G.H. S.A. Ry. Co. v. Warnken , 12 Tex. Civ. App. 645 ( 1896 )

This is an action for damages resulting from delay in the transportation of a carload of cattle from Weimar, Texas, to New Orleans. The car was carried to Beaumont as part of a special train, and was then taken out in order that the cattle might be unloaded and rested for five hours, as required by the Act of Congress on the subject. Art. 4386, Rev. Stats. U.S. The special train proceeded on its way, and the car in question was forwarded by the first regular freight train passing Beaumont about seven hours after the expiration of the five hours. This train left Beaumont at the regular schedule time, and no delay is shown except such as thus occurred at Beaumont. It cannot be held that appellant was bound to hold the special train at Beaumont to await the expiration of the five hours in order that this car might be carried on to its destination in that train. It could not justify the detention of other freight contained in other cars for this purpose. Nor do we think it can be held that appellant was bound to furnish special transportation of only one carload of cattle. Its contract was not to deliver within a specified time, and the law implied a contract to deliver within a reasonable time, and no necessary or reasonable delay would constitute a breach of its duty. The mere detention of the car at Beaumont while awaiting the arrival of the first train by which the cattle, after being rested, could be forwarded, was not unreasonable, at least there is nothing in the record to show that it was.

The decision of the case must therefore depend upon the enquiry, whether or not appellant was justified in stopping the car at Beaumont in order to rest the cattle. The undisputed evidence shows that this stoppage was made in order to comply with the requirement of the law above cited, which provides, "No railroad company within the United States whose road forms any part of a line of road over which cattle or other animals are conveyed from one State to another * * * shall confine the same in cars * * * for a longer period than twenty-eight consecutive hours without unloading the same for rest, water and feeding for at least five consecutive hours, unless prevented from so unloading by storm or other accidental causes." Rev. Stats. U.S., art. 4386.

By article 4388, it is provided: "But when animals are carried in cars * * * in which they can and do have proper food, water, space and opportunity to rest, the provisions in regard to their being unloaded shall not apply." It was shown that these cattle were provided with food and water in the cars in which they were carried, but it is not shown that they had space and opportunity to rest. The only evidence on this point is that forty-five cattle were contained in the car, and that at one point one of them was down and was tramped upon by the others. The capacity of the car is not shown. As stated before, the car was stopped at Beaumont solely to comply with this statute, and we think it is not to be presumed, in the absence of evidence, that the carrier's act in so doing was wrongful. The plaintiff accompanied the car, and if there was the proper space upon it for resting the cattle, he could easily have furnished evidence of the fact. He states that there was no necessity to unload in order to feed and water them, but is silent on the other point. To hold the defendant liable for this delay would be to presume that in endeavoring to comply with the law it had acted wrongfully. We think the presumption is to the contrary, and that it should be rebutted before a recovery can be had.

We think the pleading of plaintiff, considering that it was a case from Justice Court, sufficiently charged a partnership between the two roads to require a denial under oath on the part of the defendant. It averred that there was an arrangement between them by which they "jointly undertook to transport freight over said two roads receiving a proportionate share of the tariff charges and did under said arrangement existing between them enter into said contract and undertook to transport plaintiff's cattle." It was also averred that the agent who signed the contract for the defendant was the agent of both. The facts thus stated do not show simply a contract by each company to carry freight over its road, with a division of the charges, but a joint undertaking by both companies to carry over both roads with a division of the freight.

There was error in the charge on the measure of damages. Plaintiff claimed in his pleadings only the loss in market value of cattle as the result of the delay, while the testimony showed that part of the damage consisted of expenses incurred in keeping the cattle at New Orleans, and the charge allowed a recovery of them, when they were not sued for.

What has been said disposes of the various assignments.

Reversed and remanded.

Reversed and remanded.