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

• Decision Date: 08 April 1925
• Docket Number: (No. 7336.)
• Citation: 272 S.W. 597
• Parties: GALVESTON, H. & S. A. RY. CO. et al. v. NEVILLE et al.
• Court: Texas Court of Appeals

272 S.W. 597

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

(No. 7336.)

Court of Civil Appeals of Texas. San Antonio.

April 8, 1925.

Rehearing Denied May 6, 1925.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by W. J. Neville and another against the Galveston, Harrisburg & San Antonio Railway Company and another.Judgment for plaintiffs, and defendants appeal.Affirmed.

Thompson, Barwise & Wharton and Fred L. Wallace, all of Fort Worth, for appellants.

Orus O. Ross, of Wichita Falls, and J. A. Templeton, of Fort Worth, for appellees.

COBBS, J.

Appellees brought this suit against appellants, alleging that on October 9, 1920, appellees tendered and delivered to the appellant Galveston, Harrisburg & San Antonio Railway Company, at Julia Pens, Tex., 6 cars of cattle, consisting of 131 head, for delivery at North Fort Worth, consigned to the Cassidy-Southwestern Commission Company, and that by the use of ordinary care appellants herein should have delivered these cattle at destination in time for the forenoon market of October 11, 1920.They further alleged that there was no caretaker with the shipment, and that they do not know wherein the negligence occurred.They further alleged that the same in fact were delivered at 3:50 p. m., October 11, 1920, and missed the market for that day, and that by such delay the 131 head of cattle in said shipment lost in weight, to the appellees' damage in the amount of $461.10, and that the market price at the time the same were sold had declined 45 cents per hundredweight, to appellees' damage in the amount of $638.59, or a total damage to this shipment of $1,099.69.

They further alleged, as a second count, that on the 12th day of October, 1920, the appellees delivered to the appellant Galveston, Harrisburg & San Antonio Railway Company at Julia Pens, Tex., a second shipment of cattle, consisting of 200 head, for delivery at North Fort Worth, Tex., consigned to the Cassidy-Southwestern Commission Company; that, if appellant had used ordinary care in the handling of said shipment, the same would have reached destination in time for the market of October 13, 1920, or at least in time for the forenoon market of October 14, 1920, but that, however, the cattle did not arrive until 4:45 p. m., October 14, 1920, and due to the condition of the market thereafter appellees were forced to ship said cattle to Archer City, Tex., to be reconditioned for sale; that the cattle in said shipment were injured, crippled, and bruised, and that they were without food, rest, and water for approximately 48 hours; that the appellants were guilty of negligence in the handling and transporting of said cattle, and that the same were handled by the said appellants with great force and violence, and as a direct and proximate result of said negligence one head of cattle died and was a total loss to the appellees in the amount of $100; that the remaining 199 head of cattle were injured and depreciated in value to the amount of $20 per head, aggregating a total damage to the second shipment in the amount of $4,080; and that the appellees' entire damage in the handling of said shipments was $5,179.69, with interest thereon.

Thereafter, on the 10th day of October, 1923, appellees filed their first supplemental petition excepting to paragraph 4 of appellants' first amended answer, which said exception was sustained.Appellants' first amended original answer, in addition to general demurrer, contained a general denial.

The case was tried before a jury, and submitted to them on special issues.The jury found that the cattle had been damaged by the negligence of the appellants in the amount of $5 per head on the shipment of October 9, 1910, and $20 per head on the shipment of October 12, 1920, and on which verdict the court rendered judgment in favor of W. J. Neville and S. M. Brightwell against the Galveston, Harrisburg & San Antonio Railway Company and the Houston & Texas Central Railroad Company in the amount of $4,655, with interest thereon from date of judgment at the rate of 6 per cent., with all costs.

The first proposition presented and discussed by appellants is predicated upon assignments 1, 2, 3, 4, and 5, which raise the question of the insufficiency of the evidence to justify the amounts the jury gave in answer to special issues Nos. 3 and 4, which answers it is claimed were greatly in excess of damages sustained by appellees.

The first shipment of cattle leaving Julia Pens on the night of October 9, 1920, were delivered in Fort Worth October 11, 1920.There was testimony to show that, had these cattle reached the market on Monday the 11th, instead of Tuesday the 12th, they would have sold for from 50 to 75 cents more per hundred, as the market declined rapidly.

In regard to the shipment moving from the same place, Julia Pens, on October 12, and arriving at Fort Worth on October 14th, these cattle, unlike the others, were not sold on the market, and hence no actual, accurate comparisons can be made as to the values of this shipment.Mr. Brightwell testified:

"That he only had an offer on half of these cattle, and that it was not a satisfactory offer at all — the offer was $8 a hundred — and that he knows that was what was being offered and paid for cattle such as these were on that market that morning; it was 9 cents.That with reference to the sales that were made out there at that time these 1,000-pound steers were bringing from $9 to $9.25 each day of the week.I was there all that week.That the trend of the market was from $8.50 to $9.25."

As there were two shipments of cattle, it will be necessary to dispose of each shipment separately.The cattle involved in these shipments consisted of large, heavy, beef steers, which were estimated to weigh, at the point of origin of the shipments, about 1,171 to 1,200 pounds per head.

The first shipment reached the market at Fort Worth at 11:40 a. m. and unloaded at the stockyards at 3:50 p. m., October 11, 1920, which was too late for that day's market.This shipment was held in the yards at Victoria from 6:40 p. m. to 8:45 p. m., October 9, 1920.There were a number of delays in their transportation.They were kept in transit from point of origin to destination for nearly 46 hours, without being unloaded for rest, feed, or water.The distance traveled was 440 miles, and the average rate of speed was less than 10 miles an hour.The cattle moved under a 36-hour release.There was no caretaker with these cattle.The 6 cars of cattle were in good condition when shipped, but when they arrived in Fort Worth were in bad shape.They left Victoria Saturday night, and arrived at Fort Worth Monday morning, too late for the market on that day, and had to be held over.The cattle that sold for $9.10 on Monday were selling for $8.75 or a little better on Tuesday.After cattle have been held out a day and lost their ordinary shrinkage of 40 to 45 pounds, it is figured the shrinkage for the second day is 30 to 35 pounds.As these cattle were late for the market of the 11th, they were offered for sale the next morning, October 12, 1920.They weighed 149,110 pounds and were sold for $8.80 per hundredweight.The jury found that this first shipment depreciated in value $5 per head, as a result of negligent delays and rough handling in transit.

The second shipment consisted of 200 head of cattle of 9 cars.They were the same class of cattle as those in the first shipment.They were loaded at Julia Pens, the same place, about 5 o'clock p. m., October 12, 1920, and got out over the same line about 8 o'clock p. m., with a 36-hour release, and moved over the same route to the same point of destination, without a caretaker.The cattle were delivered to the North Fort Worth Stockyards and there unloaded October 14, 1920.When the cattle reached their destination they were bruised up badly; there were many crippled steers in the bunch; two or three had their horns knocked off; and all of them were pretty stiff and sore.Perhaps one-third or half of them were in bad condition; they had bumps on them, were swollen, hair was knocked off, and they were skinned up badly.This condition affected the sale of the cattle on the market for butchering purposes, for bruised beef spoils quickly.In this 9-car shipment, the cattle were bruised more than they usually are, which prevented their sale on the market.The market declined at least 50 cents from the forenoon of the day the cattle arrived until the succeeding morning — 50 cents a hundred.Only one offer was made, and that was on only half of the cattle; it was $8 per hundred, which was not a satisfactory offer at all.There was at least a 50-pound shrinkage on these cattle in a day.They were heavy cattle and similar to the first shipment.It would take them at least 30 days to start to pick up from the injuries received.One steer was crippled from the injuries received and died afterwards.Not being able to sell the cattle, they were dipped and sent to appellees' ranch in Archer county.

If the cattle had arrived in time to have gone on the market on October 14, 1920, they would have brought $9 per hundred.Even in their crippled condition, had they arrived in time, they would have sold for over $7.If they had come through under the 36 hours it would not have been necessary to feed and water them in transit.The jury found that the cattle in this shipment were depreciated in value by delay and rough handling to the extent of $20 per head.

We think there was testimony to support the findings of the jury, and we overrule the assignments.

After defining "negligence" and "ordinary care,"the court submitted to the jury question No. 1, which reads as follows:

"Were the defendant railway companies, or either of them, which handled and transported the shipments of plaintiff's cattle from Julia Pens to Fort Worth, guilty of negligence as that term is above defined:

"(a) In keeping said...