226 S.W. 448 | Tex. App. | 1920
The first question in the brief for appellant relates to the alleged error of the trial court in permitting the plaintiff while on the stand as a witness for himself to be asked and to answer, over the objection of defendant, the following question:
"Please state whether or not these cattle were in such condition to stand the trip, if they had been handled in the usual and ordinary manner, and had reached their destination in reasonable time, in a car that was bedded in the usual way."
The answer to the question was: "I think they would have stood the trip all right."
In substance, the objection to this question and to the answer was that the same called for the conclusion of the witness upon a mixed question of law and fact, and *450 would permit the witness to determine the very issue to be tried by the court. The bill of exception shows the question and answer as stated in the assignment, but the statement of facts does not bear out the bill. The testimony of Hasse, as shown in the statement of facts, does not disclose that he expressed any opinion or made any statement as to whether the cattle were transported within a reasonable time. It does show that this witness testified that the cattle were in good shipping condition, and in fact were strong enough to stand the trip, if handled in the usual way. But a close scrutiny of the statement of facts fails to discover any testimony given by this witness on the question of reasonable time, as complained of in the bill of exception and in the assignment. In this state of the record, we cannot tell what the facts are, and are therefore unable to sustain the assignment, which will be overruled.
The second assignment claims error in the action of the trial court in having permitted Hasse to be asked the following question, and to give the following answer:
"Did you ever have any cattle killed in this same quantity as in this shipment at any other time when shipped over this road?" Answer: "No, never more than one at a time."
The objections urged in the trial court were that the question and answer were immaterial and irrelevant, did not tend to shed any light on the issues of the case, and were prejudicial to the defendant. We think the testimony was material and relevant, and as against the objections urged was admissible; for which reason this assignment also is overruled.
There are certain assignments attacking the court's findings because not supported by any evidence or pleadings, or because in the face of the undisputed facts. We think it unnecessary to discuss these assignments, but we have carefully considered the same in connection with the court's findings and the evidence in the record, and they are believed to be without merit, and are overruled.
As to the question presented by some of the assignments that the undisputed testimony showed that the delay of the shipments at Ft. Worth was occasioned by the crowded and congested conditions existing at the stockyards, we think it is sufficient to say that it was not pleaded and proven by the railway company that it had given plaintiff any notice of such conditions, and of its inability by reason thereof to insure delivery within the time contemplated by the agreement made between the carrier and the shipper. Ry. v. Stark,
Some of the assignments also urge that the undisputed evidence shows that the delay in part was due to delays ordinarily incident to the company's business, and to conditions over which it had no control. We cannot agree to this contention, in view of the record, and we think the court was justified in his findings of negligence. A prima facie case of unreasonable delay having been shown, it was incumbent upon the defendant to prove a valid excuse, and we do not think this burden was met by defendant. At all events, there was ample predicate in the evidence for the court's conclusions.
As to the claim presented in other assignments, that the defendant had no line of railway from Ft. Worth to North Ft. Worth, and to the stockyards, it is sufficient reply to say that the carrier undertook the transportation and delivery of the live stock to the commission company at the latter point, and it employed the Belt Line and stockyards companies as its agents and instrumentalities to make the delivery, and they were therefore its agents, for whose negligence defendant was as much liable as for negligence occurring on its own line. It did not undertake to provide switching and unloading facilities of its own, and the duty to make delivery within a reasonable time, at the point of destination agreed upon, was not delegable to a switch company and a delivering company employed by the defendant for this purpose. While the Belt Line Company might properly be regarded as a transportation company, it was not a connecting carrier under the facts of this case, for whose negligence defendant would not be liable.
In addition to article 6687, Revised Statutes of 1911, as authority for the proposition that defendant could not delegate its duty to provide proper facilities for delivering the live stock in question, and escape liability for the negligence of agencies employed by it, we cite the following cases: Ry. v. Phillips, 197 S.W. 1031; Ry. Co. v. Kraft Madero, 212 S.W. 983.
This disposes of all the questions raised in the brief, except the ninth assignment of error, which complains of the trial court's action in overruling a special exception to the plaintiff's amended petition, which was in substance that he had not pleaded facts showing negligence but merely conclusions. We have examined the petition and also the trial amendment, and we think the grounds of negligence were sufficiently alleged, including defendant's failure to load the cattle and pull out from Brady in time, which seemed to be the chief cause of the delay of the shipment of September 4th to reach Ft. Worth in time. It was not necessary for plaintiff to allege evidential facts upon which he relied, and we think the pleadings sufficient.
Because we have concluded that no reversible error has been shown, the judgment is affirmed.
Affirmed. *451