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

• Decision Date: 27 November 1909
• Citation: 123 S.W. 1150
• Court: Texas Court of Appeals
• Parties: ST. LOUIS & S. F. R. CO. et al. v. FRANKLIN et al.<SMALL><SUP>†</SUP></SMALL>

123 S.W. 1150

ST. LOUIS & S. F. R. CO. et al. v. FRANKLIN et al.^†

Court of Civil Appeals of Texas.

November 27, 1909.

Rehearing Denied December 18, 1909.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by J. S. Franklin against the St. Louis & San Francisco Railroad Company and others. There was a verdict and judgment for plaintiff against the first-named defendant and the Paris & Great Northern Railway Company, another defendant, and they appeal. Affirmed.

Andrews, Ball & Streetman and Templeton, Craddock, Crosby & Dinsmore, for appellants. H. L. Carpenter, for appellees.

TALBOT, J.

This action was brought by the appellee, J. S. Franklin, to recover damages from the Texas Midland Railroad, the Paris & Great Northern Railway Company, and the St. Louis & San Francisco Railroad Company, alleged to have been inflicted upon two car loads of mules and horses while in transit from Bentonville, Ark., to Greenville, Tex. It is alleged, in substance, that on the 9th day of August, 1907, Knott & Gilbreath, as consignors, delivered to the defendant St. Louis & San Francisco Railroad Company, at Bentonville, Ark., 25 mules destined to Greenville, Tex., and consigned to plaintiff, who was the owner of said mules; that said mules were by said defendant transported over its line of railway from Bentonville to a point at or near Arthur City, and there delivered to the defendant the Paris & Great Northern Railway Company, which railway company transported said mules to Paris, Tex., at which latter place said mules were delivered to and received by the defendant the Texas Midland Railroad, and by it transported to Greenville, Tex.; that the defendant the St. Louis & San Francisco Railroad Company furnished an insufficient and defective car in which to transport said mules, and in which they were transported, in that the doors of said car, and especially the fastenings thereof at the bottom, were rotten and were insecurely fastened, so that said mules were permitted and caused thereby to, and did, put their feet and legs in the space between the bottom of said doors and the sides of the car, caused by such insufficient fastenings; that an iron or metal trough was permitted and did extend into and along the sides of said car and project from the sides of said car a distance of about 3½ feet above the floor; that other pieces of iron and timber also projected from the sides of and extended into said car; that said animals were unnecessarily delayed, and the cars containing them handled unnecessarily rough while in transit; that the furnishing of said defective car, and the transporting of said animals in it, and the rough handling and delays alleged were each and all a failure on the part of each and all of said defendants to use ordinary diligence and reasonable dispatch in transporting said animals; that as a result of such failure of the defendants in one or all of said respects, said animals lost in weight and depreciated in marketable appearance, and were skinned, bruised, and their limbs strained and otherwise injured, to plaintiff's damage $700; that on the 11th day of April, 1907, said Knott & Gilbreath, as consignors, delivered to the defendant St. Louis & San Francisco Railway Company, at Bentonville, 25 horses and mules destined to Greenville, Tex., and of which the plaintiff was the consignee and owner, which horses and mules were transported by said defendant over its line of railroad to a point near Arthur City, and there delivered to the defendant the Paris & Great Northern Railway Company, and by that company transported to Paris, Tex., at which point they were delivered to the Texas Midland Railroad, by which road they were transported to Greenville, Tex., and delivered to the plaintiff; that said last-named horses and mules were by each of the defendants unnecessarily and roughly handled in transit, and so injured that they were worth, on the market at their destination, at the time and in the condition in which they were delivered, less than their market value would have been had it not been for such delay and rough handling, to plaintiff's damage $305.

The defendants filed separate answers, and after demurrers and a general denial, the St. Louis & San Francisco Railroad Company and Paris & Great Northern Railway Company pleaded specially that each of said shipments of horses and mules were received under and by virtue of the terms of a contract, in writing, entered into by and between the defendant the St. Louis & San Francisco Railroad Company and the consignors and shippers of said stock, by the terms of which it was expressly agreed and understood that, the destination of each of said shipments being beyond the line of the defendant, it was authorized to deliver the cars containing said stock to its connecting carrier for transportation under the terms and stipulations, limitations and agreements, respecting such further transportation, as might be agreed upon between the shippers and such connecting carriers, and further providing that, if no other such contract was required or executed to cover the movement of the shipment over the line of any carrier en route, then such carrier should have the benefit of all the stipulations and conditions in the contracts so executed as first herein above alleged, and that each carrier en route should only be liable for loss or damage occurring on its own line; that in accordance with said shipping contracts each duly, safely, and reasonably transported said stock without any delay over its line of railroad to the terminus of its line of railroad, and there delivered the same to its connecting carrier free from all injury or damage while in its possession, and that the said stock were duly, seasonably, and promptly transported to Paris, Tex., and there delivered to the consignee, in accordance with the terms of said contracts free from all injury or damage, while in the possession of either of them. The defendant the Texas Midland Railroad also pleaded that, in accordance with said shipping contracts, it received said stock from the Paris & Great Northern Railway Company at Paris, Tex., and safely, promptly, and without delay, and, without rough handling other than that which is naturally incident to the transportation of stock on railroads, transported the same in accordance with the terms of said contracts over its railroad to Greenville, Tex., and there delivered the same in each instance to the consignee, the plaintiff herein, in the same condition as when it received the same from its connecting line, the Paris & Great Northern Railway Company, and free from all injury and damage or delay while in the possession of this defendant. Each of said defendants also denied, under oath, that any partnership or agency existed between them. A jury trial resulted in a verdict and judgment in favor of the plaintiff against the St. Louis & San Francisco Railroad Company for the sum of $595, against the Paris & Great Northern Railway Company for the sum of $75, and that he take nothing as against the Texas Midland Railroad. From the verdict and judgment rendered against them the St. Louis & San Francisco Railroad Company and the Paris & Great Northern Railway Company have appealed.

The first assignment of error is as follows: "The court erred in the fourth paragraph of its charge to the jury in these words: `And the burden is on the plaintiff to prove the negligence alleged by him, and that such negligence was the proximate cause of the injuries (if any) complained of; but, as to the shipment of August 9, 1907, which was not accompanied by the plaintiff, you are instructed that if the plaintiff has established that the said animals were delivered to defendant St. Louis & San Francisco Railroad Company, at Bentonville, in a sound condition, and reached their destination in an injured condition, as alleged, then it would be presumed that their said injuries (if injured) were caused by such negligence in their transportation, and the presumption would also be that such injuries (if any) occurred on the line of the last railroad company which carried them; but each of these presumptions may be rebutted, and the burden is upon the defendants to rebut the same, and upon the last company carrying said animals to show that the injuries (if any) did not occur on its lines.'" The main propositions contended for under this assignment are: (1) The evidence showing that the animals were shipped on a through bill of lading from Bentonville, Ark., to Paris, Tex., then reshipped by plaintiff to Greenville, Tex., over the Texas Midland Railroad, it was error to make their condition at "destination" (meaning Greenville) the guide for determining the liability of defendants on a through shipment, which by the terms of the contract and bill of lading ended at Paris, Tex.; (2) that in a shipment of live stock a common carrier is not absolutely bound to deliver the animals at destination in a sound condition, but is only bound to exercise ordinary care to transport them, and is only liable for such injuries as are caused by its negligence. Therefore the portion of the charge wherein the jury are told that, "if the plaintiff has established that the said animals were delivered to defendant St. Louis & San Francisco Railroad Company at Bentonville in a sound condition, and reached their destination in an injured condition, as alleged, then it would be presumed that their said injuries, if injured, were caused by such negligence in their transportation," was error. The answer to the first proposition is that, if it can be...