Kansas City, M. & O. Ry. Co. of Texas v. McCunningham , 1912 Tex. App. LEXIS 919 ( 1912 )

I find myself unable to agree to the judgment of reversal and rendition entered by the majority, for the following reasons: It is too well settled to require the citation of authorities that one is liable for injuries of which his negligence was the proximate cause, even though the negligence of a third person contributed to the injury. It is even true that such person is liable where his negligence contributes with the negligence of a fellow servant, or with a vis major. So that, to my mind, applying the test stated by the majority, if appellant could reasonably anticipate the consequences of its negligence in failing to provide suitable pens along its line at proper places, to enable it to comply with the federal statutes in handling appellee's cattle, then it would be liable to him in damages for all the injuries sustained, even though the act of the federal authorities, whether negligent or not, contributed to those injuries. Upon this theory, unless the judgment should be reversed and rendered for appellee's contributory negligence, which I will I discuss later, the judgment should be affirmed in its entirety. But if it be the law that appellee can recover only to the extent of the injuries which his cattle would have sustained by a proper dipping (that is, the usual dipping in Beaumont oil), and could not recover for the increased damages by reason of the dipping in Neodesha oil, even then the cause would have to be remanded to enable plaintiff to show, if he could, the extent of the injuries for which he would be entitled to recover. Having recovered judgment below, we should not here render judgment against him after having reversed the case, but should remand for another trial, unless it affirmatively appeared that no case could be shown. I therefore think that in any event the judgment should not be rendered, since the evidence quoted in the majority opinion shows clearly that some damages necessarily followed the usual and ordinary dipping.

This brings me to a consideration of the second point upon which the majority base their judgment in favor of appellant. I do not think the case is one for the application of the defense of contributory negligence at all. Out of deference to the verdict, we must treat the case as one where negligence on the part of appellant proximately causing appellee's injury is shown. The question then arises: Was the act of the shipper, Everetts, in his failure and refusal to make request for an extension of the 28-hour limit under the federal statute, an act of contributory negligence which would deprive appellee of the right which he would otherwise have to a recovery? I shall not discuss separately the authorities cited by the majority, but, in my judgment, they are not only not decisive of the question, but are inapplicable to it. They are without exception, I believe, cases in which there had been a full and complete breach of the defendant's contract, and instances in which the defendant no longer had the opportunity, nor was the duty imposed upon it, to perform the act which the plaintiff was held under obligation to perform. In other words, they were cases involving the doctrine of avoidable consequences, none of which are in any wise in conflict with the decisions, most of which are by the Supreme Court, which I shall now discuss as being applicable to the present case.

In G., C. S. F. Ry. Co. v. Trawick, 80 Tex. 270, 15 S.W. 568,18 S.W. 948, the contention was made by the appellant that if the plaintiff, a shipper of cattle over its line of railroad, "examined the pens and saw they were not in good condition, but put his cattle therein and failed to provide suitable means to prevent their escape from the pens, then the plaintiff would be guilty of what is termed contributory negligence, and he is not entitled to recover anything on account of loss of cattle escaping from said pens." Of this contention the Supreme Court said: "We think this statute requires railway companies to keep pens for the shipment of cattle, and that they cannot absolve themselves from the statutory duty to keep such as are suitable for the business by showing that they were so badly kept or constructed as to make it contributory negligence upon the part of the shipper to use them." In Tex. Pac. Ry. Co. v. Payne, 99 Tex. 46, 87 S.W. 330, 70 L.R.A. 946,122 Am. St. Rep. 603, this court certified to the Supreme Court the question whether or not a plaintiff, who had been wrongfully ejected from a passenger train for the want of a proper indorsement on his ticket, could recover for such ejectment, when it was shown that such consequences could have been avoided by the payment of a small fare, which he refused to make. That court, after a careful review of the question, answered that the plaintiff was entitled to recover damages sustained from the expulsion, and was not required either to purchase another ticket at the starting point, or to pay his fare on the train. To the same effect is St. L., A. T. Ry. Co. v. Mackie, 71 Tex. 491, 9 S.W. 451, 1 L.R.A. 667,10 Am. St. Rep. 766, cited in the opinion last referred to. Another case involving the same question is A., T. S. F. Ry. Co. v. Lucas (Sup.)144 S.W. 1126, certified by the Court of Civil Appeals for the First District. The question there involved was: "Would the facts referred to bar the right of appellee to recover damages for her ejectment from the train in a proper manner by the conductor, upon her failure to pay fare, or to present any other ticket than the unvalidated ticket upon which she had been refused admission to the train through the gate?" Reaffirming the rule as announced in the Mackie and Payne Cases, the Supreme Court, through Mr. Justice Dibrell, adds: "The fact that appellee was notified by the agent at Houston that she could not ride on the unvalidated ticket, and the fact that she was denied admission to the yards by the gateman, for the reason that the ticket presented was not validated, takes nothing from the force of the rule laid down in the Payne Case, and adds no strength to the position assumed by appellants." In the very recent case of Tex. Cen. R. R. Co. v. Perry (No. 7,298), not yet officially reported, the majority of this court held that the facts in evidence did not raise the issue of contributory negligence, where the plaintiff, who had sustained damages by reason of suffering in a cold waiting room at a railway station, made no effort to seek a hotel, which was shown to be near the company's depot.

None of these cases are in conflict with the authorities cited by the majority and the many others to the same effect that might be cited, applying the doctrine of avoidable consequences to a broken contract; but the principle upon which they are all based is a sound one, and involves a question of public policy which the courts ought not and will not lightly ignore. It is this: A defendant will never be permitted to urge, as a defense to an action for damages arising from his breach of contract, that the plaintiff should have done something which the law imposed upon him (the defendant), while the opportunity to perform such act and the duty to do so still remained with the defendant. Having received a consideration to do a particular thing, he ought not to be heard to say that the plaintiff could have performed it as well. In such a case the plaintiff has the right, at all times until a final and complete breach of the contract, to expect and insist upon a full compliance by the defendant; and the reasoning of the cases which I have cited, and the facts of this case, suggest that, while the appellee might have treated appellant's default as a breach of its contract of shipment, still it is perfectly apparent that such default was not necessarily a final breach of the comprehensive contract to transport his cattle to their final destination. Appellee had the right to assume to the last that appellant would comply with its contract, notwithstanding the notice received by him, and to insist, as he did, that it should do so. With all due deference for the majority opinion, it occurs to me that if they announce the correct rule of law that the many statutes, both federal and state, imposing upon railway carriers duties similar to that under review in this case for the protection of shippers over their lines, come virtually to naught, since such carriers could escape all liability for their violations of such statutes by merely giving notice to the shipper beforehand of such dereliction, thereby imposing upon the shipper the duty to do something, great or small, according to the circumstances of the case, which the law had not only not imposed upon him, but had imposed upon the carrier. As in the Trawick Case, the carrier could say to the shipper: "I have no suitable pens; you see their condition; if you place your cattle in them, they will be damaged, and your contributory negligence will prevent a recovery." And, as in this case, the carrier could say to the shipper: "I cannot observe the 28-hour law, because I have no suitable pens in which to unload your cattle; and if you ship over my line under these circumstances you are guilty of contributory negligence in not waiving your right to insist upon an observance of the statute, and will not be permitted to recover damages for its breach." I think a sound public policy requires a different holding, and the judgment in this case ought to be affirmed, or at least the cause remanded for another trial.