St. Louis & S. F. R. Co. v. Brosius & Le Compte

• Decision Date: 28 November 1907
• Citation: 105 S.W. 1131
• Parties: ST. LOUIS & S. F. R. CO. v. BROSIUS & LE COMPTE et al.
• Court: Texas Court of Appeals

105 S.W. 1131

ST. LOUIS & S. F. R. CO. v. BROSIUS & LE COMPTE et al.

Court of Civil Appeals of Texas.

November 28, 1907.

Appeal from Lamar County Court; L. L. Hardison, Judge.

Action by Brosius & Le Compte and others against the St. Louis & San Francisco Railroad Company and another. From a judgment for plaintiffs against defendant St. Louis & San Francisco Railroad Company, said defendant appeals. Reversed and remanded.

Edgar Wright, for appellant. Lightfoot, Long & Wortham, for appellees.

HODGES, J.

The appellees Brosius & Le Compte sued the appellant, the St. Louis & San Francisco Railroad Company, and the Paris & Great Northern Railroad Company, in the county court, to recover the sum of $365 claimed as damages to a shipment of live stock delivered to the first-named railroad company at Lockwood, Mo., on the 6th day of January, 1906, to be shipped to Paris, Tex. The trial resulted in a verdict against the appellant, St. Louis & San Francisco Railroad Company, from which that company prosecutes this appeal. Brosius & Le Compte, at the time of this shipment, were engaged in the business of buying, shipping, and selling mules, with their place of business at Paris, Tex. On the date above mentioned J. B. Brosius, one of the firm, was in Lockwood, Mo., where he purchased from a dealer 24 mules, which he desired to ship to Paris for sale. The mules were loaded into a car of the appellant at about 2 o'clock on the evening of the 6th day of January, 1906, to be shipped to Paris via Monett, Ft. Smith, and Hugo. The car containing the mules arrived at Monett at 2:15 on the morning of January 7th, and remained there until about 5 o'clock that evening. Brosius accompanied the train containing the car of mules that far; but, upon being informed by the yardmaster at Monett that the mules would not be unloaded there, went on to Paris on the regular passenger train. At about 9:30 on that morning one of the appellant's employés directed that the car of mules be unloaded for the purpose of complying, as they testified, with the law of Congress requiring stock to be unloaded, watered, fed, and rested. The mules were again loaded at about 5:30 in the evening, and arrived in Paris shortly after midnight on January 9th. At about 7:30 of the same morning they were delivered to the appellees, and by them taken to their barn in Paris. The testimony shows that, upon their arrival at Paris, one of the animals, a red horse mule, had a large, triangular cut on the right side of his hip; but it was not observed at the time that any of the other mules were in any way damaged. On arriving at the barn, appellees discovered that a large bay mare mule, for which they had paid $225 and which they valued at $250 in the market at Paris, was sick. They at once procured medical attention by summoning Dr. Cook, a veterinarian, who testified at the trial that when he examined the animal it had pneumonia in its second stage. The mule subsequently died. This suit is to recover the damages to the wounded animal, and the value of the mule last above named.

In their amended original petition, upon which this case was tried, the appellees make two distinct charges as to negligence against the appellant, each seeking to account for the two distinct injuries to the two mules. The first allegation is as follows: "That by reason of the holding of said mules in said pen at Monett, and by reason of the unnecessary and unusual delay in transit at Monett, and between Monett and Paris, due to the negligence of these defendants and each of them, the first-named bay mare mule contracted a cold or pneumonia and fever, became sick, and was seriously ill and suffering upon arrival of this shipment at Paris, which sickness was aggravated and increased by the unnecessary and unusual delay in transit." The second allegation is as follows: "That the last-named red horse mule reached Paris cut, bruised, and injured by reason of said defective and dangerous approaches and chute at Monett, and the negligent and careless manner in which this shipment was loaded and unloaded in said stock pen and in which it was handled in the yards at Monett, Mo., and in transporting it as hereinabove set forth, and was so cut and torn by reason thereof and on account of a projecting bolt in said car that his value was greatly decreased." They also asked for the recovery of $40, alleged to be the reasonable amount paid for medical attention given the mule that died from pneumonia. Proof was offered as to the value of the mule that died, and the damages which resulted to the injured mule by reason of the cut above described; also as to the value of the services rendered by a veterinarian in treating the sick mule. The jury returned a verdict in favor of the plaintiffs in the court below for the sum of $340.

The first assignment of error presented by the appellant calls in question the following charge given by the court upon the issue of negligence: "(3) If you find from the facts and evidence before you that the defendant, the St. Louis & San Francisco Railroad Company, was negligent, as that term has been herein defined, (1) either in the manner in which said company carried said mules between Lockwood, Mo., and Hugo, I. T., (2) or in the manner in which said company handled and cared for said mules while in shipment between such points, (3) or while being loaded or unloaded, (4) or while being held in the stock pens at Monett, Mo., (5) or in the time consumed by such shipment between Lockwood, Mo., and Hugo, I. T., and if you further find from the evidence that as a result of such negligence, if any, in either or all of the above respects, and if you should further find that such negligence, if any, was the proximate cause of injuries, if any, one of plaintiffs' mules was injured and another of said mules died—then, in either or all of the above events, you are instructed to find for the plaintiffs (unless under other instructions herein given you you should find for the defendant) for such damages, if any, as you may find resulted from such negligence, if any, of such defendant company, and that such negligence, if any, was the proximate cause of plaintiffs' injuries, if any." Appellant complains of this charge, upon the grounds that there was no testimony tending to show that the appellant was guilty of any negligence in any of the respects alluded to in this charge. It will be observed that in this case we have two distinct injuries to two different animals; each of the injuries being necessarily attributable to wholly different causes. The bay mule is alleged to have contracted a cold from which pneumonia resulted by reason of holding the mules in an unsanitary stock pen at Monett, and an unnecessary and unusual delay in transporting from that place to Paris. The wounded animal is alleged to have received the cut from a bolt projecting in the car, and by reason of the negligent manner in which the shipment was loaded and unloaded in Monett, the defective and dangerous approaches and chute for such loading and unloading, and the manner in which the mules were handled while in transit between Monett and Paris. Negligence in carrying the mules between Lockwood and Paris, or negligence in handling the mules while being loaded and unloaded at Monett, might have caused the injury to the wounded animal, but could not have been the cause of the bay mule's contracting pneumonia. On the other hand, holding them in unsanitary stock pens, exposing them to inclement weather, and delay in transporting from Monett to Paris, might have caused the bay mule to contract a disease from which it died, but could not be said to have contributed in any way to the cut on the wounded mule. Yet the charge complained of directs a finding for the plaintiffs, without distinction as to the injuries, if the jury should find that the appellant was guilty of negligence in any or all of these respects. Under this charge, the jury was, in effect, told to find for plaintiffs for the damages to the wounded mule if they believed the appellant was negligent while the mules were being held in the stock pens at Monett, or in the time consumed by such shipment between Lockwood and Hugo. They were further, in effect, told that they were authorized to find damages for the mule that died from the effects of pneumonia if the appellants were negligent in the manner of carrying the mules, or of handling them while in shipment or while being loaded and unloaded. The acts of negligence which plaintiffs in their original petition charged were the cause of the existence of the respective injuries should have been separated in the charge of the court, and each group submitted with respect to the injury it was alleged to have produced, provided there was sufficient evidence to warrant the submission. This error is not cured by the further instruction of the court that the jury must further find that the acts of negligence were the proximate cause of the injuries. To submit an issue of negligence which is clearly not even a remote cause of an injury, and then leave it to the jury to determine whether or not it was the proximate cause, does not relieve the instructions from the objection of having been given without any testimony to support it. The mere fact that the court submits an issue or question of fact to a jury, and leaves it to them to decide whether or not the fact exists, and, if found, then whether or not it was the proximate cause of the injury, is calculated to induce the jury to believe that in the mind of the court there is not only testimony upon which they can base a finding that the fact does exist, but that there is also testimony tending to show that that fact was in reality the direct and proximate cause of the injuries complained of.

This question then presents itself: Was there in this case sufficient evidence to warrant the court in submitting these issues of negligence to the jury? Appellant...