Opinion
No. 3676.
May 9, 1929.
Appeal from Grayson County Court; R. M. Carter, Judge.
Action by Anderson Hileman against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
The suit is for damages to a shipment of cattle arising out of alleged negligence on the part of the railroad company. The appellees had 77 head of cattle shipped to them at Whitewright, Tex. The cattle were loaded in the first instance in two cars. One of the cars was 40 feet long, and the other was 36 feet long. Three head of the cattle were seriously injured, some were bruised and deteriorated in value, and five were dead upon arrival of the cars at destination. As appears, all of the injured and dead cattle were in the car 36 feet long. The producing cause of such injuries to the cattle was the major issue in the cause.
The freight classification of shipment in evidence, which was legally authorized, stipulates that: "In receiving live stock of any description for transportation, not in boxes, cages or crates, the actual delivery to the carrier does not commence until the stock has been placed in the car. * * * The owner or his agent is responsible for the loading and unloading of live stock, not in boxes, cages or crates, the carrier assuming no liability whatever in regard to such loading or unloading; any assistance which may be rendered by an employee of the carrier in loading and unloading shall be construed as purely voluntary, and any such employee while so engaged shall be considered the agent of the owner and not of the carrier." The contract of shipment in evidence, which was legally authorized, stipulates that: "Unless caused by the negligence of the carrier or its employees, no carrier shall be liable for or on account of any injury or death sustained by the said live stock occasioned by the following causes: overloading, crowding one upon another. * * * The shipper at his own risk and expense shall load and unload the live stock into and out of cars, except in those instances where this duty is made obligatory upon the carrier by statute or is assumed by a lawful tariff commission." The plaintiffs relied upon and introduced in evidence the contract of shipment. Although the loading of the cattle into the cars was superintended by other parties, yet the plaintiffs, according to the evidence, paid for the loading. In effect the loading of the cattle into the cars became the act of the plaintiffs in performing such duty imposed upon them by the contract of shipment.
E. B. Perkins, of Dallas, and Head, Dillard, Smith. Maxey Head, and J. F. Holt, all of Sherman, for appellant.
J. P. Cox, of Sherman, for appellees.
The court submitted to the jury the following: "Q. 1. Was the defendant, its employees or agents, guilty of negligence? In answering this question you will take into consideration the matter of overloading the cars in question, if there was any; the manner in which they were handled in transporting them to the point of destination; whether the cars in which the cattle were shipped were properly bedded." That was the only question respecting negligence vel non that was submitted to the jury. Timely objection was made to the charge. Such general form of question was objectionable, in the circumstances of the case. Rosenthal v. Hillebrandt (Tex.Civ.App.) 280 S.W. 882. The very error in the Instruction to the jury was to authorize a finding of negligence on the part of the railway company simply "for the matter of overloading the cars." In the circumstances the jury could have understood by the instruction, and probably did, that the railway company would be liable upon the bare fact of "overloading the cars," and irrespective of any default in that respect of the railway company, although such overloading was done by the plaintiffs, or by others for them, in furtherance of their duty to load the cattle. Since the contract of shipment expressly imposed the duty upon the shipper of loading the cattle into the cars, the railway company would not be liable merely for the act of the shipper in "overloading the cars." Texas P. Ry. Co. v. Edins, 36 Tex. Civ. App. 639, 83 S.W. 253; Massey v. Ry. Co. (Tex.Civ.App.) 200 S.W. 409; 10 C.J. p. 105.
Failure of the railway company to provide a suitable car for the shipment, which is one of the alleged grounds of the suit, for the shipper to perform his duty of properly loading the cattle, is a distinct question and not included in the charge. Trout Newberry v. Ry. Co. (Tex.Civ.App.) 111 S.W. 220.
The judgment is reversed, and the cause is remanded.