Marande v. Texas Pacific Railway Company
This action was commenced to recover from the Texas & Pacific Railway Company the value of 65 bales of cotton destroyed by fire on the night of the 12th of November, 1894, whilst the cotton was in the cars of the railway company standing on its tracks in the rear of or in close proximity to a terminal wharf of the corporation situated opposite the upper portion of the city of New Orleans, on the west bank of the Mississippi river, at a point called Westwego. The cotton formed part of 100 bales shipped from Greenville, Texas, on the 29th of October, 1894. An export bill of lading was given by the Sherman, Shreveport, & Southern Railway Company, that Company purporting to act, not only on its own, but also on behalf of the Texas & Pacific Railway, and of the Elder Dempster & Co. steamship lines. The bill of lading provided for the carriage of the cotton from the point of shipment 'to the port of New Orleans,' and thence by the steamship line to Havre, France, and contained numerous conditions and exceptions, one of which exempted the carrier from all loss occasioned by fire. Responsibility of the railway company for the value of the cotton destroyed by fire, although at time of its destrcution it was in the possession of the railway under the bill of lading, was based on the assumption, first, that the fire was due to the negligence of the corporation; and, second, that the carriage of the cotton to the terminal wharf at Westwego, for transhipment there to the steamship line, was a deviation, and hence the railway company was not entitled to avail itself of the exception against loss by fire.

Upon issue joined, a trial was had in the circuit court. After the plaintiffs had introduced their testimony and rested their case, the defendant requested the court to take the case from the jury by giving a peremptory instruction in its favor. This was asked on the ground that there was no proof sufficient to go to the jury, either as to the alleged negligence, or the asserted deviation. The court granted the request, and exceptions were duly saved by the plaintiffs. From the judgment entered on the verdict the plaintiffs prosecuted error to the circuit court of appeals for the second circuit, and in that court the judgment was affirmed.

The case being one depending not solely on diverse citizenship, the defendant corporation being chartered by an act of Congress, the plaintiffs prosecuted error to this court.

Messrs. Treadwell Cleveland, Frederick E. Mygatt, and George Richards for plaintiffs in error.

Messrs. Rush Taggart and Arthur H. Masten for defendant in error.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court: 

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