
    TEXAS CENT. RY. CO. v. BARR et al.
    (Court of Civil Appeals of Texas.
    Dec. 1, 1910.
    Rehearing Denied Jan. 5, 1911.)
    1. CARRIERS (§ 185) — CONNECTING CARRIERS —Presumption as to Negligence.
    A shipper desiring to avail himself of the presumption that where goods are shipped over the lines of connecting carriers and are damaged, and the evidence fails to show on what particular line the injury occurred, that the fault was that of the last carrier, has the burden of first showing that the goods were in good order at the time of delivery to the initial carrier.
    [Ed. Note. — E'or other cases, see Carriers, Cent. Dig. §§ 837-841; Dec. Dig. § 185.]
    2. CARRIERS (§ 185) — ACTIONS AGAINST CONNECTING Carriers — Sufficiency of Evidence.
    In an action for damages to goods shipped over the lines of connecting carriers, evidence held insufficient to show that at the time of delivery to the initial carrier they were in good order.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 848; Dee. Dig. § 185.]
    Appeal from Erath County Court; J. B. Keith, Judge.
    Action by Mrs. S. J. Barr and others against the Texas Central Railway Company and others. From a judgment for plaintiffs, the Texas Central Railway Company appeals.
    Reversed and remanded as to appellant.
    Martin & George, for appellant.' Chandler & Pannill, for appellee Barr. Andrews, Ball & Streetman, for appellees Ft. Worth & R. G. Ry. Co. and others.
    
      
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   LEVY, J.

Because of the insufficiency of the evidence to support the judgment, as complained of by appellant, it must be reversed and remanded. In order to hold the appellant, which was not the initial but the final carrier, liable for the damages sued for, the appellee relies on the rule of evidence that where freight transported by successive carrier^ has been damaged subsequent to its shipment, and the evidence fails to show on what particular line the injury occurred, there existed a presumption of fact that it was through the fault of the last carrier, and that this will be sufficient to establish a prima facie liability. But in order to create the presumption, and in order that it may exist in the particular case, it is first necessary to prove that the particular freight was at the time of its delivery to the initial carrier for shipment in good order and condition. Ry. Co. v. Breeding (App.) 16 S. W. 184; 3 Hutchinson on Car., 1348. And the burden of this proof is upon the shipper. In the instant case it is true there was proof that at the time of the first contract of shipment from Ft. Worth, Tex., to Port Arthur in the Dominion of Canada, the freight was in good condition at the time it was delivered and received by the contracting carrier for shipment. But there is no proof in this record that the freight was in good order and condition, or any proof of its condition, at the time of the contract of shipment to Dublin, Tex. The petition is capable of no other construction, we think, than that liability is founded against appellant on ’ the transportation of the freight to Dublin, Tex. The petition expressly alleges: “About the 20th of September, 1906, the said M. Barr contracted with defendants the St. Louis & San Francisco Railway Company and the Ft. Worth & Rio Grande Railway Company to transport and return said shipment of goods to him at Dublin in Erath county, Texas.” It could not be said in the record that the first contract of shipment from Ft. Worth, Tex., to Port Arthur, Can., and the alleged subsequent contract of reshipment to Dublin, Tex., which were different in point of time and transportation, were one and the same and merely a continuous shipment. As to appellant, the two shipments were clearly different, and it had no concern over its line of road with the first shipment. And it must be said, we think, that upon this return shipment alone must rest the liability, if any, against appellant. Therefore proof of the condition of the goods at the time of delivery to the carrier on the first contract is not sufficient to predicate the presumption under discussion on the contract of reshipment. And for the failure of the evidence mentioned the judgment against appellant is not' supported. The judgment against the other two railways not being appealed from, it is not here in any way disturbed as to them, but is reversed and remanded as to appellant.  