Opinion
April 15, 1911. Rehearing Denied May 6, 1911.
Appeal from District Court, Potter County; J. N. Browning, Judge.
Action by Lee Bivins against the Atchison, Topeka Santa Fé Railway Company and others. From a judgment for plaintiff, defendants appeal. Modified and affirmed.
Terry, Cavin Mills and Madden, Trulove Kimbrough, for appellants.
R. R. Hazlewood and Lumpkin, Merrill Lumpkin, for appellee.
In May, 1908, appellee shipped two train loads of cattle from El Paso, Tex., to Amarillo, Tex., over the lines of the Atchison, Topeka Santa Fé Railway Company, the Eastern Railway Company of New Mexico, and the Pecos Northern Texas Railway Company. In the first train load there were transported 799 in 22 cars, and in the second train 1,009 in 24 cars. Appellee instituted this suit to recover damages for negligence in the transportation and in a trial before a jury was awarded a verdict and judgment for $7,710.44 apportioned equally among the three defendants.
The defendants have appealed and urge some 37 assignments of error, presenting apparently every possible objection to almost every step in the proceedings below. We shall not undertake to discuss the assignments in detail, as it would be profitless and a needless consumption of time, the criticisms of the petition, of the court's charge, of the court's rulings on evidence, etc., being in many instances more fanciful than meritorious, and we shall therefore dispose of the appeal in a general way.
It is first insisted that the verdict and judgment are excessive, but the record entirely fails to sustain this contention. There was evidence tending to show that in the first shipment as many as 34 cattle died, and as many as 100 were materially injured, and 500 more damaged to the extent of $5 to $7 per head, and 150 to 160 injured to the extent of $2 per head, the estimated damage upon all of which was placed at $4,300. In the second shipment the evidence shows that there were 4 or 5 dead when the train was unloaded; that 8 were left on the way from the stockyards to the shipping pasture; that others died in the pasture, possibly as many as 15; that others were badly crippled; that 600 were damaged $5 to $7 each; that 360 head were damaged to the extent of $2 to $3 per head — aggregating a damage to the second shipment of $3,620, which, plus the aggregate damage to the first shipment, constitutes a total of $7,920, an amount in excess of the verdict.
In various forms it is insisted that there is no evidence of negligence, especially on the part of the Pecos Northern Texas Railway Company and the Eastern Railway Company of New Mexico. The evidence, however, tends to show that the cattle were in good shipping condition when delivered to the Atchison, Topeka Santa Fé Railway Company at El Paso for shipment, and that the cars furnished appellee for the purpose were not suitable, and were insufficiently and improperly bedded, and that at the termination of the transportation the cattle were in a very bad condition, so that we think it is not to be doubted that the issue of negligence on the part of the Atchison, Topeka Santa Fé was raised and the condition in which the cattle were received at Amarillo devolved upon the Pecos Northern Texas Railway Company the burden of showing that it was in no way responsible for the injuries shown, and no effort to do this was made. There is no assignment calling upon us to determine the sufficiency of the evidence to support the verdict against the Eastern Railway Company of New Mexico alone. Moreover, the evidence tends very strongly to show that as alleged by the plaintiff in his petition that the contract of shipment was a through one, and that the Eastern Railway Company of New Mexico was but a part of the Santa Fé system. It is further contended that there is no evidence of unreasonable delay, but we think this contention must also be overruled.
The objection that appellants were not liable for the improper bedding of the cars at El Paso because of a provision of the contract whereby appellee undertook this duty cannot be sustained for the reason that the proof shows beyond dispute that the bedding was in fact done by servants or agents of the railway company at El Paso, and that the whole was completed and the cattle loaded prior to the execution of the contract. The contract therefore is without application. S. A. A. P. Ry. Co. v. Dolan, 85 S.W. 302; M. P. Ry. Co. v. Kingsbury, 25 S.W. 322.
No prejudicial error is perceived in the action of the court in submitting the separate instead of the joint liability of the defendants, and we think the numerous objections to the testimony and to the action of the court in refusing special charges without merit. The cause seems to have been fairly submitted, and the evidence to fully support the verdict and judgment with one exception which we will now notice.
The court in the eighth paragraph of his charge instructed the jury that the measure of plaintiff's damages "is the difference in the market value of his cattle in the condition and at the time in which they arrived at Amarillo and the market value of such stock at the time and in the condition in which they would have arrived but for the negligence, if any, of the defendant, or defendants, as the case may be; and, if any of the plaintiff's cattle died through the negligence of said defendant or defendants, you will allow him the market value of said cattle at Amarillo at the time and in the condition in which they would have arrived there but for the negligence, if any, of the defendant or defendants." One of the objections to this charge is that appellee was thereby permitted to recover the entire value of the cattle that died when the proof shows that he got the hides off of a number of the dead cattle, and testified that they were worth from $5 to $8 each, and this objection we think well taken. The evidence authorizes the conclusion that as many as 24 cattle of the first shipment and as many as 15 in the second shipment died between the delivering pens and in the shipping pasture, and appellee testified that he got the hides of the dead steers except those left in the stockyards, and that the hides were worth from $5 to $8 per head. Allowing the greatest number of hides chargeable to appellee on this account and at the highest price estimated by him, there is $312 worth of hides taken by appellee from the dead cattle that he should not have been permitted to recover, and the judgment will be accordingly reversed for this error in the charge, unless appellee within 20 days shall remit said amount.
This being done, the judgment will be affirmed for the remainder, with costs of appeal taxed against appellee.