Opinion
No. 1031.
January 8, 1920. Rehearing Denied February 5, 1920.
Appeal from District Court, Pecos County; Jas. Cornell Judge.
Suit by T. P. Sanderson and another against the Panhandle Santa Fé Railway Company and another. From judgment for plaintiffs against named defendant, the latter appeals. Reversed and remanded.
Ellis Douthit and C. E. Mays, Jr., both of Sweetwater, for appellant.
McKenzie Loose, of El Paso, Blanks, Collins Jackson and H. S. Garrett, all of San Angelo, and W. A. Hadden and Williams Smith, both of Ft. Stockton, for appellees.
T. P. Sanderson and son brought this suit against the Kansas City, Mexico Orient Railway Company of Texas and the Panhandle Santa Fé Railway Company for damages to a shipment of cattle from Ft. Stockton, Tex., to Littlefield, Tex., via Sweetwater.
The allegations of negligence are: First, delays on sidings and switches; second, rough handling; third, sudden stop because of collision, or near collision, with motorcar or section hand car, resulting in damages to the cattle.
Appellant answered said allegations by general demurrer, special exceptions to the effect that plaintiffs' allegations were too general and did not specify in what the said alleged negligence consisted, a general denial, and specially pleaded that at and prior to the time of shipment the section of the country from which the cattle were shipped was suffering from a most severe and unprecedented drought, and that the grass therein had been insufficient to maintain said cattle, and that same were in a weak, starved, and impoverished condition, and were too thin and poor to stand the trip in question, and that such condition was the proximate cause of the damage; a general plea of contributory negligence on the part of appellees and their caretakers; that inherent vices and weakness of said cattle and their natural disposition to hook, horn, and gore each other was the proximate cause of the damage; that appellees overloaded the cars, proximately causing and contributing to cause the loss and injury; that in view of the poor and weak condition of the cattle, appellees were guilty of negligence in not having said shipment unloaded for feed, water, and rest at some point en route the carriers having adequate facilities therefor at San Angelo, Tex., Sweetwater, Tex., and Slaton, Tex., and that such negligence proximately caused and proximately contributed to the loss and injury, if any, sustained by appellees that the stop or alleged near collision set up by appellees was not sudden and abrupt, and was of no more force and violence than the usual and ordinary stop made by a freight train in the usual customary course of business, and did not injure or damage said cattle; that if the cattle were injured by the alleged stop, it was duty of appellees and their caretakers to unload said cattle at Slaton and take the dead ones, if any, out of the cars, and to get up the ones which were down, if any, and to alleviate and diminish the loss and damage, and same constituted negligence; that the alleged stop was not due to any negligence, but was an unavoidable accident; that said live stock were transported under a special written contract, placing the duty of loading, unloading, and caring for said cattle while en route on appellees, and that appellant would not be liable for any damages resulting from the weakened condition of the cattle.
The trial resulted in a verdict for appellees, on special issues and judgment against appellant, for the sum of $1,375, and interest, and in favor of the Kansas City, Mexico Orient Railway Company of Texas.
Answering the assignments in the order which we consider most logical, 21 and 22 are overruled. The pleadings were sufficient to meet the exception that the allegations were too general and did not specify in what the alleged negligence consisted.
The first and second complain of the refusal of the court to submit the question, "Did the plaintiff overload said cattle?" with accompanied explanatory charges approximately correct in form and substance, submitting affirmatively this defense pleaded. The evidence is sufficient to warrant the submission of this charge, and it was error for the court to refuse it.
The third and fourth are that it was error to refuse charge not to take into consideration any damages caused by overloading of the cattle. The record discloses that the appellant took charge of the cattle at Sweetwater, under a new contract, which contained a paragraph that it would not be responsible for overloading. This was error also. Massey v. T. P. Ry. Co., 200 S.W. 409. The cattle having been loaded by the plaintiff upon another line, and the evidence clearly having raised the issue, the court should have given the affirmative defensive charge.
The fifth, sixth, seventh, and eighth are to the effect that the court erred in refusing to submit the defense pleaded, viz. the failure of plaintiff to unload the cattle at Slaton after the near collision and sudden stop in an effort to diminish or mitigate the damages.
In this there was no error. There is evidence to indicate that such a course would have been proper, but there is no definite evidence that to have so unloaded the cattle would have resulted in any material benefit to them, nor is there any evidence that any definite injury which could be measured in dollars probably resulted by failure to so unload, so in the absence of such proof there was no basis for a verdict. F. W. D.C. Ry. Co. v. Daggett, 87 Tex. 322, 28 S.W. 525. This disposes of the eleventh and twelfth upon refusal of charge on duty to unload at Sweetwater.
The ninth and tenth: Was it error for the court to refuse to submit the questions, "Were the cattle so poor and weak as to be unfit for shipment?" and, "Was such the proximate cause of the injuries?"
There is affirmative evidence in this record to the effect that there was no rough handling of this shipment of cattle, and also affirmative evidence that they were too poor for shipment, but we will not hold that it was reversible error to refuse to submit the issue in this instance; but, if upon another trial the evidence should be sufficient to raise the issue, the questions should be propounded for determination, having in view the holding "that a recovery cannot be had for injuries which were the proximate result of weakness at the time they were tendered for carriage, yet the carrier, having received them, was in duty bound to exercise ordinary care, and to transport them with reasonable dispatch, and, if guilty of negligence or unreasonable delay which proximately resulted in injury, it is liable, though the results were more disastrous than if the cattle had been in good condition." T. P. Ry. Co. v. Dawson, 34 Tex. Civ. App. 240, 78 S.W. 235; K. C. M. Ry. Co. v. Weatherby, 203 S.W. 793.
No error in the thirteenth.
As to the fourteenth, the testimony of witness as to contents of official Railway Equipment Register was not admissible to prove capacity of the cars, over the objection that it was not the best evidence.
The fifteenth, sixteenth, and seventeenth, and others, complain of exclusion of testimony of witnesses who were shown to have had experience in shipping cattle, such as, "That it was usual for cattle such as plaintiffs' were, shipped 400 miles, that some of them will have hair rubbed off by the jolting ordinarily incident to handling same on a freight train," and the opinion "that plaintiffs' cattle were not rubbed up and bruised any more than cattle of that kind would ordinarily be," and "the cattle shipped fairly well considering their physical condition."
In this there was no error. Houston T. C. Ry. Co. v. Roberts, 101 Tex. 418, 108 S.W. 808. Where witnesses qualified by experience offer opinions in evidence upon purely questions of fact, such testimony is admissible, but where the opinion offered partakes of nature both of fact and law, such are not admissible, and its admission or exclusion is for the trial court in the exercise of his discretion, and will not be reviewed, unless clearly abused. T. P. Ry. Co. v. Warner, 42 Tex. Civ. App. 280, 93 S.W. 489.
For the reasons given, the case is reversed and remanded.