Pecos & N. T. Ry. Co. v. Morrison (169 S.W. 1098, 1914)

HENDRICKS, J.

The appellee Morrison sued the appellants, the Pecos & Northern Texas Railway Company and the Texas & Pacific Railway Company, as common carriers, alleging damages on account of the death of a certain number of hogs in a two car load shipment from Plainview to Ft. Worth, Tex., asserting negligence of the railway company in failing to flush the hogs and the ears in which they were transported, as became necessary to prevent them from being overheated, also claiming injury to the live hogs arriving at destination. The contract of shipment, executed by appellee’s agent, after the hogs were loaded at Plain-view, preparatory to transportation, contained the usual stipulation in contracts of this character as to the shipment of live stock, and in this instance, to the effect that the shipper, at his own risk and expense, would properly care for, feed, water, and attend to said hogs in the pens of the company while awaiting shipment, and during the whole period of transportation, with the usual additional stipulation that the carrier would not be liable for any loss or damage accruing to the shipment while in the shipper’s charge. The appellants contend that the shipper was bound by this contract, and assert, though it may have been their duty to have provided reasonable facilities for the purpose of affording the shipper the means of administering to the welfare of the hogs, however, that the duty of the carrier extended no further than the proper transportation of the hogs to destination, and. further contend that the record, being devoid of any testimony that they assumed the care of the hogs, extraneous from the train service, they are not liable; the swine having a shipper in charge. Appellee replies that the contract is void; that the hogs were delivered to the initial carrier, and accepted by it tfor transportation, upon an. oral contract of shipment before any written contract was mentioned, prepared, or signed, and was without consideration, also claiming that the covenants in the contract were based, as a consideration, upon a reduced freight rate which was never given by the carrier; to that contention the carrier answered that appellee was an experienced shipper over the same railroads for years, and that in each instance he signed, or authorized the execution of, similar contracts containing the same provisions, and knew that the written contracts only, and not oral contracts, were the basis of free transportation for the party accompanying the shipments; that when the hogs were delivered, each of the parties, in its preliminary arrangements, was acting in an habitual method, with the view and ex-’ pectation, carrying with it an implied un--derstanding that the usual contracts of shipment were to be executed and issued expressing the intentions and engagements of the parties. The evidence bears out this latter theory of appellants, and, if the contract under consideration were valid, and required the shipper to assume the duty, the failure of which injured the swine, and if the law permitted the carrier to contract this duty away and burden the shipper with the same, we would be prone to sustain the seventh assignment of error, criticizing the seventh paragraph of the charge of the court as containing injurious error — the trial court made the validity of the written contract of shipment depend upon some new consideration, distinct from the oral contract, disregarding the feature that such written contract may have been contemplated by the parties from the inception of the transaction.

The record suggests that the cause of the death of the hogs, en route, and the injury to the live hogs arriving at destination, was an overheated condition of the animals, and which could have been avoided by an application of water over the hogs at a time before they became heated, or their condition could have been alleviated by a flooding of the car, and bedding underneath the hogs, and which was not done in either instance. Two of the trainmen testified to the effect that they desired to flush the hogs and the car, but that Sterns, the shipper’s agent in charge, refused to permit it to be done, which issue was charged by the court, to the jury, but which contention the jury refused to accept. If the issue could have been maintained, appellants would have" established one of the exceptions to the common-law rule that a common carrier is an insurer— the fault of the shipper—and should have been exonerated. The testimony was that it was the failure of external application of water, which was the negligence producing me injury, and not the failure to water the hogs internally; and a proper consideration of the fourth paragraph of the charge *of the court argues that he submitted the issue of an external application, and not a failure to give the hogs water • as sustenance, as the negligence in this respect, instructing the jury, “and (if) you further find that said failure on the part of defendants was caused by their negligence and carelessness in not properly flushing said car an