Massey v. Texas & P. Ry. Co.

• Decision Date: 17 January 1918
• Docket Number: (No. 767.)
• Citation: 200 S.W. 409
• Parties: MASSEY v. TEXAS & P. RY. CO.
• Court: Texas Court of Appeals

200 S.W. 409

MASSEY v. TEXAS & P. RY. CO.

(No. 767.)

Court of Civil Appeals of Texas. El Paso.

January 17, 1918.

Appeal from Midland County Court; J. M. De Armond, Judge.

Action by W. C. Massey against the Texas & Pacific Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

H. A. Leaverton and J. M. Caldwell, both of Midland, for appellant. E. R. Bryan, of Midland, for appellee.

Statement of Case.

HIGGINS, J.

Massey shipped a carload of calves over appellee's line of railroad from Metz to Midland. He brought this suit to recover damages to the shipment alleged to have been caused by "the carelessness and negligence of defendant making" the shipment. The railway company defended upon the ground that plaintiff, through his agent, undertook to load and did load the calves at Metz; that over its protest the car containing same was overloaded; and that the damage sustained by the calves was caused by negligence in overloading and rough handling thereof by said agent in loading.

There is evidence to show that the calves were delivered to defendant at Metz in good condition, and that they were in an injured and damaged condition upon arrival at Midland. The evidence on the part of defendant tended to show that plaintiff's agent at Metz undertook to load and did load the cattle; that he overloaded the car containing same over the protest of its conductor, and handled them very roughly in loading; that their injuries were due to this overloading and rough handling. On the other hand, the testimony of plaintiff's agent Allen was that in his opinion the car was not overloaded. He said that the cattle were loaded by himself, a boy that came with him, and the brakeman of the train; that the conductor was there part of the time while they were loading; that when they got 78 head in the car the conductor told them to quit and close the door and they did so. They left nine in the pen. He denied that the conductor told him to take some of the calves out of the car; denied that he refused to remove some of them as the conductor testified he did. He said that he began loading before the arrival of the train; that upon arrival of the train it scared the calves and practically all that had been placed in the car ran out. He also denied that any of the calves were injured while being loaded. As we construe his testimony the conclusion may be fairly deduced that in the loading of the cattle he and the boy with him voluntarily assisted and co-operated with the train crew in loading the cattle under the control of the train conductor.

Opinion.

It was the duty of the railway company to load the cattle upon the cars at Metz, but if plaintiff, by his agent Allen, undertook to so load the same and did load them and as a result of his negligence in overloading or rough handling the cattle were injured, then defendant is not liable for the resulting damage. Railway Co. v. Edins, 36 Tex. Civ. App. 639, 83 S. W. 253; Railway Co. v. O'Laughlin, 72 S. W. 610; Railway Co. v. Belcher, 41 S. W. 706; Railway Co. v. Stribling, 34 S. W. 1003. On the other hand, if the agent Allen merely assisted the train crew in the loading of the cattle under the control of the train conductor, and the car was negligently overloaded and the cattle thereby injured, then the railway company is liable for the resulting damage. In any event, the railway company would not be liable for any injuries sustained by rough handling of the cattle by the agent Allen while loading. There is no evidence that the conductor authorized any such conduct by Allen. Upon retrial these phases of the cases should be submitted under appropriate instructions.

The burden of showing that the agent Allen undertook to load the cattle at Metz, and that he roughly handled them in so doing, rested upon defendant. Upon this phase of the case the depositions of Conductor Schull and Brakeman Meadow was offered by defendant. This question was propounded to Schull:

"This is a suit for damage to shipment of one car of calves from Metz to Midland, Tex., on February 17 and 18, 1916, by M. J. Allen to W. C. Massey. Please state whether you, as conductor of the Texas &...