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

• Court: Texas Court of Appeals
• Writing for the Court: Pleasants
• Citation: Texas & N. O. R. Co. v. Brown, 37 S.W. 785 (Tex. App. 1896)
• Decision Date: 24 September 1896
• Parties: TEXAS & N. O. R. CO. v. BROWN.

37 S.W. 785

TEXAS & N. O. R. CO. v. BROWN.

Court of Civil Appeals of Texas.

September 24, 1896.

Appeal from Harris county court; John G. Tod, Judge.

Action by J. M. Brown against the Texas & New Orleans Railroad Company and two other railroad companies for injury to flagstones transported over defendants' lines, commenced in justice's court, and taken on appeal by the defendant named to the county court. From a judgment in favor of plaintiff against defendant the Texas & New Orleans Railroad Company only, it appeals. Affirmed.

Baker, Botts, Baker & Lovett and T. B. Williams, for appellant. F. C. Taylor, for appellee.

PLEASANTS, J.

This suit is from the county court of Harris county. Appellee sued the Missouri, Kansas & Texas Railway Company of Texas, the Houston & Texas Central Railway, and the appellant, in justice's court, precinct No. 1, for the recovery of $195.23, the alleged loss sustained by him by the breaking, through the alleged negligence of defendants, of a certain lot of flagstones while in transit over defendants' lines of railway, from Ft. Scott, Kan., to Beaumont, Tex. The defendants answered separately, denying each its liability, and averring that, if plaintiff's stone was transported over its line, it was transported under a contract whereby plaintiff assumed all risks of breakage, and released defendant from liability; and, further, that, if said stone was damaged in any wise, the damage was due solely to the fault of the shippers in not properly loading the cars upon which the shipment was made, and without negligence on the part of defendant contributing thereto. Upon trial of the case in the justice's court, a jury being waived, judgment was rendered against the appellant for the sum sued for; and upon appeal to the county court, judgment was again rendered against appellant, the amount of this judgment being for the sum of $150, being $45.23, less than the amount sued for. There was no evidence what the condition of the stone was when received by the initial carrier from the shipper, the vendor of the plaintiff, in the state of Kansas. The plaintiff testified that, when the stones reached Houston, he examined three or four of the cars while on the tracks of the Houston & Texas Central Railway, and being switched by an engine of that road, and that he found from two to six stones broken on each car; and he further testified that there were more stones broken when the shipment was received in Beaumont than there were when the cars were in the Central Depot at Houston; that he had never seen any of the stones before they arrived in Houston, and did not know what their condition was when shipped from the quarry in Kansas. The transfer clerk of the Houston & Texas Central testified as follows: "I made no personal examination of these stones, but, from my records which I now have in the books before me, I find that the stones were delivered to the Texas & New Orleans Railroad Company, and receipted for in good condition, without exception, by the transfer clerk of the Texas & New Orleans Railroad Company, whose duty it was to receive freight on the transfer." This book was proffered in evidence, but it was admitted by all the parties to the suit that the transfer clerk of the Texas & New Orleans Railroad Company at Houston received this stone, and receipted for it to the Houston & Texas Central Railroad Company, without exception, and without making any notation of the stone being in a damaged condition or broken. "Witness testified that he could not state of his own knowledge what the condition of the stone was upon its arrival at Houston, or upon its delivery to the Texas & New Orleans Railroad Company. His only knowledge of the matter was from the book from which he was testifying, and it was admitted by all the parties to the suit that the entries were made on the book as testified to by this witness." Several...