Texas & P. Ry. Co. v. Tomlinson
| Decision Date | 23 May 1914 |
| Docket Number | (No. 7985.) |
| Citation | 169 S.W. 217 |
| Court | Texas Court of Appeals |
| Parties | TEXAS & P. RY. CO. v. TOMLINSON et al. |
Appeal from Stephens County Court; N. N. Rosenquest, Judge.
Action by J. E. Tomlinson and others against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.
Earl Conner, of Eastland, for appellant. Alexander, Power & Ridgway, of Ft. Worth, for appellees.
J. E. Tomlinson, S. B. Louder, and M. W. Lane instituted this suit against the Texas & Pacific Railway Company, the Texas & New Orleans Railway Company, and the Ft. Worth Belt Railway Company to recover damages for injuries sustained by a shipment of 395 head of cattle from Athens to Cisco. A judgment was rendered against the Texas & Pacific Railway Company for the sum of $800, from which it has appealed, judgment being rendered in favor of the other two defendants.
The damages claimed were for alleged negligent rough handling and delay. By special answer appellant alleged that if plaintiff's cattle were injured, such injuries were the proximate result of their own weak and feeble condition; that plaintiff held the cattle in pens at Athens prior to the shipment from 24 to 40 hours on a feed of dry hay only; that the weaker cattle were loaded into cars with the stronger ones; that the stronger ones trampled and injured them; that the injuries were the result of the conditions above named, and as a result of the negligent failure of the plaintiff to attend to the same during transportation as he had contracted to do. This special plea was duly verified. No special denial was filed by plaintiffs to this special plea, and by appellant's first two assignments of error the contention is made that, as plaintiff failed to specially deny the facts so alleged, those facts should have been taken as confessed, and that the judgment rendered was erroneous, in that it was contrary to the facts so alleged. Act of the Regular Session of the Thirty-Third Legislature of 1913, page 256, article 1829 of the Revised Statutes of 1911, reads:
The issues tendered by the special plea were tried as though there had been a verified special denial thereof by the plaintiff; appellant introducing testimony to sustain the allegations and plaintiff introducing testimony in rebuttal thereof without objection from appellant. Furthermore, appellant requested special instructions submitting the matters alleged in the special plea as controverted issues to be determined by the jury, and did not request an instruction that those allegations should be taken as confessed....
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