Texas & P. Ry. Co. v. Scoggin & Brown

• Court: Texas Court of Appeals
• Writing for the Court: Speer
• Citation: Texas & P. Ry. Co. v. Scoggin & Brown, 90 S.W. 521, 40 Tex. Civ. App. 526, 14 Tex. Ct. Rep. 297 (Tex. App. 1905)
• Decision Date: 18 November 1905
• Parties: TEXAS & P. RY. CO. et al. v. SCOGGIN & BROWN.

90 S.W. 521

TEXAS & P. RY. CO. et al. v. SCOGGIN & BROWN.

Court of Civil Appeals of Texas.

November 18, 1905.

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

Action by Scoggin & Brown against the Texas & Pacific Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed.

Ed. W. Smith and Whitaker & Gibbs, for appellants. Ed. J. Hamner, for appellee.

SPEER, J.

Scoggin & Brown, a firm, shipped 202 cows from Colorado, Tex., to East St. Louis, Ill., over the lines of the Texas & Pacific Railway Company, the Missouri, Kansas & Texas Railway Company of Texas, and the Missouri, Kansas & Texas Railway Company, and later sued these companies for damages because of negligence in their transportation. The plaintiffs recovered judgment against all of the defendants, who have appealed.

The complaint, with reference to the seventh paragraph of the court's charge, defining the measure of damages, appears to be based upon a misconception of the wording of the charge as found in the transcript; but, if not, and the charge is, as contended, unintelligible by reason of an omission of necessary words, the same may be corrected upon another trial, since the case must be reversed for errors hereinafter discussed.

Under the facts of this case we fail to see that there was error in instructing the jury that the Belt Railway Company of Ft. Worth was not a connecting carrier, and that a delivery of the cattle by the Texas & Pacific to such Belt Railway would not be a delivery to the next connecting carrier, since this Belt Railway appears to have been the agency selected by the Texas & Pacific to deliver the cattle at the Union Stockyards, where cattle intended for further transportation over the lines of the two Missouri, Kansas & Texas Railway Companies are always delivered.

We fail to find any justification, however for special charge No. 4, given at the instance of the Missouri, Kansas & Texas Railway Company, which is as follows: "If you find from the evidence, gentlemen, that any damages resulting by reason of said cattle being fed at Ft. Worth, then and in that event the Texas & Pacific Railway Company is responsible for same." We fail to find any evidence whatever that the cattle were damaged by being fed at Ft. Worth, and the charge therefore submitted an issue not properly in the case. If it was intended by the charge to cover the question of delay incident to the feeding at Ft. Worth, the same would yet be improper, inasmuch as the question of liability would be one of fact for the jury, dependent upon the time of delivery to and acceptance by the Missouri, Kansas & Texas Railway Company of Texas, and there seems to have been considerable controversy upon this question of delivery. For the error in giving this charge, the cause will be reversed as to the Texas & Pacific Railway Company, and for the error in giving special charge No. 1, requested by the Texas & Pacific Railway Company, the cause will be reversed as to the other appellants.

Special charge No. 1 is as follows: "Gentlemen of the jury, if you find from the testimony that the plaintiffs' cattle were injured in route from Colorado, Tex., to their destination, but cannot determine upon what line of railway such injuries, if any, occurred, then you are charged that the last carrier handling such...