the injuries to the cattle resulted from the negligence of plaintiff and his employés in deserting the cattle, and refusing to give them proper attention. The case was tried before the court, without a jury. C. B. Daggett testified for plaintiff that, as an employé of plaintiff, he graded, and loaded accordingly, said cattle on the Wichita Valley Railway between 8 and 9 o'clock p. m., July 23, 1891, and thereupon, in company with "another hand," boarded the train to go with said cattle to Chicago, for the purpose of taking care of them during transit; that when he reached Wichita Falls, about 10 o'clock that night, he learned of a wreck ahead on the Ft. Worth & Denver City Railway, and that the cattle would be detained some time thereby, and thereupon he and the "other hand" left the cattle, and did not see them any more until next morning, when he learned that they had been mixed in the pen in unloading them during the night; that he did not feed or water, nor suggest that the cattle needed feed or water, while they were at Wichita Falls, although he said they could have been watered there by driving to a tank near the pen or to the river; that the agent of the Ft. Worth & Denver City Railway Company, on that day, at Wichita Falls, requested him to assist in regarding and loading the cattle, which he refused to do, for the reason that it could not be done in the stock pens, and he did not know all the brands; that, about 6 o'clock in the evening of July 24th, the cattle, having been loaded, started on the Ft. Worth & Denver City Railway to Ft. Worth; and that he and the other hand went with the cattle, arriving at Ft. Worth about 2 o'clock next morning, where they remained about two or three hours, and left about 6 or 7 o'clock on the Texas & Pacific Railway for Texarkana (a distance of about 253 miles), at which place they arrived on the evening of the next day, July 25th, where the cattle were fed and watered for the first time since they were shipped at Dundee, on the evening of July 23d. This witness further testified "that he owned an interest in said cattle," but did not state the extent of such interest, etc.; "that he went from Wichita Falls to Chicago as agent of defendant at the request of the defendant," that while at Wichita Falls, and at two or three places between Wichita Falls and Ft. Worth, the cattle could have been watered on the cars, but he did not water them, nor ask that it be done, because he did not think they needed it, and thought they would do very well without food or water until they reached Texarkana; that at Ft. Worth there were ample facilities for feeding and watering the stock, both in the stockyards of the Ft. Worth & Denver City Railway Company, and in those of the Texas & Pacific Railway Company; but that he neither watered and fed the stock there, nor requested that it be done, because he thought it was not necessary, and that they would make it all right to Texarkana, where he expected to feed and water them; but that when he arrived in Texarkana, and found the cattle much damaged, and some of them dead for want of feed and water, he "found that he was mistaken in thinking that they could make it to Texarkana all right without feed or water." No one does or could deny that the cattle were greatly damaged by the cruel treatment detailed above. The court below rendered judgment for plaintiff for such a sum as to show conclusively that it included all damage done to the cattle between Dundee and Texarkana. The court of civil appeals (Head, J., dissenting) affirmed the judgment, upon the ground (1) that the delay at Wichita Falls was occasioned by the negligence of the Ft. Worth & Denver City Railway, defendant, in permitting a collision between one of its trains and a bull; (2) that such negligent delay, in law, conferred upon C. B. Daggett, agent of plaintiff, the right to rescind the special contract under which the cattle were shipped; (3) that C. B. Daggett did at Wichita Falls rescind said contract, and that thereby plaintiff was relieved of the duty imposed upon him by the contract of feeding and watering the...