Texas & P. Ry. Co. v. Stell
| Decision Date | 09 March 1901 |
| Citation | 61 S.W. 980 |
| Parties | TEXAS & P. RY. CO. et al. v. STELL. |
| Court | Texas Court of Appeals |
Appeal from Taylor county court; D. G. Hill, Judge.
Action by Bush Stell against the Texas & Pacific Railway Company and the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendants appeal. Reversed.
J. M. Wagstaff, for appellant Texas & P. Ry. Co. Henry & Henry, for appellant St. Louis, I. M. & S. Ry. Co. Cunningham & Wilson, for appellee.
Appellee recovered a judgment against the Texas & Pacific Railway Company for $100 and a judgment against the St. Louis, Iron Mountain & Southern Railway Company for $75. The action was brought against both companies for damages to a car load of calves carried by them from Abilene, Tex., to East St. Louis, Ill. A separate verdict was brought in against each in response to the following charge, authorized by Act 1899, p. 214: "You are further instructed that our law provides, in substance, that when any freight or other property has been transported over two or more railroads operating any part of their roads in this state, and having an agent in this state, or operated by an assignee, trustee, or receiver of any such railways, suits for damages thereto, or other cause of action connected therewith, or arising out of such transportation, or contract in relation thereto, may be brought against any one or all of such railways in any county in which either of such railroads extends or is operated: provided, however, that if damages be recovered against more than one carrier not partners in the shipment or contract, they shall be apportioned between the defendants by the verdict of the jury." The next paragraph of the charge instructed the jury, in accordance with the stipulations in the contract of carriage, to limit the recovery against each company to the amount of damage done on its own line. It thus appears that in reality two separate causes of action were tried at the same time, each against a different defendant. It also appears that it was to the interest of each defendant to make it appear, as far as possible, that the damage was done on the line of the other. Each defendant claimed, and was, therefore, entitled to, three peremptory challenges in the selection of the jury. Rev. St. art. 3213. Two defendants cannot be said in such case to be one party within the meaning of the article just cited. Because this statutory right was denied each defendant in the...
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