Wilkins v. Gulf, C. S. F. Ry.

The action of the trial court in sustaining objections of appellees to certain testimony offered by appellants at the trial is made the basis of the first, second, and third assignments. The grounds of the objections are not stated in the record, and therefore appellants are not entitled to have the contentions presented by the assignments determined. Coal Co. v. Lawson, 10 Tex. Civ. App. 491, 31 S.W. 843; Cabell v. Holloway,10 Tex. Civ. App. 307, 31 S.W. 201.

It appears from testimony in the record that the cattle reached Kansas City about 48 hours after they were loaded on cars at Sanger. Appellants' contention was that 48 hours was an unreasonable time to consume in transporting the shipment. Appellees contended to the contrary, and, as supporting their view, were permitted, over appellants' objections, to prove that it appeared from records appellees kept that in at least 35 isolated instances during the year 1920 they consumed more than 48 hours in transporting shipments from Sanger, and from Fort Worth to Kansas City. We think the testimony should have been excluded on the ground urged by appellants, to wit, that it "was [quoting] irrelevant and immaterial and calculated to mislead the jury." It appeared from the records referred to that the time consumed in transporting the shipments ranged from 50 hours, the least time, to 113 hours, the greatest. The circumstances accompanying the transportation of the shipments, respectively, were not shown. Certainly, if the testimony would have been admissible in any event (and we do not think it would have been [1 Greenl. on Ev. § 52; 10 R.C.L. 927]), it was not admissible in the absence of proof of such circumstances; for without such proof the jury could not know what weight, if any, should be given the testimony.

Appellees insist that, if it was error to admit the testimony referred to above, the judgment should not for that reason be reversed, because there was no testimony, they say, showing "what was the usual and customary time for transporting shipments from Sanger to Kansas City," and, therefore, they say, the court could not have rendered a judgment in appellants' favor. The answer to the contention is that "it was not," quoting from the opinion of the court in Ry. Co. v. Hines (Tex.Civ.App.)239 S.W. 244, "a necessary element in the proof that the usual time of making the run should be shown." It appears from the record that the shipment was held one hour and 40 minutes at Gainesville, and that it may have been held at Emporia from 7 to 9 hours longer than was necessary to enable appellees to comply with the requirement of the law about feeding and watering such stock. It appeared from other testimony that had the cattle reached Kansas City about 7 hours before they did reach there they could have been sold before the close of the market on July 20 and that appellants would not have had to sell them on a declining market on July 21. Such being the state of the testimony we do not think it should be said it appeared as a matter of law that appellants were not entitled to the relief they sought. Ry. Co. v. Wells, Nash Nash (Tex.Civ.App.) 153 S.W. 659.

There was testimony that the cattle were loaded on cars at Sanger at 8 o'clock p. m. July 19, and that they reached Emporia, Kan., at 11:15 p. m. July 20, where they were unloaded and given food and water, and where they were held until 12:15 p. m. July 21. As explanatory of the delay the witness Dickensheets, appellee's chief dispatcher at Emporia, over appellants' objection that it was irrelevant and immaterial, was permitted to testify as follows:

"We have a ruling on our division that stock must have 9 hours and 30 minutes on arrival at Emporia, Kan., in order to make Kansas City for feed, and it is not advisable to vary from this rule and try to make the run in shorter time, as we have had cases of violation of the 36 hour law in trying to do this."

The testimony did not tend either to prove or disprove that appellees were guilty of the negligence charged against them, and it should be excluded if it is offered when the cause is tried again (Ry. Co. v. Porter, 25 Tex. Civ. App. 491, 61 S.W. 343; Ry. Co. v. Armstrong [Tex. Civ. App.] 166 S.W. 366); and so, we think, should be the testimony of the witness Lomax admitted over appellants' objection and set out in their bill of exception numbered 12.

The judgment is reversed, and the cause is remanded for a new trial.

On Motion of Appellees for a Rehearing.

Appellees insisted when the record was first before us for consideration that the judgment should be affirmed without respect to whether the trial court erred in the rulings appellants complained of or not, because, appellees said, the testimony heard at the trial did not warrant a finding that they were guilty of negligence as charged against them, and therefore, they said, it would not have been error had the trial court peremptorily instructed the jury to return a verdict in their favor. The insistence is renewed in the motion, and a majority of the members of the court have concluded, after further consideration of the testimony in the record, that it should be sustained. The explanation offered by appellees of the delay at Gainesville, to wit, that the station was a divisional terminal where it was necessary to consume quite a little time in inspecting and switching the 40 cars constituting the train the cattle were in, was a reasonable one, and, notwithstanding appellants' agent (the witness Cushenberry) accompanied the shipment, they offered no testimony tending to show that any part of the delay there was not necessary. And so as to delay at Emporia. With reference to that the witness Dickensheets testified, and was not contradicted, that the delay of 12 to 14 hours there was necessary in order to properly comply with the federal statute (section 8651, U.S. Comp. Stats.) forbidding a common carrier of cattle and other live stock from confining same in cars for a longer period than 36 hours without unloading them into pens "for rest, water, and feeding, for a period of at least five consecutive hours." As, in the view now taken of the record by the majority, the judgment should not be reversed for any of the reasons urged by appellants and referred to in the opinion disposing of the appeal, the motion will be granted, and the judgment heretofore rendered by this court will be set aside, and the judgment of the court below instead of being reversed will be affirmed.