Texas & P. Ry. Co. v. Byers Bros.

• Decision Date: 28 January 1905
• Citation: 84 S.W. 1087
• Parties: TEXAS & P. RY. CO. et al. v. BYERS BROS.
• Court: Texas Court of Appeals

84 S.W. 1087

TEXAS & P. RY. CO. et al. v. BYERS BROS.

Court of Civil Appeals of Texas.

January 28, 1905.

Appeal from Grayson County Court; G. P. Webb, Judge.

Action by Byers Bros. against the Texas & Pacific Railway Company and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

See 73 S. W. 427.

Head & Dillard and McReynolds & Hay, for appellants. C. H. Smith and J. A. Templeton, for appellees.

RAINEY, C. J.

Suit was instituted by appellees to recover of the Texas & Pacific Railway Company and the St. Louis Southwestern Railway Company damages to a certain shipment of cattle from Paris, Tex., to East St. Louis, Ill., for failure to promptly deliver, for negligently handling, and in not affording an opportunity to feed, etc. Defendants answered by general denial, and specially that said cattle were shipped under a written contract, which limited liability for damages to injuries resulting on their respective lines; that same were not to be delivered in any specified time; and that appellees were, at their own risk and expense, to care for, feed, water, and attend to said stock, and were to load and unload whenever necessary. Appellees filed supplemental petition under oath, admitting execution of written contract, and same was without consideration; that terms of same were onerous and unreasonable, and void; that appellant Texas & Pacific Railway Company had verbally agreed to ship the cattle, and they were required to execute said contract in order to get the cattle transported. Appellants filed supplemental answer containing general denial, and specially that said contract was reasonable, and executed for a valuable consideration; that appellees were large shippers, and had been for a number of years, and knew of the requirement to execute contracts, and had reasonable opportunities to become familiar therewith. Appellants denied making the verbal contract, and that said shipment was made under the written contract alone. On trial a judgment was rendered for appellees against each defendant for separate amounts.

The contract was made with the Texas & Pacific Railway Company at Paris, Tex. The cattle were to be shipped from Paris, over the Texas & Pacific Railway to Texarkana, Tex., thence over the St. Louis Southwestern Railway to Cairo, Ill., and from there to East St. Louis, Ill., over the Illinois Central Railway. The written contract relied on was executed by appellees, and it limited liability to each road for only such injuries as occurred on its respective line. The appellees had for years been shipping cattle over other lines, and had been executing contracts with similar provisions for said shipments, and must be held to have expected that they would have to execute...