132 S.W. 381 | Tex. App. | 1910
Appellee was the owner of 246 head of cattle which it desired to ship to East St. Louis to be placed upon the market. They were loaded into twelve cars, and on the evening *621 of February 8, 1907, were delivered to the Texas Central Railway Company, one of the appellants, for shipment. This suit was instituted by the appellee against that company, the Missouri, Kansas Texas Railway Company of Texas, and the Missouri, Kansas Texas Railway Company to recover damages for delay and also for injuries resulting in the death of three of the animals, The cattle had been fed for some time on cotton seed meal and hulls, and were very fat. They left Hico at 5 o'clock p. m. on Friday, but did not reach their destination till the following Tuesday morning. Three of them died in transit. The testimony showed that the cattle were started in time to have reached St. Louis for the Monday's market had they been transported within the usual time. Appellee claims as damages the loss of Monday's market, which is shown to have been some higher than that of the day following, shrinkage in weight due to delay in transportation, and the value of three head that died in transit. A trial before a jury resulted in a verdict in favor of the appellee for $60 against the Missouri, Kansas Texas Railway Company for the value of one steer killed, and against the Texas Central Railway Company and the Missouri, Kansas Texas Railway Company of Texas jointly for $715. The two last named companies have appealed, and have filed separate briefs in this court.
The contention of the appellant Texas Central Railway Company, presented under various forms in the different assigned errors is, substantially, that the verdict against it is unsupported by the evidence. It is contended that this company having undertaken the transportation of the cattle only to Waco, the end of its line, under a contract in which its liability is limited to its own line, and there being no evidence of any negligence or injury during that time, there was no basis for the verdict. Instead of a formal bill of lading the shipment in this instance was made under what is termed a "live stock contract," possessing all of the essentials of a through bill of lading. The contract contains, among others, the following provision: "This agreement, made between the Texas Central Railroad Co., of the first part, and Hico Oil Mill, of the second part, witnesseth, That whereas the said Texas Central Railroad Co. transports live stock as per above rules and regulations, all of which are hereby made a part of this contract by mutual agreement between the parties thereto; Now, therefore, for the consideration and mutual covenants and conditions herein contained the said first party will transport for the said second party the live stock described below, and the parties in charge thereof, as herein provided, viz: Ten car loads of beef cattle said to contain two hundred head of such stock, from the station where this contract is executed to Waco, Texas, station, the end of the line of road operated by the party of the first part on the route over which such stock are way-billed, there to be transferred to the railway company over which said live stock are way-billed for further transportation by said railway company, the said stock being way-billed through and consigned to Evans Snyder Buel Co. at Natl. Stk. Yds., Ill., station, and the party of the first part covenants and *622
agrees that the freight charge from point of shipment to final destination shall be only the sum of tariff, the same being a through rate, lower than the local rates which might be lawfully charged by the party of the first part, and for and in consideration of which through rate and the guaranty thereof by the party of the first part, and the other covenants and agreements on the part of the party of the first part, as herein contained, the party of the second part hereby covenants and agrees as follows:" etc. This contract, we think, comes within the meaning of the Federal Statute making the initial carrier liable for the negligent acts of any connecting carrier over whose road the freight may be transported. Act Cong., June 29, 1906, C 3591, 34 Stat., 584 (U.S. Com. St. Supp., 1907, p. 892); H. T. C. Ry. Co. v. Lewis,
Appellant Missouri, Kansas Texas Railway Company of Texas also complains of the admission of certain testimony as to when the cattle were receipted for and delivery made to it by the Texas Central Railway Company. The first objections urged are that the testimony was hearsay and not the best evidence. The bills of exception show that the witnesses purported to testify to facts within their knowledge, and we think the testimony was properly admitted. The other objection on the ground *624 that the testimony challenged was the statement of a conclusion, or opinion, is equally without merit.
The judgment of the District Court is affirmed.
Affirmed.
Writ of error refused.