Texas N. O. R. Co. v. East

FEY, Chief Justice.

Appellees sued appellant and the Texas Mexican Railway Company to recover the sum of $777.20, damages alleged to have arisen on a shipment of cattle from Brownsville, Tex., to New Orleans, La. The damages were alleged to have been caused by the negligent and rough handling of the cattle, and delay along the route. It was alleged that seven cows were killed in transit, and other cows injured. Appellant answered that the death and injury were caused by poisoning resulting from the cattle having been dipped for ticks. The cause was submitted to a jury on special issues, and judgment was rendered on the answers thereto against appellant in the sum of $585.07. The cause was dismissed as to the Texas-Mexican Railway Company.

The jury answered that seven cows were killed and others injured through the negligence of appellant, and that the cattle were not injured through the poison in the dipping fluid. The answers of the jury were sustained hy the facts.

It is the contention of appellant that, as there was no affirmative proof made by ap-pellees of negligence upon the part of appellant which caused the damages, appellees should not recover. The evidence showed that the cattle were delivered to appellant in a sound healthy condition; that there was some delay on the way from Brownsville to New Orleans, and that on their arrival at destination seven cows were dead and others badly injured. No one representing ap-pellees accompanied the shipment.

It is the general rule that, when property is delivered in good condition to a carrier at the initial point of shipment, and is delivered at the point of destination in bad condition, negligence will be presumed, and, unless such presumption is rebutted by the carrier, a judgment for damages will be sustained. The rule is based on the ground that it is generally the case that it is impossible for a shipper to prove negligence in the handling; the carrier alone being in a position to show how the property was handled. In this case the verdict of negligence must rest on the presumption of negligence alone for, although some delay was shown, that item was not submitted to the jury. In fact, the delay is not claimed to have been the cause of the injuries to the cattle, but rough handling. Appellant introduced- evidence, which was not in any way controverted, that the cattle were not injured by any act of negligence on the part of appellant, but that the injuries were caused by arsenical poisoning resulting from the cattle having been dipped just before being placed in the cars of appellant. A veterinarian and other witnesses testified, without contradiction, that the bruises on the cattle did not result from rough handling, but resulted from the cattle having sickened from the poison and getting down and being trampled upon by the other cattle. That testimony clearly raised an issue and should have been submitted to the jury. The issue was not submitted. In view of a reversal, we will not fully discuss the evidence, which is capable of being amplified by appellees. St. Louis, B. & M. R. Co. v. Moss (Tex. Civ. App.) 203 S. W. 777.

In the case of Galveston, I-I. & S. A. R. Co, v. Canales (Tex. Civ. App.) 3 S.W.(2d) 589, there was no evidence of the condition of the property when delivered to the carrier, and therefore no basis for the presumption of negligence from bad condition when delivered at point of destination, and this court properly reversed the judgment and rendered judgment for appellant.

The judgment is reversed, and the cause remanded.