Appellant insists that the court erred in peremptorily instructing a verdict for the plaintiff for the sum sued for, because (1) in the circumstances of this case any inference of negligence proximately causing damages to the peaches was within the province of the jury, and (2) the amount directed to be found included items not authorized to be recovered in this case. The undertaking of the railway company was only, it appears, to transport the peaches with reasonable dispatch in a car to be iced to full capacity showing a refrigeration of 20,000 pounds. The only evidence respecting the icing of the car is that appearing in the recitation of the freight bill paid, which is "the aggregate freight of $220.49, including refrigeration charges and the East St. Louis boat transfer." And all the evidence respecting the transportation of the peaches is that the loading of the peaches into the car at Clyde, Tex., was completed at 11:30 o'clock a. m. on August 5, 1913, and the car was forwarded from that station at 1:20 p. m. of the same date and arrived at destination on the morning of August 9th, and delivery was then made to the consignees. It is shown that at the time the peaches were put into the car they were in good condition, "and should have carried from 60 to 72 hours under proper refrigeration." Refrigeration would not entirely retard, it is shown, the natural processes of decay of the peaches. At the time of delivery at destination they were in an overripe condition and showing decay. Thus according to the evidence it may be concluded that the peaches in their condition at the time of shipment would carry and not become overripe upon proper refrigeration for 60 to 72 hours from date of shipment. But an inference in the circumstances is authorized that after 72 hours the natural process of overripeness and decay in the peaches would not be entirely retarded, even though refrigerated. And while there is no direct evidence that the car was or was not refrigerated, there is the circumstance authorizing an inference of full refrigeration that the full refrigeration charges were demanded and paid. From 1:20 p. m. of August 5th, the date of shipment, to the morning of August 9th, the date of arrival at destination, was more than 72 hours. And there is nothing in the circumstances tending to show that the time thus taken in transporting the car of peaches to destination was not usual and ordinary and with reasonable dispatch. As a matter of law the court may not say that the time was unreasonable and not with reasonable dispatch. It the natural process of overripeness and decay in the peaches would be retarded by proper refrigeration for 72, and more than 72 hours was a required time for reasonable dispatch of the car to destination, then the presumption from circumstances would be conflicting as to whether negligent refrigeration or transportation or natural processes caused the peaches to become overripe and show decay, as appeared to be the damage. It is laid down as a rule of evidence that proof by the plaintiff that the goods were delivered to the initial carrier in good condition and were delivered by the terminal carrier in a damaged condition raises a presumption, not conclusive, but prima facie, of negligence or fault on the part of the company. Railway Co. v. Mazzie,29 Tex. Civ. App. 295, 68 S.W. 56. And where the inferences that may be drawn from the circumstances in the particular case respecting negligence or fault on the part of the carrier are conflicting and not conclusive the court is not warranted in withdrawing the case from decision by the jury. Railway Co. v. Richmond Tiffany, 94 Tex. 571, 63 S.W. 619. In view of all the circumstances the court, it is believed, should have passed the case to the jury for decision. It becomes unnecessary to decide the point made respecting the stipulation as to amount of recovery, since the allegations in the petition did not cover the special damages of cartage and commissions.
The court did not err in sustaining the exception to paragraph 5 of the defendant's answer. Railway Co. v. Ray, 127 S.W. 281; Railway Co. v. Meyer, 155 S.W. 309.
The judgment is reversed, and the cause remanded.