Texas & P. Ry. Co. v. Nelson

• Decision Date: 01 April 1905
• Citation: 86 S.W. 616
• Parties: TEXAS & P. RY. CO. v. NELSON.
• Court: Texas Court of Appeals

86 S.W. 616

TEXAS & P. RY. CO. v. NELSON.

Court of Civil Appeals of Texas.

April 1, 1905.

Appeal from Mitchell County Court; W. B. Crockett, Judge.

Action by W. W. Nelson against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Ed W. Smith, for appellant. Ed J. Hamner, for appellee.

SPEER, J.

This was an action by W. W. Nelson against the Texas & Pacific Railway Company for damages to two shipments of cattle from Colorado, Tex., to Ft. Worth, Tex., "with the privilege of shipping said cattle to Kansas City, Missouri, upon a through freight rate from Colorado to Kansas City, unless the said cattle should be disposed of at Ft. Worth, Texas, where said defendant would receive of the plaintiff the local freight rate from Colorado, Texas, to Ft. Worth, Texas." The first shipment consisted of six cars of cattle, which left Colorado on September 1, 1903, and reached Ft. Worth on the following day. Thirty of these cattle were sold at Ft. Worth stockyards, while the remaining five cars, together with the other shipment of four cars, which reached Ft. Worth on September 3d, were shipped on to Kansas City, and there sold. For cause of action the plaintiff alleged that he had made a written demand for cars in which to ship his cattle on August 27th for delivery on August 30th, but which were not furnished until September 1st and 2d.; that his cattle were brought to Colorado August 30th, and there held in insufficient pastures until they were shipped out; that after defendant received the cattle they were delayed in the pens at Colorado, and en route to Ft. Worth were roughly and improperly handled. There was an allegation of loss of weight, and consequent depreciation in market value, and decline in the market, to plaintiff's damage $664.30, with interest from September 2, 1903. The defendant answered generally, and specially that at that time there was a great rush of cattle business along its line and other lines of railway, and the consequent great scarcity of stock cars, whereby it was prevented from furnishing cars any sooner than it did. It also specially pleaded contributory negligence on the part of plaintiff in bringing his cattle to the shipping point, knowing that there would be no cars in which to ship them at the time. A trial before a jury resulted in a verdict for plaintiff for $557.30, with interest at 6 per cent., upon which judgment was entered, and the defendant has appealed to this court.

The first, second, and third assignments of error attack the fifth...