Texas & P. Ry. Co. v. Edins

• Decision Date: 22 October 1904
• Citation: 83 S.W. 253
• Parties: TEXAS & P. RY. CO. v. EDINS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

83 S.W. 253

TEXAS & P. RY. CO. v. EDINS.^*

Court of Civil Appeals of Texas.

October 22, 1904.

Appeal from Taylor County Court; D. G. Hill, Judge.

Action by T. J. Edins against the Texas & Pacific Railway Company. A judgment was rendered in favor of plaintiff, and defendant appeals. Reversed.

T. J. Freeman and J. M. Wagstaff, for appellant. Hardwicke & Hardwicke, for appellee.

STEPHENS, J.

Appellee charged appellant with negligence in carrying 154 horses from Pecos to Abilene, Tex., alleging the sudden starting and stopping and violent jerking and jarring of the cars as the principal cause of injury to the horses, on account of which he recovered a verdict and judgment for $500. Appellant ascribed the injury to overloading, and denied liability, as follows: "Further answering herein, this defendant says that the stock in question were shipped on written contracts, in which contracts it was specially agreed between the parties that the defendant would not be liable for any damage arising from the overloading of the cars in which the stock were shipped, or from any injury by reason of the stock being wild and unruly, and by reason of the stock injuring themselves while in transit; and the plaintiff specially undertook to care for the stock while they were in transit, and to see that they were properly loaded, and properly handled and cared for, while they were being transported from Pecos to Abilene, Tex.; and in this connection the defendant says that the stock were overloaded, and too many were put in the cars, and by reason thereof the plaintiff's stock were damaged and injured, and the defendant is not responsible therefor, but the plaintiff assumed and agreed to hold defendant harmless by reason of any such damage, and the plaintiff ought not to recover against the defendant a damage caused by reason of the overloading of said cars." The court not only refused a requested charge to the effect that appellant would not be liable if appellee had directed the loading of the horses and the number to be put in a car, and if the cars had been overloaded and the horses injured in consequence thereof, but gave the following charge: "You are instructed that the defendant cannot defend herein by reason of the contract pleaded by it to the effect that plaintiff undertook to load said stock, for under the law of Texas such a contract is invalid, and it is the duty of the railroad to properly load live stock, and such duty cannot be shifted by contract to ...