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

• Decision Date: 13 June 1914
• Docket Number: (No. 633.)
• Citation: 169 S.W. 1093
• Parties: GULF, C. & S. F. RY. CO. et al. v. BOGER.
• Court: Texas Court of Appeals

169 S.W. 1093

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

(No. 633.)

Court of Civil Appeals of Texas. Amarillo.

June 13, 1914.

On Motion for Rehearing, October 10, 1914.

Appeal from Clay County Court; W. T. Allen, Judge.

Action by M. W. Boger against the Gulf, Colorado & Santa Fé Railway Company and others. Judgment for plaintiff, and defendants appeal. Affirmed in part and reversed in part. Rehearing denied.

Thompson & Barwise, of Ft. Worth, Taylor & Humphrey, of Henrietta, and H. E. Hoover, of Canadian, for appellants. Woodward & Baker, of Coleman, for appellant Dunman. Wantland & Parrish, of Henrietta, for appellee.

HUFF, C. J.

M. W. Boger, the appellee, brought suit against the Pecos & Northern Texas Railway Company, the Abilene & Southern Railway Company, the Ft. Worth & Denver City Railway Company, and the Wichita Valley Railway Company. The cause of action alleged by appellee is substantially that he shipped eight cars of cattle from Novice to Jolly, Tex., and to Vernon, Tex. He alleges the cattle were depreciated in value on account of the negligence of the defendant railway companies in improperly bedding the cars and improperly handling the same while in transit, and delaying them beyond the usual and ordinary time in making said shipments. He alleges that one of the animals was killed en route by the negligence, and that 14 head were lost, and asked for damages for the value of the 15 head and for depreciation in the value of the remaining, aggregating the sum of $994.

The railway companies each answered, and the Abilene Southern Railway Company brought in or made a party Theo. Dunman to the suit. The allegation making Dunman a party will be noticed later in the opinion. The Pecos & Northern Texas Railway Company answered by general denial, etc., and further set up the following provision of the contract of shipment:

"The shipper agrees at his own cost and expense to properly bed the cars in which the stock are to be transported and in all respects put them in proper condition for shipment of said stock, and also agrees that before the cars in which said stock are to be transported leave the first-named station that he will carefully examine the same, and that if any defect or deficiency whatever be found in said cars that he will at once report the fact to the station agent of the company and demand in writing another car or cars in lieu thereof, and if the shipper shall fail to make such demand it shall then be conclusively presumed that said cars and each of them are in all respects suitable for the transportation of said stock and the shipper agrees to assume, and not hold the company liable for, any damage that may occur to the stock on account of any defect in the car or any of them, which were not so reported to the company's said agent in writing. The shipper further agrees to see that the cars are securely fastened so as to prevent the escape of stock therefrom and that he will not hold the company responsible for any loss or damage that may result from a failure or neglect on his part or of his agents or employés to so do, and also agrees to assume all risk of injury or loss of or to said stock because of any defect in said cars," etc.

The defendant railway company alleged that "if said cattle escaped from the cars after being loaded and there was a defect in the car or cars at the time the cattle were loaded, which is denied, then under the provisions of said contract it is not responsible therefor, and plaintiff cannot recover," and that it was the duty of the shipper to discover such defect, if any, both before and after the cattle were loaded and at all times while en route, and that his failure to do so was the proximate cause of his loss, if he suffered any. It is further alleged that under the express provision of the contract that it was expressly agreed and understood in case of shipment over the line or lines of connecting carriers that the provision of the contract so entered into should inure to their benefit and to have full force and effect as against plaintiff.

Each of the remaining defendant railway companies adopted, in the main, the answer of the Pecos & Northern Texas Railway Company; the Ft. Worth & Denver City Railway Company setting up a provision of the contract it made with Boger, to the effect that he should give notice within 120 days after the damage was received as a condition precedent to his right to sue, etc.

In answer to the Abilene Southern Railway Company, Theo. Dunman answered by a plea of special privilege to be sued in the county of his residence, to be noticed later on in the opinion.

It is urged by the first assignment of error presented by the appellants the railway companies that the trial court was in error in excluding the paragraph of the Pecos & Northern Texas Railway Company, set out in the answer of that road. The appellee objected to its introduction on the ground that to hold the plaintiff to such requirements would be unreasonable and illegal and an undue restriction of the carrier's liability, and that the portion of the contract so pleaded is in violation of the carrier's common-law liability; that the cars furnished were shown to be the only cars furnished by the railway, and they were fastened by the carrier or by the carrier's employés, and no request was ever made that plaintiff see to the fastenings, bedding, and inspection of the cars; and that the contract was immaterial and irrelevant. It will be noticed that the contract requires the shipper to see that the cars are securely fastened, carefully inspected, and to examine the same and report any defect to the station agent in writing. In this case the appellant railway companies plead that, if the cattle escaped from the cars after being loaded on account of the defect of the car or cars existing at the time they were loaded, under the provisions of the contract the railway companies were not liable. There is evidence which would authorize the Jury to find that the 14 head of cattle escaped from the cars while the cars were standing on the transfer track of the Abilene Southern Railway Company at Tuscola, or between that point and Abilene. It is shown that the car doors of one or two of the cars were out of repair, and not properly fastened at Abilene, from which cattle could have escaped.

It is the duty of the railroad company to furnish a car suitable to transport the cattle, and it cannot shield itself by proving that the shipper was to examine the car as to its fitness to transport this property. Hunt v. Nutt, 27 S. W. 1031; Ry. Co. v. Dolan, 85 S. W. 302; Ry. Co. v. Trawick, 80 Tex. 270, 15 S. W. 568; Ry. Co. v. Montgomery, 16 S. W. 178; Ry. Co. v. Wilhelm, 3 Willson, Civ. Cas. Ct. App. § 460.

In this state, by statute, a common carrer cannot limit its common-law liability by contract on domestic shipments (Railway Co. v. Trawick, 68 Tex. 314, 4 S. W. 568, 2 Am. St. Rep. 494; Ry. Co. v. Brooks, 145 S. W. 649); and further, in this state, as well as nearly all other jurisdictions in the Union, a carrier, by contract, cannot relieve itself from its common-law liability for damages occasioned by its negligence or that of its servants and agents (6 Cyc. 392; Ry. Co. v. Dolan, 85 S. W. 302; Ry. Co. v. Wood, 30 S. W. 715).

"Even if the acceptance of the goods is special, the burden of proof is still on the carrier to show not only that the cause of the loss was within the terms of the exceptions, but, also, that there was on his part no negligence or want of due care." Ryan v. Railway Co., 65 Tex. 13, 57 Am. Rep. 589.

In this case, under the stipulation excluded, the appellee was required to examine the cars and the fastenings, "and agrees to assume, and not hold the company liable for, any damages on account of the defects in its cars and not so reported." It was the railroad's duty to furnish proper cars for the transportation of the cattle and to fasten the cars to prevent their escape and to safely transport them to their destination.

If the appellee assumed to see that the cars were properly fastened and that the cars were sufficient for the voyage, and report any defect therein, this would not relieve the appellant of its duty to furnish proper cars or exempt it from its common-law obligation, and if from the negligence of the agents or servants of appellants, proper cars were not furnished or securely fastened, so as to prevent the escape of the cattle, this provision of the contract would not exempt it from liability. Allen v. Railway Co., 82 Neb. 726, 118 N. W. 655, 23 L. R. A. (N. S.) 278. Appellee, by contract, was only required to examine the cars; he was not required to fasten or secure the cars by contract. His failure to do so would not relieve appellant from its duty, and a contract so relieving the carrier would be void under our statute, and in so far as the contract attempted to exempt the appellant from damages occasioned by its own negligence, it is void under all or nearly all the authorities.

The evidence in this case or the pleadings do not show that the failure to examine the car and the fastening was the proximate cause of the escape. Unless this was shown by the evidence, no injury resulted to the appellants by the exclusion of the provision of the contract. If the cattle escaped from the negligence of appellants in failing to furnish proper cars and in failing to securely fasten the same, appellant by showing a contract exempting such carrier from liability occasioned by its negligence, under the law could not be relieved from its duty and consequent damages resulting from its negligence.

The clause offered in evidence also has within it a clause to the effect that the shipper agrees at his own cost and expense to properly bed the cars. The appellant, by its answer, copies the entire clause, but does not allege that it was exempt, under the contract, from the duty of bedding the cars, or that the appellee, in fact, undertook to...