
    TEXAS CENT. RY. CO. et al. v. HICO OIL MILL.
    (Court of Civil Appeals of Texas.
    Nov. 10, 1910.
    Rehearing Denied Dec. 15, 1910.)
    1. Carriers (§ 219) — Carriage or Live Stock — Connecting Cakbieks — 'Contracts —Liability—Federal Statute.
    Act Cong. June 29. 1906, c. 3591, § 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1909, p. 1166), provides that any common carrier, etc., receiving property for transportation from a point in one state to a point in another state shall be liable for any loss or injury to such property caused by it or by any carrier, etc., to which such property may be delivered or over whose lines it may pass, and no contract shall exempt such carrier from any liability hereby imposed, etc. Held, that a live stock contract by an initial carrier for the transportation of cattle beyond the end of its line and providing for a through rate, lower than the local rates, etc., was within the statute and made the carrier liable for the negligence of any connecting carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. § 219.]
    2. Carriers (§ 219) — Connecting Carriers —Carriage of Live Stock — Delay—Joint Liability.
    Where the initial carrier is responsible for delay in transit of live stock to a certain point, and the connecting carrier for further delay, such carriers are jointly liable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. § 219.]
    3. Carriers (§ 228) — Carriage of Live Stock — Delay in Transit — Negligence-Sufficiency of Evidence.
    In an action against railroads for damages through delay in transporting plaintiff’s cattle, evidence held to show negligence on defendants’ part justifying a verdict for plaintiff.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    Appeal from District Court, Tarrant County ; B. H. Buck, Judge.
    Action by the Hico Oil Mill against the Texas Central Bailway Company and others. From the judgment defendants appeal.
    Affirmed.
    W. D, Smith, Chas. K. Lee, and J. A. Kib-ler, for appellant Texas Central Bailway Company. Chapman & Lockett, Spoonts, Thompson & Barwise, and Coke, Miller & Coke, for appellant Missouri, Kansas & Texas Bailway Company of Texas. Stephens & Miller, for appellee.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
      
    
   HODGES, J.

Appellee was the owner of 246 head of cattle which it desired to ship to East St. Louis to be placed upon tbe mar-bet. They were loaded into 12 cars, and on tbe evening of February 8, 1907, were delivered to tbe Texas Central Railway Company, one of tbe appellants, for shipment. Tbis suit was instituted by tbe appellee against that company, tbe Missouri, Kansas & Texas Railway Company of Texas, and tbe Missouri, Kansas & Texas Railway Company to recover damages for delay, and also for injuries resulting in tbe death of three of tbe animals. The cattle bad been fed for some time on cotton seed meal and hulls, and were very fat. They left Hico at 5 o’clock p. m. on Friday, but did not reach their destination till tbe following Tuesday morning. Three of them died in transit. Tbe testimony showed that tbe cattle were started in time to have reached St. Louis for tbe Monday’s 'market bad they been transported within tbe usual time. Appellee claims as damages the loss of Monday’s market, which is shown to have been some higher than that of the day following, shrinkage in weight due to delay in transportation, and the value of three head that died in transit. A trial before a jury resulted in a verdict in favor of the appel-lee for $60 against the Missouri, Kansas & Texas Railway Company for the value of one steer killed, and against the Texas Central Railway Company and the Missouri, Kansas & Texas Railway Company of Texas jointly for $715. The two last-named companies have appealed, and have filed separate briefs in this court.

The contention of the appellant Texas Central Railway Company, presented under various forms in the different assigned errors, is, substantially, that the verdict against it is unsupported by the evidence. It is contended that this company having undertaken the transportation of the cattle only to Waco, the end of its line, under a contract in which its liability is limited to its own line, and there being no evidence of any negligence or injury during that time, there was no basis for the verdict. Instead of a formal bill of lading the shipment in this instance was made under what is termed a “live stock contract,” possessing all of the essentials of a through bill of lading. The contract contains, among others, the following provision: “This agreement, made between the Texas Central Railroad Co., of the first part, and Hico Oil Mill, of the second part, witnesseth, that whereas the said Texas Central Railroad Co. transports live stock as per above rules and regulations, all of which are hereby made a part of this contract by mutual agreement between the parties thereto: Now, therefore, for the consideration and mutual covenants and conditions herein contained the said first party will transport for the said second party the live stock described below, and the parties in charge thereof, as herein provided, viz., ten car loads of beef cattle said to contain two hundred head of such stock, from the station where this contract is executed to Waco, Tex., Station, the end of the line of road operated by the party of the first part on the route over which such stock are way-billed, there to be transferred to the railway company over which said live stock are way-billed for further transportation by said railway company, the said stock being way-billed through and consigned to Evans Snyder Ruel Co. at Natl. Stk. Yds., Ill., Station, and the party of the first part covenants and agrees that the freight charge from point of shipment to final destination shall be only the sum of tariff, the same being a through rate, lower than the local rates which might be lawfully charged by the party of the first part, and for and in consideration of which through rate and the guaranty thereof by the party of the first part, and the other covenants and agreements on the part of the party of the first part, as herein contained, the party of the second part hereby covenants and agrees as follows:” etc. This contract, we think, comes within the meaning of the federal statute, making the initial carrier liable for the negligent acts of any connecting carrier over whose road the freight may be transported. Act Cong. June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892 [Supp. 1909, p. 1149]); H. & T. C. Ry. Co. v. Lewis (Tex.) 129 S. W. 594; St. L. S. W. Ry. Co. v. Ray, 127 S. W. 281; T. & P. Ry. Co. v. Townsend, 106 S. W. 760. The statute referred to above provides: “That any common carrier, railroad or transportation company, receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall-be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which' such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” “That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the. common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.” If this act be applicable, and we think it is, the liability of the Texas Central Railway Company should not be made to depend solely upon whether or not it was the author of the negligence which caused the damages sustained. The testimony shows that after the delays for which one or both of appellants were responsible, the cattle could not have reached their destination in time to be’ placed upon the market on Monday; that on Tuesday there had been a decline of about 10 cents on the hundred in the market price. It is further shown that such stock would shrink in weight from 50 to 60 pounds per head within a day’s time. According to testimony about which there appears to be no dispute, that there was a delay of three hours at Walnut Springs, a station on the Texas Central Railway between Hico and Waco. An effort was made on the part of that appellant to excuse this delay on the ground that it was the result of an unavoidable accident, that an engine sprung a leak, and that this could not have been foreseen by the exercise of proper care. There are other circumstances detailed, which are relied upon to excuse the delay. But we think the evidence in opposition to this was sufficient to justify the jury in attributing that delay, in part at least, to the negligence of the appellant. It is further shown that there is no physical connection between' the lines of the Texas Central Railway Company and that of the Missouri, Kansas & Texas Railway Company of Texas at Waco, and that their depots are about a mile and a half apart; that freight hauled by the Texas Central Railway Company destined to be transported over the Missouri, Kansas & Texas Railway Company of Texas, is transferred by the Cotton Belt, for which the latter company receives a switching fee. The train of cattle in question arrived at Waco, and at 12:45 a. m. Saturday was placed by the Texas Central Railway Company upon the track of the Cotton Belt for delivery to the Missouri, Kansas & Texas Railway Company of Texas, and was receipted for by the agent of the latter company at 1:40 a. m. the same day. But the stock did not leave Waco till 4:35 a. m. This shows a delay of about four hours at that point, which is unaccounted for by either of the appellants, each claiming that the other was responsible for it. The testimony was conflicting as to what, according to the custom of the two roads, was a delivery by one to the other under the circumstances existing in this instance; the witnesses on the part of the Texas Central Railway Company claiming that a delivery to the Cotton Belt for transfer was a delivery to the Missouri, Kansas & Texas Railway Company of Texas according to their custom, while the witnesses testifying in behalf of the Missouri, Kansas & Texas Railway Company of Texas stated that according to the custom the delivery was not complete -until their company had received the freight upon its own track. The state of the evidence was such that a finding either way by the jury would be justified. The jury might have held the Texas Central Railway Company responsible for the delay at Waco, or it might justly have attributed it to the Missouri, Kansas & Texas Railway Company of Texas. The greater part of the damages claimed in this case is attributed to delays. The three hours lost at Walnut Springs added to the four hours at Waco were sufficient, according to the testimony of Morris, the man who accompanied the shipment, to cause him to miss Monday’s market. Assuming that the Texas Central Railway Company is responsible for one, and the Missouri, Kansas & Texas Railway Company of Texas for the other, we have a case of concurring negli-gencé, rendering both of the appellants jointly liable. 29 Cyc. 487, and cases cited. The contention of appellants that no negligence is shown to support the verdict is without merit.

Appellant Missouri, Kansas & Texas Railway Company of Texas also complains of the admission of certain testimony as' to when the cattle were receipted for and delivery made to it by the Texas Central Railway Company. The first objections urged are that the testimony was hearsay and not the best evidence. The bills of exception show that -the witnesses purported to testify to facts within their knowledge, and we think the testimony was properly admitted. The other objection on the ground that the testimony challenged was the statement of a conclusion or opinion is equally without merit.

The judgment of the district court is affirmed.  