Galveston, H. & S. A. Ry. Co. v. Buck

• Decision Date: 16 March 1921
• Docket Number: (No. 6316.)
• Citation: 230 S.W. 891
• Parties: GALVESTON, H. & S. A. RY. CO. v. BUCK et al.
• Court: Texas Court of Appeals

230 S.W. 891

GALVESTON, H. & S. A. RY. CO. v.BUCK et al.

(No. 6316.)

Court of Civil Appeals of Texas. Austin.

March 16, 1921.

Rehearing Denied May 18, 1921.

Appeal from District Court, Crockett County; James Cornell, Judge.

Action by Austin M. Buck against the Galveston, Harrisburg & San Antonio Railway Company and another.Judgment for plaintiff against the named defendant only, and it appeals.Affirmed.

Baker, Botts, Parker & Garwood, of Houston, H. S. Garrett, of Cisco, and W. B. Garrett, of Austin, for appellant.

Chas. E. Davidson, of Ozona, and Blanks, Collins & Jackson, of San Angelo, for appellees.

Findings of Fact.

BRADY, J.

Defendant in error sued plaintiff in error for damages arising out of a shipment of live stock from Barnhart, Tex., to Sanderson, Tex.The Kansas City, Mexican & Orient Railway Company of Texas, over which line the shipment moved in part, was also made a partydefendant.The grounds for recovery were, substantially, negligent delays in the transportation, rough handling, and leaving the cattle in the cars at Sanderson, a station on the Galveston, Harrisburg & San Antonio line, for too long a time.

The defenses of the Orient railroad need not be stated, as there was a verdict in its favor.

The plaintiff in error specially pleaded a terrible drought in the country where said cattle had been ranged, and their weak and impoverished condition.This company also pleaded the stipulations of the contract under which the live stock was shipped, and that the delay in unloading the cars at Sanderson was not due to any negligence by the railway company, but to an extraordinary congestion of its cars at that point, due to an unusually heavy movement of troop trains and trains carrying war munitions and materials, to which business the company was required to give preferred attention under the laws of Congress, the regulations of the War Department, and the war policy of the United States.

Upon special issues submitted, the jury found the Orient not guilty of negligence, and with respect to the plaintiff in error made substantially these findings: That the plaintiff's cattle were damaged as the proximate result of its negligence in failing to exercise ordinary care in handling the cattle, and in causing them to be confined in the cars for too long a time without being unloaded for feed, rest, and water; some of the cattle being merely injured and some dying as the proximate result of such negligence.The answers of the jury also found the amount of the damages, for which judgment was rendered against plaintiff in error, less a certain deduction not necessary to state.The evidence was conflicting upon these issues, and therefore we adopt the jury's findings.

Any additional facts and evidence pertinent to the issues on this appeal will be stated in the opinion.

Opinion.

There are a number of assignments of error, but only the principal questions raised will be discussed.

It is claimed that the court should have granted the request for a peremptory instruction for plaintiff in error, upon the ground that the uncontroverted evidence showed that there were no unusual delays in the transportation or in the handling of the cattle, and that the long delay in holding them in the cars at Sanderson was not actionable negligence, because the railway company was required to give preferred attention to the handling of the trains carrying troops and war supplies through Sanderson that night.The claim goes to the extent that the undisputed evidence shows that the cars could not have been spotted at the pens for unloading sooner than was done without violating the duty the company owed to the government, and without infringing the laws and military policy of the nation, including the betrayal of the secrets of the War Department.If this were true, of course, this court would not hesitate to set aside the judgment, and, the cause being fully developed, to hold the railway company not liable.

The contention here made requires a brief discussion of the evidence.We lay to one side the question of any negligence shown as to delays in transit, or improper handling of the live stock.

Upon the issue of unreasonable delay in unloading the cattle at Sanderson, it was shown that the shipment reached that point about 10 o'clock on the night of December 9th, after the cattle had been in the cars about 34 hours.They were not spotted at the pens for unloading until 7 o'clock the next morning.There was evidence that there was a heavy movement of troop trains and supply trains that night into and through Sanderson; and there is no dispute as to the preferential duty owing by the railway company in the handling of this business for the government.However, it was shown from the train dispatcher's sheet that there was a train in and through Sanderson approximately every hour from 10 to 12:40 on that night, but no train between the latter time and 2:40 a. m., or between 4:35 and 7:50 a. m. The conductor testified that when the cattle were delivered at the Sanderson yards they lacked two hours of having been on the cars 36 hours, and the yardmaster at Sanderson testified that the holding of cattle on cars for more than 36 hours would have a bad effect on them.The yardmaster also testified that when the cattle arrived he asked the conductor if the 36 hours, allowed under the federal law, had expired, and was told by the conductor that it did not expire until about 9 or 10 o'clock the next morning; that, if he had known the cattle had been on the cars almost 36 hours, he would have instructed the conductor to take them to the stockyards and unload them.The agent at Sanderson testified that it would only take about 15 or 20 minutes to back the cattle down from the yards and put them on the unloading switch.The undisputed evidence showed that the stockyards were on a side track, not more than from about a half to three-fourths of a mile from the station.Without further recital of the evidence, we think the above is sufficient to show that the question was one for the jury.

As to the contention of the railway company that its employés could not have given the shipper notice of the congested condition at Sanderson, through the movement of trains carrying troops and war supplies, without betraying the secrets of the government, it is sufficient to say that, giving the fullest scope possible for the necessity of keeping the movement of such trains secret, the company could have advised the shipper of the probable congestion and inability to handle the cattle promptly at Sanderson without revealing any of the secrets of the government.It could have advised this fact and made no reference to the time of the arrival, departure, or destination of soldiers or supplies, nor any of the other related matters of military policy.We cannot see why it was necessary to give information upon any of these matters, in order to inform the shipper of a situation which would preclude prompt attention to his shipment.In these circumstances, it was for the jury to say whether or not the railway company, in the exercise of ordinary care, should have given him the needed information upon which he might not have made the shipment at all, or might have unloaded his cattle in transit for feed and water, at other points on the line.We have concluded that the evidence is, at least, conflicting upon these matters, and that they were proper questions for the determination of the jury.Therefore all assignments raising these points are overruled.

We do not think there is any merit in the point that there was no competent and sufficient evidence of damages to the cattle, showing any proper measure of damages; neither do we agree with the claim that the witnesses did not show themselves qualified to testify as to the value and injuries of the cattle.There was sufficient evidence to support the jury's findings upon all these issues.The objections to the qualifications of the witnesses were matters primarily for the discretion of the trial court.We are unable to say that there was such gross abuse of that discretion as to constitute reversible error.

The objection to the opinions of certain witnesses in relation to this matter is not tenable.They did not, as in the Roberts Case, 101 Tex. 420, 108 S. W. 808, cited by counsel, involve a mixed question of law and fact, and invade the province of the jury.It would not be profitable to discuss the question further, but we cite the following cases as showing the extent to which testimony of this character has been admitted and sustained: Railway Co. v. Woods, 31 S. W. 237;Railway Co. v. Nowaski, 48 Tex. Civ. App. 144, 106 S. W. 437;Railway Co. v. Gunter, 44 Tex. Civ. App. 480, 99 S. W. 152;Railway Co. v. Dodson, 97 S. W. 523;Railway Co. v. Greathouse, 82 Tex. 109, 17 S. W. 834;Railway Co. v. Botts, 70 S. W. 113;Railway Co. v. Jones, 118 S. W. 759;Railway Co. v. Stanley, 89 Tex. 42, 33 S. W. 109;Railway Co. v. Moon, 47 Tex. Civ. App. 209, 103 S. W. 1176;Railway Co. v. Smith, 33 Tex. Civ. App. 520, 77 S. W. 28;Railway Co. v. Halsell, 35 Tex. Civ. App. 126, 80 S. W. 140;True Bros. v. Railway Co., 143 S. W. 298;andRailway Co. v. Warner, 42 Tex. Civ. App. 280, 93 S. W. 491.

It is also urged that while the trial court gave a special instruction, at the request of plaintiff in error, as to the defense that the delay at Sanderson was due to the preference required to be given government business, this defense was unduly restricted by a supplemental charge, authorizing the jury to disregard it as a complete defense, if the jury should find that the railway company, in the exercise of ordinary care, should have notified plaintiff of its inability to unload his cattle at Sanderson in proper time.Under the doctrine now well settled in this state, we think this point is lacking in merit.It is the rule that where the shipper proves an unreasonable delay, resulting in loss or injury...