St. Louis & Southwestern Ry. Co. v. Grant

• Decision Date: 24 February 1915
• Docket Number: (No. 5425.)
• Citation: 174 S.W. 714
• Parties: ST. LOUIS & SOUTHWESTERN RY. CO. et al. v. GRANT.
• Court: Texas Court of Appeals

174 S.W. 714

ST. LOUIS & SOUTHWESTERN RY. CO. et al. v. GRANT.

(No. 5425.)

Court of Civil Appeals of Texas. San Antonio.

February 24, 1915.

Rehearing Denied March 24, 1915.

Appeal from Bexar County Court; John H. Clark, Judge.

Action by R. A. Grant against the St. Louis & Southwestern Railway Company and another. From a judgment for plaintiff, defendants appeal. Reversed and rendered.

Cobbs, Eskridge & Cobbs, of San Antonio, and Wilson, Dabney & King, of Houston, for appellants. McCollum Burnett, of San Antonio, for appellee.

FLY, C. J.

This is a suit for damages to a car load of peaches shipped from Pittsburg, Tex., to San Antonio, in July, 1913, instituted in the justice's court, appealed by appellants to the county court, and from the latter court to this court from a verdict and judgment for $186.55. The suit was instituted against the St. Louis & Southwestern Railway of Texas and the International & Great Northern Railway Company. The only ground of negligence is "failure to re-ice a certain car of peaches, transported over said lines of railway, on or about July 25, 1913, same being transported from Pittsburg, Tex., to San Antonio, Tex."

F. G. Jones, testified, for appellee, that on or about July 25, 1913, he loaded a car of peaches at Pittsburg destined to San Antonio, that the peaches were in apparent good condition, and were consigned to appellee. He arranged with the railroad company to ice the car and keep it iced to destination. He testified that Pittsburg is a small town and has no icing plant for cars, but cars are iced in Tyler, and sometimes in Mt. Pleasant, and sent to Pittsburg iced. The car was detained at Pittsburg through the negligence of the shipper, as he paid a fine for the detention. That the peaches were in a damaged condition when they reached San Antonio is not denied. The uncontradicted testimony shows that the car was placed by the railway companies in Pittsburg with its bunkers full of ice, that when it left Pittsburg the bunkers were only third filled, that when the car reached Tyler, the nearest icing station, 8,100 pounds of ice were placed in the bunkers, that when the car reached Taylor 3,800 pounds of ice were placed in the bunkers, and they were again filled when the car reached San Antonio. There is no testimony tending to show that there was insufficient ice in the car at any time, except, perhaps, when it left Pittsburg.

When appellants sent the car fully iced to Pittsburg, a small place where there was no icing station, they had fulfilled the duties incumbent upon them, and, if appellee unnecessarily delayed the car at Pittsburg until the ice had melted below the safety point, appellants cannot be held...