Texas & Pacific Railway Co. v. Adams , 78 Tex. 372 ( 1890 )

HENRY, Associate Justice.

—This suit was brought by the appellee to recover damage to her wearing apparel and household goods.

The suit was originally brought against John C. Brown as receiver of the Texas & Pacific Railway Company, and the petition charged that the damage to the property occurred while he was in possession of and operating said road as such receiver.

By an amended petition plaintiff charged that subsequent to the wrong-done her the defendant Brown was discharged from the receivership, and that all property and funds in his hands at the date of his discharge were-turned over to said corporation.

The railroad company was by amendment made a party defendant, and appeared and answered.

The cause was discontinued as to the defendant Brown.

A judgment was rendered against the railroad company.

The petition showed that Brown was receiver under the appointment, of a court that had jurisdiction to make it.

If facts existed making the railroad company liable for the payment of losses that occurred while it was being operated by the receiver they were neither alleged nor proved.

For this cause the judgment must be reversed.

The bill of lading contained a stipulation to the effect that “ claims for loss or damages must be presented to the delivering line within thirty-six hours after the arrival of the freight.-” The testimony showed that plaintiff’s residence was within a few hundred yards of the depot at which, the freight was received; that she received it on Saturday afternoon and did not open the trunk and box in which the goods were packed until the following Monday morning, and that she was sick during the interval.

The court, we think, fairly and correctly submitted to the jury the question whether the stipulation with regard to the time within which the-claim was required to be made was a reasonable one.

It was proper to submit that issue to the jury instead of its being decided as a question of law by the court, as appellant contends it should have been.

The goods were shipped at Bowling Green, Kentucky, upon the Louisville & Nashville Railroad, and a through bill of lading was given by that railroad to the point of destination on the Texas & Pacific Railroad.

Another assignment of error reads as follows: “ The court erred ini failing to charge the law upon all of the issues, in this: Under the contract of shipment or bill of lading it is provided, among other things, as follows, to-wit, ‘ That in case of damage or delay that company alone shall be held answerable therefor in whose actual custody the freight maybe at the time of the happening of such delay or damage;’ and there was no proof showing that any damage or delay accrued whilst appellee’s goods were in the possession of John C. Brown, who was operating and controlling the line of the Texas & Pacific Railway Company at the time appellee claims the injury occurred, and the court gave no charge to the jury upon this portion of said contract.”

There was no evidence introduced showing on what road the alleged damage was done. We think that the stipulation in the contract limiting the liability to the carrier by whom the damage was occasioned was a binding one under the circumstances of this case, and if the defendant railroad company shows that the damage did not occur while the goods were in its charge it should have the benefit of a charge to that effect.

When it is made to appear that freight transported by successive carriers has been damaged subsequent to its shipment, and the evidence fails to show on what particular line the injury occurred, there exists a presumption that it was through the fault of the last carrier. Schoul. on Bail, and Carr., 526.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

Delivered November 7, 1890.