passengers' baggage, it is not necessary that the owner should have, when the baggage is delivered for transportation, informed the carrier of the specific articles constituting it. If it is in fact baggage, is received by the common carrier for transportation, and is never delivered to the passenger, the liability is fixed.

We conclude, therefore, that the court did not err in overruling the exceptions to appellees' petition, as is complained of in appellant's second, third and fourth assignments.

2. The fifth assignment of error complains of two distinct rulings of the court not related to each other, but presents and raises two separate and distinct questions. It is therefore not entitled to consideration. Texas & P. Railway Co. v. Donovan, 86 Texas, 379, 25 S. W. Rep., 10; Cammack v. Rodgers, 73 S. W. Rep., 795.

3. There was no error in the court's refusal to instruct the jury, at appellant's request, "that the stipulations contained in appellees' tickets limiting appellant's liability for loss of baggage to $100 to the holder of each ticket, it being an interstate shipment, is valid and binding, except as against negligence of the railway company." The provision of our statute which prohibits common carriers from limiting their liability as it exists at common law by stipulations in the bill of lading is valid, as applied to contracts for interstate transportation of property. Armstrong v. Railway Co., 92 Texas, 117, citing Railway Co. v. Solan, 169 U. S., 133; Railway Co. v. Devier, 75 Texas, 572; Railway Co. v. Carter, 29 S. W. Rep., 565; Railway Co. v. Withers, 40 S. W. Rep., 1073; Railway Co. v. Eddins, 26 S. W. Rep., 162; Mexican Nat. Railway Co. v. Ware, 60 S. W. Rep., 343. State statutes prohibiting common carriers from limiting their common law liability by stipulations in the contracts of shipment are not in themselves regulations of interstate commerce, though they control in some degree the conduct and liability of those engaged in such commerce; and so long as Congress has not legislated upon the particular subject, they are rather to be regarded as legislation in aid of commerce. Railway Co. v. Solan, 169 U. S., 133. Hence, it is held that a ticket limiting liability for loss of passenger's baggage to $100 does not relieve the road receiving the baggage from its common law liability when the property is lost on its line. Railway Co. v. Foltz, 3 Texas Civ. App., 644; Railway Co. v. Scharfermeyer, 72 S. W. Rep., 1037.

4. The court did not err in excluding testimony offered by appellant to show the market value at El Paso of the class and kind of the articles of appellees' baggage, nor in instructing the jury "that the measure of plaintiffs' damage for lost baggage would be the reasonable value of such baggage in San Francisco." The measure of damages for the loss of baggage is its reasonable value at point of destination, not at an intermediate point, though it be where the initial carrier's line connects with the terminal carrier's. 3 Suth. on Dam., sec. 932; Missouri, K. & T. Railway Co. v. Cook, 27 S. W. Rep., 771. Some of the articles lost were shown to be personal wearing apparel of appellees, and others of

daily use carried on the journey, the value of which is not determinable by the market. Wells-Fargo Exp. Co. v. Williams, 71 S. W. Rep., 314; Railway Co. v. Nicholson, 61 Texas, 550. It was therefore not essential to the admissibility of Mr. Fales testimony as to value that he should be acquainted with the market value of the articles in San Francisco.

Having thus disposed of all the questions affecting appellant's liability as to the baggage, we will now consider those relating to the personal injuries of appellees.

5. In the fourth paragraph of its charge the court instructed the jury as follows: "If you believe from a preponderance of the evidence that the plaintiff, Mrs. W. E. Fales, was injured while a passenger on one of defendant's passenger trains, as alleged by plaintiffs, and that said passenger train was derailed and wrecked and that the derailment and wrecking of said train was the proximate cause of the said Mrs. W. E. Fayles' injury, if any, then in that event you will find for the plaintiffs as to their claim for damages for the personal injuries so sustained by Mrs. Fales, if any personal injuries you believe from the evidence she suffered thereby."

It is urged as an objection to this paragraph that "in the absence of a provision of law giving a conclusive effect to a particular fact, it is error for the court to instruct what effect should be given it." Under the authorities in this State, the charge is undoubtedly obnoxious to this objection. Lauchheimer v. Saunders, 65 S. W. Rep., 500; Mexican C. Railway Co. v. Lauricella, 87 Texas, 277. But in view of the undisputed evidence as to the derailment and wreck of the train-no attempt having been made by appellant to explain the cause of the occurrence of the catastrophe, and show that it was due to a cause for which it was not answerable-the question presents itself, was the appellant prejudived by the error? In the cast last cited, in which a similar error was presented by the charge, it is said by the Supreme Court: "It does not follow, however, as we think, that the judgment should be reversed. 'Where an accident happens upon a railway from which a passenger sustains an injury by the breaking down of the carriage, or by the running off of the train, or the spreading or breaking of the rails, the very nature of the occurrence will be prima facie evidence of the negligence of the company or its servants.' Hutch on Carr., sec. 800. The rule thus stated by the eminent author cited is very generally recognized." Accordingly, when the derailment of a train or car results in the injury to a passenger, the burden is on the carrier to show that the accident was not caused by defective cars or roadbed or by the negligence of an employe. Montgomery, etc., Railway Co. v. Mallette, 92 Ala., 216, 9 So. Rep., 365; Alabama, etc., Railway Co. v. Hill, 93 Ala., 521, 30 Am. St. Rep., 71, 9 So. Rep., 725; St. Louis, etc., Railway Co. v. Mitchell, 57 Ark., 421, 21 S. W. Rep., 884; Kansas, etc., Railway Co. v. Miller, 2 Colo., 458; Pittsburg Railway Co. v. Williams, 74 Ind., 466; Southern Kansas Railway Co. v. Walsh, 45 Kan., 659, 26 Pac. Rep., 47; Louisville, etc., Railway Co. v. Smith, 2 Duv. (Ky.), 558; Stevens v. Railway

Co., 66 Me., 77; Baltimore, etc., Railway Co. v. Worthington, 21 Md., 283, 290, 83 Am. Dec., 580, 587; Wilson v. Northern Pac. Railway Co., 26 Minn., 280; 3 N. W. Rep., 334; Spellman v. Lincoln, etc., Co., 36 Neb., 896, 38 Am. St. Rep., 757, 55 N. W. Rep., 271, 20 Law. Rep. Ann., 319; Taylor v. Grand Trunk Railway Co., 48 N. H., 314; 2 Am. Rep., 233; Texas & P. Railway Co. v. Gardner, 114 Fed. Rep., 186; Brenmer v. Illinois Cen. Railway Co., 101 Ill. App., 198. It was upon this principle the Supreme Court, despite the error in the charge, affirmed the judgment in the Lauricella case. To have done otherwise would have been to smother the soul and spirit of the law beneath the weight of a strict and rigid formula. It is not right to stifle justice that way.

Sir Frederick Pollock, in his work on Torts, illustrates the distinction between cases of tort in which there is no contract and where there is, thus: "A coach runs against a cart; the cart is damaged, the coach is upset, and a passenger in the coach hurt. The owner of the cart must prove that the driver of the coach was in fault. But the passenger in the coach can say to the owner: 'You promised for gain and reward to bring me safely to my journey's end, so far as reasonable care and skill could attain it. Here am I thrown out on the road with a broken head. Your contract is not performed; it is for you to show that the misadventure is due to a cause for which you are not answerable." " Continuing, he says in note (d): "In other words, the obligation does not become greater if we regard the liability as ex delicto instead of ex contractu; but neither does it become less." Webb's Pollock on Torts, 549.

The plaintiff is not bound to prove more than enough to raise a fair presumption of negligence on the part of the defendant and of resulting injury to himself. Having done this, he is entitled to recover, unless the defendant produces evidence sufficient to rebut this presumption. Shearm. & Redf. on Neg., sec. 58.

Appellees' evidence in this case, which is undisputed, raised a "fair presumption of negligence;" no evidence was offered by appellant to rebut this presumption; therefore having proved the resulting injury, they were entitled to recover. What harm, then, is done by the court not leaving it to the jury to say whether the derailment of the train was negligence? Had such an issue been submitted, the jury would have been bound to find on it in favor of appellees, for the undisputed evidence raised a fair presumption of negligence. Had the charge been free from the error complained of, and a verdict been rendered upon the issue of negligence in favor of appellant, it would have been the bounden duty of the court to set it aside, for such a verdict in face of the fair presumption that arises from the undisputed evidence could not stand. Therefore, in our opinion, the appellant was not prejudiced by the error complained of.

6. The remaining assignments of error are predicated upon Mrs. Fales being joined as a party plaintiff-questions raised for the first time in this court. Improper joinder of the wife as plaintiff can not be raised for the first time in an appellate court; and where no injury

is shown to have resulted, a judgment will not be reversed even where the exception to the joinder of the wife with the husband has been overruled. Galveston, H. & S. A. Railway Co. v. Baumgarten, 72 S. W. Rep., 80.

There is no error in the judgment which requires its reversal, and it is affirmed.

Writ of error refused.

Affirmed.

BRANCH T. MASTERSON v. F. W. HEITMAN & Co.

Decided November 11, 1903.

1.-Contract-Construction of-Evidence.

The contract under which this suit was brought was ambiguous in its terms as to whether H. & Co., sellers of the machinery to be placed by them, were to superintend and direct the construction of the foundation to be provided by M. The proof showed that H. & Co. accepted M.'s contention that they were to so direct the work, and eventually did so. Held, that H. & Co. can not now be permitted to maintain that it was M.'s duty to construct the foundation without their direction, and that his failure to do so was the cause of delay in the erection of the plant.

Though the brief of the appellant does not in all things conform to the rules, yet as the issue of the sufficiency of the evidence to sustain the verdict against his claim in reconvention for damages is presented by assignment in the brief, and it also containing statements from the record sustaining that proposition, the appellate court would not be justified in ignoring the assignment. See the opinion for the substance of evidence held to entitle the appellant to recovery on his plea in reconvention.

Appeal from the District Court of Harris. Tried below before Hon. Chas. E. Ashe.

Hutcheson, Campbell & Hutcheson and Masterson & Masterson, for appellant.

Ewing & Ring, for appellee.

PLEASANTS, ASSOCIATE JUSTICE.-Appellees brought this suit against appellant to recover the sums of $146 and $550, alleged to be the unpaid balances of the agreed purchase price of two pumps, with the necessary fittings and appliances, sold by them to appellant, and the further sum of $1410.62, alleged to be the reasonable value of certain goods, wares and merchandise sold and delivered by them to the appellant.

The answer of defendant admitted the balances claimed as due on the purchase price of the two pumping plants, and also admitted the correctness of the larger portion of the open account, but as to certain items in said account, which were specified in the answer, denied that same were purchased or received by defendant. The answer further averred that the pumping plant was purchased by defendant under a contract with the plaintiffs whereby they undertook to install said plant on defendant's farm in Bexar County, and have the same ready for operation by the 1st day of May, 1901, but that plaintiffs failed to comply with their said contract and did not construct the plant within the specified time, and in fact never fully completed the construction of same; that the defendant had to complete the construction of said plant at his own cost and expense in the sum of $300; that by reason of plaintiff's delay in constructing said plant defendant lost the crop upon his