Houston Tex. Cent. Ry. Co. v. Roberts , 60 Tex. Civ. App. 145 ( 1910 )

W. H. Roberts and C. E. Shults brought this suit against the Houston Texas Central Railroad Company, the Gulf, Colorado Santa Fe Railway Company and the Atchison, Topeka Santa Fe Railway Company, to recover damages alleged to be $4,780, to a shipment of 904 head of stock cattle, part from Llano and part from Marble Falls, to Fairfax, Oklahoma.

There was a judgment rendered against the Houston Texas Central Railroad Company for $200, and $31.60 interest; and against the Gulf, Colorado Santa Fe Railway Company for $700 damages and $110.50 interest, and against the Atchison, Topeka Santa Fe for $485 damages and $76.70 interest.

The grounds of negligence alleged against each and all of the roads are, first, that the defendants negligently and roughly handled the cattle, and that they were jammed, thrown from their feet over against each other and against the walls and floors of the cars; second, that the defendants carelessly and negligently failed to keep in good order and repair their cars and engines, and attempted to haul said cars with broken and defective engines; third, that at various and sundry times along the route defendants took into and set out of the train containing the cattle numerous cars loaded with dead freight, thereby causing said cattle to be unnecessarily switched, bumped, jarred and jammed; fourth, that all along the route defendants carelessly and negligently delayed the transportation of said cattle by slow runs and stops, and fifth, that at Cleburne, Texas, defendants caused said cattle to be unloaded in muddy pens over plaintiffs' protest, and again loaded into the cars, thereby causing great delay and injury to said cattle.

There is, in our opinion, a fundamental error apparent upon the face of the judgment, which will require a reversal of the case, although there are other errors which we propose to point out in the opinion, for which the case ought also to be reversed. The verdict contained in the judgment is as follows: "We the jury find a verdict in favor of the plaintiffs as follows: Against the Houston Texas Central Company for $200, and against the Atchison, Topeka Santa Fe Railway Company for $475, and for each of said amounts to bear interest at the rate of six percent per annum from April 21st, 1906." Upon that verdict judgment was rendered against the Houston Texas Central Railroad Company for $200, with interest for $31.60, and against the Gulf, Colorado Santa Fe for $700, together with $110.50 interest, and against the Atchison, Topeka Santa Fe for $485, together with $76.70 interest. The case was tried before a jury, and the liability and nonliability of each of the roads against which judgment was rendered was submitted by the charge of the court. The verdict makes no disposition and finding with reference to the Gulf, Colorado Santa Fe Railway Company, but the judgment, as will be observed, is against that road for the amount just stated. Of course, the judgment must follow the verdict, and it was improper to render a judgment against the Gulf, Colorado Santa Fe Railway Company unless it had been disposed of and determined by the verdict. Possibly this is a mistake which may have occurred in making up the transcript; but, of course, this we do not know, as we can only be governed by what is contained in the record.

The error pointed out in the first assignment will doubtless be corrected upon another trial. That charge, taken in connection with the one given at the request of the appellants, doubtless did not mislead the jury. But upon another trial we suggest that the apparent error be removed by the court instructing the jury to the effect that the burden imposed upon the railroad company is the exercise of ordinary care to transport the cattle within a reasonable time.

The second, third and fourth assignments of error are well taken. The court, in the fifth paragraph of its charge, substantially instructed the jury to the effect that if all or either of the roads mentioned were guilty of any act or omission charged in plaintiffs' petition in connection with the handling, transporting or delivery of said cattle, and that such act or omission, if any, amounted to negligence on the part of defendants or either of them, and that such negligence proximately resulted in damages to plaintiffs' cattle, they should find a verdict for plaintiffs for the amount of the damages that said cattle sustained as a result of such negligence, together with interest, etc. There were, as we have stated in the former part of this opinion, several grounds of negligence alleged against all of the roads. Some of these averments were not supported by the evidence. The charge, in effect, instructed the jury that if any of the defendants were guilty of any of the acts of negligence charged in the petition, and they proximately caused the injury, etc., to find against them. That is virtually submitting to the jury all of the issues of negligence pleaded, whether proven or not. Of course, a jury might select which of those acts of negligence charged had evidence to sustain them; but the trial court has no right to submit an act of negligence unless there is some evidence relating to it. We will not undertake to point out all of the alleged acts of negligence which were not established by the evidence, but, just to illustrate that this is a fact, we can call attention to the absence of testimony tending to show that the Atchison, Topeka Santa Fe was guilty of any delay. The evidence of the plaintiff himself admits that the Atchison, Topeka Santa Fe made good time.

The point raised by the fifth assignment of error with reference to the failure of the charge of the court to confine the jury to market value in determining the damages, will doubtless be corrected upon another trial; but, however, that will depend upon the testimony. If there is a market value, that ought to govern. If there is no market value, plaintiffs would be entitled to the reasonable value of their cattle which sustained damages by reason of the delay, or injuries arising from the other acts of negligence alleged.

We do not think that the charge is on the weight of the evidence, as complained of in the sixth assignment.

The evidence complained of in the seventh, eighth and ninth assignments was admissible.

We do not think any error was committed, as pointed out and complained of in the tenth and eleventh assignments, in the exclusion of the testimony there referred to. The plaintiffs were entitled to the value of their cattle in the condition they should have been in at Fairfax, their point of destination, if transported within a reasonable time and without negligence. What they might have brought some time subsequent to then, in another and different market, could not be admitted to affect the right of plaintiffs to recover the damages they sustained when the cattle arrived at Fairfax. Upon this subject this court, in Gulf, Colorado Santa Fe Ry. Co. v. Stanley, 29 S.W. 807, said: "Although the cattle were not shipped for immediate sale, and were pastured for a number of months after reaching their destination, their deterioration in market value at the place of destination, or so much thereof as was caused by appellant's negligence, was the correct measure of damages. This was decided by this court in Gulf, Colorado Santa Fe Ry. Co. v. Hume, 6 Texas Civ. App. 653[6 Tex. Civ. App. 653], 24 S.W. 915, and affirmed on this point in the same case by the Supreme Court in 87 Tex. 211 [87 Tex. 211], 27 S.W. 110." Other similar cases bearing upon this subject are: Texas Pac. Ry. v. Avery, 33 S.W. 706; Mitchell v. Western Union Tel. Co., 12 Texas Civ. App. 262[12 Tex. Civ. App. 262], 33 S.W. 1020; Galveston, H. S. A. Ry. Co. v. Thompson, 44 S.W. 9, and Hughes v. Austin, 12 Civ., 178, 33 S.W. 609.

We are inclined to the opinion that the evidence set out in the bill of exception under the twelfth assignment of error was admissible. The objection to it merely went to its weight and not to its admissibility.

We are inclined to think that, as against the Gulf, Colorado Santa Fe Railway Company, the letter complained of in the thirteenth assignment of error, which was admitted against the defendants, was admissible. There is no objection urged to it on the ground that that agent did not have authority to write such a letter or to make such a statement with reference to the time consumed at certain stations. If this objection had been urged it might have been a different question.

The remaining assignments are on the facts.

For the reasons pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.

OPINION ON MOTION FOR REHEARING.