
    Houston & Texas Central R’y Co. v. G. B. Hester et al.
    (No. 5331.)
    Damages.— Notice, verbal, written.
    Appeal from Grayson county. Opinion by Delaney, J.
    Statement.— This was a suit brought by appellees to recover damages on a shipment of cattle from Bryan to Sherman, Texas, the negligence imputed to appellant being improper delay in furnishing cars as agreed and delay in the course of shipment; that an insufficient number of cars was furnished, and the cattle were improperly crowded in them; and that appellant had no stock pen or inclosure to hold said cattle in Sherman, by reason of which the cattle were injured, some killed and others lost. Appellant pleaded general denial, and specially that one of appellees, representing them all in the shipment of the cattle, entered into a written agreement with defendant, whereby he undertook to superintend the loading of the cattle, and, among other things, as a condition precedent to his right to recover anything for said cattle, to give notice in writing of his claim therefor to some agent or officer of the defendant before the stock should be removed from the place of destination, which was not done.
    
      The written notice required was not given for several days after the arrival of the train at Sherman. The cattle were put off in the night. It was dark and raining. There were no pens to put them in, and they could not be kept together in the darkness. They scattered abroad into the country, and it was several days before they could be collected, and many of them were entirely lost.
   Opinion.— The court holds that under the above circumstances the appellant could not insist upon a literal compliance with the condition. It was sufficient that verbal notice of the claim was given to the agent on the night of the arrival at Sherman, and written notice as soon as it could be reasonably given after collecting the cattle.

Reversed and remanded.  