144 S.W. 1194 | Tex. App. | 1912
The suit was by the Woldert Grocery Company against appellant to recover $480 as the value of a car load of peaches delivered to appellant at Omaha, Tex., for transportation to the Stone Produce Company in Topeka, Kan. The grocery company's contention was that the peaches were so injured as to become valueless because of (1) a negligent failure of appellant to furnish a suitable and properly equipped car in which to transport them; (2) a negligent failure to transport them to Topeka with reasonable dispatch; and (3) negligence in handling them while they were being transported. The contentions of appellant, so far as necessary to state them to understand the rulings made, were (1) that the car was a suitable one; (2) that it was loaded by the grocery company, and that, if the peaches were injured as claimed, the injury was due to the grocery company's own negligence in failing to properly load them; (3) that the rough handling, if any, of the *1195 peaches was by its connecting carriers, the Kansas City Southern Railway Company and the Missouri Pacific Railway Company; and (4) that by the terms of a contract between it and the American Refrigerator Transit Company the latter was bound to furnish suitable cars for such shipments, and to load or superintend the loading of same. At appellant's instance said railway companies and said transit company were made parties, and appellant sought a recovery over against them in the event the grocery company recovered against it. The court peremptorily instructed the jury to find in favor of said railway companies and the transit company as against appellant's claim of a right to recover over against them. On issues submitted as between the grocery company and appellant the jury found in favor of the former, and assessed its damages at the sum of $480, the full amount sued for.
The trial court instructed the jury to find for the grocery company if they believed appellant "negligently failed to furnish a proper and suitable car, or negligently failed to furnish the lumber or other material necessary for loading and bracing said car," and that because of its failure the peaches were injured. Appellant insists that the testimony did not make an issue as to whether the car was a suitable one or not. The contention seems to be supported by the record. The grocery company in its brief does not refer to, and we have not found in the record, any testimony tending to show the car to have been an unsuitable one. In the absence of such testimony, it was, of course, error to authorize the jury to find against appellant on that ground. Railway Co. v. Wisenor,
Appellant complains of the refusal of the court to give a special charge requested by it as follows: "If you believe from the evidence in this case that the peaches were improperly loaded in the car, and that had they not been so improperly loaded, if you find they were, they would not have been injured in transit, and that the peaches were so loaded by the direction of plaintiff company, and that they would not have been improperly loaded had it not been that plaintiff company directed them to be loaded as they were, it will be your duty to return a verdict for the defendant under the pleadings and evidence in this case." The court did not err in refusing to so instruct the jury. There was testimony tending to show that the peaches were loaded by agents of appellant in accordance with instructions given to them by the grocery company, and testimony tending to show that they may have been so loaded because of the failure of appellant to furnish "regulation material" necessary to properly load them, and that they were loaded in the best manner possible under the circumstances existing at the time. If, as we think is true, it was appellant's duty to properly load the peaches, and it did not so load them, we do not think, when the perishable nature of the shipment is considered, it should be said as a matter of law that in instructing appellant to load them as they were loaded the grocery company was guilty of such negligence as deprived it of a right to recover against appellant.
On the ground that appellant had not pleaded as a set-off or counterclaim the nonpayment by the grocery company of the sum due for transporting the peaches to Topeka, the court refused to permit appellant to prove by the witness Alex Woldert, president of the grocery company, that the freight charges amounted to $181.50, and that the grocery company had not paid same. We think the court erred in excluding the testimony offered. In Railway Co. v. Hoffecker,
The court did not err in refusing to permit the testimony of the witness Garrett, referred to in the first assignment, to be used by appellant as evidence against the American Refrigerator Transit Company. That company was not a party to the suit at the time the deposition of the witness was taken, *1196
and had never had an opportunity to propound cross-interrogatories to him. Dalsheimer v. Morris,
Having submitted the case as between the grocery company and appellant to the jury solely on an issue as to whether appellant had been negligent in furnishing a proper car in which to transport the peaches, and an issue as to whether appellant had been negligent in failing to furnish material necessary to properly load the car, we think the court did not err in peremptorily instructing the jury to find in favor of the Missouri Pacific Railway Company, as against appellant's claim of a right to recover over against it in the event the grocery company recovered against appellant. A recovery by the grocery company against appellant on either of the issues specified clearly would not have authorized a recovery by appellant over against said Missouri Pacific Railway Company.
The assignments not disposed of by what has been said are overruled.
The judgment is affirmed so far as it is in favor of the Kansas City Southern and Missouri Pacific Railway Companies, and reversed and the cause is remanded for a new trial as between the other parties.