LEVY, J.
(after stating the facts as above).
[1, 2]
The only serious error presented by the assignments is, we think, that of excessive verdict under the facts in the record.. The evidence showed admittedly that at the time the shipment was tendered to the consignees, and by them refused, there was not a total or substantial destruction, but only a partial injury, to part of the contents of the car. This fact being true, neither the consignees, as owners, nor the shipper, in virtue of the contract of shipment, was justified in abandoning the shipment and charging the carrier the full value. Railway Co. v. Everett, 37 Tex. Civ. App. 167, 83 S. W. 257; Railway Co. v. Pitts & Sons, 37 Tex. Civ. App. 212, 83 S. W. 727; Railway Co. v. Mercantile Co., 104 S. W. 1072; Railway Co. v. Moore, 47 Tex. Civ. App. 531, 105 S. W. 532; Hutchinson on Carriers, § 1365. The appellant’s liability as a carrier to appellee must therefore be measured by the amount of the damage to the contents of the car in transit, and to the time of the tender of the freight, which fulfilled the contract of transportation. The evidence fails to fix the amount of that damage or present any data sufficient to determine the amount. The $360.70 shown in the evidence to be the full damage to the contents of the car chiefly occurred, as must be inferred from the evidence, after the tender and refusal to accept the shipment. And neither the jury nor this court would be warranted in saying how much of the damage occurred before the tender. The appellants having fulfilled the contract of transportation when the goods were tendered for delivery at destination, they were, after the delivery had been rejected, in legal effect discharged from the responsibility imposed upon them as carriers of the goods, and thereafter the relation and duties of the carrier towards the goods in their possession, with respect to the care necessary to protect them against injury or loss for the owner, was that of a warehouseman. Whether that liability would in this case be east upon the initial carrier under the contract sued on is not a question involved in this appeal, for appellee’s pleading does not warrant a recovery against appellants, or either of them, in the relation of warehousemen. Concluding, as we do, that under the evidence the amount of recovery had in this case is excessive, the tenth assignment, making the point, should be sustained. As the evidence in the record does not enable the court to. fix. the amount appellee should recover, the amount of remit-titur cannot be suggested. Therefore the judgment is reversed, and the cause remanded.
It is suggested that the instruction complained of in the eighth assignment is not to be understood as being approved as correctly measuring appellants’ liability under the facts in this record.
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