Miller v. Texas & N. O. R. Co.

• Decision Date: 23 February 1892
• Citation: 18 S.W. 954
• Parties: MILLER <I>et al.</I> v. TEXAS & N. O. R. CO.
• Court: Texas Supreme Court

18 S.W. 954

MILLER et al. v. TEXAS & N. O. R. CO.

Supreme Court of Texas.

February 23, 1892.

Commissioners' decision. Section B. Appeal from district court, Orange county.

Action by L. Miller & Co. against the Texas & New Orleans Railroad Company. Judgment for defendant. Plaintiffs appeal. Affirmed.

Bullitt & Bullitt, for appellants. Perruman & Gillaspie, for appellee.

GARRETT, P. J.

L. Miller & Co. brought this suit August 7, 1890, in the district court of Orange county to recover of the Texas & New Orleans Railroad Company the statutory damages for the detention of a car-load of furniture after tender of freight charges due as shown by the bill of lading. Upon the trial plaintiffs produced in evidence a through bill of lading, issued by the Louisville, Evansville & St. Louis Consolidated Railroad Company, at Tell City, Ind., May 24, 1890, for the furniture consigned to L. Miller & Co., Orange, Tex.; the rate of transportation of said property from Tell City to Orange not to exceed 91 cents per hundred-weight; weight, subject to correction, 13,500 pounds. Tender of the freight charges, as shown by the bill of lading, and the detention of the furniture were proved. Plaintiffs then introduced in evidence the deposition of L. S. Parsons, to show a joint undertaking between defendant and the Louisville, Evansville & St. Louis Consolidated Railroad Company to transport the goods from Tell City, Ind., to Orange, Tex. The witness testified to an arrangement with the Southern Pacific system for through rates. On motion of the defendant, the evidence was stricken out, because it did not connect the defendant with the undertaking, and the jury were instructed by the court to return a verdict for the defendant. On appeal from the judgment of the court below it is contended in behalf of the appellants that the court should have judicially known that the Texas & New Orleans Railroad was a part of the Southern Pacific system, and that its action in striking out the deposition and directing a verdict for the defendant was error. As a general rule, a court, in making up its conclusions, is to take no notice of facts not in evidence. I Whart. Ev 276. There are certain facts, however, which may be judicially noticed by the courts, because of their public notoriety and indisputable existence. Railroads are public highways, and it is a matter of history that important lines of railroad, once established, have remained as fixed and permanent in their course as the rivers themselves. Their locality becomes so notorious and indisputable that the courts will take notice thereof. Railway Co. v. State, 72 Tex. 410, 10 S. W. Rep. 81. So the court would take notice of the locality of the defendant's line of railroad, for it is a physical and geographical fact of undisputed notoriety. But, in order to take notice that the defendant's line of railroad is a part of a system of railroads, the court must be aware of the contract through which the system is created. It has been held that courts will judicially know that, as a general rule, trains running upon a railroad are run, directed, and controlled by the owners of the road. 12 Amer. & Eng. Enc. Law, p. 165,...