Missouri, K. & T. Ry. Co. v. Chittim

• Decision Date: 24 March 1897
• Citation: 40 S.W. 23
• Parties: MISSOURI, K. & T. RY. CO. v. CHITTIM.
• Court: Texas Court of Appeals

40 S.W. 23

MISSOURI, K. & T. RY. CO. v. CHITTIM.

Court of Civil Appeals of Texas.

March 24, 1897.

Appeal from district court, Bexar county; S. G. Newton, Judge.

Action by J. M. Chittim against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Barnard & McGown and F. C. Davis, for appellant. Ogden & Terrell, for appellee.

FLY, J.

This is a suit for damages to cattle shipped from Sinton, Tex., to Checotah, Indian Ter. There were two cases, which, under direction of the court, were consolidated, the consolidated demand being for $2,208. A jury assessed the damages at $854, and judgment was rendered for that sum. We find that appellee was damaged by the negligence of appellant, as alleged in the petition, while transporting the cattle over its line, in the sum found by the jury. Evidence was introduced by appellee to the effect that injury resulted to the cattle by rough handling and switching, which was objected to on the ground that the grounds for recovery set out in the petition were delay in transportation and failure to feed and water the cattle. It was alleged in the petition "that, in violation of their duty as such common carriers, the said defendants so negligently and wrongfully transported said cattle that 81 head thereof died before they reached their destination, or soon thereafter, as the immediate and proximate result of the negligence acts of defendants, and that the remainder of the cattle were injured by shrinkage in weight and loss of flesh, owing to such negligence on the part of said defendants; said 81 head of cattle were of the reasonable value of $1,134, or $14 per head; and that the injury and damage sustained by the remainder of said cattle was of the reasonable value of $300." Similar allegations were made in connection with the other shipment, and, had there been no other allegations, any evidence tending to show negligence would have been admissible. Railway Co. v. Smith, 74 Tex. 276, 11 S. W. 1104; Railway Co. v. Wilson, 79 Tex. 372, 15 S. W. 280. The foregoing allegations, however, were qualified and narrowed down by allegations following them to certain specific acts of negligence, namely, delay, and a refusal to permit appellee to unload and feed the cattle; and it is alleged that "said acts contributed to and caused the damages aforesaid." Having qualified the general allegation of negligence by an allegation of specific acts of negligence, appellee should have been confined to the specific acts alleged (Railway Co. v. Hennessey, 75 Tex. 155, 12 S. W. 608), unless there are allegations in the answer under which such proof was permissible. In the answer it was alleged that "said cattle were very thin, weak, and poor, and in such condition that it was impossible to ship them without great loss through their getting down and trampling each other to death; and,...