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

• Decision Date: 24 November 1909
• Citation: 123 S.W. 737
• Parties: GALVESTON, H. & S. A. RY. CO. et al. v. JONES.
• Court: Texas Court of Appeals

123 S.W. 737

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

Court of Civil Appeals of Texas.

November 24, 1909.

Rehearing Denied January 5, 1910.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Val Verde County; W. C. Douglas, Judge.

Action by T. B. Jones against the Galveston, Harrisburg & San Antonio Railway Company and another. From a judgment for plaintiff against each defendant, they appeal. Affirmed.

Baker, Botts, Parker & Garwood, W. B. Teagarden, Boggess & Davidson, Claude Pollard, and R. J. McMillan, for appellants. John J. Foster, for appellee.

NEILL, J.

This is an action for damages brought by T. B. Jones against appellants to a certain shipment of cattle shipped over their roads. The defendants hereinafter will be designated respectively by their initials.

The plaintiff alleged substantially in his first amended original petition, upon which the case was tried, that on June 24, 1907, the St. L., B. & M. Ry. Co. owned and operated a railroad which ran from Brownsville to Placedo, Tex., where it connected with the road of the G., H. & S. A. Ry. Co., which ran from there to San Antonio and thence to Standart, Kinney county, Tex., and that they were connecting common carriers; that on said date he delivered to the St. L., B. & M. Ry. Co. at Caesar, a station on its line of road, 1,400 head of young steer cattle for shipment thence to Standart, Kinney county, Tex.; that said company then and there accepted the cattle, and agreed, together with its connecting carrier, the G., H. & S. A. Ry. Co., to carry them in the same cars they were loaded in at Caesar from thence to Standart; that, though defendants were bound as common and connecting carriers to accept the shipment and forward the same with ordinary care, reasonable diligence, and safety and security, and promptly deliver the cattle at destination, each failed to perform its duty therein; that the animals were transported by the St. L., B. & M. Ry. Co. from Caesar to Placedo, and were there offered to the G., H. & S. A. Ry. Co. to be transported thence over its lines of road to destination; that when the shipment arrived at Placedo, where it was to be transferred to the road of the G., H. & S. A. Ry. Co., said company refused to accept and transport the shipment to destination, unless the cattle were unloaded from the cars of its said connecting carrier and reloaded into its own cars, which were there, and similar in structure and condition to those in which the cattle were brought there by its codefendant; that plaintiff protested against such transfer, but that over his protest his cattle were unloaded, crowded in pens at night, roughly handled, jostled about, and after great delay were reloaded in cars furnished by the G., H. & S. A. Ry. Co., causing great delay and damage, and rendering his cattle less able to stand the trip from thence to their destination; that such delay caused the shipment to be further detained at San Antonio, where the cattle were again unloaded, fed, and reloaded to be forwarded to destination; "that the cattle reached Standart on the night of June 26th in a badly damaged, crippled, and famished condition, which condition was the result of rough treatment and unnecessary unloading and reloading." Then follows the averment "that plaintiff does not know which of said defendants is responsible for the aforesaid delays, or which was the cause of the delays that were the direct cause of the injuries his cattle received, which were caused by the aforesaid defendants, their agents and servants." "That when the cattle arrived at their destination, they were in a greatly damaged condition; that a number was crippled, exhausted, and bruised to such an extent that from 5 to 20 head in each car were down, and it was with difficulty that they were gotten out of the cars and into pens and pastures so they could be cared for, as they were famished, injured, and exhausted, as a direct result of the unnecessary willful and negligent acts of one or both of defendants in unloading and reloading the cattle, first at Placedo, and then again at San Antonio, and were damaged by the unnecessary, willful, and negligent delays of defendants and each of them in transporting said cattle from the point of shipment to their destination." "That by reason of the failure of defendants as common carriers to accept and transport said cattle, and by reason of the unnecessary and unreasonable delays and the manner of rough handling the stock, as heretofore set out, in unloading and in reloading them, all of which was caused by the negligence of one or both of the defendants herein, and wholly by means beyond the control of the plaintiff, he has been greatly damaged; that the cattle which died as a result of their injuries numbered 135 head or more, were reasonably worth the average price of $18 per head, or the total sum of $2,430, and that the actual damage to the rest of the herd shipped was $2 per head, or the total sum of $2,536, making the total damage to all the cattle shipped $4,966." By a trial amendment plaintiff also alleged: "That the defendants and each of them failed wholly in their duty as common carriers under the contract of shipment to transport said cattle with reasonable diligence and care from the point of shipment to their destination; that they, and each of them, were greatly negligent in so failing to transport said cattle, and that said cattle were transported and handled carelessly, recklessly, negligently, and utterly without regard to the rights of plaintiff, as heretofore shown; that defendants by virtue of the contract of through shipment made with E. T. Gibson, trainmaster of the St. L., B. & M. Ry. Co., agent of said company, agreed and bound themselves to transport and to deliver said cattle to their destination with reasonable diligence, speed, and care without delay, and in the ordinary time of passage over their roads, and in the same cars into which they were loaded at the point of shipment, all of which they have wholly failed, refused, and neglected to do, wherefore plaintiff has been greatly damaged as aforesaid."

The defendant G., H. & S. A. Ry. Co. answered by a general demurrer and a number of special exceptions to plaintiff's petition, a general denial, and specially pleaded that it had no notice of the verbal contract alleged in plaintiff's petition between him and its codefendant; but that, on the contrary, it accepted and handled the cattle in question under a written contract executed by it and plaintiff, by virtue of the terms of which defendant was relieved of all liability arising before the cattle were delivered to it and from all liability not originating upon its own lines, etc.; that if plaintiff's cattle were injured or damaged in transit, the same resulted from the inherent condition of the cattle at the time they were delivered it, and from improperly loading large and small cattle together, from the weakness and infirmities of the cattle when delivered to defendant, and that such delay as occurred on its line was caused and occasioned by reason of these facts; that if any of plaintiff's cattle died after they were delivered at their destination, it was caused, or contributed to, by the negligent failure of plaintiff to take proper care of them and give them such attention as a person of ordinary care would have done under similar circumstances. Defendant St. L., B. & M. Ry. Co. answered by a general demurrer, a general denial and specially denied that it agreed with plaintiff to transport the cattle from Cæsar to Standart, but averred that, on the contrary, it received the cattle from plaintiff to Cæsar for transportation under and by virtue of a written contract, whereby defendant contracted and agreed to transport said cattle, consisting of 30 car loads of yearlings, from the station of Robstown to the station of Placedo on its line; that Placedo was the end of defendant's line of road on the route over which the cattle were shipped; that they were to be transferred to the railroad company over which said stock were waybilled for further transportation to Standart; that it transported the cattle to Placedo, and there delivered the same to its codefendant, the G., H. & S. A. Ry. Co., being the line over which said cattle were waybilled, to be further transported to Standart, etc.; that the contract referred to between plaintiff and defendant stipulated that the live stock mentioned were to be transported over the road or roads of other railroad companies, and in other cars than those of this defendant in which they were loaded and this defendant was only to transport said stock to Placedo, the end of its line on the route over which the cattle were to be shipped, and this defendant was bound only for the transportation of said stock to the station of Placedo, and to protect the through rate of freight named therein for the benefit of plaintiff; that defendant is not responsible for any loss or injury occurring to the stock after the same left its line; and that, if the cattle were injured during the course of transportation, such injury occurred after the stock left its line.

The trial of the case resulted in a judgment in favor of plaintiff against the St. L., B. & M. Ry. Co. for $2,104.50, and in his favor against the G., H. & S. A. Ry. Co. for $2,441.50. Each defendant has appealed.

It is unnecessary for us to make an extended statement of the evidence upon which we base our conclusions of fact. It suffices to say that the two defendants are connecting carriers of freight transported over their lines of railroad from Cæsar to Standart, Tex., the point of connection being Placedo; that upon the day alleged plaintiff delivered to the St. L., B. & M. Ry. Co. at Cæsar 1,400 head of young steers in good condition for shipment to be transported thence to Standart. The company there loaded the cattle on 30 of its own cars, and its agent assured the plaintiff that the stock would...