Texas & P. Ry. Co. v. Payne ( 1913 )

HODGES, J.

In November, 1911, appellees shipped a carload of bananas to Paris, Tex. It is claimed that, by reason of the negligent failure of the appellant’s employes to promptly place the car in a position where it could be unloaded, a loss was sustained by the decay of the fruit before it could be marketed. Appellees recovered a judgment in the trial court for $233.20 as damages.

Only three errors are assigned. Two of them are based upon the refusal to give spe cial charges, and the other complains of the admission of evidence.

[1] The first special charge required the jury, before returning a verdict for plaintiff, to find that the railway company “refused” to place the car in a position to he unloaded. The testimony shows that the agent of the appellant, when requested, consented to place the ear in position, but failed to do so. His negligent failure would as effectivély give rise to a cause of action as would his “refusal.”

[2] The second special charge, in so far as applicable, was covered by the court’s general charge.

There was no error in admitting the testimony complained of. The witness was qualified to testify as to the market value of the bananas.

The judgment is affirmed.