94 S.W.2d 235 | Tex. App. | 1936
This case originated in the justice court with appellee, B. H. Willis, as plaintiff, and appellant, Texas New Orleans Railroad Company, as defendant; the appeal is from the judgment of the county court of Jefferson county at law, where the case was tried de novo as an appeal from the justice court.
Appellee alleged two grounds of recovery: First, that on or about the 23d day of August, 1927, he delivered to appellant at Crowley, La., 43 head of cattle for shipment to Beaumont, Tex.; that at Beaumont the cattle were reconsigned to Felicia, Tex.; that at Felicia, Tex., appellant delivered to him only 39 head of cattle. Second, that, if the 43 head of cattle were unloaded at Felicia, they escaped from appellant's stock pen through its negligence, and after diligent effort he was able to find only 39 head of his cattle; that, in searching for his cattle, he incurred a necessary expense item of $30. Appellee prayed for damages for the value of the lost cattle and for the expense incurred. Appellant answered only by general demurrer and general denial.
The jury found: First, that appellee delivered to appellant at Crowley, La., 43 head of cattle; that only 39 head were delivered to him by appellant at Felicia, Tex.; and that appellant failed to deliver him "four head of cattle at Felicia." Second, the jury acquitted appellant of negligence in the escape of the cattle from its stock pen.
The appeal is from the judgment of the lower court awarding appellee judgment against appellant on the verdict of the jury for $102.
The authorities satisfactorily support appellant's proposition that, where specific acts of negligence are alleged in an action to recover damages against a common carrier for failure to deliver a shipment of goods delivered to it for transportation, "failure to prove the allegations is a failure to establish a case of negligence." Myers v. Texas Land Development Co. (Tex. Civ. App.)
It follows that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.
Affirmed.