#### G., C. & S. F. R’y Co. v. J. F. Wilhelm.

(No. 5839.)

Appeal from Runnels County.

J. W. Terry, counsel for appellant.

Spoonts & Crosson, counsel for appellee.

Opinion by

Will-son, J.

§ 458. *Petition in suit for damages to live-stock in transporting same, held insufficient.*Appellee recovered judgment against appellant for $850, damages for the loss of thirty-one head of sheep, and the depreciation in value of one thousand six hundred and sixty-one other head, while being carried by appellant from Ballinger, Texas, to Chicago, Illinois. The value of the sheep lost is not alleged in the petition, nor is it alleged how much those not lost were depreciated in value. It is merely *559alleged that all of the sheep were of great value, and that plaintiff’s daixiage was $850. Appellant excepted specially to the petition for the want of certainty, because it did xxot allege the value of the sheep lost and the depreciation ixx value of those not lost. These exceptions were overruled. *Held*error. Ixx order to arrive at and estimate the damages which the plaintiff might be entitled to recover, it was necessaiy to know the value of the sheep lost and the depreciation in value of those injured. These were material issxxable matters, which could xxot be proved unless alleged, axxd which had to be alleged and proved to entitle the plaintiff to a recovery. [1 App. C. C. § 1280; Pac. Ex. Co. v. Darnell Bros. 62 Tex. 639.] The petitioix was perhaps sufficient on geixeral demuxrer, but ixot so when specially excepted to.

§ 459. *Notice of damages; stipulation in contract of' shipment; insufficient plea setting up such stipulation.*Appellant pleaded specially a stipulation iix the contract of shipment to the effect that appellee should give notice in writixxg of his claim for damages to some agexxt, etc., of appellant-, as a condition precedent to his right to recover damages. The plea alleged that such xxotice was xxot given, axxd that appellaixt had an agent at Chicago to whom such xxotice could have beeix given, but did not name such agent, or where he could be fouxxd, nor allege that appellee knew the fact that appellant had such agent in Chicago. *Held:*Said special plea was insufficient under the rule laid down in R’y Co. v. Harris, 67 Tex. 166, axxd special exceptioxxs thereto t-were properly sustained.

§ 460. *Stipulation in contract of shipment, as to stock-cars, held unreasonable and invalid.*It was stipulated in the coixtract of shipment that appellee would accept the car’s furnished him by appellant, etc. This stipulation was specially pleaded by,appellant in bar of appellee’s right to recover for any damage resultixxg from defective or insufficieixt cax’s. *Held:*Such stipulation is unreasonable and invalid. A carrier cannot relieve himself from *560liability for loss and injury caused by his own negligence. It is the duty of a railroad company to furnish suitable cars to transport live-stock that it undertakes to carry, and it cannot avoid this duty by contract. [Ogdenburg & Co. v. Pratt, 22 Wall. (U. S.) 123; 1 App. C. C. §§ 774, 1257; Sayles’ Civ. Stat. art. 4227b.] The exceptions to said special plea were correctly sustained.

April 20, 1889.

Reversed and remanded.