
    PANHANDLE & S. F. RY. CO. et al. v. BROWN.
    (No. 1227.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 24, 1917.)
    CaRkiers <&wkey;280(12) — Carriage or Live Stock — Injuries in Transit.
    In an action for damage to a shipment of cattle from delay in transit, and from furnishing a car defectively bedded with cinders, which caused the cattle to have sore feet, the court properly refused to give defendant’s special charge that the jury should not consider the alleged shrinkage in weight of the cattle, because it was not shown that they sustained any damage by reason of shrinking in weight for which defendant was liable; there being evidence that the cattle were delayed at various points, and that they were loaded into a ear bedded. with cinders, which resulted in mailing their feet so sore that they could not stand to eat, resulting in shrinkage of weight.
    Appeal from Hale County Court; Charles Clements, Judge.
    Action by T. H. Brown against the Panhandle & Santa ES Railway Company and. others. Prom a judgment for plaintiff, defendants appeal.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, Madden, Trulove, Ryburn & Pipkin, of Amarillo, and L. R. Pearson, of Plainview, for appellants. Mathes & Williams, of Plainview, for appellee.
   HALL, J.

Appellee Brown sued the appellants to recover damages alleged to have accrued to a shipment of 68 cattle from Plainview, Tex., to Kansas City, Mo. The damages are alleged to have resulted from unreasonable and negligent delay in transit, and from furnishing one car defectively bedded with cinders, which caused the cattle loaded in said car to have sore feet, forcing them to lie down. It is further alleged that the cattle were kept in the cars for more than 36 hours without being unloaded for feed, water, and rest, and were held in the cars after their arrival at Kansas City for several hours longer than was necessary. A trial before a jury resulted in a verdict in favor of appellee for $240.

The first assignment of error is based upon the court’s refusal to give appellant’s special charge to the jury, to the effect that in arriving at a verdict the jury should not consider the alleged shrinkage in weight of the cows because under the evidence it was not shown that said cows sustained any damage by reason of shrinkage in weight, for which the defendants were liable. The proposition urged under this assignment is that plaintiff is not entitled to recover damages for such shrinkage because the evidence shows that the only delay to which the cows were subjected in transit was at the request of plaintiff, and that but for such request the cows would have arrived at Kansas City on time. The proposition and assignment ■ do not present the same issue, but reference to the ■ statement of facts shows that both the assignment and proposition enlarging it must be overruled. There is evidence in the record to the effect that the cattle were delayed at Amarillo 6 or 7 hours without being unloaded, and that a delay of from 1 to 2 hours occurred at Emporia. The proof is clear that the delay from Plainview to Kansas City was something over 20 hours; that they were unloaded at Emporia at 3 a. m. Sunday, and reloaded about 6 p. m., and did not leave - Emporia until about 8:30 p. m. The evidence further shows that some of the cattle were loaded into a car which was bedded with cinders, and that this resulted in making their feet so sore they could not stand and eat. The uncontroverted proof is that while in the pens at Emporia they were lying down most of the time; that on account of sore feet were not -able to stand up long enough to eat the feed given them. This, of course, resulted in shrinkage in weight, and affected their appearance when they reached the market. We think the charge of the court is a fair presentation of the case, and that no error was committed in refusing the special charges asked.

Without discussing the assignments in detail, we think a proper verdict has been reached, and the judgment is therefore affirmed.  