J. W. Parker recovered judgment against the Houston Texas Central Railroad Company for the loss of a fine race mare shipped by plaintiff over the line of the defendant company from Marlin to Ft. Worth. The defendant pleaded the general denial and contributory negligence.
In the first paragraph of the court's charge, the jury is instructed as follows: "In this cause you will return a verdict for the plaintiff for the reasonable market value of the horse and other property in question at Ft. Worth, Tex., at the time the same would have arrived in due course of transportation unless you find for the defendant under the subsequent instructions given by the court." This is challenged as being on the weight of the evidence and *Page 438 invading the province of the jury. The facts show, however, that the car in which the animal was shipped, including the mare and all other contents, was burned so that in the absence of an explanation by defendant as to the cause of the loss it was liable to plaintiff on its contract for the nondelivery of his property and the court did not err in so stating. Ryan v. M., K. T. Ry. Co., 65 Tex. 13, 57 Am.Rep. 589; T. P. Ry. Co. v. Richmond, 94 Tex. 571, 63 S.W. 619.
Appellant's charge requesting the submission of the issue of contributory negligence in the failure of the witness Higginbotham to look after and care for the mare on her trip from Marlin to Ft. Worth was properly refused because the evidence did not raise such issue. Both the appellee and Higginbotham testified positively that the latter was in no manner authorized or requested to look after her en route, and no other evidence was introduced tending to show that such an arrangement was made, although the witness Higginbotham shipped an animal in the same train with appellee's and accompanied the same on its journey. We do not think the fact that appellee and witness had known each other for several years, or that they were friends of the race track, or even that they had been drinking together that day, justified the inference sought to be submitted by the charge.
The court properly placed the burden of proof on the issue of contributory negligence on appellant. If the evidence raised that issue at all, it certainly was not such as to impose the burden on appellee. Appellee's evidence shows that he placed the mare and other property in the car designated for that purpose, tying her carefully, as race horses were always tied; that she was the only animal he had on the train, and since the distance from Marlin to Ft. Worth was only 125 to 150 miles, and there was no necessity for feeding and watering her in that short distance, he did not accompany her. There was other evidence corroborating him upon the question of care in shipping that distance without an attendant.
We find no error in the judgment, and it is affirmed.