
    GALVESTON, H. & S. A. RY. CO. v. LOCK.
    (No. 920.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 6, 1919.)
    1. Carkiees ©=*219(5) — Injury to Stock — “Through Shipment.”
    In suit against initial carrier for damages to shipment of cattle, held, there was no '“through shipment” within Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 731, 732, making initial carrier liable in such case for injury or loss •occurring on lines of connecting carrier.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Through Shipment.]
    2. Cabriers ©=>219(7) — Contract or Initial Carrier — Limiting Liability.
    Where defendant, initial carrier, which refused to enter into contract for through shipment, required a contract limiting liability to damage occurring on its own lines, and agreed ■only to transport to the end of its lines, there could be no recovery for loss or injury occurring •on lines of connecting carrier; there being no proof of fraud, compulsion, or mistake in avoidance of contract' required.
    •'3. Carriers ©=>219(6) — Limiting Liability-Right oe Initial Carrier.
    Initial carrier may limit its liability for ■damages to loss or injury to shipments occur-ring on its own line of railway.
    Appeal from Presidio County Court; II. B. Young, Judge.
    Suit in justice court by J. H. Lock against the Galveston, Harrisburg & San Antonio Railway Company. Upon appeal to the county court, there was judgment for plaintiff, and defendant appeals.
    Reversed and remanded for a new trial.
    I. L. Martin, Jr., and W. Van Sickle, both ■of Alpine, Baker, Botts, Parker & Garwood, •of Houston, and Beall, Kemp & Nagle and H. Potash, all of El Paso, for appellant..
    Mead & Metcalfe, of Marfa, for appellee.
   HARPER, C. J.

This suit was brought by .appellee for damages to a shipment of cattle, against the appellant, the initial carrier, alleging a through shipment from Marfa to Ft. Worth, Tex. From a judgment in the justice court, the cause was appealed to the county ■court, and there, upon trial before the court without a jury, a judgment was rendered for .appellee for $139 and costs, from which this .appeal is prosecuted.

The defense urged is that, under the contract of shipment, appellant limited its liability to loss and damages occurring on its own line, and appellant here complains, by assignments, that the shipment contract is for transportation to a station upon its own line only, viz., Flatonia, and, not being a through shipment and containing specific limitations of liability for damages occurring thereon, and that there being no proof of damages to the cattle upon defendant’s road, the presumption is that the injuries and consequent damages occurred upon the line of the delivering carrier.

The assignments present for our determination the question of fact: Was this a through shipment from Marfa by way of Fla-tonia to Ft. Worth, Tex., within the meaning of articles 731 and 732, Vernon’s Sayles’ Statutes? These statutes do not in any sense fix a test as to what constitutes a through shipment, but 731 simply declares that, where property is transported under a contract for through shipment, such contract as to the shipper and consignee is the contract of each of such common carriers for safe and speedy shipment, .etc., and 732 is that, in case of a contract for through shipment,. all connecting lines are liable for damages sustained anywhere in such through transportation, and article 731 further provides that the waybills, etc., shall be prima facie proof of such relationship between such common carriers notwithstanding any stipulation to the contrary, but not proof of the terms of the contract as seems to be contended by appel-lee. There is evidence in this record that the cattle were offered for through shipment by the Galveston, Harrisburg & San Antonio from Marfa to its connection with and thence over the Texas & Pacific Railway line to Ft. Worth; but it is also in evidence that appellant refused to enter into such a contract, but required a contract in writing which called for shipment to Flatonia and thence over its connecting carrier, the Houston & Texas Central, to Ft. Worth, and by this contract the appellant has limited its liability to damages occurring on its own lines.

And it is further stipulated in this contract that — ■

“If the live stock are to be transported over other roads it only agrees to transport it to said station of Flatonia, named as the end of its line,” etc.

This contract was pleaded by appellant and introduced in evidence after appel-lee had testified that he executed it, and, there being no pleadings or proof of fraud or compulsion or mistake in avoidance of this contract, appellee could not repudiate it. It therefore constitutes proof that this was a local and not a through shipment in so far as appellant is concerned. Ry. Co. v. Barnett, 27 Tex. Civ. App. 498, 66 S. W. 474, approved in S. & A. P. Ry. Co. v. Grady, 171 S. W. 1019. To the same effect is G., H. & S. A. Ry. Co. v. Jones, 104 Tex. 92, 134 S. W. 328. That the initial carrier, as appellant is in this case, may limit its liability for damages as those occurring on its own line of railway, is the settled law in this state as is shown by the authorities cited next above.

It follows that, since there is a total lack of proof of injury or loss occurring upon the line of appellant’s railway, the cause must be reversed and remanded for a new trial, and it is so ordered. 
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