Davis v. Simmons , 1922 Tex. App. LEXIS 740 ( 1922 )

HUPP, C. J.

Simmons sued for damage to a shipment of cattle over the Chicago, Rock Islanu & Gulf Railway. Company and the Port Worth & Denver City Railway Company, which roads were under the control of the government through its Director General of Railroads. It is alleged in effect that the cattle .were shipped from Ramsdell, Wheeler county, Tex., to Channing, Tex., in a train of 28 cars, which arrived at Channing at 3:30 o’clock a. m., April 18, 1918, during a strong, biting, cold wind with snow flying; that the appellee, in the exercise of ordinary care, was ready to receive the cattle, but that appellant negligently unloaded 4r0 head of grown cattle and crowded them into insufficient pens, and negligently detached' the engine from the remaining 16 cars of cattle and left them standing on the track for more than 12 hours after a reasonable time in which they should have been unloaded, and negligently gave appellee misinformation ás to when an engine would arrive or could be obtained to assist in completing the unloading, thereby inducing the appellee and his men to remain at the depot with the cattle confined in the pen and cars until some time about 6 o’clock p. m., setting out the damages received by the cattle, 830 head of grown cattle, which were she cattle; more than 50 head of calves and one car of horses. The answer of appellant is to the effect - that, if the unloading pens were inadequate as to capacity for holding the number of cattle in the train, the appellee knew of that fact and negligently failed to prepare to receive them at destination; that when the pens were filled the appellee negligently failed and refused to remove the cattle therefrom, and after waiting a reasonable time therefor the unloading was necessarily suspended until appellee removed the cattle, and if there was any loss it was through his own misconduct. The case was tried to a jury and submitted upon a general charge. In response thereto the jury assessed damages in the sum of $3,-450, upon which judgment was entered, and from which this appeal is prosecuted.

The first, second, and third assignments are based upon the testimony of E. S. Collins and Hugh Exum, as set out in the bills of exception, as follows, with reference to Collins:

“Q. What effect, so far as the market — I mean so far as the value of the cattle is concerned — would it have upon them to keep some 400 or a little more, around that number, on the cars for some 12 or 14 hours, of this class of cattle, ‘that you observed at that time? A. Well,.! would think it would damage these cattle $6 or $7 a head to leave them on the cars.

“Q. Well, let me ask you this question: As to the cattle that were confined in the cars for some 12 or 14 hours, cattle of this class, and from your knowledge of the class of cattle and the cattle business, confining the injury to the cattle, now, and the damage to the cattle, Mr. Collins, solely on that account, what would you consider the difference in the market value of these cattle on account of that confinement in the cars for that length of time in that community and for about that length of time that year upon the market value per head? A. Well, as I stated before, I think the cattle would be damaged in the market value of $7 per head.

“Q. What would you say relative to these cattle that were confined in these pens in a crowded condition, if the pens were loaded about to the limit, the effect upon the cattle, and the market value under those conditions, basing it solely upon the confinement in the pens for that length of time? A. It would not hurt them much in the pens, although when you get 400 or 500 head of cattle in them they are pretty badly crowded, I would say about $4 or something like that.”

As to Exum, the question and answer are .as follows:

“Q. Now then, in your opinion, what was the difference in the market value of these cattle if there was a 12 or 14 hours’ detention, about half of .them in the pens and about half of them on the cars, at that time? A. Taking into consideration the character of the cattle, heavy cows, cows with little calves, springer cows, and the condition of the weather, and the time they got them out, one thing and another, I think it damaged those cattle from $5 to $7.50 per head.”

The objection urged at the time was that the evidence sought called for an opinion, and that the same would not be proper legal testimony upon any proper or applicable measure of damages in the case.

The witness Collins had testified that he was an experienced cattleman, handling cattle, pasturing and shipping them, for about 30 years. He gave his opinion as to the effect on cattle standing in the ears and pens for 12 or 14 hours without movement, etc. He saw the cattle at the pens and described them. They were mother cows and springers. Standing in the cars injures cattle of this class more than dry cows or steers, and he gave the effect on cattle that such treatment would have upon the class in question. He saw the cattle at the pens and again that day after they were moved. Noticed them •on the drive; it took two days to drive them eight miles. He saw the cattle every day while they were in his vacant pasture iind saw the cattle through the summer and noted their recuperation and how they thrived; that on account of their condition their value was affected. He stated that the market value at the time they arrived at destination was about $85 per head. The statement of facts in this ease sets out his testimony as follows:

“If about 400 head of cattle of this class were crowded in pens for about 12 or 14 hours, and about 400 head were crowded in cars for .about 14 hours, as to the effect on their market value, cattle in that condition that these ■cattle were in in the spring, you understand, it would hurt them worse than it would fat cattle, naturally would, and I would consider that confinement of the cattle in the cars for that length of time would hurt them worse than that length of confinement in the pens. I think it would damage the cattle $6 or $7' a head to leave them on the ears. As to the cattle that were confined in the cars for 12 hours or 14 hours, cattle of this class> and from my knowledge of the class of cattle and the cattle business, confining the injury to the cattle and the damage to the cattle solely on that account, I think the cattle would be damaged in the market value of $6 or $7 per head. With respect to these cattle that were confined in the pens in a crowded condition, assuming the pens were loaded about to the limit, I would say regarding the effect upon the cattle and the market value of those conditions, basing it solely upon the confinement in the pens for that length of time, that it would not hurt them much in the pens, .although those pens, when you get 400 or 500 ■head of cattle in them, are pretty badly crowded, I would say about $4 per head, or something like that.”

Hugh Exum also qualified as an experienced cattleman and in shipping cattle. He saw the cattle at the pens and assisted in unloading them and described the effect the holding would have on that class of cattle:

“I have an idea about what Mr. Simmons’ cattle were worth on the market there at Ohanning or in the community at the time they arrived there. There was a ready market for that class of cows at that time, in 1918. The market value of those cattle at that time for the weight of the cattle there at the time, as they were, was about $90 a head, I would say. Considering the detention of those cattle, part of them in the pens and part on the cars, after their arrival at Channing, I, in my opinion, would say that there was a difference in the market value of them by reason of such detention from 12 to 14 hours. I saw the bunch of cattle in question; was acquainted with them and know. I knew at that time the market for and relative to that kind and class of cattle. Likewise for that bunch of cows, just taking them as they come, springers, and also cows with calves; would say that the market value at that time and place for such cattle as were these about $90 per head. In •my opinion 12 or 14 hours’ detention in the pens and in the cars would affect these cattle and injure them.”

Then follows the question and answer above set out to Exum.

[1] It will be observed that the questions propounded to the witnesses were to state the difference in the market value of the cattle caused by the delay in unloading and holding them in the cars and in the pens. This was not, as we understand, merely a statement in general terms of damages per head, but was a statement as.to the market value as affected by the injury. We can see no practical difference in stating the market value upon arrival of the cattle at destination as if it was $85 per head and after detention in the cars and pens, that cattle in the pens were of the market value of $80 and those in the cars at $77.50, and stating it as we think the testimony warrants, that those in the pens in market value were worth-$5 less after the detention and those in the cars $7.50 less. This, we think, is the substantial effect of the testimony, to which objection is urged. We believe this case falls clearly within the holding of the Supreme Court in the case of Railway Co. v. Prunty, 230 S. W. 396. We especially refer to the above case and the opinions, both by the majority and minority of the Court of Civil Appeals, as reported in 233 S. W. 625. Judge Conner, rendering the minority opinion, sets out the question to and the answer of the witness as follows:

“What was the difference, if any, between the reasonable market value of the mares at the time and in the condition in which they did arrive and the condition in which they should have arrived, handled with ordinary care and diligence?” The answer was: “I think it was anywhere from $20 to $25 difference.”

We think the questions and answers in this case fall within the rule established by the above case. The assignments will therefore be overruled.

[2, 3] The fourth assignment is based on the admission of the testimony of W. R. Swink to the effect that he stayed on the Simmons ranch 40 days, and during the first 10 or. 12 days there was a loss of about 18 head of cattle. The objection urged was that no connection was established between the death of any of these cows and any alleged negligence on the part of the appellant. The evidence of this witness shows he assisted, in unloading the cattle, accompanied them to the pasture, and was with them during the losses. He testified as to the delay in unloading, the bad appearance of the cattle, and their then weakened condition. Other testimony shows the cattle were badly skinned, bruised, some of the horns knocked down, and the likfe, when unloaded, and that such confinement in the car and pens would produce that condition. We believe the causal connection was sufficiently shown to admit this testimony. Besides, we are unable to perceive any injury in admitting the testimony, as the jury did not allow damages for the loss of any of the cows on the ranch. The only effect of the testimony would have been by relation to the injuries sustained at the time of holding them on the cars, etc. This assignment will be overruled.

The fifth, sixth, seventh, eighth, and ninth assignment are to the effect that the court erred in refusing to instruct a verdict for appellant and in overruling several objections to the charge of the court and also the verdict of the jury is not supported by the evidence, all of which objections and assignments are based upon the assertion that there was no evidence as to the market value before and after the injury, and therefore the charge of the court was unwarranted and the verdict unsustained by the evidence. These assignments will be overruled for the reasons given in overruling the first, second, and third assignments.

[4] The tenth assignment is predicated upon an objection to paragraph 2 of the trial court’s charge to the jury. The objection made is to the effect that, because the court’s charge was not qualified with reference to the effect of the appellee’s contributory negligence, it was therefore erroneous. In the paragraph of which complaint is urged the court submitted to the jury acts alleged to have been negligence on the part of the appellant causing the injury. The trial court in other paragraphs defined “contributory negligence,” and in subdivision 2 of paragraph 3'charged the jury that if the appellant was negligent in receiving the cattle or in not removing them from the pens so as to unload the remainder thereto to find for appellant; also in paragraph 4 the jury were told even though they should find that appellant was negligent, the proximate cause of the injury to the cattle, but if they further found appellee was guilty of contributory negligence they could not find for appellee anything. The trial court also gave appellant’s specially requested charges on contributory negligence, Nos.- 5, 16, 17, and 18; some-upon the specific point presented by appellant’s brief, and No. 18 specifically charged:

“This would be true notwithstanding the fact that negligence, if any, on the- part of the defendant, also had a proximate part in causing, injury and damages, if any.”

Surely the appellant obtained all he could in good conscience require at the hands of' the trial court. The- jury will be presumed to have read the charges of the court as well, as the special charges, requested and given. These several charges will be construed in, connection with the changes of which complaint is made, and; so, construed, manifestly no probable injury resulted to- appellant from the charge complained, cf. Railway Co. v. Matula, 79 Tex. 577, 15 S. W. 574.

[5] The eleventh- assignment is- predicated, upon an objection to the court’s- charge, authorizing a recovery foe one-cow, which fell-while unloading on account of negligence in. spotting the car and- in. arranging the “bull, board,” between the car and, chute, because-it is as*serted the charge - omitted the essential element of proximate-cause. The trial-court did charge the jury on this item, in paragraph 4, to the effect that- such negligence must have been, the proximate cause-of the negligence of the appellant, and he gave appellant’s specially requested charge-No. 9. This charge gave the appellant’s theory as to this particular animal. Nothing • more reasonable could be-required in order-to fully protect appellant.

The twelfth assignment is. .predicated upon the following charge, to. which several objections were made:

“It was the duty of the plaintiff to accept his cattle at their destination when delivered' to him in the stock pens by the railroad company, but if you find from-.the evidence that,, after a part of said, cattle had been unloaded from the cars into said-pens, he had some arrangement or understanding with the conductor, Batson, that he would be given time to ■ provide men and horses for the purpose of removing from the pens the cattle which had been delivered into same,- and if you further find that plaintiff, in the- exercise of ordinary care, relied upon such- agreement or understanding, if any there was, and that in the exercise of ordinary care procured horses and men for the purpose of removing from the pens - the cattle that had been delivered therein audio hold same until the remaining cattle be un- ■ loaded, then the defendant, in the exercise of ordinary care, was required to await a reasonable time for the purpose of allowing plaintiffs to procure said horses and men for this purpose.”

rIhe propositions presented under .this assignment are: (1) The charge is abstract and misleading; (2) that there is no evidence that the conductor had authority, either express or implied, to malre the agreement therein mentioned; (3) it is on the weight of the evidence because it assumed to tell the jury what would constitute negligence on the part of appellant.

This charge was evidently framed on appellant’s 'plea of contributory negligence on the part of appellee to receive the cattle and that he negligently failed and refused to remove the cattle from the pens within a reasonable time suspending the unloading, and that the loss was through his misconduct. The evidence in this case shows the pens for receiving the cattle as they were unloaded were too small for the entire 28 cars and that about half could be unloaded into them. It was apparently conceded, or at least treated by all parties, that both carrier and shipper knew of this condition before the shipment was undertaken. The appellee shipped with the train a car of horses for the purpose of holding the cattle after the delivery, or rather to meet the condition which resulted from the inadequacy of the pens. Upon arriving at the pens and after spotting the ear, the horses were first unloaded and taken to the barn of the ap-pellee, three or four blocks from the pens, to feed and water, as they had been on the train without food or water. The conductor of the train, the evidence suggests, knew of the purpose of bringing the horses and unloading to feed them. The train arrived about 3 :30 a. m. in the midst of an April blizzard, which one of the witnesses described as being such as occurs in this country at that period of the year, and that sleet and snow were falling. The pens were filled about 5:30 a. m., and at that time the appellee testified, and he appears to be corroborated by other witnesses, that he sought the conductor and told him he would have to give him time to go to the lot and get the saddle horses and empty the pens so they could finish the unloading, and that the conductor said to him, while he was getting the horses, that he (the conductor) would run down and finish with his lunch. Appellee went after the horses, which the testimony indicates were four blocks away, some say a quarter of a mile, and returned in from 20 to 30 minutes with the horses, after the conversation, and when he returned there- was no engine, but it had gone. The appellee then went to the depot, at which an operator was then present, who informed appellee that the conductor had him wire the dispatcher and that the dispatcher ordered him in. After the engine left, it seems the agent told appellee there would be another engine in two or three hours, but none came, which they could use, until about 6 o’clock in the afternoon of that day, after which the remainder of the cattle were unloaded. The conductor, however,» testified that appellee told him that he would not empty the pens until -daylight, and that he (the conductor) told appellee he could not wait there that long, and that he would go down and ask for instruction of the dispatcher, which he did. It will be seen the testimony presented a square issue between the appellee and his witnesses and the conductor as to the cause for leaving 'the cars on the track unloaded and the pens full of cattle. The conductor’s testimony tends to support the charge of negligence on the part of appellee in failing and refusing to receive his cattle at destination, or in failing to prepare to relieve the situation by emptying the pens of the cattle unloaded into them.

[6] We do not know that we understand just what appellant intends to assert as error in the proposition that the charge is entirely abstract and misleading. The charge appears to us, instead of being abstract, ■ to be concrete. It was given on the issue of contributory negligence charged against appellee. The court directs the jury to find whether or not certain facts were true and, if so, to find whether the appellee, in the exercise of ordinary care, relied thereon. If they so found, then he would be justified in relying upon the facts found by the jury. In other words, he would not be guilty of contributory negligence.

Again, it is asserted the evidence did not authorise the finding that the conductor had authority express or implied, to make the agreement. The contract of transportation required a delivery to the consignee at the place of destination. It is statutory, as well t as the general rule as to common carriers, that suitable pens and facilities must be provided to unload live stock preparatory to and as part of the delivery by the carrier to the consignee. But the rule does not require more than that the pens should be sufficient in capacity to accommodate the ordinary and usual volume of business, or such business as is to be reasonably anticipated at the point in question. Section 1551a, vol. 4, Elliott on Railroads. In this case it seems to have been the issue that in making the delivery by the carrier ordinary care was not exercised; not that it had failed in its duty to furnish adequate facilities for unloading and pens of a capacity sufficient to receive the shipment. The appellant sought to meet this charge of negligence by establishing that appellee failed and refused to accept the delivery at the time and place of the delivery, or that owing to his own neg-ligence in receiving tlie shipment he contributed to the injury. The evidence would appear to indicate, or, at least, the case seems to have been tried upon the presumption, that both the carrier and shipper contracted tor the transportation with the knowledge that the pens were not of sufficient capacity to accommodate, the entire shipment at one time, but that in order to receive them or make a delivery the appel-lee would be required to make some extra arrangements for receiving them. This appears to have been done, but the question remains: Was it such as an ordinarily prudent man would have provided under the circumstances? As a part of the circumstances, the conductor’s consent to wait until the appellee could go a short distance for men and horses; to hold the first pen full of cattle until the balance of the train could be unloaded. It is this agreement or permission to allow time for the holding that appellant asserts the conductor could not make without express or implied authority shown by the evidence. This depends, we think, largely upon the duty of the carrier with-reference thereto.

[7, 8] Of course the carrier is not bound by unauthorized acts or agreements. We think the general rule as to the agent of a carrier applicable in this case. The public have a right to suppose agents are authorized to make contracts or agreements from the manner in which they are employed, or are seemingly intrusted by their principal. As most of the carrying business now is done by corporations which can act only through the instrumentalities of agents, it is necessary for the protection of the shipper that this should be so. Sections 460-462, vol. 2, Hutch. Carriers; McCarty v. Railway Co., 79 Tex. 33, 15 S. W. 164. A carrier, when it undertakes to carry live stock, assumes certain obligations to deliver at destination. They are to be delivered at destination to the parties designated to receive them if he is present or can with reasonable effort be found.

“No obligation of the carrier, whether the freight consists of goods or of live stock, is more strictly enforced. * * * If the consignee is absent from the place of destination, or cannot * * * be found, and no one appears to represent him, the carrier may place the goods in a warehouse or store with a responsible person. * * * If the freight consist, as in this case, of live stock, the carrier will not, under the circumstances mentioned, * * * relieve himself from responsibility by turning the animals loose. He must place them in some suitable quarters where they can be properly fed and sheltered, under the charge of a competent person.” Railway Co. v. Commercial National Bank, 123 U. S. 727, 8 Sup. Ct. 266, 31 L. Ed. 287.

[9] It is the duty of the carrier to unload within a reasonable time, and we are in-dined to the view that the carrier’s liability does not end until the consignee has a reasonable fme after arrival to remove them. At least, the duty is on the carrier to afford the shipper opportunity to remove the shipment and should provide reasonable facilities for doing so. Sections 1520, 1521, vol. 4, Elliott on Railroads. The carrier is bound to afford the shipper reasonable opportunity to unload even when he assumes that duty. Primarily such duty rests upon the railroad, but may’ be imposed upon the shipper by special contract. Section 1552, vol. 4, Elliott on Railroads; Railroad Co. v. Trawick, 80 Tex. 270, 15 S. W. 568, 18 S. W. 948. The carrier in this case having accepted the shipment to be delivered at that point, the duty rested upon it to at least afford the shipper reasonable facilities for accepting and receiving the cattle or to unload them. An engine to move and spot the cars was •a necessary facility. The carrier was present, through the conductor, into whose care he had placed the shipment, and clothed him with apparent authority to fulfill the duty resting upon the carrier. • The conductor’s judgment, skill, and care was that of the carrier. He was therefore to be held to have all necessary or needful authority over the shipment; to do all that was reasonably necessary to perform his master’s duty, under the contract of shipment. It seems to us, under the circumstances of this ease, if the conductor consented to wait until the appellee could go a short distance for his horses and men to enable the cattle in the pens to be removed therefrom, and to facilitate the delivery of the remainder, and the time was reasonable, the shipper would have the right to rely upon that authority or agreement, and, if he performed his part within a reasonable time and in a reasonable manner, he should be acquitted of contributory negligence. We believe the charge of the trial court to be a proper one under the facts of this ease.

[10] Neither do we think the charge is upon the weight of the evidence in the particular pointed out by appellant in its brief. The phrase upon which appellant relies is segregated from the body of. the charge of which it is a part. The phrase as segregated reads:

“In the exercise of ordinary care was required to await a reasonable time for the purpose of allowing plaintiff to procure said horses and men.”

Even in this phrase appellant omits the words “for these purposes,” which qualify the time to procure the horses and men and limit it to a purpose which under the law appellee clearly had the right to act upon, even if the duty had been placed upon him by agreement to unload the cattle. The appellant also omits the beginning of the plirase, “tlien the defendant.” Clearly, these_ words coupled the phrase following to that which had preceded, and that which preceded was to the effect that if the jury found the facts stated an excuse for not instantly emptying the pen, if the appellee acted with ordinary care and with reasonable diligence upon the consent of the conductor, who at that time in the nature of things was representing his master, he would have the right to rely thereon. The assignment will be overruled.

[11] The thirteenth and fourteenth assignments will be overruled. We do not think the charges here complained of are on the weight of the evidence. We see no error which could have resulted to the appellant’s injury by the court directing the jury to itemize the verdict; that is requiring them to find damages to the cattle in the cars and the damages to the cattle unloaded into the pens. The evidence clearly separated or gave a different amount of damages to the two hunches of cattle. It is not perceived by us how a jury of ordinary intelligence would thereby be induced to base their verdict upon an incorrect measure of damages. As we view the matter, there was no reversible error in the charges objected to.

[12] Under the fifteenth assignment, the appellant complains at the refusal of the court to give a specially requested charge. In so far as this charge was correct it was covered, we think, in the court’s main charge and by several special charges requested by the appellant and given by the trial court. We find no reversible error, and the judgment of the trial court will be affirmed.

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