St. Louis Southwestern Ry. Co. of Texas v. A. A. Jackson & Co.

• Decision Date: 24 April 1909
• Citation: 118 S.W. 853
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. A. A. JACKSON & CO.
• Court: Texas Court of Appeals

118 S.W. 853

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. A. A. JACKSON & CO.

Court of Civil Appeals of Texas.

April 24, 1909.

Appeal from Dallas County Court; W. M. Holland, Judge.

Action by A. A. Jackson & Co. against the St. Louis Southwestern Railway Company of Texas and others. From a judgment for plaintiff, defendant St. Louis Southwestern Railway Company of Texas appeals. Affirmed.

Crane, Gilbert & Crane, for appellant. Leake & Henry, for appellee.

BOOKHOUT, J.

This is a suit filed by appellee in the county court of Dallas county against the Texas & Pacific Railway Company, the St. Louis Southwestern Railway Company, and appellant, the St. Louis Southwestern Railway Company of Texas for damages. The substantial allegations in appellee's petition are as follows: On March 5, 1904, the firm of Austin & Dye, of Medina, N. Y., shipped to appellee at Dallas, Tex., 174 barrels of apples in car ARL No. 6,549, which car was a refrigerator car properly equipped for the preservation of the apples contained in said shipment. That said car of apples was transported by the defendant St. Louis Southwestern Railway Company from Memphis, Tenn., to Texarkana, Tex., and there delivered to its codefendant, St. Louis Southwestern Railway Company of Texas, the appellant herein, which transported same to Dallas, Tex., at which last-named point it delivered said car to its codefendant, the Texas & Pacific Railway Company, who delivered said car to appellee at Dallas, Tex., on March 17, 1904. That said apples were in sound condition when delivered to the railway company at Medina, N. Y., but that when delivered to appellee at Dallas, Tex., a large amount of same were rotten and of no value whatever. That the rotten condition of said apples and the damage thus caused to same was due to the negligence of said defendants in failing and refusing to ice said car while in their possession, when the temperature of the atmosphere was high, and in failing and refusing to properly adjust the ventilators; that said car was fully equipped with ventilators and with ice bunkers designed to hold ice for the proper preservation of perishable goods contained therein. That by reason of said negligence the interior of said car became heated on the southern part of its journey, and that by reason of said ventilators being closed said apples received no fresh air and were caused to be heated and spoiled. Appellee claims damages in the sum of $282.52. The appellant, St. Louis Southwestern Railway Company of Texas, answered by general demurrer, general denial, and specially answered that this suit grew out of a shipment of a car load of apples from Medina, N. Y., to Dallas, Tex., and was an interstate shipment. That it originated at Medina on March 5, 1904, under a through bill of lading issued by the New York Central & Hudson River Railroad from Medina, N. Y., to Dallas, Tex., pursuant to directions of appellee. That among other things, said bill of lading provided that the line of railroad only shall be responsible for any damages to said shipment having the custody and care of the goods when the damage occurred thereto. That the shipment consisted wholly of a car load of apples, and was transported in the same car in which they were loaded at Medina, N. Y., to Dallas, its destination. That while in appellant's custody said car of apples was handled with care and dispatched with promptness and expedition. That same was delivered to appellant after 8 o'clock p. m. on March 16, 1904, at Texarkana, Tex., and was forwarded from that station to its destination, Dallas, Tex., at 1 o'clock a. m., March 17, 1904, and that it arrived at Dallas at 7:40 p. m. on March 17, 1904, and was promptly delivered to appellee in like condition as when it was received by appellant. That plaintiff was both the consignor and the consignee in this shipment, but that he gave no directions for icing the car, either at the point of origin or while in transit, nor did he give directions, as it was his duty to have done, concerning the opening of the ventilators in said car, if he had wanted any such course pursued by any carrier having the custody of such shipment. Appellant further averred that, if the carriers handling said shipment between the point of origin and destination were to have iced or re-iced said car in transit, it was the duty of appellee, and the custom of the business of shippers of apples or other perishable fruits, to have noted on the way-bill accompanying such shipment his directions for icing and re-icing of said car in transit, of all of which plaintiff was advised at the time of making this shipment, and he could and would have refused to pay the charges for the icing or re-icing of said car if it had been done without his direction as aforesaid. That there was no request to ice or re-ice said car, and no notice of appellee's desire that it should be done, if he did so desire it done, on the waybill or bill of lading under which this appellant received and transported said car. When said cause was called for trial, appellee dismissed as to the Texas & Pacific Railway Company and the St. Louis Southwestern Railway Company. A trial was had before the court without a jury, and resulted in a judgment against appellant in favor of appellee in the sum of $202.50, with interest from the 19th day of March, 1905, at the rate of 6 per cent. Appellant perfected an appeal to this court.

The first assignment complains that the court erred in rendering judgment against it. The contention is made that the evidence conclusively showed that this car of apples was delivered by appellant to the Texas & Pacific Railway Company at 7:15 a. m., and that the said Texas & Pacific...