Texas Cent. R. Co. v. Flanary

• Decision Date: 26 April 1899
• Citation: 50 S.W. 726
• Parties: TEXAS CENT. R. CO. v. FLANARY.
• Court: Texas Court of Appeals

50 S.W. 726

TEXAS CENT. R. CO. v. FLANARY.

Court of Civil Appeals of Texas.

April 26, 1899.

Appeal from Hamilton county court; J. C. Main, Judge.

Action by W. J. Flanary against the Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

L. W. Campbell, for appellant. J. Van Steenwyk, for appellee.

FISHER, C. J.

This is an action by Flanary against the appellant to recover the value of certain wool which was destroyed by fire when in the depot building of the railway company at Hico, Tex. Verdict and judgment below were in appellee's favor for the value of the wool. Viewing the case in all of its different aspects, as presented by the pleading and evidence, it is impossible to sustain the judgment of the court below. Plaintiff, as a cause of action, alleged that he delivered 6,000 pounds of wool, of the value of $480, to the railway company, through its agent at Hico, Tex.; that for and in consideration of the promise of the plaintiff to ship his wool over the defendant's line of railroad, and to pay the defendant its regular rate of charges to the point that the plaintiff might ship the same, the defendant then and there contracted and agreed with plaintiff that said wool would be then and there located on and placed in one of its cars then standing in defendant's yard at the city of Hico; that, in accordance with said contract, plaintiff, at the direction of the agents and servants of the defendant, placed his wool in one of the defendant's cars pointed out by the agents as a suitable and proper place for such purpose; that in consideration of the promise of the plaintiff to ship said wool over defendant's line, and to pay the regular rate of charges for carrying said wool, as aforesaid, defendant then and there promised and agreed that said wool could be and remain in said car until such time of shipment, or until said car should be needed by the defendant, and, in case said car should be so needed, it was agreed by the defendant that it would give plaintiff due notice, that he might remove his wool therefrom, if not then ready to ship the same, and the plaintiff would be given a reasonable time to remove the same. Plaintiff also alleges that the car was remote from buildings, and was a safe place in which to store the wool in case of fire; that the defendant, in disregard of its contract and agreement to keep the wool in the car and to give plaintiff notice before removing the same, without the consent of the plaintiff and without notice to him, moved the wool from the car to its depot building or warehouse, where the same was totally destroyed by fire, on or about the 11th of August, 1896. From these facts, it was alleged that defendant became liable and bound for the value of the wool. As grounds of negligence authorizing him to recover, the plaintiff alleged that the depot building or warehouse, used by the defendant for storing its freight, was more dangerous and more likely to catch fire than the car where the wool was stored, and that the floor of that building was saturated with oil, and that oil, matches, gunpowder, and other explosive and inflammable articles were, in a careless and negligent manner,...