218 S.W. 552 | Tex. App. | 1920
Counsel for plaintiffs in error challenges our findings of fact in this case. A careful examination of the record convinces us that we did not err in such findings as to any material fact.
We were in error in stating that all three of the rivers mentioned in our original opinion are between Altus and Fairview. No statement as to the location of the Cimarron was made in any brief herein, and as the first delay after the wreck was cleared was occasioned by the overflow of the Cimarron, we took it for granted that river was south of Fairview. A careful reading of the statement of facts shows that this river is a short distance north of Fairview. An examination of our original opinion will show that this fact is immaterial as to the law of this case.
We here make these additional findings of fact:
Fairview is about 130 miles north of Altus, and the average speed of freight trains between these points is 15 miles per hour.
Plaintiffs in error insist that we were wrong in holding, as we do, that where an act of negligence on the part of a carrier concurs with an act of God in producing an injury, without which act of negligence the injury would not have happened, the carrier is responsible for the damages arising from such act. Plaintiffs in error cite in support of their contention Empire State Cattle Co. v. Railway Co.,
However, it is immaterial that we may be in error on this point, as the damages to defendants in error's sheep are not shown to have occurred by any act of God, or unavoidable accident, but the negligence of a connecting carrier.
This is a companion case to Railway Co. v. Harral,
Motion for rehearing overruled
