Houston Texas Central R. R. v. Buchanan , 38 Tex. Civ. App. 165 ( 1905 )

This is a suit by Buchanan against the Houston Texas Central Railroad Company for penalty in the sum of $175, for failure of that road to furnish cars on demand made by the plaintiff; and also for damages for delay; and against the Gulf, Colorado Santa Fe Railway Co., and the Atchison, Topeka Santa Fe Railway Company for damages for delay in the shipment Of cattle over the roads named. Verdict and judgment was for plaintiff against the Houston Texas Central for $175, by way of penalty, and for $697.65 damages, and against the Gulf, Colorado Santa Fe Railway Company for $261.60 damages, and in favor of the Atchison, Topeka Santa Fe Railway Company.

The first, second, third, fourth, fifth, sixth and seventh assignments of error are practically the same as those considered by this court in the case of Houston Texas Central Railroad Company v. Everett (11 Ct. Rep., 862), where we ruled against the contention of appellants on the questions raised by these assignments. But, however, in addition to what is said in the opinion in that case, some of these assignments raise a question which we will briefly notice. The Everett case is based upon Houston T. C. Ry. Co. v. Mayes (11 Texas Ct. Rep., 69), decided by this court, and in which the Supreme Court has refused a writ of error. It was there held that the statute relating to a demand for cars, and prescribing a penalty for failure and refusal to comply with the demand, applied to interstate shipments. In this case, however, the question is raised that the Houston Texas Central Railroad Company, against whom the judgment for penalty was rendered, was not required to furnish cars to be used beyond its own line by connecting carriers. In consultation in the Everett case, we considered this question. The demand for cars, as shown in the record in this case, as well as in the Everett case, does not expressly state that the cars should be used beyond the end of the Houston Texas Central Railroad. It reads that "for the purpose of making a shipment of cattle from Llano, Texas, to Fairfax, Oklahoma Territory, I desire seven cars at Llano on the 14th day of April, 1903. I herewith tender you one-fourth of the freight charges for the use of the cars." The expression, "for the use of the cars," mentioned in the statute, evidently refers to the freight rate between the two points for transporting the cattle. In compliance with this request, the Houston Texas Central road did furnish the cars, but was guilty merely of delay, which subjected it to the amount of penalty recovered by the plaintiff. If we could concede that this railway company was not bound to furnish cars in transporting commodities to market beyond the line of its road, there was no purpose in this case in furnishing the cars to assert this right. The railway company did furnish cars under circumstances which indicate that it intended that the cars should be used in transporting the cattle to Fairfax, Oklahoma. There is a reservation, it is true, in the contract of shipment, that each carrier would not be responsible for damages resulting beyond its own line, and, in submitting the case to the jury, the court kept in view this question, and the verdict of the jury does not hold either road responsible for damages occurring on other lines of road. If the Houston Texas Central road would be entitled to the privilege of limiting the use of its cars to its own line, this right was not asserted nor claimed when the contract of shipment was entered into, or when it undertook to furnish the cars in compliance with the request made by the plaintiff. Therefore, in view of the facts in the record bearing upon this question, we deem it unnecessary to decide the question whether the railway company would be bound under the statute requiring it to furnish cars at the written request of the shipper, to be used in transportation beyond the line of its road.

The eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth and fifteenth assignments of error will be considered together. These assignments substantially raise the question that as the written contract of shipment signed by the plaintiff routes the cattle over the Houston Texas Central Railway by way of Brenham, to the connecting line, the Gulf, Colorado Santa Fe Railway, that he can not be heard to urge the claim of damages for wrongfully routing the cattle by way of Brenham, and for the consequent delay and damages resulting to the cattle, by reason of the longer route and haul by Brenham. The appellant contends that entering into the written contract routing the cattle by Brenham, concludes the plaintiff from recovering any damages for delay that the cattle might have sustained by reason of being so routed. There is evidence in the record to the effect that when the plaintiff entered into negotiations for the shipment of he cattle and demanded the cars, he paid the freight rates upon the basis of $63.25 per car, which amount he understood to be the usual amount; and the evidence does not indicate that he had any notice or knowledge that a greater amount would be charged if the cattle were routed by way of Lampasas, which the evidence shows to be a much shorter haul than if transported by way of Brenham. The plaintiff demanded that they be shipped by way of Lampasas, and supposed at the time that they would be so shipped, and was not otherwise informed, until after the cattle had been delivered to the railway company and placed on board of the cars. Then he was required to sign a contract, practically over his protest, for the shipment of the cattle by way of Brenham; which, as stated before, is a much longer haul, and by reason of which the cattle arrived at their placed of destination much later than would have been the case if they had been routed by way of Lampasas or McNeil. Plaintiff's case is, in part, predicated against the Houston Texas Central upon the wrongful routing by way of Brenham, and for the longer time in transportation that resulted by reason of that fact; and also for some delays that occurred at Llano, and possibly some other points between Llano and Brenham. Upon this subject, the station agent at Llano testified:

"I didn't advise Mr. Buchanan to take the route by way of Lampasas, but it was understood by him and me at the time he placed the demand that he wished to go that way. After the cattle were loaded he said he wanted the through rate, $63.25, by this way. The tariff in force did not apply this rate by Lampasas. In February there was one shipment billed by way of Lampasas, had certain advices. I think it was $16 a car to Lampasas; that was as far as our billing showed, except that destination, which was White Eagle, I believe. The contract was made with the general freight agent. This was the last shipment billed by way of Lampasas from that time up to the 15th of April of last year This one was made about the 18th day of April, 1903, rate $63.25. The same as the rate before by way of Brenham. This rate was in force when Mr. Buchanan made his shipment for the other routes — not by way of Lampasas, only by way of Ft. Worth and Brenham. It is true that when Mr. Buchanan and Mr. Everett went over and told me they wanted the cars, they also told me that they wanted to ship by way of Lampasas before they ever made the written demand. They then asked me the rate, and Mr. Buchanan tendered me one-fourth the freight rate for seven cars, which I accepted. I told them I thought we could make arrangements for them that they could go by way of Lampasas, and knowing that they wanted to go this way, I made the rate of $63.25 a car. It was the only rate I had there to give them, either then or now. Within a certain territory I have a given rate, no matter whether they went by Lampasas, McNeil or Brenham. There was nothing said about billing the cattle through at all; they were merely contending for the rates they understood applied, $63.25 a car, and after those cattle were tendered here ready and loaded, I told them I couldn't take them by way of Lampasas, but offered to send them by way of Lampasas, if they would accept my local billing to Lampasas. I don't remember whether they asked for billing by McNeil. Twenty-three or four cars of cattle were shipped prior to this date, April 15, 1903, by Morledge at a through rate of $63.25. I have had numerous demands prior to this date for routing by way of Lampasas down from Llano to Indian Territory. To the plaintiff in this case I gave the reason our road wouldn't ship by way of Lampasas was that the haul was so short and the rate so small that they couldn't afford it. I think I told him that, I don't remember exactly. We first began to ship cattle at this rate by Lampasas on the 18th of April, and have been shipping that way ever since. On the 14th, 15th and 8th of April, 1903, there were through connecting railroad lines from Llano by Lampasas to Fairfax, Oklahoma Territory, and also by McNeil and Milano Junction, a shorter route than the one by Brenham. I refused positively to ship for plaintiff by way of Lampasas on the $63.25 rate I had given him before. He merely demanded that the cattle be billed through at this rate by Lampasas. I could only take him by way of Brenham or Ft. Worth. That rate did not apply through by McNeil at that time. I could have shipped that way only on the sum of local rates. The through rate had not been applied for about three years. They were billed out at a rate of $16 a car to Lampasas, to the best of my recollection."

There is other evidence in the record coming from the plaintiff, to the effect that he intended and expected to go by way of Lampasas under the $63.25 rate, and that he was denied this privilege, and required to sign the written contract by way of Brenham. Under this evidence it was a question of fact for the jury to determine whether the written contract routing the cattle by Brenham was binding upon the plaintiff, or whether plaintiff had the right to insist upon his demand to be routed by Lampasas. It is apparent that under the circumstances under which the written contract was forced upon the plaintiff, that the agent would not have shipped the cattle by any other route except by Brenham, except on the local rate to Lampasas. Questions similar to this have been passed upon in Missouri, K. T. Ry. Co. v. Carter, 9 Texas Civ. App. 677[9 Tex. Civ. App. 677], 29 S.W. Rep., 565, and Gulf, C. S. F. Ry. Co. v. Jackson, 11 Ct. Rep., 849.

There is evidence in the record which shows some slight delays in addition to the time resulting from the long haul to Brenham, occurring on the Houston Texas Central road. There is also evidence of delays on the Gulf, Colorado Santa Fe Railway.

The sixteenth and seventeenth assignments of error complain of the ruling of the court in overruling special exceptions addressed to the plaintiff's original petition. The pleading complained of, in our opinion, was sufficient.

The evidence complained of under the nineteenth assignment of error was admissible. We are not prepared to say but what these witnesses were qualified to express an opinion as to the usual time consumed by cattle trains in making the run between the points stated in the evidence.

We find no fault with the language of the court in undertaking to define "reasonable time," as complained of in the twentieth assignment of error. As to what is or is not reasonable time, is a question of fact and not of law; but the definition given by the court did not deprive the jury of the right to pass upon the question of fact as to whether the time was reasonable or unreasonable. The court merely undertook to give a definition of the expression "reasonable time," and we find no fault with the rule that he states.

The question presented under the twenty-first assignment of error was passed upon by this court in the Everett case. We there said that there was no error in the definition of negligence given by the trial court. However, we would suggest that the usual definition generally given by the courts be followed by the trial court, if this case is again tried. The test is what a person of ordinary prudence would or would not do, under the same or similar circumstances.

In disposing of the twenty-second assignment of error, we have said that there is evidence of delay upon the part of the Santa Fe road.

We overrule the twenty-third assignment of error. The charge of the court is not subject to the objections urged against it. No reversible error is shown in the twenty-fourth assignment.

There is no objection to the principle of law stated under the twenty-fifth assignment of error, and we are of the opinion that it was proper to be submitted under the facts of this case. But in the body of the charge the court uses the expression, "and should said terminal carrier satisfy you from the evidence," etc. The use of the word "satisfy" is too strong, and in again submitting this question the court should not use the expression "satisfy." All that is required is a preponderance of the evidence upon this subject.

The charge complained of under the twenty-sixth assignment of error is not on the weight of evidence. The twenty-eighth assignment of error is too general to be considered. But, however, it is unnecessary that we should pass upon the question there raised, as the judgment will be reversed on other points.

The eighteenth assignment of error is well taken. The charge of the trial court does not submit to the jury any rule as to the measure of damages. As to whether damages have been sustained is a question of fact for the jury. The rule to measure these damages is one of law, and it is impossible to conceive how a jury can correctly apply the rule of law in measuring the damages, unless the court instructs them as to the rule in its charge.

The failure to do this is more than a mere omission, and we regard it as positive error, in submitting a case of this kind, for the charge to fail to inform the jury as to the rule of law that should govern them in determining from the facts the amount the plaintiff might be entitled to recover.

We are also inclined to the opinion that the twenty-seventh assignment of error is well taken. The charge there complained of substantially instructs the jury that all the defendants or either of them could be held responsible for the damages resulting from wrongfully routing the cattle by way of Brenham. If the cattle were wrongfully routed, only the Houston Texas Central Railroad Company was responsible for that fact. Neither the Gulf, Colorado Santa Fe, nor the Atchison, Topeka Santa Fe were parties to the contract of routing the cattle, and it was error for the court to instruct the jury that they could be held responsible for any damages resulting from that fact. We do not mean to say that we would make this reversible error, if there had been no other error shown that would require us to reverse and remand the case. But the charge is misleading upon this question, and ought not to have been given, although it is apparent from the verdict of the jury that they did not allow any damages against either of the Santa Fe roads for wrongfully routing the cattle by way of Brenham.

For the errors stated, the judgment is reversed and the cause remanded, except as to the Atchison, Topeka Santa Fe Ry. Co. the judgment below is affirmed.

Reversed and remanded.