H. Rouw Co. v. Kansas City Southern Railway Co.

Hart, J.,

(after stating the facts). Over the objection of the plaintiff, the court instructed the jury that, if J. L. Cannon, the agent for the plaintiff, requested the defendant’s agent to divert the shipment of apples from Dallas, Texas, to Austin, Texas, saving the through rate if possible, the delay in Dallas was justified. It is earnestly insisted by counsel for the plaintiff that this instruction was abstract and necessarily prejudicial to the rights of the plaintiff, because there is no testimony in the record tending to show that the plaintiff asked the defendant to save the through…