Houston & T. C. R. Co. v. Oriental Oil Co. , 1917 Tex. App. LEXIS 947 ( 1917 )

(after stating the facts as above). The theory on which appellee sought and recovered the judgment was that appellant, being bound to use care to furnish a tank car equipped with appliances for unloading it at Calvert without loss of any of the oil, violated its duty by negligently furnishing a car with the appliances for the purpose stated so defective as to cause the loss complained of when it (appellee) attempted to unload the car. But appellee, as appears from the record sent to this court, utterly failed to prove any such violation of duty on the part of appellant. The car was equipped with appliances which, if in good repair and properly used, would have prevented waste of the oil in unloading the car. There was no evidence whatever that any of the appliances were defective in any way at the time the car was delivered to appellee in Sherman. Indeed, it appeared with reasonable certainty, if not conclusively, that the appliances were not in any way defective either then nor when the car was unloaded at Calvert, and that the oil lost to appellee in its attempt to unload the car was lost because of the failure of appellee to close the valve before loading the car at Sherman and its failure to discover that the valve was open at Calvert and close it before it removed the tap from the pipe through which the oil escaped. On the case as made by appellee's pleadings and the testimony it was not entitled to recover anything of appellant, and the court below should have told the jury so. Railway Co. v. Wittnebert, 101 Tex. 368, 108 S.W. 150, 14 L.R.A. (N.S.) 1227, 130 Am. St. Rep. 858, 16 Ann.Cas. 1153.

The judgment will be reversed, and judgment will be here rendered that appellee take nothing by its suit against appellant.