Texas & P. Ry. Co. v. Stribling

• Decision Date: 22 February 1896
• Citation: Texas & P. Ry. Co. v. Stribling, 34 S.W. 1002 (Tex. App. 1896)
• Parties: TEXAS & P. RY. CO. v. STRIBLING.
• Court: Texas Court of Appeals

34 S.W. 1002

TEXAS & P. RY. CO. v. STRIBLING.

Court of Civil Appeals of Texas.

February 22, 1896.

Appeal from Wood county court; D. W. Crow, Judge.

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

T. J. Freeman and Cate & Teagarden, for appellant. V. B. Harris, for appellee.

RAINEY, J.

This suit was brought by appellee to recover of appellant for damages to cattle shipped over appellant's road, from Longview to Jefferson, Tex., consigned to Como, Tex. Plaintiff alleged, in substance, that the defendant's servants negligently and repeatedly caused the car to be jerked violently, which threw the cattle against each other, and against the walls of the car, which caused them to be injured, etc., that defendant had failed to water and feed said cattle at Jefferson, or to give plaintiff an opportunity to do so, which also caused injury to the cattle. Plaintiff also sought to recover exemplary damages, and the statutory penalty for the failure to water and feed same. Defendant filed numerous special demurrers to plaintiff's petition, pleaded a general denial, and specially answered, in substance, that the cattle were half starved, poor, weak, etc.; that plaintiff caused the car to be overloaded; that large and small cattle were put in the same car together, and the large ones tramped upon and injured the smaller ones; that, before shipping, plaintiff failed to properly feed and water the cattle at Longview,— all of which constituted contributory negligence on plaintiff's part; that, by the terms of the shipping contract, plaintiff, at his own risk and expense, was to take care of, feed, and water, to load and unload, and that he would hold defendant harmless for any injury resulting to the cattle while in his charge and being cared for by him, and that he assumed all risk of injury to his stock because of their being wild, unruly, or from maiming each other or themselves, or from heat, suffocation, or other results of being crowded in the cars And it was further pleaded that plaintiff would assume all risk of injury to the cattle from any and all causes, except the negligence of the defendant; that it was stipulated that defendant's liability was to cease and terminate on delivery to connecting line; that there was a delivery to its connecting carrier at Jefferson, and, if injury occurred, it was done while on other roads, or resulted from plaintiff's negligence. The court sustained plaintiff's exception to defendant's fifth special answer, which answer is, in substance, as follows: "That, by the terms and conditions of the contract, it was specially stipulated and agreed that the cattle were not to be transported in any specified time, not delivered at destination at any particular hour; that this defendant was specially exempted from liability from loss or damage arising from overloading, crowding, maiming, or other accidents or causes not arising from its own negligence; that the plaintiff agreed therein to assume, and did assume, all risks of injury to his stock because of their being wild, unruly, weak, or from maiming each other or themselves, or of heat, suffocation, or other results, of being crowded in the car." The court also excluded the following stipulations of the shipping contract, to wit: "Second. That the first party is exempt from liability for loss or damage arising from derailment, collisions, fire, escapement from cars, heat, suffocation, overloading, crowding, maiming, or other accidents or causes not arising from the negligence of the first party; and said party of the second part hereby agrees to assume, and does assume, all risk of injury or loss of his stock because of their being wild, unruly, weak, or maiming each other or themselves, or of heat, suffocation, or other results of being crowded in the cars, or being injured or destroyed by fire on any account whatever, and especially because of burning hay, straw, or other material used for bedding the cars, or for feeding the stock, or for any purpose." "Fourth. That the said second party, for the considerations aforesaid, hereby assumes and releases said first party from risk, injury, or loss which may be sustained by reason of any delay from the transportation of said stock caused by any mob, strike, threatened or actual violence to person or property from any source, failure of machinery or cars, injury to track or yards, storms, floods, escapes or robbery of any of said stock, overloading cars, fright of animals, or crowding one upon another, or any and all causes, except the negligence of said first party; and such negligence of the first party will not be assumed, but shall be proven by the said party of the second part." "Thirteenth. It is also understood that all promises and agreements respecting or in any wise relating to the subject hereof are fully expressed herein, and no others are made or exist. Fourteenth. The evidence that the said second party, after fully understanding and accepting all the terms, covenants, and conditions of this contract, including the printed rules and regulations on the back thereof, and that they all constitute a part hereof, fully assents to each and all of the same, in his signature hereto." On the trial, a verdict was rendered in favor of plaintiff for $200, as follows: $100, actual damages; $25, exemplary damages; and $75, penalty. A motion for new trial was overruled, and an appeal taken by the railway company. Appellee has entered a remittitur of the $25, exemplary damages. We will not attempt to discuss separately the various errors assigned, but will confine ourselves to a discussion of the controlling questions of the case, that are liable to arise on another trial.

The appellant complains of the court's...