Findings of Fact.
JENKINS, J.The appellee, being desirous of shipping some horses from San Angelo to Brownwood, applied to appellant’s agent at San Angelo for cars in which to ship the same. On account of pressure of business created by war conditions, appellant was unable to furnish appellee a stock car, and so informed appellee. Appellee entered into an oral agreement with the agent of appellant that, if he would furnish box cars in which to ship his horses, he would assume all risk of damage from the use of such cars; and, when the horses were loaded, and before the shipment started, appellee signed the following written statement, indorsed on the contract of shipment:
“Shipper assumes all risk of damage likely to occur caused by loading in box car.”
Upon arrival at Brownwood, some of the horses were found to be dead, occasioned by suffocation and overheating. The jury found the damage as thus occasioned to be $500, and the evidence supports such finding. The horses were very hot when loaded into the car. Had they not been overheated, they would not have been injured on account of lack of ventilation of the box car in which they were shipped, as is shown by the fact that other horses, not overheated, shipped in the same train in the same kind of ears, with the same kind of ventilation, were not injured.
The cars were Ventilated on the south side by strips being nailed across the door, but the north door was practically closed. Had the north door been left open, and strips nailed across same, the horses would not have been injured, notwithstanding the fact that they were overheated when they were loaded.
The overheating of appellee’s horses before shipment was occasioned by cutting or separating the colts from the mares in muddy pens, by reason of which the cutting could not be done in the usual way, that is, on foot, but had to be done on horseback. Had the pens not been muddy, the mares and colts could have been separated without overheat*458ing them, and no damage would have occurred by reason of using a box car for their shipment.
In shipping mares and colts, it is customary to separate them in the shipping pens, and ship them in separate cars, as was done with appellee’s mares and' colts. This is necessary to protect the colts from being injured by being trampled upon by the grown stock.
Opinion.
Appellee alleged negligence upon two grounds: One in failing to properly ventilate the car in which the injured horses were shipped; and the other in not furnishing suitable pens for loading said horses.
[1] We do not think that the first ground is sustained by the evidence. The south door of the car was ventilated by nailing strips across it from the. inside before the horses were put in the car. The horses were loaded through the north door. It is shown by the testimony that strips could not have been nailed across this door from the inside after the horses were loaded, as the car was full of untamed horses. If strips had been nailed across from the outside, the weight of the horses would have pushed them oft, and the horses would have fallen out. Appellee testified that an open barred gate could have been made and fastened in the north door with cleats, and thus have ventilated the ’car so that no injury would have occurred. Granting this to be true, the appellant did not expressly contract to thus ventilate the car, nor do we think it did so impliedly. Four or five other box cars were loaded .in the same manner, and shipped in the same train. Ap-pellee was present and saw how they were loaded, and made no objection to his horses being loaded and shipped in this way. He left the pen after his horses were in the car, but before the north door was closed. He had seen that the north door of the other cars had been closed, and had no reason to presume that the same would not be done as to the car which contained his horses. We think that, when he assumed “all risk of damage likely to occur caused by loading in a box car,’’ he assumed the risk arising from the car being in the condition that it was as to ventilation.
[2] But, notwithstanding the lack of ventilation, appellee’s horses would not have been injured but for their overheated condition when they were placed in the car, and they would not have been overheated but for the muddy condition of the pens. This condition was caused by appellant negligently permitting the water troughs to overflow, by reason of the1 hydrant being left open.
This case was submitted on special issues, the first of which was as follows:
“Did plaintiff’s horses sustain any damage as a direct result of any failure on the part of defendant, its agents, or employes, to exercise ordinary care to provide suitable pens for the separating and loading of said horses? Answer yes or no.v To which the jury answered, “Yes.”
It is the duty of railway companies to exercise ordinary care to provide suitable pens for loading and unloading stock. Railway Co. v. McRae, 82 Tex. 614, 18 S. W. 672, 27 Am. St. Rep. 926; Railway Co. v. Mitchel, 85 S. W. 286; Railway Co. v. Trawick, 80 Tex. 270, 15 S. W. 568, 18 S. W. 948; Railway Co. v. Crenshaw, 59 Tex. Civ. App. 238, 126 S. W. 602.
For the reason that appellant negligently failed to provide suitable pens for loading appellee’s horses, as the result of which they were injured in the amount adjudged in the court below, the judgment of the trial court herein is affirmed.
Affirmed.
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