Galveston, H. & S. A. Ry. Co. v. Smith

• Decision Date: 06 December 1893
• Citation: 24 S.W. 668
• Parties: GALVESTON, H. & S. A. RY. CO. v. SMITH.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

24 S.W. 668

GALVESTON, H. & S. A. RY. CO. v. SMITH.¹

Court of Civil Appeals of Texas.

December 6, 1893.

Appeal from district court, Guadalupe county; George McCormick, Judge.

Action by Nettie Smith against the Galveston, Harrisburg & San Antonio Railway Company to recover the value of a trunk and its contents. From a judgment for plaintiff, defendant appeals. Reversed.

T. M. Humphreys and Fly & McNeal, for appellant. John Ireland, for appellee.

NEILL, J.

This suit was brought by the appellee on the 28th day of May, 1888, against the appellant, to recover the value of a trunk and its contents, alleged to be worth $988.70. The appellee alleged that on the ____ day of May, 1888, she took passage on appellant's railway at San Antonio for Seguin; that she purchased her ticket, and paid the usual fare between said stations, and had her trunk checked for Seguin; that she intended to remain in Seguin only one night, and then go east on said road; that she reached the depot at Seguin about 5 or 6 o'clock in the afternoon; that the town of Seguin and the hotels were one mile from the railway depot, and as it was not convenient, and as she deemed it unnecessary, to convey her trunk to the town for so short a stay, she did not take charge of it on her arrival at the depot, but left it in charge of appellant; and that she has never been able to see or obtain possession thereof since; and that appellant failed and refused to deliver her trunk to her, or account to her for it. Appellant answered by general demurrer and special exceptions, a general denial, and by pleading specially that, on the evening appellee arrived in Seguin, her trunk was carried there on the same train, and was placed on the platform for her; that she claimed the trunk, presenting her check for it, and took some articles therefrom, and then requested the agent of appellant to keep it until the next morning for her, but that she had ample time and opportunity to take the trunk with her; that on said night her trunk was destroyed by fire with appellee's baggage room, in which it was placed; that the fire by which it was destroyed was the result of an inevitable accident, not caused by any negligence of appellant, and that every effort was made to save the trunk, but without avail; that appellant held said property as a warehouseman, and was only liable as such; and that said trunk contained articles that were not baggage. There was a trial by a jury, and a verdict returned in appellee's favor for $1,265.51, upon which judgment was rendered, from which this appeal is prosecuted. This is appellant's second appeal in this case. On the former appeal it was submitted to, and decided by, the commission of appeals, and its opinion reversing the case will be found in 17 S. W. 133.

The third assignment of error is as follows: "The court erred in that portion of its charge wherein the question of whether the defendant was a common carrier was submitted to the jury, because the undisputed evidence showed that the defendant carried the trunk and contents sued for, and delivered the same to plaintiff at the destination of her journey, and that, if defendant was liable at all, it was as a warehouseman, and not as a common carrier." The portion of the charge referred to in the assignment is: "A common carrier is one who engages for hire or pay to transport passengers or freight from one point to another." "If you find from the evidence that the defendant safely carried the trunk in question from San Antonio to Seguin, as contracted with plaintiff, and that plaintiff had a reasonable time in which to remove it from the depot after an opportunity to do so, then the duty of defendant as common carrier ceased, and it would not be liable as a common carrier, but might be liable as a warehouseman, if the evidence on that point satisfies you under the law given you in this charge." The following is all the testimony upon the subject to which the part of the charge quoted relates, viz.: The appellee testified that in May, 1888, she traveled from San Antonio to Seguin on appellant's railway; that she had her trunk with her, which she checked at San Antonio to Seguin, in which were the articles named in her petition; that she had never received the trunk, and had never surrendered the check; that she left the trunk at the depot at Seguin, and did not take it with her to the hotel, because it would cost her 50 cents drayage, and she did not wish to incur the expense; that she opened the trunk at the depot at Seguin, and took from it a list of names of people who owed the Sunny South; and that she could have taken her trunk from the depot if she had seen fit to have done so. J. M. Abbott testified that he was appellant's station agent at Seguin in May, 1888; that appellee arrived there between 5 and 6 o'clock P. M. on east-bound train; that she got off at Seguin, and at the same time her trunk was put off on the platform; that appellee wished to open her trunk to get something out of it, and presented him her check, and that he consented, and she took something from it; that she left her trunk at the depot; that the street car and baggage wagons were at the depot at the time to carry baggage to town. Another witness stated that he was baggage master of appellant at Seguin; that, when appellee arrived there, her trunk came on same train; that she produced her check, and took something from her trunk, and left the trunk on the depot platform, and that he put it in the baggage room adjoining the depot; that he told her she could leave her trunk there until morning. From this testimony it is clear that appellant had done everything in relation to appellee's trunk required of it as a common carrier, and that its duty as such had ceased, and its liability as a common carrier was consequently at an end; and, as the testimony was uncontradicted, it would ordinarily be wholly unnecessary, if not improper, for the court to submit, as a question to the jury, its...