Southern Kansas Railway Co. v. Curtis Bros. & Davidson

SPEER, Associate Justice. Curtis Brothers & Davidson sued the Pecos & Northern Texas Railwaj^ Company, the Southern Kansas Railway Company of Texas, and the Atchison, Topeka & Santa Fe Railway Company, to recover damages for their failure to furnish cars and for delays and rough handling of three trains of cattle shipped from Portales, New Mexico, to Kansas City, Missouri. The trial resulted in a verdict and judgment in favor of plaintiffs against the Southern Kansas Railway Company of Texas for two hundred and ninety-five dollars, and against the Atchison, Topeka & Santa Fe Railway Company for seventeen hundred and seventy dollars, and in- favor of the Pecos & Northern Texas Railway Company. From this judgment the losing defendants have appealed. Appellants’ complaint that the court erred in the first division or paragraph of his charge in submitting the question of their liability to appellee for any delay there might have been in furnishing cars at Portales, New Mexico, is without merit, since under the undisputed evidence the only defendant which could have been held liable for such delay was the Pecos & Northern Texas Railway Company, and the jury found 'in favor of that company. The worst to be said of the charge is that it was calculated to mislead the jury in that it submitted ás against these appellants an issue upon which there was no evidence, but the finding aforesaid in favor of the only road as to which there was evidence of liability is a complete answer to this suggestion. The second complaint is that the court erred -in refusing to give a peremptory instruction to find for these appellants. This charge is predicated upon the contention that the written contracts upon which the shipments in- question were made stipulate as a condition precedent to appellee’s right to recover damages for any loss or injury to the stock during transportation, or at any place or places where loaded or unloaded or previous to loading for shipment, that they should present a written claim therefor within ninety-one days after such damages may *479 have accrued, and that under the laws of Hew Mexico, where such contracts were executed, such provision was valid and binding. In the first place, the only proof of the laws of Hew Mexico bearing upon this question found in the record is as follows: “Defendants offer in evidence specifically paragraph 11 of chapter 6, article 3847 of title 39, of the laws of Hew Mexico, which is as follows: ‘Eleven. To regulate the time and the manner in which passengers and property shall be transported over its roads and the tolls or compensation to be paid therefor: provided that it shall be unlawful„ for such corporation to charge more than six cents per mile for each passenger and fifteen cents per mile for each ton of two thousand pounds or forty cubic feet of freight transported on its roads; provided further'that in no case shall such corporation be required to receive less than twenty-five cents for any one lot of freight foi any distance; provided further that such corporation shall not be required to transport domestic animals, nitroglycerin compounds, gun powder, acids, phosphorous, and other explosive or destructive combustible materials, except upon such terms and conditions and rates of freightage as its board of directors may from time to time prescribe and establish/ ” And further, “defendants now offer in evidence the entire book of laws' of the Territory of Hew Mexico to show that there is no law in conflict with the one read, and to show that the same has never been repealed,” but which book of the laws of the Territory of Hew Mexico happily has not been transcribed into the record. The record contains nothing to show that the board of directors of the Pecos "Valley & Hortheastern Bailway Company, the Hew Mexico corporation 'upon whose line the shipments in controversy originated and which company was not sued, ever prescribed or established the terms, conditions and rates of freightage upon which such company would receive and transport domestic animals. In the absence of evidence to the contra^, the presumption arises that the laws of Hew Mexico are the same as those of Texas (Burgess v. Western Union Telegraph Co., 92 Texas, 125), and that under them a provision requiring notice of a claim for damages to be filed within ninety-one days must be reasonable or the same will not be enforced. The question of whether or not ninety-one days was a reasonable time under the circumstances of this case was submitted to the jury. For this reason, if for no other, the summary instruction was properly refused. Besides, the Legislature could not have meant to authorize the making of an unreasonable contract. What we have just said also disposes of appellants’ third assignment of error, in which it is insisted that the verdict and judgment are contrary to and unsupported by the law and the facts, in that the shipment was under contracts executed in Hew Mexico and valid under the laws of such Territory and appellees had failed to give the written notice within the time stipulated. We might here remark, however, that there is some evidence tending to show that such notice was given within the ninety-one days, and that question was submitted by the court, which itself is another sufficient answer to the second and third assignments of error. The fourth and fifth assignments are substantially the same as the second and third, and the sixth presents a question which has been expressly decided against appellants’ contention in Pecos & Horthern *480 Texas Railway Company v. Evans-Snider-Buel Company, 15 Texas Ct. Rep., 199, and 16 Texas Ct. Rep., 978. The assignment questions the correctness of the court’s charge to the effect that a depreciation in the market price of appellees’ cattle resulting from appellants’ negligent delays is not covered by the stipulation for a notice in writing for loss or injury to their stock. Finding no error in the judgment, we order that the same be affirmed. Affirmed. Writ of error refused. .