Wichita Valley Ry. Co. v. Turbeville

• Decision Date: 06 December 1924
• Docket Number: (No. 10881.)
• Citation: 269 S.W. 498
• Parties: WICHITA VALLEY RY. CO. et al. v. TURBEVILLE et al.
• Court: Texas Court of Appeals

269 S.W. 498

WICHITA VALLEY RY. CO. et al. v. TURBEVILLE et al.

(No. 10881.)

Court of Civil Appeals of Texas. Fort Worth.

December 6, 1924.

Rehearing Denied January 10, 1925.

Appeal from District Court, Baylor County; J. H. Milam, Judge.

Action by J. H. Turbeville and others against the Wichita Valley Railway Company and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Dickson & Newton, of Seymour, and Thompson, Barwise & Wharton and F. B. Walker, all of Fort Worth, for appellants.

J. A. Wheat, of Seymour, Kay, Akin & Kenley, of Wichita Falls, and Theodore Mack, of Fort Worth, for appellees.

DUNKLIN, J.

A shipment of cattle was made by John Turbeville from a station called Cæsar, some two or three miles from the town of Kingsville, Tex., to the town of Fulda, Tex. The shipment was handled by the St. Louis, Brownsville & Mexico Railway Company from Cæsar to Odem; by the San Antonio, Uvalde & Gulf Railway Company from Odem to San Antonio; over the Missouri, Kansas & Texas Railway Company of Texas from San Antonio to Fort Worth; over the Fort Worth & Denver City Railway Company from Fort Worth to Wichita Falls, and from Wichita Falls to Fulda over the Wichita Valley Railway Company.

In the shipment that started from the initial point there were approximately 938 grown cows and 589 calves, and John Turbeville owned one-half of them while his two step-sons, Sam and Claude Cowan, owned the other one-half; but the shipment was made by Turbeville acting alone. This suit was instituted by Turbeville alone against the receivers of the San Antonio, Uvalde & Gulf Railway Company and the Missouri, Kansas & Texas Railway Company, and all of the other railway companies mentioned, over which the shipment was made, to recover damages alleged to have resulted from rough and negligent handling of the cattle en route. The two Cowans intervened in the suit, and after they filed their petition of intervention, by amended petition they joined with Turbeville as coplaintiffs, and upon a trial of the case they recovered a judgment against all of the railway companies named, jointly, for the sum of $9,037, with interest. From that judgment all of the defendants have prosecuted this appeal.

The following were the only allegations of negligence relied on by plaintiffs as a basis for recovery:

"That, on that part of the trip between Kingsville, Tex., and Odem, Tex., and on the line of the St. Louis, Brownsville & Mexico Railway Company, the said cattle were improperly handled in this: That the agents, servants and employees of the railway company last named negligently by rough handling of the train and violent jerking, starting, checking, and stopping of the train and the cars, thereby causing the cars to strike each other, violently throwing the cattle about in the said cars, and piling them up in the ends of the cars, and causing said cattle to strike against each other, and against the walls, floor, and other parts of said cars, and thereby causing the damage and injury hereinafter set forth."

Then follow allegations to the effect that, as a result of the negligence complained of, 180 head of the grown cattle were killed, the intrinsic value of which upon their arrival at Fulda would have been $40 a head, if they had been properly transported; that the remainder of said grown cattle were so bruised and injured that their value was depreciated in the aggregate sum of $7,500; that 250 calves were killed of the value of $4,500; and that, by reason of injuries to the cattle which did not die, it became necessary to delay the shipment at San Antonio for a period of 10 days in order for them to recuperate sufficiently to continue the trip, during which time plaintiffs were compelled to incur a bill for feed in the sum of $1,600.

It was further alleged that the initial carrier, acting for itself and for all of the other defendants, undertook and agreed to transport the cattle from Cæsar to Fulda, and that it had authority from the other defendants to make said contract, and that the contract was ratified and approved by the other defendants by sharing each with all the others the $2,960, which plaintiffs paid to the initial carrier as freight for the entire trip, and that the contract of shipment made by the initial carrier was further ratified and approved by each of the other defendants by accepting the shipment as it reached each particular line of railway.

In addition to general and special exceptions to the petition, the defendants pleaded a general denial, and their answers also contained the following special plea:

"Further answering herein, if required, and by way of special answer, these defendants, and each of them, say that the plaintiff is not entitled to recover herein for the reason that he, his agents, servants, and employés, and those for whose acts he is responsible herein, were guilty of negligence on their part proximately causing and contributing to such damages as the plaintiff may have sustained herein."

The answer also contained a plea for general relief under the law and facts of the case. The case was submitted to the jury on special issues, in answer to which the jury found: (1) That the defendant, St. Louis, Brownsville & Mexico Railway Company was guilty of negligence as alleged in plaintiffs' petition, in transporting the cattle from Kingsville to Odem. (2) That such negligence was the proximate cause of the death of 158 cows and 133 calves; that the intrinsic value of the cows that died was $22.50 per head, and that of the calves $10 per head. (3) That the negligence so found was also the proximate cause of injuries to the cattle that did not die, by reason of which plaintiffs sustained damages in the sum of $2,552. The foregoing issues were submitted by the court in his main charge.

The following findings were made by the jury upon issues submitted at the request of defendants: (1) That some of the cattle shipped were "calving, springers or nursing young calves," but that the injuries sustained by them were not "caused as the sole, direct, and approximate result" of that condition. (2) That the cattle were loaded after being dipped, but that the damage they sustained was not "caused solely, directly, and approximately" by reason of that fact. (3) That, at the time the cattle were delivered to the St. Louis, Brownsville & Mexico Railway Company, they were in a poor and weak condition, but that the damage sustained was not "caused as the sole, proximate cause of that condition."

We have reached the conclusion that the court erred in refusing to submit to the jury further special issues requested by the defendants, presenting the defenses of alleged contributory negligence on the part of the plaintiffs in shipping the cattle immediately after they were dipped, and before the dipping solution remaining on them had dried; and in shipping them while they were so poor and thin as to be unable to withstand shipment without injury, even if transported with ordinary care and reasonable dispatch; and also whether or not the jury was able to determine and separate damages resulting from injuries sustained by the cattle by reason of the alleged negligence of the defendants in transporting them, from damages resulting from the alleged contributory negligence on the part of the plaintiffs, if any. But since the thin and weak condition of the cattle would include weakness of the cows that were "calving, springers or nursing calves," it would be improper to make such condition of those cows the basis of a separate and distinct issue, in addition to the general issue of weakened condition of all the cattle.

Under quarantine regulations of the government, cattle in the portion of the state from which those in controversy were shipped were required to be dipped in an arsenical solution, in order to destroy what is known as tick fever, and the proof showed that, in compliance with those regulations, plaintiffs' cattle had been dipped several times prior to their shipment, the last time being after they were placed in the cattle pens at Cæsar for shipment. And there was evidence tending to show that plaintiffs had them loaded in the cars immediately after they were dipped the last time, and before the solution had dried on them; and that at the time the cattle were loaded the temperature of the weather was approximately 78 or 80 degrees. According to the testimony of other witnesses introduced by the defendants, who had had considerable experience in shipping cattle, the loading of cattle after being dipped, and before the solution upon them becomes dry, will cause a considerable rise in the temperature of the animals which will tend to injure them, and by reason of that fact it is not customary among cattle men to load them until after the dipping solution on them becomes dry.

J. W. Burby, a veterinarian, graduate of the Wellman Veterinary College, in the year 1891, who had practiced his profession as such ever since that year, and who was located in the city of San Antonio, testified that after the cattle in controversy reached San Antonio and were unloaded in the yards at that place, he examined them and found quite a number dead, and others that were down and unable to get up were hauled off and killed. He further testified that he made a post mortem examination of the carcasses of several of the cattle that died. He further testified that the cattle which did not die remained in the yards at San Antonio 12 days, and that he inspected them every day while there. He further testified that, in his opinion, after making a post mortem examination...