JrlISSOUBI I'AC. BY. CO. II. TEXAS &1'. BY. CO.
& P. Ry. Co., (WILLIAMS, Intervenor.)
(Oilrcw"t Oourt, E. D. LowtBiana. April 12,1890.)
L C.RBIEB-SHIPPrNG CATTLE-N:li:GLIGENOE.
In an action for damages to cattle from negligent .handling by a railroad, It appeared ,that the cattle had been driven over 100 QJiles- before they were shipped; that they were in poor condition, very wild, and hard to get on the cars; that some of them' got down and were injured before they had been carried any considerable distance; and that they were loaded on the cars by plaintiit. Held, that the damage from the condition of the cattle, and defendant was not liable.
Un4er ltElv Bt. Tex. art. 284l which provides that it Shall be the duty of the coU)mon Cl;Lrner ,to feed and water hve-stock during the time of conveyance, uliless otherwise proVided by special contract, the carrier is not liable, when it a.ppears tha.t it :was agreed that plaintiff shoald water and feed tb,e cattle, and the carrier was to stop for the purpose at a paT'ticular place, and there Is no evidence that the camel' was requested to stop before reaching the place named. Under Rev. Bt. U. S. S4886 which provides that no railroad shall confine live· reilt stock .in cars for more than 28 consecutive hours without unloading them and feeding ,for at least 5 consecutive hours the railroad Is not liable. whelt ,it appears thaHhere was a special contract that the shipper should feed and water tbe live-IItQCk;and there is no specillo evidence as to amount of the damage from the failure to feed and water. . .
TO FEBD AND WATER.
In Equity. On exceptions to the master's report. , Ri!;e, ..A.rm8trong and John DawlerJ for intervenor. HlYWB Prenti8B, for receiver.
PABDQ, J.That intervenor's cattle suffered injuries anddamllges while in. transit from Pecos to Willow Springs is.not, disputed. The intervenorclaims that the cause was ne/l:ligence and bad handling. on the part of the railroad company. It is contended for the receiver that it was through negligence of the intervenor and his em ployes, .and on account of the poor condition of the stock at the time.of shipment. An examination of the evidence shows that the cattle were wintered in. Presidio county, Tex.; were wild; a part had been herded four or five Weeks, and some never herded; that they were gathered up and driven toPe-cos, a distance of over a hundred miles, for shipment; that it was intended to ship them at Toya, but the agent of the intervenor testifies that, "on penning a portion of the cattle in the company' stock-pen at that place, nine head. bogged down in the mud, and three of Said cattle died bfilfore I could, pull them out, and the other six were so exhausted that I lost them before I reached Pecos City, where I took the same for shipment;" that, in penning and loading the cattle for shipment, there was a.great deal oftrQuble arising from the wildneBs of the cattle and their weak condition, about 13 hours being taken to load them on the trains. The 'witnesses as to the OQndition of the stock at this time testify, substantially, as follows: ;S. M. Jones, the agent of the intervenor: "The cattle were in average shipping condition.." Tom Hammond, an employe of intervenor, assisted in the loading, and went through to Willow Springs with the first train: "Cattle in good condition; 2trong, v.41F.no.15-58
healthy, able to make the journey." As good cattle as he ever sawin r'fThey ,wet'e,aU'irlTfitst-clasB.condition." Again::; ((The condition of these.cattle when shipped was first-class. They were strong and healthy, in' good oi"der,ahd were ablet6 make the journey in the cars through the Indian TerriJory, if Jp,ey had not so Cr9wpe,d intheicQ!s:, and'ordinal'y-clU'8·had. been used in the ,The be taken .with somell-pow,ance,beeause:h.e,put8 theCQDidltlOl);,of the ,cattle as much better than Pecos"rrex: (( Some of them were thin in order, I hut all seemed to be ingQqdhealt4, " cattle, and ' J'ames Cooksy,'stQQk-raisel', Toya: "I lielpedtry to the were poor, 'but"were iIi tra\Teling' tostj.l.ij.d,'theJournE)y." employe of tlleintervenor: ,",Oattle Were poot, ,!u'd "",',S. D. .. atPecos,.ill "They had never been handled before, and werevery difficult toe load' in cnrs." In connection with this witness' testimony it may be noticed that there 'is lnithe i recotd,'writfefi,'A:pril' 6';1,889', 'in whiCh,'he'1ays that he "superintended the loading of said cattle; that the in fair condition, butWereverylweak;" 'They had In:ev:er beenbandledrdntil Williams' men began to gather them,· and woUidn't graze' or drink scarcely all l?ut under herd;, the time they 'wei'e'driVlHt .verY',we9Mj1'beingsoobstiaRte: and, when andw'owdnot try to help On: the! frrshrain loaded, weweteabout fout'houts loading thenfJ t'Ol thebestof'rny recollection.. ' On the next train,'we began loadinga.bdut 9·p. M:,Jand wotk6d althight, and didn't get thell1 loaded unti16' or 6t30'L.\.'. 'M. In the mean ,Hme,"soine,of' the cattle got down iIi ;one ,Wehlid;W,tinload it to get them up) 'Two before we . cotildget to ol,three.:.:....onlrihVo, I were 'so ubstirlate'that:we had to lal'iatand drag 'them ftorrf/,tlle,icat,li.nd BO'me of them, were dows before the train left 'the stati<>n.' "1 never yet ha:dtoeontendwithas mean a lot of bllstards as they .were.": G;' Farnhltll1;:'Conductor of One of the trains; II This of stock Was in exce'edingly poor condition. There were five head 'le(tfittheOoloradostMk.:yards by the consent of the: party in , 'oharge ofSl'l:id cattle. They' were' left, because, they'· were too poor -to be They were nott06 heavily loaded'; btitwere too poor to be iuidc were- too weak to Btund up any length of time; This was the cause of'ttia!whole trouble.,"i: In his officiaHepott attached to his theoolidition ofthe,stook "'Vet'y poor." F. L. 'binder; Q;conddetorin chaitlgeof i 1lrairi: 'iiI don't know of any stock behag injured l't-hile'Hi my charge. Fromm)- observation, .they arrived in Big:Bprll'lgs in'good:condition. and without any being down or injured." .Ref(,ltence' to, the' nuulbel' of cars show that Farnham's and Linder's re-
MISSOURI PAC. Rr.CO.
Tlj:XAS.& p,.:RY. CO.
potts were·fordifferent trains. LN. Cole, freightcon,d1Jctor, in oharge ofo!D.etl'lliu':· on said train were in ve'ry,p@or shipping:conditionj many of them too poor to stand on their feet·. pOSsible to keep, on their.feet, ,b.ut.they were p()QrCQudition that it was impossi,QIe." In his, ()ftidal report, "The cattle in this traiuwerein very poor condition; many of them t!lO poor to stand on their feet. Parties charge did what they could to lteep them up, but couldn't do so. No unusual delay.n .Tbis conductor was in charge of one train from Baird to Fort Worth. C. Y. Elliotkconductor on freight. train from Big to Baird; "I hllve no .memQrandum showing;the exact condition of sl/-id cattle when Ireceived only knowthllt ,they were in weak and poor condition when I recei:vf'ld at Big Springs.. The attached statem.ert shows the condition of. said cattle when I Jeft them." Tbe attached statement shows that, of the cars, the condition of the stock ,good; in all of the train it wasbaA. This report is signed by the employes of the intervenor in charge of the stock. J. M.· Wyse, foreman of l'll:ilroad yards:.t FOrt Worth: very poorconqition, caused from starvatiop, I should judge. Attached exhibitssbowing one train, generalOQndition of stock, "Fair;» another train," very poor and weak." '. : , ' . . . . . . . '. . The,depfded of 'the evidence given; h,y. these witnesses it' tqe;stoc;:k was when loaded aq the cars at Pecos, and unfit-to take the journey.. Tp,isevidence is corroborl;\oted by the undisputed fa(lts. in the case, to-lYit: .That great trouble was loading the cattle,op the cars; that mapyg9t down and were injured Pefqre they had beel?- .parried any dista9ce,and by the tion aJising from. fact that the were :wild,an.d had beenW-i.ven from 10Q·;to 150 mlles the plaqe of. shIpment. The conclusion that I reach in the matter is that the 'damage to intervenor's cattle;gre\Vp\U,9f the poor COndition of the stock; and a tion of satisfies methat it in no wise resulted from overloading in or from bad handling of the train·.. In fact,. the of, Mr. J,ones, the agent of Intervenor, who loaded.th6 cattle, iscqpclusive to my mind that were not overloaded. Under tbe,special contraetmade in the casel behveen the parties, the -loading of the, cattle in the' cars was to be ddDe'by the shipper, who, by himself or by his agents, indicated the number of cattle to be put in each eat. The trarlsporta,tion was by thecar-l.olld, and not per.head of cattle, and"consequently, the more cattle patina car the greater the shipper's advantage.Mr. Jones testifies.Qn:thesubject as follows: "Thero.were twenty-eighlicar-loads of cattll' and tbreecars of h<!l'$6S. A man, wl!QSellame I don't kpow, attendpd to t.he loadiog of said cattle.on the .I.presume he, was tile yal'!l-JIlaster of road, part of tl!' 8n,d he ion .top of the Cll.J:, and. coullted ilS they went in. .Said cars were 10adE!d according to the size of the cars,' from twpnliy4wo to tweDtY"live 'in each I have had a good deal of experience io shipping oattleover:tailtiJllds. 'i['think:- I am compewotto.judge of the Dllll1befto be put ina carlot shipment. t.he number il pqtJn ",aa
FEDERAl. :REPORTER ,vol.
ber"aD.d as stated above. Said.eattle were properly loaded, and were not too much crowded to travel with ease and I paid for cars In accordance with the lengtbof the cars.» The eVidence shows that oneofthe trains loaded with cattle ran frOIU Pecos to Fort Worth in less than 28 hours, and that the other took some hours over. The cattle were not unloaded for feeding and watering between Petlos and Fort Worth. It is extremely probable that the bad condition of the cattle at the time of shipment was aggravated by this long tri}twithoutfood or water. How much this contributed to the injury. of the' atock does not appear. According to the testimony of Jones, with' the company was that the cattle were to be run through til 'Fort Worth,and there unloaded and fed; and in pursuance thereof he..testifies that he prepaid freights, and also for feeding said ,cattle at FotfWorth: _ The special contract, produced on the hearing, ulates that "the shipper,'at his own risk and expense, is to take care of, feed;watei',and attend to the'saidstock, wqile the same is being loaded, 'unloaded, and reloaded.". '. _ . _' Article284. ofthe Revised Statutes ofTexas proVides that "it shall bethe duty ofa coitttnoDcarrier, who conveys live-stockofanykind, to feed ahd water the sattle during the time ar CQnveyance,and until the same is delivered to the .· or dispqsed of )?rovid,ed in title,unleilli otherwise provigea' by special'con\ract.? 'As there was 'a special contract iIi thifcase(l) that thecattIe were to be fed arid watered at Fort 'forth; the,shipper \Vasto take care of, and at.tend'to saidstpck;and asthere'ilJ ,no evidence iIi recqrd,or even pretense on of the interVenor, that he or his agent called on the rierto stopfprfeed and water alany other placethim at 'Fort it woulclseer.ti thatthe carrier i'S excused from 'responsibility for any fromthe failure toJeedandwater cattle'between Pecos and Fort Worth. " , 'Section '4386-o! the Revised of the United States provides: rallroa.doompany within United whose 'l'oadforms any part of a line;of! road over' wbi6h; 'cattle, 8wine, or other animals are IlOnveyed troin;one stat,e toanothel", ,lfl · · shall confine the same in cars · · · fof longer period than tWllnty-eight consecutive hours, without feeding, for a period of. at least, tive unloading tbesamefor cons6Cutivehour8. unlesspl;evente4 fL'om so unloading by storm or other ae, ,One of the trains carryingiintervenor's cattle went through to Fort Worth in less:thail28 hO\i1'B; one was over 28 hours. The cause for the delay is not apparent. It 'to imagine, however, that it was the result of. accident. ,If there -had '.'been no special-contract between the parties, a:s ill1tD()rized by the law' of Texas in regard to this matter, it [\wuld seem thaftinder the .states statute,' above quoted, the Carrier in that fatiltresulted in danitige.; but, considering the special cOlltract, and the lactthat the, evidel1ceis not sufficiently specific to enable the court to assess _ damage arising from the failure to feed and water, I am of the opinion ,that the intervenor can
MISSOURI PAC. RY. CO. fl. TEXAS <It P. RY. CO.
take nothing on that score. And on the whole case, as made by the eVI' dence, I am of the opinion that the master's report, so far as the cattle in question are concerned, should be sustained. It seems that, in the shipment of stock, there were three car-loads of horses, all of which arrived at the destination, and were delivered in good condiiion, except two, which were short. 'rhey are not accounted for in any way by the evidence in the case. Their value, from the testimony of witnesses, runs from $30 to $50 each. I think $75 for the two would be a fair valuation. This amount the intervenor should recover. The master's report will be so amended as to recommend payment of $75 to the intervenor for the two horses 'claimed, 'and thereupon all exceptions will be overruled, and the master's reported confirmed and. approved. The costs of the clerk, marshal, and special master, in and about this intervention, will be paid by the receiver. The master's compensation is fixed at 675.
PAC. RY. CO.
TEXAS & P. Ry., Co. (Boss .venors.)
(O(,/,cuitOowrt, E. D. Louisiana.
&:rLROAD. FIRlI:s-NEGLIGENCE-PRoPER ApPLIANCES.
When damage has been cau.sed by sparks from a locomotive, in order.to rebut the presumption (If negligence on the part of the railroad comJ:lany it must be sllown not only that the locomotive was equipped with the most approved appliances in the way' of a spark'arrester,· but a.lso that it was operated by a skillful engineer, in a careful manner.
A locomotive which throwuparks to the height of 50 feet, and to a distance of 100 . to 150 feet, is not equipped with a proper spark-arrester.
In Equity. On exceptions to the master's report. Interventions of John Boss, T. W. Wilson, W. J. Kuykendall, G. W. ,Ramsey, L. P. Cosens, W. J. Worder, E.S. Boone, and A. Leeson. W. S. Benedict and H. L.· BtmUey, for intervenors. Howe & Prtmtias, for defendant. PARDEE, J. These interventions are all for damages caused by nre on the night of the 6th of August, 1888, originating from sparks from an engine operated by the receiver Oll the line of the Texas & Pa,cHic Railway. There does not seem to be much doubt under the evidence that the fire was caused by sparks from tbe erigine No. 55, pulling a freight train operated by the receiver. The master reports asfollows:
pliancesan!i proper in8pectionof its engines; but the master, upon a careful ..examinationol all the testimony., is of the opinion tbattbe prima fadieease
by. the proof of the origin of tires by showing that it, bad used all pl'Oper ap-
"The defendant attemfltedto rebut the prima facie case of negligence raised