Nabors v. Colorado & S. Ry. Co.

• Decision Date: 12 March 1919
• Docket Number: (No. 1503.)
• Citation: 210 S.W. 276
• Parties: NABORS v. COLORADO & S. RY. CO.
• Court: Texas Court of Appeals

Page 276

210 S.W. 276

NABORS v. COLORADO & S. RY. CO.

(No. 1503.)

Court of Civil Appeals of Texas. Amarillo.

March 12, 1919.

Appeal from Wichita County Court; Harvey Harris, Judge.

Action by W. A. Nabors against the Colorado & Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Chauncey & Davenport, of Wichita Falls, for appellant.

F. S. Jones, of Wichita Falls, and Thompson, Barwise, Wharton & Hiner, of Ft. Worth, for appellee.

HALL, J.

Appellant sued appellee railway company to recover damages alleged to have resulted to a shipment of vegetables from Denver, Colo., to Wichita Falls, Tex. It is alleged that the damages resulted from the fact that the car was in bad condition at the time the vegetables were loaded or because defendant permitted it to get in bad condition in transit; that it was a refrigerator car, and the drain pipes for carrying away the water from the melting ice became or were permitted by defendant to become clogged and stopped up, thereby causing the water to flood the car, and continues:

"That the acts above complained of constituted negligence on the part of defendants and were the direct and proximate cause of the damage to said vegetables. That, if the defendants had exercised ordinary care and diligence in the operation of said car and in the handling of same, said damage would not have been sustained."

Appellee met the allegation of negligence by general denial. Appellant sought to prove negligence by the testimony of several witnesses. Defendant rebutted this evidence by the testimony of its witnesses, sharply contesting the issue of negligence. The only paragraph of the charge was one defining negligence. This is followed by special issue No. 1, requesting the jury to bear in mind the definition of negligence given, and to find whether or not the defendant was guilty of negligence in the manner in which it transported the vegetables from Denver to Wichita Falls. To this issue the jury answered: "No."

Special issue No. 2 is:

"If you have answered special issue No. 1, `Yes,' then find whether or not said negligence was the direct and proximate cause of said damage, if any."

By the third special issue, the jury is requested to find upon the question of market value, and by the fourth special issue the matter of attorney's fees is submitted. Having found that there was no negligence as submitted by the first special issue, no answers were made to the remaining issues. Appellant made no objection whatever to the charge of the court.

By his first assignment of error, it is insisted that the verdict is not sufficient to support a judgment for the defendants because only the first special issue was submitted, "and which issue was not the issue in the case, and the only issue in the case that should have been submitted was as to whether or not said vegetables were damaged in shipment and the extent of such damage," etc. The proposition urged under this assignment is in substance, that a common carrier is an insurer and is liable except where the loss results from the act of God, the public enemy, the acts of the shipper, or through the inherent vice of the thing shipped, and where no such defenses are set up the carrier is liable for the loss sustained.

The second assignment, in substance, is that the judgment is contrary to the law, in this: The uncontroverted evidence showed that the vegetables were in good condition when received by the carrier and in bad condition when delivered to plaintiff, and therefore, as a question of law, plaintiff was entitled to recover unless the carrier could show it was released under the common-law rule of liability.

The first assignment is disposed of upon the ground that the appellant failed to object to the charge of the court which submitted the issue of negligence. It is provided by Vernon's Sayles' Civil Statutes, art. 1971, that a failure to so object waives errors in instructions. This being an interstate shipment the rights of the parties are controlled by the provisions of the Carmack Amendment; section 8604a, U. S. Comp. Stat. (24 Stat. 386; 34 Stat. 595; 38 Stat. 1196; 39 Stat. 441), amending Act February 4, 1887, § 20, as amended; Act June 29, 1906, § 7; Act March 4, 1915, c. 176, § 1; and Act August 9, 1916, c. 301; and the decisions of the federal courts construing it....