This is an appeal by the Texas Central *Page 642 Railroad Company from a judgment rendered against it in favor of P. C. O'Loughlin, for damages to six cars of beef cattle shipped by him from Albany, Texas, to East St. Louis, Illinois, over the line of the appellant company to Cisco, and thence over other lines to their destination. The negligence of appellant, upon which a recovery was sought and had, consisted in a failure to properly bed the cars for the shipment at Albany. The appellant answered, pleading specially a written contract with appellee limiting its liability to damages for loss or injury occurring on its own line, contributory negligence of appellee, and other pleas not necessary here to notice.
In submitting the case to the jury the court, in effect, adopted the written contract as the contract of shipment between appellant and appellee, and expressly instructed them that the appellee could not recover against appellant for any damages caused by the negligence of the other carriers handling the shipment, but that it was liable only for the damages proximately resulting from its failure to properly bed the cars at Albany, if they found such failure to be negligence. This being our view of the theory upon which the case was submitted, many of appellant's assignments, which might otherwise appear to be well taken, are without merit. This may be said of the first, complaining of the court's refusal to continue on account of the absence of the witness McLeroy, by whom appellant expected to prove the written contract; of the third, complaining of the court's refusal to sustain a special exception to appellee's petition, because it did not show that he signed such contract by mistake, through fraud, duress, or by accident; of the fourth and fifth, complaining of charges given, and of the seventeenth, complaining of the court's refusal to give a special charge to the effect that there was no evidence of fraud, accident, mistake or duress in signing the written contract pleaded by appellant.
What has just been said might also dispose of the second assignment of error, urging the insufficiency of appellee's plea of duress because not sworn to. It has been held that such plea by a defendant does not fall within article 1265 of the statutes, requiring certain pleas to be verified by affidavit. (Dewees v. Bluntzer, 70 Tex. 406; O'Maley v. Garriott, 49 S.W. Rep., 108; Stevens v. Equitable Mfg. Co., 29 Texas Civ. App. 168[29 Tex. Civ. App. 168], 67 S.W. Rep., 1041; Home Circle Society No. 1 v. Shelton, 4 Texas Law Jour., 950, 81 S.W. Rep., 84.)
The first and sixth special charges requested by appellant were properly refused, because the issue therein referred to was properly embraced within the main charge given, and for the further reason that the charges requested were not accurate expressions of the law applicable to the facts of this case. While, under the contract pleaded by it, appellant would not be liable for damages growing out of the negligence of its connecting carriers, nevertheless it might and would be liable for damages resulting from its own negligence in failing to properly bed the cars in the first place, even though the injuries occasioning such damages did not develop until after the cattle had left its line and were in the hands of the other carriers. Such we understand to be appellee's contention, and such the facts shown by the evidence in this case.
Special charge number 3, to the effect that, if the jury found from *Page 643 the evidence that all of the damages to appellee's cattle did not result from the negligence of appellant, and they were unable to determine from the evidence what amount of said damages had accrued while the cattle were in the hands of the appellant, to return a verdict in its favor, was properly refused. As before indicated, the appellant would be liable for all the damages proximately resulting from its negligence, wherever on the line of transportation the injuries to the cattle may have developed, and the language of the charge was such as probably to have misled the jury in this important particular.
The court, in paragraph three of his charge, correctly placed the burden of proof in the case upon appellee, and there was, therefore, no necessity for giving special charge eleven requested by appellant.
We think it is not true, as contended in the twenty-second assignment of error, that, "if the Texas Pacific Railway Company accepted the cars in the condition they were in, with reference to bedding, from the Texas Central Railroad Company at Cisco, Texas, it made said cars part of its means of transportation, and thereby became liable for any damages to said cattle that occurred by reason of said improper bedding after the cars were so received," in the sense that appellant would not also be liable for the same injuries if it was previously negligent in loading the cattle into cars that were insufficiently bedded, intending, as the evidence indicates it did, that the cattle would at least go as far as Muskogee, in the Indian Territory, in the same cars, without other or additional bedding. The evidence tends to show that it was the custom, and the intention of the parties to this contract, that the cars in which the cattle were originally loaded were to go through to East St. Louis, and were not to be rebedded until they had reached Muskogee, which is shown to be about half way.
We have considered the twenty-fourth and twenty-fifth assignments, complaining of the language of counsel for appellee in addressing the jury, and are of the opinion that no error is shown requiring a reversal of the case. A part of the language objected to was withdrawn by counsel and the jury instructed not to consider it, and the other, though not to be approved, was not of such character as to require a reversal of the case.
We think the evidence sufficient to support appellee's allegations of negligence, and to show that he has sustained damages thereby in the amount awarded him by the jury.
All assignments are therefore overruled, and the judgment is affirmed.
Affirmed.
Writ of error refused.