On Motion for Rehearing.
There is one part of this motion which seems to require explanation. The third ground of the motion is that this court erred in finding that, had the cattle not been delayed by the San Antonio & Aransas Pass Bailway Company, they nevertheless would not- have left Laredo sooner than they did, and in time for action by the customs authorities that evening. The contention of the motion is that if the loading of the cattle' at Mathis had begun at 6 a. m. on the 12th as would have been done but for the negligence of the San Antonio & Aransas Pass Railway Company in furnishing an engine with which to load the cars, and the cattle had been transported with reasonable dispatch after *1194loading, they would have reached Laredo between 3:30 and 4 o’clock p. m. of that day, and before the custom house closed for the day; “said custom house closing at 4 p. m. Mexican time which was 4:36 American time.” The testimony by the Millers shows that they thought the custom house closed at 6 p. m., and expected the cattle to get to Laredo before that hour. Let us see what the testimony shows with reference to what hour the cattle should have arrived at Laredo, if the engine had been on hand at 6 a. m. of the 12th at Mathis to enable the loading of the cattle to begin at that hour. D. B. Miller testified: “We commenced loading about' 8 o’clock.” It required 2% hours to load the cattle which would have enabled them to be started at 8:30 o’clock, leaving out of account that some delay was necessary after loading in order to start the train. As to the usual time required to make the trip from Mathis to Alice the testimony is as the motion cites it. D. B. Miller testified: “It is about 28 miles from Mathis to Alice. The ordinary schedule time between Mathis and Alice is about 1% or 2 hours.” H. D. Miller, however, testified that it was something over an hour. According to this, a trip of over an hour did not involve unreasonable delay. The cattle then should have reached Alice at the earliest at 9:30 o’clock. The motion then cites the testimony of E. J. Schonbohm, agent at Alice for the Texas Mexican Railway. This witness testified: “In this particular case there were no additional contracts or anything to be made, and it wouldn’t necessarily take us so long, as I see by the papers here it took them an hour to get the first train out and an hour and twenty minutes to get the second train out. That is fair time. It takes from forty minutes to an hour and a half for a train like that.” D. B. Miller testified: “We arrived at Alice, * * * and it took an hour to make out the papers and bill these cars, something like that.” H. D. Miller testified: “We were at Alice about an hour. During that time the agent and myself were engaged in fixing the papers for the trip. Just as soon as the necessary papers were made out, the train went.” According to the evidence, an hour’s delay or even more at Alice was not an unreasonable delay. This at one hour would put the leaving time from Alice at 10:30. The testimony of D. B. Miller was: “We got to Laredo between 3 and 4 o’clock next morning. * * * We arrived at Laredo about 4 o’clock in the morning. * * * AVe left Alice about 9 o’clock at night, and got to Laredo about 4 the next morning.” H. D. Miller testified: “My recollection is that we arrived at Laredo between 2 and 3 o’clock.” The testimony shows that the cattle left Alice at 9 o’clock and taking 3 o’clock as the time of arrival at Laredo, although D. B. Miller says about 4 o’clock, we have the run from Alice to Laredo as six hours. ' The testimony shows that the run between these points was good time.
The testimony taken most favorable to ap-pellees therefore shows that if loading had begun at Alice at 6 a. m., and the loading finished at 8:30, the train could not have reached Alice until 9:30, nor left Alice before 10:30. Adding six hours to this for the run from Alice to Laredo would have put the cattle there at 4:30 p. m. at the time the Mexican custom house closed for business for the day. The above does not take into account some necessary delay at Mathis after loading the cattle in order to start the train, nor the testimony of Schonbohm that it took an hour at Alice to get out the first' train and an hour and twenty minutes to get the second train out, and that is fair time; nor the testimony showing that something more than an hour was required to make the trip from Mathis to Alice. The above shows conclusively that the cattle could not, with ordinary dispatch, have reached Laredo before the closing time of the custom house.
The motion is overruled.