International & G. N. Ry. Co. v. Woldert Grocer Co. , 1915 Tex. App. LEXIS 523 ( 1915 )

The overruling by the court of the special exceptions to the petition, as complained of in the various assignments of error Nos. 1 to 23, inclusive, do not, it is thought, afford ground for reversible error, and therefore the assignments of error are overruled.

It is thought that the twenty-fifth assignment of error should be overruled, as constituting no injurious error.

The twenty-sixth assignment of error is predicated upon the refusal of the court to give a requested peremptory instruction. It is contended by appellant that it pleaded contributory negligence of appellee in loading peaches in an insufficient and unsuitable car for shipping fruit, knowing it was such at the time, and that appellee failed to traverse the plea, and under the statute the fact was confessed. There was sufficient evidence as to negligence in respect to icing the cars and keeping up a proper state of refrigeration in transit to require the court to submit that phase of the case to the jury, as was done by the court. And while appellee pleaded as a further ground of negligence the failure to furnish in the first instance cars that were sufficient and suitable to ship fruit in, meaning as instrumentalities for shipment of fruit, it offered no evidence in support of, and did not rely for recovery on, this particular allegation; but, on the contrary, the evidence showed that the cars were proper and suitable in themselves for the purpose of shipping fruit, and the court's charge did not authorize a recovery on the ground of the insufficiency of the car for such purpose. Hence that allegation as a ground for recovery was eliminated, both because there was evidence only that the car was in itself sufficient and suitable for shipping fruit and a recovery was not authorized by the charge on that ground. Therefore appellant's contention that appellee could not recover at all must be overruled. The admission that one ground of alleged negligence, if existing under the facts, would bar recovery, would not operate to deprive appellee of recovery upon another ground alleged and proved. The nonrecovery upon the admitted ground, is inconsistent with the admission.

By the twenty-seventh assignment of error it is contended that the second paragraph of the court's charge submitted an issue for recovery by appellee not made by the evidence. It is believed that the language of the charge, fairly interpreted, only authorized a recovery for negligent failure to inspect the cars in relation to the sufficiency of the icing and state of refrigeration in transit. The jury were required to find whether or not there was "a failure on the part of the railroad company to use ordinary care to inspect said cars and to keep said fruit properly iced and refrigerated while in transit," and there was evidence making this issue.

Appellee objects to the consideration of the twenty-ninth assignment, as not being in compliance with the rules 26 and 29 (142 S.W. xii). The objection, it is thought, should be sustained.

The judgment is affirmed.