Fort Worth & Denver City Railway Co. v. Fuller

22 S.W. 1006 | Tex. App. | 1893

Appellee sued appellant for damage alleged to have been caused to a lot of jacks and jennets by improper treatment while being shipped from Murfreesboro, Tennessee, to Decatur, Texas. The shipping contract, or bill of lading, was executed by the Nashville, Chattanooga St. Louis Railway Company, at Murfreesboro, and was quite similar in its terms to the one considered in the case of Railway v. Baird, 75 Tex. 256. The principal part of the damage was caused before the stock reached appellant's line, and while it was in the hands of connecting carriers. The petition alleged a partnership and joint contract on the part of the several carriers handling the stock, and sought to hold appellant for the whole damage. Appellant denied such partnership and joint contract under oath, and denied liability for everything not occurring on its own line. The court below, after hearing the evidence, found in favor of appellee upon these issues, and gave judgment in his favor for the whole damage.

After a careful examination of the statement of facts, we have been unable to find that any evidence was introduced upon this trial which, upon principle, will distinguish this case from the Baird case cited above, and the several decisions of our Supreme Court following it; and feeling ourselves bound by these decisions, we are constrained to reverse the judgment, regardless of what our opinion might have been as an original proposition. As the case will be remanded for a new trial, we deem it best not to attempt a discussion of the evidence. In justice to the learned trial judge, however, we will add that at the time of the trial before him, the appeal from his judgment was to the Court of Appeals, and that court had several times decided the evidence introduced in this case sufficient to sustain a finding, that the several carriers engaged in this shipment were partners or joint contractors therein in such sense as to render each liable for the negligence of the others. Railway v. Ryan, 2 Willson's C.C., secs. 430, 431; Railway v. Parish, 1 W. W.C.C., sec. 942; Railway v. Fort., Id., sec. 1252; Railway v. Ferguson, Id., sec. 1253; Railway v. Golding, 3 Willson's C.C., sec. 33; also, see Railway v. Tisdale, 74 Tex. 8. In none of these cases, however, was the statute of this State which requires railroads under severe penalties to receive and transport cars and freight tendered to them by another road, and to which so much importance is attached in the Baird case, alluded to. While it may be that more importance is attached to this statute in this line of decisions by our Supreme Court than we would be disposed to accord it upon principle, yet we are governed by their opinions, and do not feel disposed to undertake to draw distinctions from shades of difference in the evidence introduced in the several cases brought before us, which should not control in the application of the rules of law announced therein.

Let the judgment of the court below be reversed, and the cause remanded for a new trial.

Reversed and remanded.

A motion for rehearing was refused.