Panhandle & S. F. Ry. Co. v. Sanderson

• Decision Date: 08 January 1920
• Docket Number: (No. 1031.)
• Citation: Panhandle & S. F. Ry. Co. v. Sanderson, 218 S.W. 540 (Tex. App. 1920)
• Parties: PANHANDLE & S. F. RY. CO. v. SANDERSON et al.
• Court: Texas Court of Appeals

218 S.W. 540

PANHANDLE & S. F. RY. CO. v. SANDERSON et al.

(No. 1031.)

Court of Civil Appeals of Texas. El Paso.

January 8, 1920.

Rehearing Denied February 5, 1920.

Appeal from District Court, Pecos County; Jas. Cornell, Judge.

Suit by T. P. Sanderson and another against the Panhandle & Santa Fé Railway Company and another. From judgment for plaintiffs against named defendant, the latter appeals. Reversed and remanded.

Ellis Douthit and C. E. Mays, Jr., both of Sweetwater, for appellant.

McKenzie & Loose, of El Paso, Blanks, Collins & Jackson and H. S. Garrett, all of San Angelo, and W. A. Hadden and Williams & Smith, both of Ft. Stockton, for appellees.

HARPER, C. J.

T. P. Sanderson and son brought this suit against the Kansas City, Mexico & Orient Railway Company of Texas and the Panhandle & Santa Fé Railway Company for damages to a shipment of cattle from Ft. Stockton, Tex., to Littlefield, Tex., via Sweetwater.

The allegations of negligence are: First, delays on sidings and switches; second, rough handling; third, sudden stop because of collision, or near collision, with motorcar or section hand car, resulting in damages to the cattle.

Appellant answered said allegations by general demurrer, special exceptions to the effect that plaintiffs' allegations were too general and did not specify in what the said alleged negligence consisted, a general denial, and specially pleaded that at and prior to the time of shipment the section of the country from which the cattle were shipped was suffering from a most severe and unprecedented drought, and that the grass therein had been insufficient to maintain said cattle, and that same were in a weak, starved, and impoverished condition, and were too thin and poor to stand the trip in question, and that such condition was the proximate cause of the damage; a general plea of contributory negligence on the part of appellees and their caretakers; that inherent vices and weakness of said cattle and their natural disposition to hook, horn, and gore each other was the proximate cause of the damage; that appellees overloaded the cars, proximately causing and contributing to cause the loss and injury; that in view of the poor and weak condition of the cattle, appellees were guilty of negligence in not having said shipment unloaded for feed, water, and rest at some point en route the carriers having adequate facilities therefor at San Angelo, Tex., Sweetwater, Tex., and Slaton, Tex., and that such negligence proximately caused and proximately contributed to the loss and injury, if any, sustained by appellees that the stop or alleged near collision set up by appellees was not sudden and abrupt, and was of no more force and violence than the usual and ordinary stop made by a freight train in the usual customary course of business, and did not injure or damage said cattle; that if the cattle were injured by the alleged stop, it was duty of appellees and their caretakers to unload said cattle at Slaton and take the dead ones, if any, out of the cars, and to get up the ones which were down, if any, and to alleviate and diminish the loss and damage, and same constituted negligence; that the alleged stop was not due to any negligence, but was an unavoidable accident; that said live stock were transported under a special written contract, placing the duty of loading, unloading, and caring for said cattle while en route on appellees, and that appellant would not be liable for any damages resulting from the weakened condition of the cattle.

The trial resulted in a verdict for appellees, on special issues and judgment against appellant,...