Missouri, Kansas & Texas Railway Co. v. Kyser & Sutherland , 43 Tex. Civ. App. 322 ( 1906 )

This is an action brought in the court below by appellees against appellant for alleged damages to a shipment of cattle. That part of the charge of the court below complained of in appellant's second assignment of error is merely a statement of the issues made by the pleadings, and could not be regarded as assuming the proof of any issue in the case. (Atchison, T. S. F. Ry. Co. v. Cuniffe, 57 S.W. Rep., 692; International G. N. Ry. Co. v. Tabor, 12 Texas Civ. App. 289[12 Tex. Civ. App. 289].)

Appellant's third assignment of error assails that part of the charge of the court below relating to the measure of damages, upon the ground that it instructs the jury that plaintiff would be entitled to recover the difference in the market price of the cattle in the market at National Stock Yards at the time they should have arrived at said market "in the usual and ordinary course of business in shipping such cattle to market," and the time when the cattle actually reached the National Stock Yards and were placed on the market; whereas the correct measure of damages is the difference in the market value of the cattle at the time when they should have reached the market by the use of ordinary care and diligence in the transportation of said cattle from the place of shipment, and the time when said cattle did in fact arrive at said market. As contended by appellants, a carrier is usually only required to use ordinary care and diligence under all the circumstances in transporting cattle to market; but we do not think appellants were prejudiced by the instruction complained of, in view of the fact that they requested and the court gave a special instruction embracing the same proposition as to their liability; and, in effect, conceding their duty in this transaction to be to transport plaintiffs' cattle to their destination within the usual time necessary for that purpose, but which sought to avoid liability for failure to perform that duty on the ground of the wet and soft condition of appellant's track.

Appellant's fourth assignment of error is not well taken. The charge complained of in this assignment was proper, in view of the pleadings and evidence in the case.

There was no error in the refusal of the court below to strike out the testimony of the witness Overstreet on motion of appellants, upon the alleged ground that it was hearsay. While it does not affirmatively appear from the testimony that Overstreet was present and saw the cattle weighed, his testimony as to their weights implies personal knowledge thereof; and, in the absence of testimony to the contrary, the inference will be indulged that he saw the cattle weighed and testified from personal knowledge. (Texas P. Ry. Co. v. Daugherty, 76 S.W. 606; Hubbard City Oil Co. v. Nichols,89 S.W. 797.)

Appellants' eleventh assignment of error is overruled. We think there is ample testimony shown by the record to support the verdict of the jury. The testimony showed damages sustained by the cattle during the delay in furnishing the cars equal to the amount of the verdict, independent of any sustained during transportation.

Appellants by their twelfth assignment of error contend that appellees are precluded from recovering in this case by their contributory negligence, which consists in their failure to feed and water the cattle while they were in appellants' stock pens awaiting shipment and during their transportation, and especially for the reason, as they claim, that the damage caused by the contributory negligence of appellees can not definitely and certainly be ascertained and separated from the damage, if any, caused by appellants. We do not think the doctrine of contributory negligence applies to the facts of this case, as the evidence clearly shows that whatever injury or damage was caused to appellees' cattle by the failure of appellant to furnish the cars for their shipment according to the contract or to transport them with proper diligence, was separate from and not brought about or contributed to by any fault of negligence of appellees. It does not constitute contributory negligence on the part of the shipper to put his cattle in the pens of the carrier at its instance and direction, and allow them to await the arrival of cars without feed or water, when the agent of the carrier informs him that the cars are expected soon. (Gulf, C. S. F. Ry. Co. v. House, 88 S.W. Rep., 1112.) Under the circumstances shown by the testimony, we think the jury were justified in holding that appellants were liable for all the damages sustained by the cattle during the time they were in the pens awaiting the cars. And there is testimony showing that they were damaged during this time in an amount equal to the amount found by the verdict of the jury for depreciation in weights. However, the charge of the court protected appellants against any liability for damages accruing to the cattle on account of their not being fed or watered, and limited appellees' recovery on account of shrinkage in weight to that occasioned by the unnecessary delays in the shipment of the cattle.

As already stated, we think the testimony shown by the record sufficient to support the finding of the jury as to damages caused by depreciation in the weight of the cattle; and hence overrule appellants' ninth assignment of error.

No reversible error appearing in the record, the judgment of the court below is affirmed.

Affirmed.