Wichita Valley Ry. Co. v. Baldwin

Decision Date14 February 1925
Docket Number(No. 10926.)
Citation270 S.W. 1089
PartiesWICHITA VALLEY RY. CO. v. BALDWIN.<SMALL><SUP>*</SUP></SMALL>
CourtTexas Court of Appeals

Appeal from Haskell County Court; R. E. Kee, Judge.

Action by J. L. Baldwin against the Wichita Valley Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Ratliff & Ratliff, of Haskell, and Thompson, Barwise, Wharton & Hiner, of Fort Worth, for appellant.

Murchison & Davis, of Haskell, and Theodore Mack, of Fort Worth, for appellee.

BUCK, J.

Plaintiff below, J. L. Baldwin, filed suit February 8, 1923, against the Wichita Valley Railway Company, for damages arising out of an alleged unreasonable and negligent delay in transporting 315 head of cattle, consisting of 248 head of calves and the others heifers and cows, and perhaps 4 bulls, from Haskell, Tex., to Kansas City, Mo. He did not specially allege that there were any bulls in the shipment, though as separately pleaded the number of cattle lacked 4 of being the total of 315, as formerly alleged, and plaintiff in his testimony said there were probably some bulls. Plaintiff alleged that he delivered the cattle to defendant on the 13th day of October, 1922, and that, if the carrier had used ordinary care and diligence in the transportation of said cattle, the shipment would have arrived at the point of destination not later than 12 o'clock on the 15th day of October, the same being the usual and ordinary time of transportation between said points, and if the said carrier and its agents and connecting carriers had used such care and diligence as was its duty to use, said cattle would have arrived at their destination free from any serious injury, and would have been sold on the market of October 16th. He alleged that the cattle were delivered at Kansas City on the morning of October 17th, and by reason of the negligence of the initial carrier and its connecting carriers the cattle were "skinned, bruised, shrunken in flesh, haggard in appearance, and depreciated in market value to the extent of $3 per head."

The defendant answered by way of a general demurrer, certain special exceptions, and specially pleaded that the shipment was an interstate shipment, and that as such it was governed and controlled by the rules prescribed by the Interstate Commerce Commission under the terms and provisions of the Interstate Commerce Act of February 4, 1887 (U. S. Comp. St. § 8563 et seq.) and its amendments, governing interstate commerce, and that the contract of shipment between the plaintiff and the defendant provided that:

"Section 1. (a) Except in the case of its negligence proximately contributing thereto, no carrier or party in possession of all or any of the live stock herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, quarantine, the authority of law, the inherent vice, weakness, or natural propensity of the animal, or the act or default of the shipper or owner, or the agent of either, or by riots, strikes, stoppage of labor, or threatened violence."

The defendant further alleged that during the time in which this shipment occurred there was in force what was then known and is now known as "the shop craft strike," or a strike of the workmen employed in the shops of the railroads, whose duty it was to keep in repair and in operating condition the engines and rolling stock of this defendant and its connecting carriers, and that it was by reason of this strike and the failure of the carriers to secure enough skilled workmen to keep their engines and cars in good repair, although they exercised the greatest diligence in the effort to do so, that any delay occurred. It was further alleged that the contract of shipment provided that, if any person should accompany the live stock in charge of the same, he should take care of, feed, and water them while being transported, whether delayed in transit or otherwise, and that he should see that the cars were closed and fastened, so as to prevent the escape of the live stock, and specially pleaded that, if any neglect with reference to the feeding and caring for said stock while in transit occurred, it was due to contributory negligence of the plaintiff. The defendant further alleged that said contract provided as follows:

"Sec. 4. (c) Before the live stock is removed from the possession of the carrier or mingled with other live stock, the shipper, owner, consignee, or agent thereof, shall inform in writing the delivering carrier of any visible or manifest injury to the live stock."

That under this provision it was the duty of the shipper or caretaker, on the arrival at destination, to notify in writing the delivering carrier of any visible or manifest injury to the live stock, but that the shipper or caretaker wholly failed and refused to do so before removing the live stock from the possession of the delivering carrier, and mingled the same with other live stock, although there was an agent of the delivering carrier at the point of destination, where notice was to be given in writing of said visible or manifest injury, in the person of C. O. Heller, Live Stock Exchange Building, Kansas City, Mo.

Other defenses were pleaded, which will be noticed, if necessary, in the course of this opinion. The cause was submitted to the jury on special issues, and the jury found from a preponderance of the evidence that (1) the defendant and its connecting carriers were negligent in the time taken in transporting the cattle of the plaintiff from Haskell, Tex., to Kansas City, Mo.; (2) that defendant and its connecting carriers, their agents and employés, were negligent in handling the train upon which plaintiff's cattle were shipped; (3) that plaintiff's cattle were damaged by such negligence, either by delay in the time of shipment, or in the manner of handling the same, or both, as alleged by plaintiff; (4) that such damages amount to $750.

The trial court specially charged the jury, at the request of defendant, that a common carrier is not an insurer of live stock received by it for transportation, but is only responsible to the plaintiff for injuries, if any, which may have been occasioned by its own negligence, or the negligence of its connecting carriers, in the transportation of said stock; that the defendant was not liable for rough handling, if any, received by the cattle in question, unless the jury found from a preponderance of the evidence that the defendant or its connecting carriers were negligent in the handling of said stock and the transportation of the same; that the defendant was not liable in law for damages to plaintiff's cattle, if the damages resulted necessarily in the course of the transportation from ordinary handling by the defendant and its connecting carriers, such as ordinary switching and confinement in cars.

The court further submitted to the jury an issue as to whether there was a strike or stoppage of labor in progress upon the line of defendant and its connecting carriers, extending from Haskell, Tex., to Kansas City, Mo., and the jury found that there was a strike between Haskell, Tex., and Wichita Falls, Tex., but from the evidence produced there was none to show there was a strike beyond Wichita Falls.

The jury further found in answer to the submission of an issue requested by defendant that the shipment of cattle involved in this case was under and by virtue of the terms of a written contract. The jury further found, in response to an issue submitted by the defendant, that the plaintiff at the time of the arrival of the cattle in Kansas City did not inform the delivering carrier in writing of any visible or manifest injury to said cattle before the same were removed from the possession of said delivering carrier, or mingled with other live stock. The jury further found that the delay was not caused by a strike or stoppage of labor. The evidence shows that upon arrival of the cattle the plaintiff, who accompanied the shipment, saw the cattle before they were delivered, or as they were being delivered, to the receiving pens at Kansas City.

Under its second proposition, the appellant urges that a peremptory instruction should have been given, or at least the verdict of the jury in answer to the interrogatory propounded to the jury as to the existence of a strike or a stoppage of labor in progress upon the line of defendant's railway and its connecting carriers, during the time when the shipment was being transported from Haskell to Kansas City, should have been set aside for lack of evidence to support it. It will be remembered that the jury answered...

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8 cases
  • Forkner v. Louisville & N.R. Co.
    • United States
    • Kentucky Court of Appeals
    • January 28, 1930
    ... ... negligence in transit, or in loading or unloading ... Wichita Val. R. Co. v. Baldwin (Tex. Civ. App.) 270 ... S.W. 1089; Whiteside v. Chicago, M. & St. P. R ... ...
  • Ingram v. Davis
    • United States
    • South Carolina Supreme Court
    • February 12, 1926
    ...giving of notice of a claim is unlawful. The provision in the bill of lading certainly is for such shorter period. See R. Co. v. Baldwin (Tex. Civ. App.) 270 S.W. 1089; R. Co. v. Martindale, 213 S.W. 777, 139 Ark. Hunt v. Hines, 223 S.W. 798, 204 Mo.App. 318. The judgment of this court is t......
  • Forkner v. L. & N.R. Co.
    • United States
    • United States State Supreme Court — District of Kentucky
    • January 28, 1930
    ...for damages to live stock alleged to have been caused by negligence in transit, or in loading or unloading. Wichita Val. R. Co. v. Baldwin (Tex. Civ. App.), 270 S.W. 1089; Whiteside v. Chicago, M. & St. P.R. Co. (Mo. App.), 239 S.W. 150; Talbott v. Payne, 90 W. Va. 280, 111 S.E. 328; Hunt v......
  • Southern Ry. Co. v. Atlantic Ice & Coal Co.
    • United States
    • Georgia Court of Appeals
    • April 9, 1929
    ... ... 280, 47 S.Ct. 386, 71 L.Ed. 644. The ... Court of Civil Appeals of Texas, in Wichita Valley Ry ... Co. v. Baldwin, 270 S.W. 1089 (3), held: "Provision ... of contract of shipment of ... ...
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