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

• Decision Date: 27 March 1895
• Citation: 31 S.W. 237
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. v. WOODS.

31 S.W. 237

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

Court of Civil Appeals of Texas.

March 27, 1895.

Appeal from district court, Grayson county.

Action by Lee Woods against the Missouri, Kansas & Texas Railway Company of Texas for damages on a contract for the shipment of cattle.From a judgment for plaintiff, defendant appeals.Affirmed.

Foster & Wilkinson, for appellant.Woods & Maxey and W. W. Wilkins, for appellee.

LIGHTFOOT, C. J.

This suit was brought by appellee for damages against appellant for $1,705.93 upon a contract for the shipment of 527 head of cattle from Doss, Tex., to Kansas City, Mo.The appellee bases his right of recovery upon the grounds: First, that the appellant's predecessor failed to comply with its contract to afford appellee the means of shipping his cattle from Doss, Tex., on September 19, 1891, which resulted in his cattle losing in weight and in condition for shipment and for the market; second, that his cattle were unreasonably delayed in reaching their destination, and were negligently transported in such a manner that they were drawn, bruised, and crippled, so that their condition for market was unfavorably affected; third, that his cattle should have arrived at their destination and been put upon the market on September 20, 1891, but were negligently delayed in transit, so that they did not arrive in time to be put upon the market before the 22d of September, when the market had fallen.The defendant pleaded a general denial.Plaintiff recovered a judgment for $1,000, from which this appeal was taken.

The facts proved and the verdict and judgment thereon justify the following conclusions: In September, 1891, appellee, Lee Woods, entered into a contract with the Missouri, Kansas & Texas Railway Company for the shipment of 527 head of cattle in a train to themselves, from Doss, Tex., to Kansas City, Mo., and that the railway company would have the cars ready to receive his cattle at Doss on either the 17th or 19th of September.On September 18th appellee drove his cattle from the pasture in the Indian Territory, and arrived at Doss, preparatory to shipment on the 19th, and so reported to the agent of the company upon his arrival; the cattle being held under herd a short distance from the station.Upon the same day (September 18th) one Suggs applied to the agent at Doss for transportation for a large number of cattle, and the company's agent arranged with appellee, and used the cars prepared for the shipment of his cattle, promising to have sufficient cars ready by the next day (19th) to transport appellee's cattle, which was done.The stock pens were at once occupied by Suggs' cattle, and he began loading them, but did not finish until late in the evening of September 19th.Appellee applied for the stock pens on September 19th to load his cattle; and although a sufficient number of the pens had been vacated by the Suggs cattle to allow room for appellee's cattle, and which he could have loaded on that day, yet the company's agent, in order to fill out another train load with the Suggs cattle, allowed one Huggins to occupy the three vacant pens with a few head of cattle, to the exclusion of appellee's cattle, although there would have been ample room in one of the pens for Huggins' cattle, and the other two would have been plenty for appellee's cattle.By reason of the company's failure to furnish pens, appellee was not able to hold his cattle longer under herd without water.They became restless, stampeded, and ran off four miles to Red river for water, and appellee was not able to get them back until the 20th, when they were loaded on the cars, and started on their journey.Appellee's contract provided that he was to have a separate train, so that his cattle could be expeditiously transported and put into market without delay.At Denison other cars were taken in the train, and the cattle were delayed about 10 hours en route, and many of them were thereby greatly injured.Some of them were down in the cars, and were thereby scarred up and otherwise injured for sale, so that their value in the market was lessened.Upon their arrival at destination the market had gone down, and the cattle could not be sold for as much as they would have brought if they had arrived within a reasonable time after shipment.Appellee was damaged to the full extent of the verdict and judgment.The other facts necessary to the determination of the case on this appeal we will notice under the different assignments of error, as we only deem it necessary to consider the questions raised by the assignments of error.

1.The first assignment of error is as follows: "The court erred in the third instruction given to the jury, in that, as applied to the evidence in this cause, it was thereby made the duty of defendant to provide all necessary stock pens at the place of shipment, and to furnish the same to enable the plaintiff to load his cattle within a reasonable time after they were at the place of shipment, because thereby defendant was required...