This case was before this court on a former appeal from the judgment of the lower court sustaining general demurrer and special exceptions to plaintiff's petition. We refer to the case as reported in 5 Texas Civil Appeals Reports, 527, and in 24 S.W. Rep., 550, which will show the nature of the suit, as set forth in the petition.
On the last trial the court below submitted the case to the jury on special issues, which having been answered, in part, adversely to plaintiff, judgment was rendered for the defendant, from which judgment the plaintiff has appealed.
Plaintiff left his son, F.A. Mitchell, in charge of his ranch and cattle in Presidio and Brewster counties, a dry country at some seasons of the year, the son having no authority, according to plaintiff's contention, to negotiate and purchase water privileges for the stock from other parties owning and controlling water and grass, in case the water should fail on his own ranch and become insufficient for his stock. A further contention of plaintiff, as shown by his petition and testimony in his behalf, was that in case of such failure of water on his ranch, he could have procured from other parties water privileges for his cattle and would have done so if advised by his son of such failure of water. Plaintiff resided at San Marcos, and his son was with the cattle on the ranch near Marfa, Texas. The water becoming insufficient for his large number of cattle on the ranch, and there being danger of the supply failing, on the 24th day of March the son sent from Marfa to San Marcos to his father over defendant's telegraph line the following message: "Water is getting low; come out." The failure to deliver this message and the resulting injury to the cattle by want of provision of water for the cattle is the subject matter of the suit, plaintiff showing that if the message had been delivered in a reasonable time he could and would have gone from San Marcos to the ranch, and could and would have procured sufficient water to relieve the cattle and prevent the injury which his son could not have done, not having authority to do so. There was an error in the transmission of the message occurring at El Paso, a relay office of defendant; W.F. Mitchell, the addressee, being changed "E.W. Fitchell." In answering the questions propounded to them by the court, the jury found that the delay and non-delivery of the message was due to this error, and that the error was not caused by high winds, storms or like disturbances; that the *Page 276 cause of the error resulted from the want of due care on the part of defendant's servants by negligence at El Paso.
Plaintiff not being notified of the failing of the water did not reach the ranch until several days later than he would if the message had been promptly sent and delivered, and in the meantime loss occurred by injury to the cattle for want of water, the jury finding that "losses were caused by the failure of water at the time in question."
Opinion. — There is testimony tending to show that the agent was not authorized or provided by his principal with means to obtain water in case the supply on the ranch became insufficient for the cattle, and that the failure of the water was not observed by the agent until it had become scarce and insufficient, and that the cattle would necessarily have been injured to some extent, and that some of the losses would have occurred even if the dispatch had been properly transmitted and delivered in reasonable time, and even if the plaintiff had arrived on the ground in due time, as intended by the dispatch. In other words, it might be inferred from the testimony that plaintiff and his son as agent had been less careful than they ought to have been in providing for the cattle, and that by this want of care the cattle were in bad condition, or at least threatened with injury and serious loss, that did in fact result, and would have resulted if plaintiff had reached his ranch as intended by the dispatch. It is also true that this want of care on the part of plaintiff and his agent, if not remedied as was expected by the dispatch, would have resulted in all the injury and loss to the cattle that did result, including that for which suit is brought. But it was also shown that if plaintiff had arrived in due time as summoned by the dispatch, he would and could have saved much of the resulting loss. Upon this phase of the case the court below concluded that such want of care on the part of plaintiff and his agent would defeat his action (at least some of the court's charges will bear this construction) notwithstanding plaintiff may have been able to have relieved the cattle if he had arrived as intended by the dispatch, and notwithstanding his failure to arrive in time to relieve them and save much of the loss was due to the negligence of defendant in transmitting and delivering the dispatch with ordinary care.
For instance, the court instructed the jury at the request of defendant that, "If you believe from the evidence that plaintiff's agent negligently allowed the cattle to go into and muddy up Antelope Springs and that the injury occurred to said cattle by reason of said negligence, no recovery can be had by plaintiff for said injury." Appellant assigns this charge as error.
The court also qualified a charge asked by plaintiff in such a manner as to indicate to the jury that plaintiff could not recover if his agent's negligence prior to the dispatch contributed to or caused the injury, even though at least some of the injury would have been avoided if defendant had performed its duty in regard to the dispatch.
The charge asked by plaintiff was as follows: "If you should find *Page 277 from the evidence in this case that either the plaintiff or his agent, F.A. Mitchell, or both, at and prior to March 24, 1890, had failed to exercise ordinary care in respect to the supply of water on plaintiff's ranch, and that on the 24th day of March, 1890, such supply of water had become and was insufficient in quantity for sustenance of the cattle on said ranch, and that said cattle were then in peril from such insufficiency of water, and that when defendant received such message for transmission and delivery it was informed of such perilous situation of said cattle, and that defendant did not exercise ordinary care in regard to the transmission and delivery of the message, and that by the exercise of ordinary care the defendant could have transmitted and delivered said message in time to have prevented, either in whole or in part, subsequent injuries to said cattle, if any, caused by such insufficiency of water, but that it failed to do so; and that, meanwhile, on and after March 24, 1890, plaintiff and his said agent did exercise ordinary care in their efforts to relieve the cattle from such peril, but failed thereby to prevent subsequent injuries to the cattle, so that the cattle were in fact subsequently injured as alleged in plaintiff's petition, for want of water, and that such injuries were increased and prolonged by such negligence of defendant in regard to such message, then you are further instructed that, in law, such negligence on the part of defendant would be considered the proximate cause of so much of said injuries as were caused by the sufferings of the cattle being thus prolonged and increased; and that such prior negligence of plaintiff or his agent would, in law, be considered the remote cause."
To this charge of plaintiff the court made the following qualification and gave it to the jury as qualified, which qualification is assigned as error by the appellant: "The foregoing charge is given with the following qualification: `That if you find the plaintiff's agent either failed to discover the condition of the water, which in his judgment required the presence of his principal, or negligently delayed steps to secure his presence, it would, as you are instructed in the general charge, constitute contributory negligence and debar plaintiff's recovery.'"
In the general charge upon the issue of contributory negligence the court charged: "Even if want of due care by the servants of defendant company is shown, still the plaintiff cannot recover unless it appears from the evidence that the losses and injuries for which plaintiff sues to recover compensation are traceable to and have resulted from such want of due care or negligence of defendant. Or if you find they were partly due to such negligence, if you find that defendant has shown that plaintiff was guilty of contributory negligence, and that the injuries complained of are partly attributable to his own negligence, he is not entitled to recover."
As to agency, the court instructed the jury that, "if plaintiff, residing in San Marcos, placed his son as his general agent in charge of his stock of cattle in Presidio County, in the absence of any express limitation or restrictions of his authority, such agent was empowered, and it was his *Page 278 duty, to do what was necessary to protect and promote the business entrusted to him, to provide food and water for the cattle and to protect them by all reasonable and practicable means against all perils and injuries. A failure on the part of said general agent to exercise such powers and to discharge such duties would be the failure of the principal, and any injury resulting therefrom would be due to his own negligence, and if it co-operates with or contributes to cause injury partly attributable to negligence of some one else, it is contributory negligence which debars the right to recover damages for such injuries or losses suffered." The court told the jury that "if the injuries were occasioned by unusual causes which could not have been reasonably anticipated and guarded against, and which required special provisions and expedients the agent could not obtain, but which the principal alone could provide, the failure of the agent to do so would not be contributory negligence of the principal."
The court's charge and its qualification to the charge asked by defendant were calculated to and did doubtless impress the jury that plaintiff could not recover if his own negligence, or that of his agent prior to the negligence of defendant, contributed to the injuries complained of. There are some other passages in the charge that would impress the jury differently, as this: "If you find in answer to these questions that plaintiff's injuries and losses complained of, or any portion thereof, were caused by the negligence of the defendant, you may return a verdict for plaintiff, and will state the amount of actual damages you assess in the form and manner indicated." But this view of the case is immediately contradicted by the following: "If their (defendants') negligence caused such injury or part of it, that the plaintiff himself, or his agent, were negligent and thereby contributed to bring on the losses and injuries, then you will return a verdict for defendant."
It is not true in every aspect of the case that if plaintiff or his agent were guilty of negligence contributory to the losses, he could not recover. He and his agent may have been guilty of negligence without which the injury would not have occurred, and yet in a certain case he could recover for that part of the injury caused by the negligence of defendant. If plaintiff's negligence or that of his agent produced a condition of affairs that left undisturbed would have resulted in the loss, yet he had the right to protect his property from the consequences of his own neglect, and if he could have done so, and would have done so but for the negligence of defendant, or its servants, defendant would be responsible for such consequences of its own negligence. That is, defendant would be liable to the extent that its negligence interfered with plaintiff's ability to prevent the loss, if he would have used the means in his power to prevent the loss. Such loss as would have resulted from his negligence inevitably, even if the dispatch had been properly and promptly delivered, could not be imputed to defendant's want of care, and it would not be liable for that loss. But it would be *Page 279 liable for the losses occasioned by its own negligence to the extent that such negligence prevented plaintiff from saving losses.
A person may by his own negligence start to fall from a great height and be able to recover by grasping a rope in his reach, yet if another should by subsequent negligence move the rope out of his reach, or so obstruct his purpose that he could not save himself, it could not be said that such person would not be liable for the fall and injury upon the ground that the original negligence of the person falling contributed to the result. If a man negligently break his own leg, and his employed and attending physician could by proper treatment save it, but through malpractice or negligence causes its loss, it would not be said that the physician would not be liable for his own negligence, even though the original negligence of the patient contributed to the loss. In such cases the prior negligence would be the remote cause, and the intervening negligence the proximate cause.
A man may redeem his errors and mistakes, at least it is his right to do so, and one who is negligently the cause of his failure to do so becomes responsible to the extent that the consequences of the original error would have been averted but for the improper interference. It is well known that even when one is injured by the negligence of another, it is the duty of the person injured to prevent the injurious consequences as far as he can by the use of ordinary care, and if he fail to use such care to save loss, to that extent the law will excuse the wrongdoer and hold him not liable. Railway v. Cocke, 64 Tex. 151 [64 Tex. 151]; Railway v. Weisen, 65 Tex. 443 [65 Tex. 443]; Railway v. Hauks, 78 Tex. 300; Railway v. McClain, 80 Tex. 86; Hays v. Railway,70 Tex. 603; Railway v. Coon, 69 Tex. 730 [69 Tex. 730]; 2 Thomp. on Neg., 1157, sec. 8.
This case, in the phase of it now under consideration, does not present a question of comparative negligence, nor is it subject to the rule as declared in this State as to contributory negligence and proximate cause, that negligence would be contributory and proximate cause if without it the injury would not have occurred. Railway v. Orman, 64 Tex. 489; Murray v. Railway, 73 Tex. 7.
There is a sharp distinction in those cited cases and this. The negligence in this case, the basis of the action, is the negligent omission of a duty which resulted in the failure of plaintiff to save his cattle from the consequences of his own prior negligence. If the negligence of defendant or its servants defeated that object, and it would have been accomplished but for the negligence of defendant, it would be liable for the injury so caused or resulting and no more. If plaintiff could not or would not have saved any of the loss occurring from his prior failure to provide for his cattle, then defendant would not be liable, even if its servants were negligent as alleged; but to the extent that he would and could have saved loss, and to the extent that defendant's negligence was the cause of his not doing so, defendant would be responsible; but no more.
The court should have given some such charge as that requested by *Page 280 plaintiff, without the qualification added by the court. The principle herein approved should have been observed by the court in its charge. The qualification by the court of the requested charge was also erroneous, because it was upon the weight of evidence in telling the jury that the failure of the agent in discovering the condition of the water which in his judgment required the presence of his principal, would constitute contributory negligence and debar a recovery by plaintiff.
2. We think there was error in giving the charge asked by defendant to the effect that if there was no place "in the neighborhood" of the plaintiff's ranch to which he could have driven his cattle at which there could be found sufficient food and water for their sustenance to avoid the loss, then to find for defendant. The charge should not have restricted plaintiff's ability to relieve his cattle to the neighborhood of his ranch. The question was, would he be and was he able to procure water for them, to prevent the loss that would otherwise have occurred, considering the failure of water on his own ranch? The charge, to say the least, was misleading. To obtain the relief that was procured, plaintiff had to drive his cattle to a distance that the jury might reasonably have concluded was not in the neighborhood. Such error in the charge was reversible. Lee v. Hamilton, 12 Tex. 414; Ponton v. Ballard,24 Tex. 620.
3. The plaintiff's agent had the right to rely upon defendant's transmitting the message sent, and that it would be delivered without unreasonable delay, and the court should have given plaintiff's requested charge to that effect, but not the latter part of the charge as to proximate cause. Railway v. Gray,65 Tex. 32; Railway v. Shieder, 26 S.W. Rep., 509; same case, 30 S.W. Rep., 902. Plaintiff's agent having no notice that defendant neglected its duty in delivering the message, was not bound to anticipate that it would do so in this instance and provide against such negligence.
4. Special charge No. 6, given at request of defendant, was not correct. It reads: "If you believe from the evidence that there was a mistake in the transmission of the message in this case, and that such mistake was the proximate cause of the failure to find plaintiff in San Marcos and deliver it to him, then you will find a verdict for the defendant, unless you find from the evidence that said failure to find the plaintiff in San Marcos was due to some fraud, misconduct or want of due care by defendant." The charge should have qualified the finding for defendant by adding also, "unless you further find that the mistake in the transmission, of the message was caused by the negligence of defendant or its agents." The qualification of the charge given included only the negligence of defendant's servants in finding the plaintiff; it should have embraced the error or mistake in the transmission of the message in order to be a correct charge upon the subject. The contract as to repeating the message could not bind if the failure in transmitting it correctly as written was due to the negligence of defendant's servant so transmitting it. Telegraph Co. v. Linn, 87 Tex. 11; Telegraph *Page 281 Co. v. Lyman, 22 S.W. Rep., 658; Telegraph Co. v. Short, 14 S.W. Rep., 649.
5. It seems that defendant had choice of two lines on which to send the message, one direct from Marfa to San Antonio and thence to San Marcos, and one from Marfa to El Paso, and thence to Dallas, thence to San Antonio, and thence to San Marcos, all the intermediate places being relay offices where the message was received and forwarded. The addressee's name was changed in transmission. The court instructed the jury at request of defendant by special charge No. 17, "that the defendant is not required by law to send a message direct to San Marcos, but the defendant and its agents have the right to send said message by any route that is open to them at the time, considering the condition of the wires and other apparatus used for sending messages, and if the company used ordinary care under all the circumstances in sending the said message, then defendant has the right to select the route." The charge should have instructed the jury that defendant would be held to ordinary care in selecting the route under the circumstances, as well as in sending the message; that is, if any charge was necessary on the subject at all.
6. It was error to require witnesses W.F. Mitchell and W.B. Mitchell, over objection of plaintiff, to answer questions asked by defendant as to the time, labor, means and expenses necessary to restore the cattle to their former condition. The evidence was not pertinent to the issue, and did not furnish the correct measure of damages. The correct rule for the measure of damages for shrinkage of cattle in this case is stated in the case of Railway v. Hume, 24 S.W. Rep, 917, and in the same case on writ of error to the Supreme Court, 27 S.W. Rep., 110, 111; Railway v. Stanley, 29 S.W. Rep., 806.
7. We are at a loss to understand how the jury could, under the testimony, reach the conclusion that plaintiff was not entitled to damages, considering other findings upon the subject, unless they were led to do so upon the theory submitted to them by the court as to prior negligence of plaintiff constituting contributory negligence which would prevent a recovery of damages. The jury, answering special issues submitted to them, found that the message was received by defendant at San Marcos, addressed to E.W. Fitchell instead of W.F. Mitchell; that the delay and non-delivery of the message was due to the error stated in transmission; that it was not caused by physical causes such as high winds, storms, or like disturbances to which the wires were exposed; that the error in the transmission of the message and its non-delivery resulted from want of due care on the part of defendant's servants, by negligence of the receiver at El Paso; that the losses were caused by the failure of water at the time in question; that the water did not disappear suddenly; that it was not discovered by plaintiff's agent until the 23d of March; that the agent was not negligent in failing to discover the failure earlier, and informing his principal; that plaintiff could, if his son's dispatch had been properly transmitted and *Page 282 delivered to him in reasonable time, have guarded against the losses and injuries complained of by employing means which his son could not have provided for — the means he did resort to after he arrived at Marfa in answer to his son's letter.
These special findings are inconsistent with the general finding that no damages were due to the plaintiff, applying the law as we have herein stated it on the subject of contributory negligence as to the prior and original want of care on the part of plaintiff in not providing water for his cattle beforehand to meet the emergency that did arise. In our view of the matter, the error in the court's charge is emphasized by the verdict, as without that error the jury would have awarded some damages for the injuries complained of. Some damages were shown, and the verdict is inconsistent with itself upon any other view than that mentioned.
8. Complaint is made by appellant of the court's failure to submit all the issues in the case, having undertaken to submit the cause upon special issues. Our attention is called to but one omission in this respect, — as to notice to defendant's operator or agent of the importance of the message and the condition of the cattle. We doubt the correctness of submitting this case upon special issues; it might have been submitted more satisfactorily in the usual manner calling for but one general verdict; but the court having undertaken to call for special findings, all material issues should have been submitted, so that, upon return of the verdict, nothing would remain for the court but to draw the conclusions of law and enter judgment. Rev. Stats., arts. 1331, 1332, 1333.
All the issues of fact properly litigated under the pleadings must be submitted, if a special verdict is required by the charge, and a charge in such case omitting a necessary issue is erroneous. Newbolt v. Lancaster, 83 Tex. 271; Cole v. Crawford, 69 Tex. 126; Frost v. Frost,45 Tex. 324. All the issues submitted by the court should be answered unless they are entirely eliminated by other answers; and if the jury omit such answers, or if their answers are not responsive, the court "should call their attention thereto and send them back for further deliberation." Rev. Stats., art. 1327; Anderson v. Webb,44 Tex. 147; Kerr v. Hutchins, 46 Tex. 384 [46 Tex. 384]; Adams v. Cook, 55 Tex. 161.
Because of the errors on the trial herein pointed out, the judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.
Writ of error refused. *Page 283