,On Motion for Rehearing.
On a former day, as will be seen from our opinion disposing of appellee’s first motion *407for rehearing, filed on the lOtli day of January, 1925, we, at the reguest of the Atchison, Topeka & Santa Fé Railway Company and the Panhandle & Santa Fé Railway Company, reformed our original judgment so as to leave the judgment of the court below in favor .of these companies undisturbed. The reason for such ruling, as indicated in said opinion relating to the subject, was based upon the fact that, on the trial below, the court submitted special issues, in answer to which the jury found that each of said companies was without negligence, and- that the judgment of the trial court distinctly discharged each of these defendants from the claim of plaintiff, and that the appellee had presented in this court no exception to the jury’s findings or to the judgment in these particulars, and presented no cross-assignment of error calling for action upon the part of this court in respect to these companies.
On reviewing the question, however, in considering appellee’s second motion for rehearing, doubt- arose in our minds as to whether we were correct in leaving the judgment undisturbed as to the initial carrier, the Atchison, Topeka & Santa Fé Railway Company, and leave to file the second motion for rehearing was accordingly granted, and the motion set down for submission and argument, and authorities invited upon the question of whether the judgment should be reversed as to said initial carrier, as will be seen by opinion filed on January 31, Í925.
In the case of Burd v. San Antonio Ry. Co., 261 S. W. 1021, it was held, by Section B of the Commission of Appeals, in an opinion approved by the Supreme Court, that, in interstate shipments, as here, the initial carrier under federal laws referred to was liable as d matter of law for negligence shown on the part of the terminal or any intermediate carrier, and that hence a special finding that the initial carrier was without negligence was immaterial and should be disregarded. It seems clear under- the federal authorities that a plaintiff in an interstate shipment is not compelled to sue the initial carrier but may, if he chooses, rely upon the terminal or any intermediate carrier. See Chicago & N. Y. Ry. Co. v. Whitback Produce Co., 258 U. S. 369, 374, 42 S. Ct. 328, 66 L. Ed. 665. So, too, this court so held, in effect, in the recent case of Fort Worth & Denver City Ry. Co. v. A. D. Ryan, No. 10921, 271 S. W. 397, in an opinion, not yet [officially] published. We also think a plaintiff having sued the initial carrier may, if he chooses, abandon his suit as to such carrier by nonsuit or otherwise, and elect to rely upon the negligence of an intermediate or terminal carrier; and we hence were disposed to the view that the failure of the appellee to complain of the judgment against the Atchison, Topeka & Santa Fé Railway Company and the" Panhandle & Santa Fé Railway Company amounted, in effect, to an abandonment of the plaintiff’s cause oi action as to these two companies.
We yet are not fully convinced that this view is not correct, but, in view of the finding of the jury that the appellant, the terminal carrier, was guilty of negligence and of the rulings in the Burd Case, it perhaps should be said that the action of the court in rendering judgment in favor of the Atchison, Topeka & Santa Fé Railway Company constitutes error apparent of record of such character as to be now available to appellee. We hence have finally concluded to resolve the doubt in favor of appellee and to hold that we were in error in leaving undisturbed the judgment in favor of the Atchison, Topeka & Santa Fé Railway Company. As to the Panhandle & Santa Fé Railway, however, we yet retain the view that the condition of the record already recited precludes appellee from any cause of complaint as to that company. Other questions presented in appellee’s first and second motions for rehearing will be overruled for reasons given in o-ur several opinions, but our original judgment will be so reformed as to reverse the judgment as against the appellants, receivers of the Texas & Pacific Railway Company, and as against the Atchison, Topeka & Santa Fé Railway Company, but left undisturbed as to the Panhandle & Santa Fé Railway Company.