St. Louis & S. F. R. Co. v. Cartwright

• Decision Date: 16 November 1912
• Citation: 151 S.W. 630
• Parties: ST. LOUIS & S. F. R. CO. v. CARTWRIGHT et al.
• Court: Texas Court of Appeals

151 S.W. 630

ST. LOUIS & S. F. R. CO. v. CARTWRIGHT et al.

Court of Civil Appeals of Texas. Dallas.

November 16, 1912.

Rehearing Denied December 7, 1912.

Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.

Action by Matthew Cartwright against the St. Louis & San Francisco Railroad Company and others. From a judgment for plaintiff, the defendant named appeals. Affirmed.

Andrews, Ball & Streetman, of Ft. Worth, and A. H. Dashiell, of Terrell, for appellant. Wynne & Wynne, of Wills Point, for appellee.

TALBOT, J.

The appellee Matthew Cartwright sued the appellant, St. Louis & San Francisco Railroad Company, and the Paris & Great Northern Railroad Company and the Texas Midland Railroad for damages to 180 head of beef cattle, shipped on the 5th day of June, 1909, from Kaufman, Tex., to East St. Louis, Ill. The plaintiff alleged four grounds of negligence, namely: (1) "That the cars in which the cattle were loaded were not properly bedded." (2) "That they were negligently delayed on each and all the lines of railway of said defendants over which said cattle were being transported." (3) "That the cars were roughly handled and bumped and jostled together, knocking said cattle down and against each other, and against the sides of the cars, causing them to be bruised, torn, and scratched, and several of them to be crippled; that the employés of each of said defendants were guilty of this kind of handling of said cattle." (4) "That the cattle were unloaded at Newburg in muddy pens, and that the St. Louis & San Francisco Railroad Company was guilty of negligence in not having suitable pens for unloading stock for feed and rest."

It was alleged that the cattle were intended for the St. Louis market of Monday morning, June 7th, and arrived too late for that morning's market, and had to be held over to the market of June 8th; that by reason of the delay the cattle lost in weight 40 pounds per head; that the market declined from the 7th to the 8th 10 cents per hundredweight; that on account of the bruised and muddy appearance of the cattle, etc., they lost 50 cents per hundredweight.

All the defendants answered, specially excepting to plaintiff's petition, because the "allegations of delay and rough handling do not state the time and places, and on what line of road, the delays and rough handling occurred." The St. Louis & San Francisco Railroad Company further answered, after a general denial, (1) that the usual and ordinary time for transportation of cattle from Kaufman, Tex., to East St. Louis, Ill., was from 42 to 48 hours; (2) that the cattle were received from the codefendant, Texas Midland Railroad at Paris, Tex., at 5:15 p. m. the same day, arriving at St. Louis at 9 a. m. on the morning of June 7th, carried through the city of St. Louis and across the river to the National Stockyards, East St. Louis, and there delivered, June 7th, at 11:40 a. m.; (3) that on arrival at Newburg, Mo., on June 6th, at 6:30 p. m., the cattle had been on the cars 31 hours and 15 minutes; that it was impossible to run the cattle from Newburg to East St. Louis, Ill., in the remaining 4 hours and 45 minutes, and that they were compelled to unload said cattle in Newburg for rest, feed, and water in compliance with the federal statute prohibiting carriers from keeping cattle on board the cars longer than 36 hours without unloading for feed, rest, and water; (4) that if the pens at Newburg, Mo., were muddy it resulted from natural causes; (5) that if any of the steers were crippled en route it was caused by the natural viciousness of the cattle; (6) that the cattle were handled with ordinary care and dispatch, and transported in a reasonable time; and that it is impossible to transport cattle without delay for numerous causes.

During the progress of the trial plaintiff offered testimony of delays and rough handling of his cattle and at certain points on appellant's line of road, after which the defendants moved that said testimony be stricken out, and the court overruled the motion. Then the defendants filed a motion to withdraw their announcement of ready, and to continue the case on the ground of surprise, in order that they might secure testimony to rebut the evidence of specific acts of rough handling and delays offered by plaintiff, and this motion was by the court overruled.

The case was tried before a jury, and a verdict returned for plaintiff against the defendant St. Louis & San Francisco Railroad Company for the sum of $1,024.05, and against the plaintiff, and in favor of the other defendants, Paris & Great Northern Railroad Company and Texas Midland Railroad. The motion of the defendant St. Louis & San Francisco Railroad Company having been overruled, it appealed.

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