International & G. N. R. Co. v. Nowaski

• Decision Date: 11 December 1907
• Citation: International & G. N. R. Co. v. Nowaski, 106 S.W. 437 (Tex. App. 1907)
• Parties: INTERNATIONAL & G. N. R. CO. v. NOWASKI et al.
• Court: Texas Court of Appeals

106 S.W. 437

INTERNATIONAL & G. N. R. CO. v.NOWASKI et al.

Court of Civil Appeals of Texas.

December 11, 1907.

Appeal from Falls County Court; D. H. Boyles, Judge.

Action by John Nowaski and others against the International & Great Northern Railroad Company.From a judgment for plaintiffs, defendant appeals.Reversed and remanded.

Martin, Spivey & Carter, for appellant.Tom Connally, for appellees.

FISHER, C. J.

This is a suit by the appellees to recover from the appellant the value of a mule shipped over appellant's road from Anderson, Tex., to Marlin, Tex.The mule before reaching the place of destination was found dead in the car, and before it reached Marlin was unloaded by the employés in charge of appellant's train.Verdict below was in favor of the appellees.There is evidence tending to show that the mule was in good condition when delivered by appellees to the railway company; and there is some evidence tending to show that possibly the mule may have died from natural causes, but the evidence leaves it uncertain as to what was the cause of the death of the mule.Appellant contends that there was no negligence upon its part that caused or contributed in any way to the death of the mule, and there were charges requested by appellant to the effect that it could not be held liable unless it was guilty of negligence.The court instructed the jury that the railway company would not be liable for the death occurring from causes over which it had no control.

The appellant, receiving the mule for shipment, would be held responsible for its safe delivery, and could be excused only upon the ground that an act of God, public enemies, or the inherent vice of the animal or some conduct of the plaintiff was the cause of the loss or death of the mule.The delivery to the carrier being shown, failure to deliver to the shipper or consignee would create a prima facie case of liability against the appellant.This was the theory upon which the case was tried in the court below, and was the reason doubtless why the court refused to instruct upon the issue of negligence, but the question at last is, what was the cause of the death of the animal?It is contended by the appellant that it died from causes over which it had no control; and, of course, if this is true, it would not be liable.The difficulty lies in proving the defense asserted.There was no evidence introduced in this case that in a direct way accounted for the death of the animal.Its appearance, condition, and the...