This suit was brought by appellants against the Gulf Interstate Railway Company, the Gulf, Colorado Santa Fé Railway Company, and the Houston Texas Central Railway Company for the recovery of damages alleged to have been sustained by appellants to a shipment of 452 head of cattle from Winnie, a station on the first-named road, to Calvert, on the Houston Texas Central Railroad. There was a judgment in favor of appellants against the Gulf, Colorado Santa Fé Railway Company for $31.05, and in favor of the other two roads against appellants for costs of suit, from which judgment this appeal is prosecuted.
The gravamen of the action, so far as the Gulf Interstate Railway Company is concerned, was its alleged failure to furnish cars at the time contracted for the movement of said cattle, and as to the other two roads for delay and rough handling of said shipment en route, whereby several of said cattle were lost, and the entire shipment damaged and injured. The Gulf Interstate Railway Company defended on the ground that it was impossible, on account of a heavy rainfall, to furnish the cars at the time agreed upon, but that the same were furnished and the cattle shipped out on the 19th, and that no injury occurred on its line by reason of said failure. The Gulf, Colorado Santa Fé Railway Company likewise pleaded unprecedented rainfall in answer to the charge of delays on its line, denying any rough handling of said cattle by it, and, in addition thereto, setting up a contract limiting its liability to damage occurring on its own line, as well as numerous exceptions absolving it from liability by reason of such special contract. The Houston Texas Central Railroad Company specially denied that said shipment was delayed or roughly handled upon their line, and the Gulf Interstate, as well as the Houston Texas Central, undertook to absolve themselves from liability for any injury on the line of the other by adopting the answer of the Gulf, Colorado Santa Fé, pleading special contract, as heretofore stated.
The court in its charge to the jury limited the recovery of appellants against each railway to injuries occurring upon its own line, and refused a special charge to the effect that if from the evidence they believed that the contract upon which plaintiffs' cattle were shipped was a through contract from Winnie to Calvert, and was accepted and acquiesced in by all the lines transporting said cattle, then, if they should find from the evidence that plaintiffs were entitled to recover in any sum for the improper handling of said cattle while in transit, that their verdict should be for plaintiffs against all the defendants in such sum, if any, as they should find for plaintiffs. The refusal of this special charge and the giving of the main charge is assigned as error. It is contended on the part of appellees that this special charge was properly refused, and no error was committed in the general charge on this subject, among other reasons, because there was no pleading alleging a through contract of shipment, and that the evidence failed to show any such through contract. *Page 392 While the alleged contract for a through shipment is not as fully and clearly set out as it might be, still, we are inclined to believe that the pleading, taken altogether, is sufficient to show a contract for through shipment. The evidence does show that appellants made a verbal contract for through shipment with the Gulf Interstate, whereby it undertook to transport said cattle over its line and those of the other two railways from Winnie to Calvert. It is true that no written contract was issued by it to appellants, but it appears from the evidence that there was no station agent at Winnie, for which reason no written contract was made; and it further appears that the agent of the Gulf Interstate called up the agent of the Gulf, Colorado Santa Fé at Beaumont, notifying him of said shipment, and that the Gulf, Colorado Santa Fé as well as the Houston Texas Central, received and transported said cattle to their destination. And while it is true that the Gulf, Colorado Santa Fé pleaded a special contract limiting their liability, etc., which pleading was adopted by the other appellees, yet appellants deny that they signed any such contract, and there was no proof of any such special contract offered in evidence. We therefore think that a prima facie case under article 331a, Rev.St. 1895, was made out, and that the charge contended for should have been given, and that the court erred in its main charge, as claimed, in limiting recovery against each to acts of negligence occurring on its own line, for which reasons we sustain the first, second, and third assignments presenting this question. See article 331a, Rev.St. Tex.; Railway Company v. McCarty, 29 Tex. Civ. App. 616,69 S.W. 229; G., C. S. P. Ry. Co. v. Leatherwood,29 Tex. Civ. App. 507, 69 S.W. 119; Galveston, H. S. A. Ry. Co. v. Botts, 22 Tex. Civ. App. 609, 55 S.W. 514; Id., 70 S.W. 113; G., C S. F. Ry. Co. v. Baird, 75 Tex. 264, 12 S.W. 530.
By their fourth assignment, appellants complain of the action of the court in giving a special charge at the request of appellees, to the effect that common carriers are not insurers of live stock transported by them, but the law requires only the exercise of ordinary care in the transportation of freight, and that if from the evidence they find that the defendants exercised ordinary care in handling and transporting plaintiffs' cattle, considering all the facts and circumstances concerning the transportation, they should return a verdict for defendants as to the issue of delay and improper handling. We overrule this contention, because the charge as given correctly stated the law. A carrier is not responsible as insurer for live stock, but can absolve itself from liability by showing a want of negligence on its part during the transportation thereof. In the case of Railway Co. v. Hunter,47 Tex. Civ. App. 190, 104 S.W. 1075, which was a suit for damages for delay and rough handling of a shipment of stock, the trial court, in effect, charged the jury that the company was liable for damages sustained by the cattle, irrespective of whether or not there was any negligence. This was assigned as error, and in passing upon the question it was said by the court: "We think the assignment must be sustained. It is defended alone upon the ground that, after the delivery of appellee's cattle in the pens at Albany, appellant was an absolute insurer against losses or damages, as in the case of inanimate freight. The law, however, has made a distinction in cases of transportation of live stock." See Moore on Carriers, p. 496, § 1; Railway Co. v. Cage Cattle Co., 95 S.W. 705; also Railway Co. v. Galton, 45 Tex. Civ. App. 67,100 S.W. 166; also Railway Co. v. Slator, 102 S.W. 156. In the case of Wallace v. Railway Co., 50 Tex. Civ. App. 296, 110 S.W. 162, it is said, as shown by the syllabus, that "a carrier is not liable as an insurer, but only for negligence in the transportation of live stock. Hence it is not liable for the expenditure of money for feed, made necessary by unprecedented weather while the shipper was holding his cattle awaiting cars."
Appellants by their sixth assignment complain that the court erred in giving to the jury special charge No. 2, asked by the Houston Texas Central Company, to the effect that if they believed and found from the evidence that said shipment went forward on its railroad from Hearne to Calvert on the first train out of Hearne in the direction of Calvert, and that any delay or injury at Hearne, if any, was due to awaiting the departure of the first train from Hearne to Calvert, and that such delay, if any, at Hearne was necessary and not unreasonable, that for such delay, if any, the Houston Texas Central should not be held liable. We overrule this assignment, because, while a delay in the shipment could not be justified by the company by merely showing that it went forward on the first train after reaching Hearne, still the jury, in addition to this fact, before they were allowed to find for the defendant, were further required to believe that such delay was not only necessary, but was reasonable as well. The company was only liable for unreasonable delays. So that under the charge, if the jury believed that the delay was reasonable, under all the facts, then they were instructed to find for the defendant on this issue.
The court in the ninth paragraph of its charge instructed the jury that if they believed from the preponderance of the evidence that at the time when said cars were to be furnished to plaintiffs at Winnie excessive rains and flood conditions along the track of the Gulf Interstate Railway between Winnie and Beaumont had placed the track and roadbed of said defendant in such condition that a person of ordinary prudence would not have attempted to move said cattle *Page 393 over it, and that defendant, in the exercise of ordinary care, could not have foreseen and prevented such condition, and that defendant's failure to furnish said cars at such time was due to such condition of its track, then they would find for the defendant. This charge is assigned as error, upon the ground that the undisputed testimony showed that the cars were to come from Port Bolivar to Winnie, and not over any part of the track between Beaumont and Winnie. While this is true, the evidence, without contradiction, showed unprecedented and excessive rainfall, by which the track from Winnie to Beaumont was submerged, and it was impossible to operate cars over it, and that, if the cars had been at Winnie on the evening of the 16th or the morning of the 17th, it would have been impossible to have moved the same from Winnie to Beaumont until the evening of the 19th, at which time, in fact, said shipment went forward. It is true the cattle were placed at Winnie on the evening of the 16th, but it was shown that they were held in pastures near Winnie during the interval; and, while it appears that they were drawn by reason thereof, still it does not appear but what greater injury would have resulted if the cattle had been held in cars at Winnie during said interval. So that, if there was any error at all in said charge, we think it was harmless, because if the cars had been tendered by the company, either on the evening of the 16th or the morning of the 17th, it would have been impossible, by reason of the act of God, as pleaded, to have forwarded said shipment, for which reason this assignment is overruled.
It is urged by appellants' twenty-second assignment, among other reasons, that the court erred in refusing to grant their motion for new trial, because the evidence showed a delay of some eight hours at Hearne on the Houston Texas Central Railway Company line, which delay was unexplained; the undisputed evidence showing and tending to show that any such delay under the circumstances would cause injury and damage to said shipment of cattle. It is shown to be only eight miles from Hearne to Calvert. There is no evidence in the record undertaking to give any excuse for such delay, and, if the shipment had gone forward promptly from Hearne, it would have arrived at Calvert within less than an hour. There was a verdict in favor of said company. For the reasons set forth in their motion, as pointed out in this assignment, we are inclined to believe the court erred in refusing to grant appellants' motion for new trial.
There are several assignments in the record which complain of the action of the court in permitting certain officers of the road to testify relative to the condition of the roadbed of the several defendants, based upon written reports made to them. It appears, however, in each instance, that other witnesses testified to the same facts without objection; and it further appears that the parties from whom the information was obtained also testified; for which reason it seems to us that the error, if any, was harmless.
There are other errors assigned, which we have duly considered, but, believing that they are not likely to recur upon another trial, we forego a discussion of them.
For the reasons indicated, the judgment is reversed and the cause remanded.
*Page 588Reversed and remanded.