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

• Decision Date: 23 November 1939
• Docket Number: No. 10891.,10891.
• Citation: 134 S.W.2d 771
• Court: Texas Court of Appeals
• Parties: GULF, C. & S. F. RY. CO. v. SKLAR.

134 S.W.2d 771

GULF, C. & S. F. RY. CO. v.SKLAR.

No. 10891.

Court of Civil Appeals of Texas. Galveston.

November 23, 1939.

Rehearing Denied December 21, 1939.

Appeal from District Court, Fort Bend County; M. S. Munson, Judge.

Action by Louis Sklar against the Gulf, Colorado & Santa Fe Railway Company for damages to shipment of cattle.From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

Peareson & Peareson, of Richmond, and Terry, Cavin & Mills and Rupert R. Harkrider, all of Galveston, for appellant.

Helene G. Daily and Alexander T. Sidman, both of Houston, for appellee.

MONTEITH, Chief Justice.

This is an appeal in an action brought by appellee, Louis Sklar, against appellant, Gulf, Colorado & Santa Fe Railway Company, for damages to a shipment of cattle over appellant's line from Hitchcock, Texas, to Bowring, Oklahoma.

Appellee alleged that on April 3, 1936, he delivered to appellant 34 head of stock in sound condition for shipment from Hitchcock, Texas, to Bowring, Oklahoma; that during such shipment they were in the exclusive control of defendant's employes and wholly out of plaintiff's possession; that defendant delivered only 21 head of cattle to consignee at Bowring, Oklahoma; that of the 21 head delivered 2 died and the remaining 19 head were delivered in a damaged condition; that the death and injuries of said cattle were due to the negligence of the defendant and its connecting carriers in failing to exercise proper and ordinary care incumbent upon it, but that the peculiar acts or omissions of such negligence were peculiarly within the knowledge of the defendant and unknown to plaintiff and that he could not state them with greater certainty.

Appellant answered by general demurrer, general denial, and special exceptions.It specially alleged that immediately prior to shipment the cattle were dipped by some one other than appellant in an arsenical solution while the cattle were overheated, tired, and excited by improper driving and handling; that as a result the cattle were poisoned in some manner unknown to defendant, and that the death and injury to said cattle were the result of said poisoning and the inherent propensities, character and vices of the cattle.Appellant alleged that said cattle were transported in cars which were in proper condition, including proper bedding; that appellee accepted the cars in which they were shipped and that he is thereby estopped to recover any damages for injuries which resulted from the condition of said car or its bedding.Appellant also pled the two year statute of limitation.

The case was tried before a jury, who, in answer to special issues submitted, found that defendant failed to properly bed the cars; that it handled the cattle in an unnecessarily rough manner; that it discovered at Gainesville, Texas, that the cattle required the services of a veterinary and that it failed to obtain such services for them.In each instance the acts alleged were found to constitute negligence and such negligence was found to be a proximate cause of the injuries and death of the cattle.The jury also found that the cattle were in good condition when loaded and that the 15 head that died were reasonably worth $35 per head at Bowring, Oklahoma; that the difference between the 19 head delivered in good condition and in the condition in which they were delivered was $15 per head.The jury found that the cattle did not suffer from arsenical poison, and that the inherent vices, propensities, and characteristics of the cattle did not proximately cause the death or injuries suffered.Based on the above findings, judgment was rendered in favor of plaintiff and against defendant in the sum of $937.98.

The record shows that appellee, through his employee, Dick Koy, purchased the 34 head of Brahma type cattle in question from one Fred Benson; that they were driven from the Benson pasture at Hulen Park to the railroad pens at Hitchcock, Texas, a distance of between 4 and 5 miles, leaving Hulen Park at about 9 o'clock in the morning on April 3d and arriving at Hitchcock at about 3 o'clock in the afternoon.On arrival at the railroad pens the cattle were branded, their horns were tipped, and they were dipped in an arsenical solution under the supervision of a Government inspector.The dipping of the cattle was completed at about 5 o'clock, after which they were left in the pens until about 9 o'clock that night, when they were loaded into a cattle car furnished by appellant.The cattle showed no unusual signs of being tired or excited when they arrived at the railroad pens at Hitchcock.

The car in which the cattle were first loaded left Hitchcockat 9 o'clock P. M. on April 3d; it arrived at Bellville on April 4th, and was there unloaded and the cattle placed in another car.It arrived at Gainesville on the morning of April 5th.Here the cattle were unloaded but reloaded on the following morning in the same car.The car arrived at Bowring, Oklahoma, on the afternoon of April 7th.

The car in which the cattle were loaded was bedded with sand by appellant prior to its arrival at Hitchcock.Certain witnesses testified that the bedding was not over an inch and a half in thickness, while others testified that it was more than three inches in depth.There is no testimony by witnesses of appellee as to the condition of the car loaded at Bellville, though appellant's witnesses testified that the car was properly bedded.There is testimony that a bedding of sand is put in the bottom of cattle cars to prevent them from getting wet and to keep the cattle from slipping down.Cattle were down in both cars at various points between Hitchcock and Bowring.

The cattle reached Gainesville on the morning of April 5th.Three head were dead on its arrival and five were down.The agent of appellant did not call a veterinarian to treat said cattle until the following morning, at which time six more of the cattle were found to be dead.Appellant introduced testimony to the effect that the injuries and death of said cattle were due to arsenical poisoning.

The cattle in question were shipped under what is known as a "Uniform Live-Stock" contract.It is uncontroverted that no caretaker accompanied the shipment.

It is now the established law of this state that where a caretaker does not accompany a shipment of cattle, delivery to the carrier and redelivery by the carrier to the shipper at destination in an injured condition raises a presumption of negligence by the carrier which it must disprove.Gulf, C. & S. F. Ry. Co. v. Taylor, Tex.Civ.App., 101 S.W.2d 642;Pecos & N. T. Ry. Co. v. Brooks, Tex.Civ.App., 145 S.W. 649;Gulf, C. & S. F. Ry. Co. v. King, Tex.Civ.App., 174 S.W. 960;Galveston, H. & S. A. Ry. Co. v. Neville, Tex.Civ.App., 272 S.W. 597.

This rule is followed in 8 Texas Jurisprudence, page 553, section 386, which reads: "Where it is shown that live stock were delivered to the carrier in good condition, that the shipper or his agent did not accompany them under a contract to care for them during transit, and that they arrived at destination dead or in injured condition, negligence is ordinarily presumed to the extent that the shipper is said to have made out a prima facie case.The burden of proof is then upon the carrier to overcome this presumption by proof that death or injury resulted from independent causes or acts for which it was in no way responsible."

Further, it has been definitely established in this state that the carrier must furnish to the shipper cars suitable for the purpose intended, and that if the cars furnished can only be made reasonably suitable and safe by bedding them with sand, it is the carrier's duty to provide that bedding.Kansas City, M. & O. Ry. Co. v. Weatherby, Tex.Civ.App., 203 S.W. 793;Mexico N. W. Ry....