Missouri, K. & T. Ry. Co. of Texas v. Belcher

• Decision Date: 03 July 1897
• Citation: Missouri, K. & T. Ry. Co. of Texas v. Belcher, 41 S.W. 706 (Tex. App. 1897)
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. BELCHER et al.
• Court: Texas Court of Appeals

41 S.W. 706

MISSOURI, K. & T. RY. CO. OF TEXAS v. BELCHER et al.

Court of Civil Appeals of Texas.

July 3, 1897.

Appeal from Montague county court; P. P. Dunford, Judge.

Action by A. S. Belcher & Son against the Missouri, Kansas & Texas Railway Company of Texas. A judgment for plaintiffs on trial by the court was orally affirmed, and defendant moves for a rehearing. Granted, and judgment reversed.

H. W. Hunt, for appellant. Potter & Potter, for appellees.

TARLTON, C. J.

The judgment in this cause was at a former day of the term affirmed on oral opinion. It is in the sum of $901, recovered by the appellees against the appellant as damages to a shipment of 16 cars of cattle from Kiowa, in the Indian Territory, to Belcher, in Montague county. The judgment rests principally upon the trial court's conclusion of negligence in the company on account of a mudhole in its stock pen at Kiowa, whence the cattle, becoming sleek and wet from mud, and falling down in the cars after they were loaded, trampled upon each other. A reconsideration of the record constrains us to the conclusion that this court erred in overruling an assignment of error complaining of the trial court's action in finding as a fact that the plaintiffs were not guilty of contributory negligence. The evidence shows that the plaintiffs assumed the task of loading the cattle and caring for them in transit. It shows beyond dispute that they were overloaded, in that 14 of the cars contained 50 head of cattle each, whereas, under the...