(after stating the facts.) Where the facts are undisputed, the reasonableness of such a contract is a question of law for the court; but where there is dispute about the facts, the reasonableness of the contract is a question of fact for the jury. In this case we think the contract was correctly held to be a reasonable one. International & G. N. R. Co. v. Garrett, 24 S. W. 354; Missouri Pacific Ry. Co. v. Childers, 21 S. W. 77; Texas & Pacific Ry. Co. v. Adams, 78 Tex. 372; Texas & Pacific R. Co. v. Adams, 78 Tex. 372; Texas & Pacific Ry. Co. v. Barber, 30 S. W. 500; Case v. Cleveland, C. C. & St. L. Ry. Co., 39 N. R. 426.
As we understand, there is no dispute about the facts, and that all the facts and circumstances are fully presented in the evidence, and that by them it is shown that the contract is a reasonable one. It is true that one day (the time limited by the contract within which the' notice was required to be given by the appellee of his intention to claim damages) was short; yet, when we consider the circumstances, it appears that it was sufficient.
The appellee was obliged by it to give notice of his intention to claim damages, but not to specify the amount of damages he intended to claim, but only to make known to the company his intention to claim damages for the injury done the cattle before they were removed and mingled with other cattle, that the railway company might have a fair opportunity to examine them. The agent of the company was at the station, and the appellee saw him, and talked to him about the injury his cattle had suffered; and it would have required but a few minutes to have given the notice required by the contract of his intention to claim damages. But he moved the cattle out to a ranch without having given this notice.
Construction of contract.Assuming that the burden was upon the railway company to prove, as matter of fact, that the contract was reasonable, we cannot understand how other proof can be required, when the evidence in the case shows all the facts, and from them it appears that the contract was reasonable, and the facts are undisputed. In fact, it seems that the reasonableness of the contract was not made a question by the appellee, but that he thought he had to give the notice to the agent at Fort Smith, where he entered into the contract. It is true that it is held that the burden to prove the reasonableness of a contract of this kind is upon the party relying upon it, and we agree that where there is a dispute as to the facts the reasonableness of such a contract is a question for the jury, but where there is no dispute as to the facts (as we understand was the case here) the reasonableness of the contract is a question of law for the court. Where there is a question as to the reasonableness of the contract, and the facts and circumstances all appear in the testimony, and there is no conflict in it, the court is authorized to determine the question.
The cattle that were dead in the car before the stock were removed and mingled with other cattle are not within this provision of the contract as to notice. The object in requiring the notice by the shipper of his intention to claim damages to be given before the cattle were removed and mingled with other cattle was to afford the railway company a fair opportunity to examine the cattle before they were removed and mingled with other cattle. As to these that were dead, the company had all the opportunity it could have had to examine them.
when carrier ne£1¡£ent-We think as to these there is some evidence to sup- * port the charge of negligence upon the part of the railway company, which occasioned their loss, as it may be a fair inference from the testimony that the agent of the railway company induced the appellee , to lead his cattle on to the cars at Muldrow, in expectation of a train that would take them at 10.42 a. m., whereas the train that did take them did not reach Muldrow until 5.30 p. m. of the same day, on account of the fact that the railroad company had declined to run that train that day, because not enough freight was offered for transportation that day to warrant the company in running it, as it thought, but of which the appellee was not in any way notified.
For the error in giving judgment for the damage to all the cattle claimed to have been injured, the judgment is reversed, and the cause is remanded for a new trial.
Battle, J., dissents.