On Motion for Rehearing.
[2] The principal contention by appellant on motion for rehearing is that, because it was shown without controversy that the appellee penned his sheep in stock pens operated by the Gulf, Colorado & Santa Eé Railway Company, and because it is further shown that the sheep were loaded by a Gulf, Colorado & Santa Fé crew, and no unreasonable delay is shown in transit, the judgment against appellant company is unsupported by the evidence. The Gulf, Colorado & Santa Fé Railway Company was not made a party defendant, and the appellant’s contention must be sustained unless the Gulf, Colorado & Santa Fé and its employees should be held to be the agents of the appellant. R. C. Brown, yard clerk of the Gulf, Colorado & Santa Eé Railway, testified, in part, as follows:
“It was the Gulf, Colorado & Santa Eé engine and crew that went out to load these sheep. These stock pens are on the Gulf, Colorado & Santa Eé leg of the Y out on the east side. The Gulf, Colorado & Santa Eé switch crew makes up the Panhandle & Santa Eé train. My understanding is that the Panhandle & Santa Eé gets hold of a train — that their railroad is over after they pass the interlock. The same engine makes them up in our yard; the same switch engine, the Gulf, Colorado & Santa Eé, handle the cattle over to the pons and put them in the stock pens. These cattle were put on the same train that was going out with these sheep. * * * The Gulf, Colorado & Santa Fé and Panhandle & Santa Eé use the same pens, and all live stock coming in and being unloaded from both roads and being loaded out on either or both roads are unloaded and loaded at these pens. The Gulf, Colorado men handle for both roads — handle the Panhandle & Santa Eé shipments of live stock. I don’t know that they are agents. They attend to business for both roads. I don’t know just how they handle their business, but we are under the supervision of the Gulf, Colorado. I don’t work under the supervision of the Panhandle & Santa Eé at all. The Gulf, Colorado crews handle live stock when it is shipped in out to the stock pens and back, and the Gulf, *917Colorado crews make up the trains in the Sweetwater yards. The Panhandle & Santa Fé crews take their trains in the yard; they get on the train in the yard. The chief dispatcher of the Panhandle & Santa Fé is at Slaton. Any messages about the handling of live stock passing over the Panhandle & Santa Fé come to the agent or to the yardmaster, the Gulf, Colorado men.”
The issue of the agency of the Gulf, Colorado & Santa Fé, and its employees for the appellant in the transaction out of which the suit has grown was not submitted, to the jury, but the evidence quoted above is sufficient to sustain a presumed finding by the trial judge that the relation of principal and agent did exist and to support the judgment. This question was decided by this court in Fort Worth & Denver City Railway Co. v. Caruthers, 157 S. W. 238, 244.
We think the record is clear that the ap-pellee tendered his sheep for loading between 9:30 and 10:00 o’clock on the morning of November 6th, and supports the finding of the jury, though there is eonfiicting evidence upon this point. The original opinion does not state, as a matter of law, that it was the duty of appellant to forward the sheep immediately after they were loaded. Appellant made no effort to show that it had no other facilities for forwarding the shipment within a reasonable time. Neither is there anything in the opinion which denies the rule that a railway company ordinarily has the right to make reasonable schedules for the operation of its freight trains.'
The motion is overruled.