Gulf, C. & S. F. Ry. Co. v. Cunningham

• Decision Date: 17 June 1908
• Citation: 113 S.W. 767
• Parties: GULF, C. & S. F. RY. CO. et al. v. CUNNINGHAM et al.
• Court: Texas Court of Appeals

113 S.W. 767

GULF, C. & S. F. RY. CO. et al. v. CUNNINGHAM et al.

Court of Civil Appeals of Texas.

June 17, 1908.

On Rehearing, November 25, 1908.

Appeal from Brown County Court; A. M. Brumfield, Judge.

Action by J. F. Cunningham and another against the Gulf, Colorado & Santa Fé Railway Company and others. From a judgment for plaintiffs against certain of the defendants, the latter appeal. Affirmed.

Baker, Botts, Parker & Garwood, C. L. McCartney, J. W. Terry, and A. H. Culwell for appellants. Oscar Calloway and Wilkinson & Lee, for appellees.

RICE, J.

Appellees instituted this suit in the county court of Brown county against the Gulf, Colorado & Santa Fé Railway Company, the Texas & New Orleans Railway Company, the Louisiana & Western Railway Company, Morgan's Louisiana & Texas Railroad & Steamship Company, and the Louisville & Nashville Railroad Company, to recover damages growing out of a shipment of 28 head of horses from Mullen, Tex., to Brewton, Ala., in February, 1905, alleging that all of said defendants were corporations, with agents or officers in this state; that the Gulf, Colorado & Santa Fé Railway Company had an agent in Brown county, Tex.; that the T. & N. O. Railway Company had its principal office in Harris county, Tex.; that the said Louisiana & Western Railway Company and Morgan's Louisiana & Texas Railroad & Steamship Company were foreign corporations, incorporated under the laws of Louisiana, but that each had agents representing them in the city of Houston, Harris county, Tex.; and that the Louisville & Nashville Railroad Company was also a foreign corporation, incorporated under the laws of Kentucky, with an agent in Dallas county, Tex.; that at the date of said shipment said several lines of railway were operating their respective roads, giving the terminals of each, extending from Mullen, in Mills county, Tex., the initial point of said shipment, to Brewton, Ala., its ultimate destination, but that at said time each of said lines of railway connected at its point of origin directly with the terminus of the other, so that they together formed a continuous line of road from Mullen, Tex., to Brewton, Ala., and were then engaged in operating railroad trains over their respective lines of road for transportation of freight thereon; that on the 20th of February, 1905, plaintiffs entered into a contract with said Gulf, Colorado & Santa Fé Railway Company, by the terms of which it agreed to furnish plaintiffs at Mullen, Tex., with a reasonably safe stable car for the transportation of one car load of horses from Mullen to Brewton, Ala., to which place said defendant and its several connecting lines, by the terms of said contract, bound themselves to carry said horses; it was further agreed that the freight charges on said horses from Mullen to New Orleans was $126.50, which was paid by plaintiffs, and that the charge from New Orleans to Brewton, Ala., was $40 additional; that it was agreed that said horses were to be billed through to Brewton from Mullen; all of which facts were known to and approved by the superior officers of said Gulf, Colorado & Santa Fé Railway Company having authority and control over said matter, whose names were to plaintiffs unknown; that said shipment of horses was tendered to, received and transported by each of said several defendant companies over their respective lines of railway with full knowledge of the facts of said contract, and with full knowledge of their destination, and that they were designed for sale upon their arrival at Brewton, Ala., whereby they all became bound to transport said horses with reasonable care, speed, and diligence, and to deliver the same to appellees within a reasonable time thereafter, in a reasonably good condition, at their ultimate destination, notwithstanding which said shipment of horses was delayed in transit, roughly handled, inadequate facilities furnished for feeding and watering them en route, the feeding pens being allowed to become muddy and unfit for use, as well as a failure to furnish feed, by reason of all of which said horses were injured and greatly damaged.

The appellant Gulf, Colorado & Santa Fé Railway Company answered by general and special exceptions, general denial, and specially pleaded the provisions of the livestock contract under which the horses were shipped and those provisions which limited the liability of the carrier to such loss or injury as occurred on its own line, and charged that there was no loss or injury while said stock was in its possession, and that the same were promptly delivered to the Texas & New Orleans Railway Company at Beaumont. It likewise pleaded under its contract that said stock were not to be transported in any specific time or delivered at destination at any particular hour for any particular market, and that the shippers contracted to take care of said stock en route, and that ample opportunity was afforded for this purpose.

The Texas & New Orleans Railway Company and the Louisiana & Western Railway Company answered by general and special exceptions and general denial, and specially pleaded the provisions of the live-stock contract under which the horses were shipped, which, among other things, limited the liability of the carrier to such loss or injury as occurred on its own line, and such as was due to its own negligence, charging that there was no loss or injury while the stock was in their possession, and that the same were promptly carried and delivered, after being received from the Gulf, Colorado & Santa Fé Railway Company at Beaumont, to New Orleans, La., and delivered in good condition to its connecting carrier at said point, and that the shippers agreed to take care of said stock en route; denied partnership with other lines, and that they were bound to transport said shipment to its final destination, but only over its own line.

Morgan's Louisiana & Texas Railroad & Steamship Company, and Louisiana & Western Railway Company, each filed their pleas of privilege to be sued in Harris county, which were overruled, and each answered by adopting the answer of their codefendant the Texas & New Orleans Railway Company, except as to some immaterial matters.

The Louisville & Nashville Railway Company answered by general demurrer, general denial, and by special answer alleging, in substance, that they received said shipment from their codefendants at New Orleans, and transported the same carefully, and without delay, delivering the same to consignees at Brewton, Ala., in the same condition as when received by it; and likewise pleaded the benefit inuring to them under the contract originally made with the plaintiffs by the Gulf, Colorado & Santa Fé Railway Company, wherein their liability was limited to injuries occurring on their own line.

There was a jury trial and verdict in favor of the appellees as follows: $500 against the Gulf, Colorado & Santa Fé Railway Company, $267 against the Texas & New Orleans Railway Company, and $100 against the Louisiana & Western Railway Company, with 6 per cent. interest from date of judgment. Verdict was likewise rendered in favor of Morgan's Louisiana & Texas Railroad & Steamship Company and Louisiana & Nashville Railway Company, being as to the latter in response to a peremptory charge, and judgment rendered in accordance therewith, from which this appeal is prosecuted by the Gulf, Colorado & Santa Fé Railway Company, the Texas & New Orleans Railway Company and the Louisiana & Western Railway Company.

We will first discuss the errors assigned by the Gulf, Colorado & Santa Fé Railway Company, the other two appellants having filed a joint brief.

By its first assignment of error this appellant urges that the court erred to its prejudice in instructing a verdict in favor of the Louisville & Nashville Railroad Company, contending that the charge therein was on the weight of the evidence and usurped the province of the jury, because the liability of said company under the evidence raised an issue of fact, which should have been submitted to the jury. We have carefully examined the record, and find no evidence showing or tending to show that the Louisville & Nashville Railroad Company was negligent in and about said shipment, or that the horses were injured while in its hands; but it appears from the testimony of one of the plaintiffs who accompanied said shipment to New Orleans, and who was present at Brewton, Ala., when it arrived, and who received and unloaded the horses there, that their condition at the time they arrived was not materially different from what it was at New Orleans; that they changed cars at New Orleans, and that the car used in their shipment from New Orleans to Brewton was a 36-foot car. It was shown by the employés of said company handling said shipment between New Orleans and Brewton that there was no delay and no rough handling, and there was no evidence contravening this testimony. It was therefore the duty of the court to instruct a verdict in behalf of the Louisville & Nashville Railroad Company.

By its second assignment of error, this appellant insists that the court erred in its charge wherein it instructed the jury that the Texas & New Orleans Railway Company was not responsible for any injuries resulting to plaintiffs' horses before they were received by said company, nor for any injuries resulting to said horses after they were received by it which was the direct result of their having been weakened or otherwise injured, if at all, while in the custody of the Gulf, Colorado & Santa Fé Railway Company, provided they believed they had received any injuries or were weakened while in the custody of said Gulf, Colorado & Santa Fé Railway Company, and that said injuries did not develop or become manifest until after they were delivered to the Texas & New Orleans Railway Company, contending that said charge was on the weight of the evidence. We do not think the charge is subject to the...