
    RIO GRANDE & E. P. RY. CO. v. J. H. RUSSELL & SON et al.
    (No. 6229.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 22, 1919.)
    1. Trial <§=>252(7) — Requested Instruction —Evidence to Support.
    Refusal of instruction requested by initial carrier in suit by shipper as to the act of God in destroying the cabbage shipped was not error, where the decayed condition of the cabbage was not traced to low temperature, and there was no fact sustaining such a theory.
    2. Trial <§=194 (15) — Requested Instruction —Weight of Evidence.
    Refusal of instruction requested by initial carrier in suit by shipper for shipment of cabbage damaged as to time of shipment required from S. in Texas to S. in Missouri was proper; such charge being directly upon the weight of the evidence, which was' a matter for the jury.
    3. Trial <§=>252(7) — Requested Instruction —Evidence to Support.
    In suit by a shipper for cabbage dafnaged, refusal of instruction asked by initial carrier as to the freezing of the, cabbage was not error, where there was no evidence tending to show that the cabbage had frozen.
    4. Appeal and Error <§=>742(5) — Assignment of Error — Instructions.
    An assignment of error, in a suit by a shipper against carriers for a shipment of cabbage damaged, to a certain paragraph of a charge, which does, not show what such paragraph contained and is not followed by any statement as to what such paragraph contained, cannot be considered on appeal.
    5. Carriers <§=>187 — Action for Injuries to Goods — Connecting Carrier — Direction of Verdict.
    It was not error for the court, in a suit by a shipper for damages to a shipment of cabbage, to instruct a verdict in favor of a connecting carrier, where there was no evidence of negligence on the part of such connecting carrier.
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Action by J. H. Russell & Son and. others against the Rio Grande & Eagle Pass Railway Company, to which defendant made the International & Great Northern, Railway Company and other connecting carriers parties, and prayed for judgment’ over against them for any sum recovered. Judgment for plaintiffs against defendant, the initial carrier, for $980, and in favor of such initial carrier against the St. Louis, Iron Mountain & Southern Railway Company for $490, and against the Missouri Pacific Railway Company for $490, and defendant appeals from the part thereof holding it liable.
    Affirmed.
    A. Winslow, of Laredo, for appellant.
    John L. Dannelley, of Laredo, for appel-lees.
   FLY, C. J.

This is a suit instituted by J. H. Russell & Son, who will be identified as appellees, against appellant, to recover $1,820, damages to a car of cabbage which was shipped by appellees from Simon, Webb county, Tex., to St. Louis, Mo. Appellant was the initial carrier, and made its connecting carriers, the International & Great Northern Railway Company, the Texas & Pacific Railway Company, the St. Louis, Iron Mountain & 'Southern Railway, and the Missouri Pacific Railway Company, parties to the suit, and prayed for judgment over against them for the damages that might be recovered by appellees. The Texas & Pacific Railway Company was dismissed from the suit by appellant, and upon the verdict of a jury the court rendered judgment against appellant in favor of appellees for $980, and in favor of appellant as against the St. Louis, Iron Mountain & Southern Railway Company for $490, and in favor of appellant for $490 as against the Missouri Pacific Railway Company. No complaint is made of that part of the judgment last named against the two railway companies, but this appeal is perfected by appellant as against all the other parties, except the Texas & Pacific Railway Company.

The car of. cabbage was delivered by appel-lees in good condition, and six days thereafter was delivered at St. Louis in a decayed condition. Appellees refused to receive them, and the cabbage were sold by the Missouri Pacific Railway Company for $250. It was shown that the cabbage should have been transported to St. Louis in four days. It was shown that the damage to the cabbage was caused by improper opening and closing of ventilators and delay in transportation. No negligence was shown on the part of the Internationl & Great Northern Railway Company.

The first assignment of error complains of the dismissal of the International & Great Northern Railway Company from the suit The railway company was not dismissed from the suit by the court, but a verdict was rendered in favor of it by the jury, and upon that verdict a judgment was rendered against appellant - in its action against the International & Great Northern Railway Company. The court instructed a verdict in favor of the railway company; there being no evidence of negligence against it.

The second assignment of error states that the court erred in overruling an objection to the first paragraph of the charge, because the fourth paragraph is multifarious and imposes too great a burden on appellant, and because the fifth paragraph instructed a' verdict for the International <& Great Northern Railway Company. The,re is but one proposition, and that refers to the objection to the fifth paragraph and is answered by the conclusion tliat there was no evidence of negligence on the part of the International & Great Northern Railway Company. What is contained in the first paragraph of the charge, to which alone the objection was urged, does not appear from the brief.

The charge requested, the refusal of which is complained of in 'the third assignment of error, on the subject of the act of God destroying the cabbage, was not supported by the testimony. The decayed condition of the cabbage was not traced to low temperature of the weather, and appellant makes no effort to point out any fact sustaining such a theory.

The charge, the rejection of which is assailed in the fourth assignment of error, was directly upon the weight of the evidence, and was properly refused. A witness for appellant swore that six days was good time for a shipment to St. Louis from the •starting point, but a witness for appellees swore that such shipment should have made the journey “not later than the fourth day from the day of shipment.” The court could not assume that the witness for appellant was to be credited; That was a matter for the jury.

The charge was properly refused, the refusal of which is complained of in the fifth assignment of error. There was no evidence tending to show that the cabbage had frozen.

The sixth assignment of error does not show what the fourth paragraph of the charge contained, and neither is it shown by any statement following the assignment. It is overruled.

There being no evidence of negligence on the part of the International & Great Northern Railway Company, it was not error to instruct a verdict for it. This disposes of the seventh assignment of error, and the eighth assignment is fully met by our conclusions of fact. While in the seventh assignment of error complaint is made of an instruction in favor of the International & Great Northern Railway Company, in the eighth it is stated there was no evidence of negligence against either of the connecting lines.

The judgment is affirmed.

COBBS, J., entered his disqualification in this case. 
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