The judgment of nonsuit in favor of the railroad company must be sustained.
The evidence of the plaintiff shows that he.intended to ship by express and not as freight, and there is nothing to show any delivery to the railroad company as carrier, or any purpose to make such delivery, and there is no evidence of negligence which would justify holding that company liable as warehouseman.
The evidence against the express company is, in our opinion, sufficient to be submitted to the jury.
The plaintiff testifies without any qualification that there is a warehouse at Darden used by both companies, and that C. C. Fagan is the agent of the railroad company and of the express company. He also testifies that he saw C. C. Eagan before he attempted to make delivery of the beef, and asked him if he could ship the beef from Darden by express, and that Fagan said he could, and it was also in evidence that the beef was delivered in the warehouse for the purpose of shipment, properly wrapped and marked.
This evidence is denied by the defendant, which raises an issue of fact to be determined by the jury, and which the judge could not decide as a matter of law.
If'this issue should be determined against the plaintiff, there is another aspect of the case which is proper for the consideration of a jury. It is not denied that Edmunson was the agent of the express company, and it is in evidence that the beef was in the warehouse where it was seen by Edmunson when the train stopped; that Edmunson was told that the beef was for shipment by express and he said “All right,” and that the porter would help load it, and that the beef was not actually de*553livered upon tbe car on account of tbe failure of tbe porter to belp. Edmunson was tbe agent of tbe express company and baggage-master for tbe railroad, and tbe porter usually helped to load express.
Tbis furnishes some evidence of acceptance of tbe shipment by tbe express messenger and that tbe porter was agent of both companies.
Tbe judgment of nonsuit is therefore affirmed so far as tbe railroad company is concerned and set aside as to tbe express company.
Affirmed as 'to tbe railroad company.
Beversed as to tbe express company.-