St. Louis, I. M. & S. Ry. Co. v. Gunter

• Decision Date: 15 December 1906
• Citation: St. Louis, I. M. & S. Ry. Co. v. Gunter, 99 S.W. 152, 44 Tex. Civ. App. 480 (Tex. App. 1906)
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. GUNTER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

99 S.W. 152

ST. LOUIS, I. M. & S. RY. CO. v.GUNTER.^*

Court of Civil Appeals of Texas.

December 15, 1906.

Rehearing Denied January 12, 1907.

Appeal from District Court, Dallas County; Thomas F. Nash, Judge.

Action by Jot Gunter against the St. Louis, Iron Mountain & Southern Railway Company.From a judgment in favor of plaintiff, defendant appeals.Affirmed.

See86 S. W. 938.

W. T. Henry, for appellant.Don.A. Bliss and Coke & Coke, for appellee.

RAINEY, C. J.

This suit was brought by Jot Gunter against the St. Louis, Iron Mountain & Southern Railway Company to recover damages caused to a shipment of cattle from Sherman, Tex., to East St. Louis, Ill., over the Texas & Pacific and Iron Mountain Railways.The damages were alleged to have been caused by the unreasonable delay in transporting and delivering said cattle at East St. Louis by the Iron Mountain Railroad, which compelled the sale of 57 cows at East St. Louis at a reduced price, and the reshipment of 281 steers to Chicago, where they were sold at a reduced price, and also incurred extra expense arising from defendant's delay in transporting the same.Defendant pleaded that by the terms of the shipping contract it was only responsible for injury by reason of its own default; that said cattle were not to be transported within any specified time, nor delivered in time for any particular market, and it was further provided that plaintiff assumed the duty of looking after the cattle in transit; that the cattle were not injured from any cause for which defendant is responsible under the terms of the contract; that the cattle were transported in a reasonable time, and delivered to its connecting carrier at St. Louis, after which it had no connection with the cattle.A trial resulted in a verdict and judgment for the sum of $1,200 in plaintiff's favor, and the railway company appeals.

The evidence shows that late on the afternoon of December 9, 1902, plaintiff shipped from Sherman, Tex., over the Texas & Pacific Railway 281 steers and 57 cows, destined to East St. Louis, Ill. Said cattle were delivered to the Iron Mountain Railway Company at Texarkana, Tex., at 2 a. m. of the 10th of December, and reached East St. Louis Friday, December 12, 1902, about 5 p. m., after the close of the market for that day.On the next day, Saturday 13th, the market had declined, and the cows were sold at a loss of $2.50 per head.There was no market for the steers, and to prevent further loss the steers were reshipped to Chicago, where a better market was anticipated.The run from Texarkana to St. Louis over defendant's road took about 62 hours on this occasion, when the run from Sherman to East St. Louis could reasonably be made in 36 hours over the same route.We therefore hold the defendant negligently failed to deliver the cattle in a reasonable time.By reason of the delay the cattle lost in weight, extra expense accrued, and there was a decline in the market, from all of which causes the plaintiff was damaged in the sum of $1,200—the amount of the verdict and judgment.

Appellant's first assignment of error complains of the admission of the testimony of W. B. Ecton, as shown by its bill of exception, as follows: "The witness was asked: `What was the condition of said cattle with reference to marketability at the time they reached Chicago?Let your answer to this be full, stating whether said cattle were in good condition or otherwise, and in what respect?Was there anything in the appearance of the cattle when they first reached Chicago to indicate that they had been delayed in shipment?If so, what were such indications?These cattle had been shipped from near Sherman, Texas, first to St. Louis, and then forwarded from St. Louis to Chicago.State whether there would have been any difference in the market value of said cattle in Chicago at the time they were sold if they had been shipped direct from Sherman, Texas, to Chicago without being stopped over in St. Louis and then reshipped to Chicago, and if they had been shipped to St. Louis first, and then reshipped from that point to Chicago.If you say there was such a difference, then state what would cause such a difference?What is a reasonable time within which cattle could at said period be shipped from Sherman, Texas, to Chicago?What effect does delay in transporting cattle by railroad have upon the market value of cattle in Chicago, and what effect did such delay have upon such market value at said time?Did at said time a delay of one, two, or three days in the transportation of such cattle have any effect upon their market value in the city of Chicago at said time?If so, how much?'"The latter part of the answer of the witness to the question as contained in his deposition was: "Yes; such a delay as you speak of depreciated the market value of said cattle for the reasons given and on account of the decline in the market from 40 to 50 cents per hundred pounds."The appellant objected to this answer on the ground that the estimate of the damage contemplated a direct trip from Sherman on to Chicago, which was not within the contemplation of the contract of shipment, which objection was sustained by the court by eliminating a portion of the sentence, and permitting the balance to be read to the jury as follows: "And on account of the decline in the market from 40 to 50 cents per hundred pounds."The appellant objected, and excepted to the action of the court in permitting the answer to go to the jury in its partial and garbled form.The proposition submitted is that "the testimony of a witness should not be admitted in a partial form, so that without its connection it conveys a different meaning to the jury from that expressed by the witness."When the testimony was admitted, the court stated, in the presence of the jury: "I understand that portion of the deposition as here used is for the purpose of showing a decline in the market at that time, and for that purpose it is admissible."There was other evidence showing a decline in the market, which was uncontradicted, and the court instructed the jury to the effect that defendant would not be responsible for any loss in the Chicago market by reason of the cattle not arriving in time for the morning market instead of at noon on December 15th.If it can be said it was error to admit said testimony, under the circumstances, it is not probable that any injury resulted therefrom to appellant; but we are not prepared to say that there was error.

Appellant complains of the ruling of the court in not permitting appellee's witness W. S. Mahar to answer the following question: "If the stenographer's report of your testimony on the former trial shows that you testified to no delays between Poplar Bluff and De Soto on the former trial of the case, would you stand corrected in your testimony?" and presents the following proposition: "On cross-examination it is permissible to show by a witness that he had testified differently on a former occasion, and that his former testimony was correct."The witness had previously stated that on the former trial he had said there was no delay between Poplar Bluff and De Soto, which is a contradiction in his evidence.The bill of exception does not show what his answer would have been as to whether the former or last statement was correct, and we are therefore unable to say that appellant was injured by the court's ruling, and the assignment is overruled.

The assignment that the court erred in allowing appellee's counsel to propound leading questions to witness Mahar, regarding his knowledge as to the market price of cattle at the National Stock Yards on December 12, 1902, will not be sustained.There is no particular question pointed out by the bill of exception as leading.By...