I disagree with the majority of the court as to the disposition of this case, and will briefly state my reasons for so doing.
The right of appellee to transportation as a passenger over the appellant's road and connecting lines grows out of and is based on the contract of the shipment of the stock, which contract clearly and expressly, as admitted by the opinion of the court, exempts the appellant from loss or damages to the stock occurring on lines other than appellant's. In the opinion of the writer, the meaning to be given to the contract, as gathered from all of its stipulations when considered as a whole, exempts the appellant from injuries or damages occurring to the person of the shipper on the connecting lines of road. The main contract of shipment relates to the stock, and the transportation of the shipper simply incidentally springs from that contract. His rights as a passenger are based on that contract, and it seems that a rule that would operate fairly should require the liability of the carrier to be determined by that contract. It is, to say the least, an anomaly to deny a liability against the initial carrier for damages for breach of the main contract, and hold it liable for something that incidentally springs or results from it.
It has been held, that the right of a passenger to transportation of his baggage rests upon the contract made for the carriage of the passenger, *Page 648 and that limitations or exemptions from liability imposed by the terms of the passenger's ticket for injuries occurring on connecting roads will apply to damages or loss of baggage occurring on other lines. Railway v. Schwarzenberger, 45 Pa. St., 214; Railway v. Ions, 3 Texas Civ. App. 619[3 Tex. Civ. App. 619]; Hutch. on Carr., 2 ed., secs. 715-718.
These authorities rest upon the principle, that the contract of carriage was in the main the contract to carry the passenger, and that the transportation of the baggage was simply incidental to that contract, and that the exemption from liability provided for in the contract would apply not only to what it in the main expressly agreed to carry, but what was transported as one of the incidents of the contract. This same principle should be applied to this case.
The doctrine is well settled in this State that the contracting carrier may limit its liability to its own line; and when the main contract provides for exemption from liability as to damages to the subject matter that brought into life the contract, in the opinion of the writer a just sequence of this exemption should relate to and affect rights that incidentally spring from the main contract, and that are dependent upon it.
There is another view of the question that should be considered. If the right of the appellee as a passenger is to be determined solely upon that part of the contract that relates to his transportation, and this for the reason that, no limitation appearing on its face, the appellant will be held liable for the entire distance to Chicago, although it is shown that the transportation is in part over other lines of road that the appellant does not control, it would seem that the assumption as a matter of law that the contract does give such a right is opposed by the weight of authority, which holds, that in such contracts it is a matter of fact, to be ascertained like other facts in a case, whether the initial carrier so contracting agreed or intended to become bound and liable for the transportation for the entire distance. Hunter v. Railway,76 Tex. 196; 114 Mass. 47; 27 Am. and Eng. Ry. Cases, 265;83 Tex. 519; 75 Tex. 259; 23 S.W. Rep., 827, and cases cited; Hutch. on Carr., 2 ed., secs. 145-170, where the cases upon this subject are fully stated and cited.
These authorities proceed upon the doctrine that a railway company is not a common carrier beyond its own line of road, and when it is so sought to be held liable, a contract to that effect must be shown, and that the rule that obtains in England and some of the American courts, that the receipt of goods marked for transportation beyond its line creates against the initial carrier a liability for the entire distance, is not the approved rule of law on the subject. And the principle further announced is, that in such contracts of through transportation over other lines of road the initial or contracting carrier is, in selling the ticket, supposed to act only as agent for such other lines; and to hold it liable beyond its own line, facts ought to be shown tending to show that it assumed such liability. *Page 649
If these authorities establish the correct doctrine upon this subject — and which in my opinion is approved by the courts of this State — the conclusion is reached that the appellant, in providing the transportation of appellee to Chicago, in the absence of evidence to the contrary, acted only as the agent of the connecting lines over which he should travel, and that it is erroneous for this court, in the absence of such evidence, to declare that the contract upon its face fixes the liability of appellant for acts occurring on other lines of road. Myrick v. Railway, 107 U.S. 106.
With these views, I must express my nonconcurrence in the result reached by the majority of the court in disposing of this case.