This is a suit by the appellee against the Bail way Company for damages alleged to have been sustained to a certain shipment of hogs from Llano to the city of Houston; and also to recover a penalty in the sum of $300 for a violation upon the part of the Bailway Company of article 326 of the Bevised Civil Statutes. Verdict and judgment were in appellee’s favor for the item of damages sued for and also for the penalty.
We overrule appellant’s first assignment of error. It is there practically contended that the appellee, in suing for the penalty, should have sued for the full amount authorized by the statute. The statute prescribes that the carrier failing to perform the duty to feed and water, shall be liable to a penalty of not less than $5 nor more than $500. The appellee sued for only $300. It is contended by the appellant that the appellee in suing for the penalty, could not sue for a sum less than the full amount authorized to be recovered by the statute; and that this amount, added to the item of damages sued for, would be beyond the jurisdiction of the County Court. In our opinion, the assignment is not well taken.
*598Appellant under its second assignment of error contends that a demurrer should have been sustained to plaintiff’s petition, because it ivas not averred that the plaintiff made a demand in writing for the cars by which his hogs were transported to market. Plaintiff’s petition practically alleges that there was an agreement to furnish cars at a certain time, which it is alleged was breached; and also that a demand was made that cars be furnished, so that his hogs could be shipped at a certain time. It is not alleged that this demand was made in writing. The plaintiff is not seeking to recover the penalties prescribed by the statute for failure to comply with the demand which that statute required to be in writing, but so far as the cause of action is predicated upon the failure to furnish cars, it is merely one of the facts pleaded as an act of negligence, upon which he predicates his damages in part. So far as the action for damages is concerned, we do not think it is essential that a demand should be made in writing; but the rule would be different, if it was sought to hold the railway company liable for the penalty. .
Appellant’s third assignment of error is overruled. The averments with reference to the request at Austin that the hogs should be watered was sufficient. It was not necessary that it should be alleged that a demand or request that the hogs be watered was made upon any particular agent. All that was essential was that the railway company, or, as the plaintiff alleges, that the defendant water or cause the hogs to be watered.
The appellant under its fourth assignment of error correctly states the law bearing upon that subject. A party who seeks to recove'r the penalty provided by article 326, should allege the fact that the duty imposed upon the carrier, as required by this statute, was not waived by a special contract. The statute reads as follows:
“Art. 326. It shall be the duty of a common carrier who conveys livestock of any kind, to feed and water the same during the time of conveyance and until the same is delivered to' the consignee or disposed of as provided in this title, unless otherwise provided by special contract, and any carrier who shall fail to so feed and water said livestock sufficiently, shall be liable to the party injured for his damages, and shall be liable also to a penalty of not less than five nor more than five hundred dollars, to be recovered by the owner of such livestock in any court having jurisdiction in any county where the wrong is done or where the common carrier resides.”
It will be observed that in the body of the act that creates the offense there is contained the exceptions that relieve the carrier from liability to feed and water, if there is a special contract to that effect. How the rule upon this subject, as we understand it, is that “if facts in the fiature of exceptions enter into the statutory description of the injury, or are contained in the enacting clause, they must be negatived in the pleadings, but if they are contained in subsequent sections or statutes and go only to defeat a liability otherwise apparent, they are matters of defense.” 16 Ency. Plead & Prac., 278. But the requirement of this rule with reference to pleading was, in our opinion, substantially complied with. It is true, the original petition did not in terms allege *599that there was no special contract in writing relieving the carrier of the duty to feed and water, but the appellant did plead a contract in writing which sought to relieve the carrier of that duty; to which the appellee by supplemental petition replied to the effect that while it was true, such a contract was signed, that it was without consideration and executed under circumstances that was not binding upon the plaintiff. The pleadings upon the subject being in this condition, we think that the provisions of the statute were sufficiently complied with, so far as the question of pleading is concerned.
We overrule the appellant’s fifth and sixth assignment of error, which is a general complaint urged against the charge of the court, except as to errors in the charge, which will be disposed of later on.
The court’s definition of negligence, as complained of in the 7th assignment of error, is not entirely accurate; but we do not make the defect in the charge in this respect ground of reversal. The test is what a person of ordinary prudence would or would not do, and not what ordinarily intelligent and prudent men would or would not do.
In view of the facts, we overrule the 8th assignment of error.
The 9th assignment of error complains of the charge of the court in-submitting to the jury the issue whether or not the plaintiff was entitled to recover the penalty claimed in plaintiff’s petition. . The second proposition submitted under this assignment complains of the charge because it permits the plaintiff to recover the penalty, although there may have been a special contract requiring the plaintiff himself to water and feed the hogs. It is insisted in this connection, that it was incumbent upon the plaintiff under the statute to show that he was not so bound, and the jury should have had submitted to them the issue whether or not he was bound to water the hogs, and if such was the case he would not recover the penalty. This objection to the charge is well taken. It is • true that there is no assignment of error in the record complaining of the refusal of the court to give any charge requested by the appellant submitting to them the question whether the written contract pleaded by appellant was valid and binding, and whether it superseded the verbal contract pleaded by the plaintiff. While it appears from the evidence that the plaintiff did sign what purported to be a written contract, after the hogs had been received by and delivered to the railway company, but the evidence introduced in avoidance of that contract tends to show that it was not binding upon the plaintiff. Missouri, K. & T. Railway Co. v. Carter, 9 Texas Civ. App., 687, 29 S. W. Rep., 565. But as to whether'it was binding was a question of fact to be passed upon by the jury, and which was not submitted by the trial court in its charge, but the charge on the subject of penalty is as follows: “If you are satisfied from the evidence that the plaintiff delivered his hogs to defendant for transportation from Llano to Houston, as alleged by plaintiff, and that while said hogs were in the possession of defendant ■ and in course of transportation given by it, the plaintiff requested the defendant to afford and furnish the plaintiff with means and facilities and opportunities of watering said hogs sufficiently, and that defendant failed to afford or furnish such means, facilities and opportunities; and if you are further satisfied from the evidence that the defendant failed *600to sufficiently, water said hogs, or cause the same to be done while thajr were in its possession, and in the course of transportation by it, then you may find in favor of the plaintiff against the defendant such pen-alt}' as you may be satisfied is warranted by all the facts in evidence in this case.”
The first part of the charge that submits to the jury the failure of the railway company to afford the plaintiff means, facilities and opportunities for watering the stock, is not made a ground of recovery of the penalty by the statute. The statute nowhere provides that the plaintiff would be entitled to recover, if the railway company failed or refused to permit the shipper to feed and water; but it only provides for the penalty in the event the carrier fails to feed and water; and this duty and burden upon the carrier can be relieved of by a special contract. But it nowhere provides that if there is a special contract relieving the carrier of that duty, that it should become liable for the penalty in the event it refused or failed to furnish the plaintiff with an opportunity to feed and water. The law in this respect is evidently defective. It should embrace also a liability upon the part of the carrier where it refuses and fails to furnish the plaintiff with an opportunity to feed and water, when there is a contract to the effect that this shall be done by the plaintiff. But we have no power, in view of the rule of strict construction, to extend the terms of the statute to classes not clearly embraced in the language used in defining the offense. Although there is evidence in the record to the effect that a written contract was executed, and whether binding or not was a question of fact for the jury, the charge quoted omits that feature of the law that relieved the carrier from liability in the event that there was a special contract relieving it of the duty to feed and water. This provision is a part of the terms of the statute that creates the offense and authorizes the penalty to be recovered, and a charge, where the evidence is of the nature as shown by the record in this case, which fails to embrace this element of the statute, is defective, not only as an omission which might be cured by a special instruction, but is positive error. The exception or proviso being embraced within the enacting clause of the statute that creates and defines the offense and provides the remedy, should not only have been negatived in the pleading, but the facts so averred should have been proven by the plaintiff. The statute authorizes the recovery of the penalty from the carrier for its failure to feed and water, unless it is otherwise provided in a special contract. This exception is a material part of the statute; and it is apparent that the purpose was to give a cause of action, so far as the penalty is concerned, only in those cases where there was no special contract relieving the carrier of the duty to feed and water.
What we have said, in effect, disposes of the 10th and 11th assignments of error. We dispose of the 12th and 13th assignments of error with the statement that, in our opinion, the verdict and judgment are. not excessive. What we have said also practically disposes of the 14th assignment of error.
In the concluding part of appellee’s brief, it is suggested that if we reverse on account of any error committed by the trial court as to the *601right of the plaintiff to recover the penalty, then that the judgment he reversed only as to that item and affirmed as to the damages. While we have the power to comply with this request, still, in a case of this character, we are of the opinion that the two items should properly be submitted together. The plaintiff has seen fit to ask in the one suit a recovery for the damages sustained and also for the penalty. Now a jury," in passing upon the amount of penalty that the plaintiff might be entitled to recover, would doubtless have the power, and in many cases it would be proper to exercise it, to consider the amount of damages that they should award the party arising from the negligence of the carrier in transporting the shipment. In awarding the amount of penalty, the jury is not absolutely bound to go to the extent claimed by the plaintiff, but can award any sum less than that, not less than $5. And if they were willing to give the plaintiff the full amount of the damages that he claimed, or what sum they might see fit to be á full and complete satisfaction and compensation for the damages sustained, it would doubtless have some influence upon them in determining the amount of penalty that should be recovered. Therefore, we are of the opinion that in this case, it would be proper to submit the two items, and let the jury pass upon them.
For the error pointed out in the charge of the court, the judgment is reversed and the cause remanded.
Reversed and remanded.