47 Tex. Civ. App. 647 | Tex. App. | 1907
—The appellees, Brosius & Le Compte, sued the appellant, the St. Louis & San Francisco Eailroad Company, and the Paris & Great Northern Eailroad Company, in the County Court, to recover the sum of $365, claimed as damages to a shipment of live stock delivered to the first-named railroad company at Lockwood, Missouri, on the 6th day of January, 1906, to be shipped to Paris, Texas. The trial resulted in a verdict against the appellant, St. Louis & San Francisco Eailroad Company, from which that company prosecutes this appeal.
Brosius & Le Compte, at the time of this shipment, were engaged in the business of buying, shipping and selling mules, with their place of business at Paris, Texas. On the date above mentioned J. B. Brosius, one of the firm, was in Lockwood, Missouri, where he purchased from a dealer twenty-four (24) mules which he desired to ship to Paris for sale. The mules were loaded into a car of the appellant at about two o’clock on the evening of the 6th day of January, 1906, to be shipped to Paris via Monett, Ft. Smith and Hugo. The car containing the mules arrived at Monett at 2:15 on the morning of January 7th, and remained there until about five o’clock that evening. Brosius accompanied the train containing the car of nuiles that far; but, upon being informed by the yardmaster at Monett that the mules would not be unloaded there, went on to Paris on the regular passenger train. At about 9:30 on that morning one of the appellant’s employes directed that the car of mules be unloaded for the purpose of complying, as they testified, with the law of Congress requiring stock to be unloaded, watered, fed and rested. The mules were again loaded at about 5:30 in the evening, and arrived in Paris shortly after midnight on January 9th. At about 7:30 of the same morning they were delivered to the appellees, and by them taken to their barn in Paris.
The testimony shows that, upon their arrival at Paris, one of the animals, a red horse mule, had a large, triangular cut on the right side of his hip, but it was not observed at-the time that any of the other mules were in any way damaged. On arriving at the barn appellees discovered that a large bay mare mule, for which they had paid $225, and which they valued at $250 in the market at Paris, was sick. They at once procured medical attention by summoning Dr. Cook, a veterina.ria.Ti, who testified at the trial that, when he examined the animal, it had pneumonia in its second stage. The mule subsequently died.
This suit is to recover the damages to the wounded animal and the value of the mule last above named.
In their amended original petition, upon which this case was tried, the appellees make two distinct charges as to negligence against the appellant, each seeking to account for the two distinct injuries to the two mules. The first allegation is as follows: “That by reason of the
The first assignment of érror presented by the appellant calls in question the following charge given by the court upon the issue of negligence: “3d. If you find, from the facts and evidence before you, that the defendant, the St. Louis & San Francisco Eailroad Company, was negligent, as that term has been herein defined, (1) either in the manner in which said company carried said mules between Lockwood, Missouri, and Hugo, I. T., (2) or in the manner in which said company handled and eared for said mules while in shipment between such points, (3) or while being loaded or unloaded, (4) or while being held in the stock pens at Monett, Missouri, (5) or in the time consumed by such shipment between Lockwood, Missouri, and Hugo, I. T.; and if you further find from the evidence that, as a result of such negligence, if any, in either or all of the above respects; and if you should further find that such negligence, if any, was the proximate cause of injuries, if any, one of plaintiffs’ mules was injured and another of said mules died; then in either or all of the above events you are instructed to find for the plaintiffs (unless, under other instructions herein given you, you should find for the defendant) for such damages, if any, as' you may find resulted from such negligence, if any, of such defendant company; and that such negligence, if any, was the proximate cause of plaintiffs’ injuries, if any.” Appellant complains of this charge upon the grounds that there was no testimony tending to show that the appellant was guilty of any negligence in any of the respects alluded to in this charge.
It will be observed that in this case we have two distinct injuries to two different animals, each of the injuries being necessarily attributable to wholly different causes. The bay mule is alleged to have contracted a cold from which pneumonia resulted, by reason of holding "the mules in an unsanitary stock pen at Monett and an unnecessary and unusual
This question then presents itself: Was there in this ease sufficient evidence to warrant the court in submitting these issues of negligence to the jury ? Appellant contends that there was not. The testimony must be analyzed in connection with the allegations in the pleading. Was there any evidence from which the jury could infer that the mule contracted pneumonia, or a cold from .which pneumonia developed, by
The animal that was wounded carried with it the evidences from which negligence sufficient to cause its injuries might have been inferred by the jury; and therefore as to so much of those acts of negligence about which the court instructed the jury as would have likely been productive of that sort of an injury there was sufficient evidence to submit the issue to the jury. But in doing so the court should have instructed the jury what injury, if any, they might find from such facts. On the other hand, the mere fact that an animal at the end of its journey over a railroad develops a 'case of pneumonia is not of itself evidence of negligence, as was the cut on the horse mule. It can hardly be urged that the giving of this charge was harmless, for there was evidently some factor that influenced the jury in arriving at the verdict giving the appellees damages for the value of the mule that died, upon evidence wholly insufficient to sustain such a finding. Dr. Cook, a witness for the appellees, was the only one who testified as to what conditions would likely bring about the disease. He was called upon to see the animal that developed pneumonia within a short time after its arrival in Paris. He says: “From the symptoms when I first saw her I would say that she was in the second stage (of pneumonia), and had had the disease three or four days, that was the condition I saw her in. Pneumonia results from several causes. Taking cold, or the sudden cooling when the animal is heated, causes congestion of the lungs, and in from 7, 8 to 10 hours it gets in the second stage. If this mule had been loaded on a car about two o’clock in the afternoon of January 6th, and kept in the ears from that time till two o’clock the next morning, and then unloaded from the cars and put in a stock pen unprotected from the weather, and muddy, and it had been snowing, and the snow had melted, that would be a good factor in giving the mule pneumonia. . . . Ho, this mule could not have contracted this disease in the stock pens at Paris; that would have been impossible.” On cross-examination he also testified: “Yes, I said there were several causes for pneumonia—impure air, where the air is too warm, and inhaling impurities, or where the air is poisoned by fumes, fumes from manure, or fumes from heat, or any irritating substances. If
If the rule stated above, that when an animal is delivered to a carrier in a sound condition, and is received at the end of the shipment in an injured or unsound condition, is applicable alike to all classes of 'injuries and disorders that may befall live stock in transit, without - exception as to the nature and probable origin of such injuries or disorders, then the court committed no error in submitting the issue of - liability for the loss resulting from the sickness and death of the mule shown to have been afflicted with pneumonia, and which subsequently . died from its effects.
But if a distinction is to be made between those injuries which, from their nature and origin, bear evidence of having been caused by violence or neglect, while being transported by the carrier, and those which frequently or necessarily result from natural causes, or from conditions over which the carrier has no control, then there was error in this charge. If a burden rested upon appellant to account for the origin of the disease, and to show absence of negligence on its part, then the court properly submitted the issue, and it was the province of the jury to determine whether or not this had been done. In this State a carrier assumes the same degree of liability in the carriage of live stock as it does in any other class of freight, subject to such exceptions, on account of the inherent nature of the property, as justice and common fairness would impose. Missouri Pac. Ry. v. Harris, 67 Texas, 166. . We know of no established rule by which to determine with exactness in every case what injuries furnish, from their mere presence, prima facie evidence of negligence, and those that do not. But we feel sure that the mere fact that an animal, apparently sound when delivered for shipment, arrives at its destination sick with a disorder, such as pneumonia, should not raise the presumption that the carrier had been
We think the jury, in arriving at its verdict, was probably misled by
Under his second assignment of error the appellant assails the correctness of the following charge of the court: “If, however, you should find from the evidence before you that such shipment was carried by said defendant, the St. Louis & San Francisco By. Co., under a written contract with plaintiff, John B. Brosius, wherein plaintiff agreed to care for, load and unload, feed and water such stock, and such contract was upon a valuable consideration; then should you further find from the evidence that said defendant furnished to plaintiff facilities and means for loading and unloading, feeding and watering such mules, which was suitable and adequate for such purpose, insofar as was possible by the exercise of ordinary and proper care and prudence, and that the injuries to plaintiffs’ said mules, if any, were caused by plaintiffs’ failure to care for, load and unload their said mules, after being given an opportunity by defendant to do so, then you shall find for the defendant, the St. Louis & San Francisco By. Co., for all damages, if any, resulting from plaintiffs’ failure in any or all of the above respects.” Appellant contends that the vice of this charge was in submitting to the jury the issue as to whether or not this contract had been executed upon a valuable consideration; that contract being in writing, a valuable consideration would be presumed. It is true that a written contract imports a valuable consideration, but does not conclusively presume one. McFadden v. Ry. Co., 4 S. W. Rep., 691; Hutchinson v. Carr, secs. 122, 123. Under proper pleadings, such as were filed by the plaintiffs in this case, this presumption of a consideration may be rebutted, and the fact shown that none in reality existed; and for that reason the contract is not enforeible. Brosius testified that he had a verbal understanding with the agent at Lockwood as to the rate to be paid as freight and the route the mules were to take, but what this rate was is not stated either by Brosius or in the written contract. He says he was not called upon to sign any written contract till a short time before the car containing the mules was ready to start. He also stated that but one rate was mentioned to him.by the agent. In all of this he is uncontradicted. The agent himself testified that he only had two rates to offer shippers, and both contained forms of contracts limiting the company’s liability in the usual way; one rate restricted the liability of the carrier to a sum not to exceed one hundred dollars per head for the animals, in case of loss or injury; the other was 25 percent higher, but permitted a recovery for the full amount of damages in the event of loss or injury. Brosius says he never read the contract, and did not know what was in it; that he had signed many of them before but had never read one; that he assumed they had to be signed • or the company would not carry the stock. B. L. Young, the assistant agent at Lockwood for the appellant, testified that he did not know what rate was paid by Brosius; that none was paid to him; that whatever rate Brosius promised to pay under the written-contract was the regular tariff rate. Under this testimony we think the court properly submitted the issue of consideration to the jury. If the rate paid by
Appellant requested a special charge wherein it sought to have the jury instructed that, if they believed that the plaintiffs accepted a defective car, and undertook to repair the same, then plaintiffs were not entitled to recover if the injuries resulted from the defects in the car so accepted. The refusal to give this instruction is made the basis of appellant’s fourth assignment of error. It is contended that by accepting the car and undertaking to place it in condition for shipment plaintiffs waived any claims they might otherwise have because of injuries resulting from any defective condition of the car. Brosius was tendered a car, and only one; he merely “bedded it down” for the comfort of his mules, and nailed some plank around to prevent the mules from getting their feet through openings. He had the right to rely upon appellant to furnish him a safe car wherein to transport his stock. A failure to furnish such a car would be negligence on the part of appellant, and such negligence, if there were any, was not waived by the acts of Brosius in what he did toward making the car comfortable and safe from the protrusions of the animals’ feet. We think the court correctly refused to give the charge. Hunt v. Nutt et al., 27 S. W. Rep., 1031; Galveston, H. & S. A. Ry. v. Silegman, 23 S. W. Rep., 298; Lenard v. Whitcomb, 70 N. W. Rep., 818; Louisville & N. Ry. v. Dies, 18 S. W. Rep., 266.
In its fifth assignment of error the appellant complains of the refusal of the court to give the following special charge: “You are instructed that, by the terms of plaintiffs’ contract with the defendants, it was the plaintiffs’ duty to see that said shipment was properly loaded into a suitable car, and that said shipment was in the control and care
Reversed and remanded.