Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 471
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1875.] HousToN & TEX. C. R. Co. v. HODDE & WERNER. 471
Opinion of the Court.
this charge but one course left the jury, that was, to find for the
plaintiffs. In the progress of the trial the conflicting evidence
was overlooked, which made it a question peculiarly for the
jury to determine (not alone from the facts alluded to in paragraph
second of the charge, but from a consideration of all the
evidence adduced), whether there was a delivery to, or acceptance
by the defendant, for transportation of the eleven bales.
The court, in its opening portion of the charge, clearly stated
the liability of common carriers, and in the latter portion of
the charge the jury was correctly told " whether or not there
" was a delivery to defendant of the cotton, is a question of fact
"for the jury to find from the evidence; if from all the facts
" you believe that plaintiffs' cotton was never delivered to de"fendant,
and defendant's company never actually received
6 said cotton on its cars, find for defendant;" this portion of
the charge, however, did not, and was not calculated to remove
the impression caused by paragraph second, which made the
placing the cotton on the cars a delivery, and to which placing
on the car the attention of the jury was again directed in the
closing sentence of the charge. The placing cotton oi, the
wagon or car of a carrier, or near his boat or warehouse, is not
a delivery, unless some regulation of the carrier or custom existing
between the carriers or the public, makes it otherwise,
or notice is given to the carrier or his agents, or authorized
servants. (See Angell on Common Carriers, Sections 143 and
145; Packard v. Getman, 6 Cowan, N. Y. R., 757.)
The court, for the error in the charge, should have granted
a new trial.
The judgment is reversed and the case remanded.
Remanded -nd reversed.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/479/: accessed July 25, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .