author: MORROW, P. J.

text:
    HOLMAN v. STATE.
    (No. 12376.)
    Court of Criminal Appeals of Texas.
    March 6, 1929.
    II. L. Edwards, of Nacogdoches, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

-Possessing intoxicating liquor for the purpose of sale is the offense; punishment fixed at confinement in the penitentiary for a period of one year.

The search of the appellant’s house revealed the presence of a quantity of liquid and some empty bottles. Part of the liquid was in a churn and part of it was in bottles. The officers denominated the liquid “beer.” One witness had bought a bottle of the liquid from the appellant and described it as beer, but stated that he could not say whether it was “home-brew” or not. The appellant and his wife testified that the liquid was what they denominated “home-brew,” and that it was not intoxicating. The appellant testified that he had never sold any of the liquid, and that the fluid found on his premises had not become a drinkable liquor of any kind, but was simply in the making; that it had been standing in the jars only over night, and that it would take several days to mature.

The search warrant used by the officers had been issued more than three days when the search was made, and, under articles 317, 318, C. C. P., 1925, had become functus officio. The point was made that the evidence justified the search upon the theory of consent, and there was a contention that the appellant’s testimony coincided with that of the searching officers to a degree that rendered the receipt of the officers’ testimony harmless, even though the search was illegal. The disposition made of the case renders a discussion of the matters mentioned unnecessary.

The court failed and refused, over the appellant’s objection, to instruct the jury upon a defensive theory arising from the testimony introduced by the appellant to the effect that the liquid was not beer and was not intoxicating liquor. The omission in the charge-was duly called to the court’s attention by appropriate and timely exception. - Under the facts, the law clearly required that the jury be informed by a proper charge that, if in fact the liquid was not intoxicating, there should be an acquittal. See Gordon v. State, 103 Tex. Cr. R. 225, 280 S. W. 585; Parsons v. State, 102 Tex. Cr. R. 524, 278 S. W. 444; Hughes v. State, 99 Tex. Cr. R. 244, 208 S. W. 960.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

license: Public Domain

text:
    MOORE v. STATE.
    (No. 12306.)
    Court of Criminal Appeals of Texas.
    Feb. 27, 1929.
    R. T. Jones, of Henderson, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is unlawfully transporting intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

The state’s testimony is in substance as follows: The sheriff saw the appellant in an automobile. When he got out of the car there was a sack in his possession. After running about 49 steps, the appellant threw the sack against the ground and left it. Upon examining the sack the sheriff found it to contain some broken glass and two fruit-jar tops. The jars smelled as though they had whisky in them. The sheriff told the appellant to stop and, upon his failure to do so, fired his pistol. The sheriff said the only thing that made him believe the liquid was whisky was the odor, that it smelled like whisky, and that the sack had been burned. One of the officers testified that in one of the jars there was a tablespoonful of corn whis-ky ; that he had not tasted it, but had smelled it.

The appellant testified in his own behalf, and his version of the occurrence is in substance the following: While driving his automobile he saw a sack lying in the road. He stopped his car, got out, picked up a tow-sack, and put it in the bottom of the car. He made no examination of the sack, as he was blocking the road and a man in a car wanted to pass. This occurred about 200 yards from his destination, which was at a party which he expected to attend. Upon his arrival at the place where the party was to be held, he parked his car and took out the sack. About that time some one fired and he dropped the sack. The bullet fired went through his clothes, hut only touched the surface of his skin. He did not know who fired the shot or why it was aimed at him. When he recognized the sheriff and told to halt, he stopped. He testified positively that he did not know that there was any whisky in the sack; that he did not know it at the time of the trial and had never looked inside of the sack.

Several witnesses were introduced in behalf of the appellant who testified that they were acquainted with his general reputation for truth and veracity in the community where he lived; that he had resided in the ^same community for many years. He also ’ introduced witnesses who supported his general reputation in the community as a peaceable, law-abiding man. In rebuttal the sheriff was recalled as a witness, and was asked by the state’s attorney “if the defendant didn’t have the reputation of being a bootlegger.” Objection was overruled, and the witness replied that the appellant had the reputation of being a bootlegger of whisky. Upon the appellant’s request that the testimony mentioned be excluded or withdrawn, the court remained silent and ignored the request. Over the objection of the appellant, the hill was qualified by the court having attached to the bill the transcribed notes of the stenographer. According to the bill as qualified, the question propounded was: “State whether or not you at that time were acquainted with his reputation from hearsay, that is, from what people said and not what you knew personally, as to whether or not he was a peaceable, law-abiding citizen with reference to transporting and selling whisky?”

To this the witness gave an affirmative answer and stated that the reputation was bad. Touching the particular matter under discussion, the difference between the reply imputed to the witness by the stenographer and that in the bill of exceptions is immaterial. The fact that the appellant had put his reputation for truth and veracity and as a law-abiding citizen in evidence did not authorize the state to support its case by evidence that he bore the reputation of a 'bootlegger of whisky, or that his reputation as a transporter of whisky was bad. Such an announcement has been made in a number of recent cases. Among them are McMullen v. State, 98 Tex. Cr. R. 229, 265 S. W. 582; Burns v. State, 94 Tex. Cr. R. 533, 252 S. W. 508; Gothard v. State, 94 Tex. Cr. R. 538, 252 S. W. 508; Lovelady v. State, 95 Tex. Cr. R. 571, 255 S. W. 415; Wilmering v. State, 100 Tex. Cr. R. 169, 272 S. W. 463. The evidence was improperly received. Its prejudicial character is obvious and must work a reversal of the judgment.

In view of another trial in which the evidence may not be the same, we refrain from expressing any opinion touching its sufficiency.

For the error pointed out, the judgment is reversed, and the cause remanded.


author: LATTIMORE, J.

text:
    MUSE v. STATE.
    (No. 12369.)
    Court of Criminal Appeals of Texas.
    Feb. 6, 1929.
    Rehearing Denied March 20, 1929.
    J. S. Kendall, of Munday, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

In this case the appellant’s motion for new trial was overruled October 22, 1928, and the court by order then made allowed appellant 60 days from said date in which to file statement of facts and bills of exception. The time thus allowed expired December 21, 1928, and, no statement of facts or bills of exception having been filed, the clerk of the trial court forwarded the transcript to the clerk of this court by whom it was received on December 26, 1928. Under the terms of article 760, C. C. P., the law gives to one appealing from a criminal conviction 90 days from the date of notice of appeal in which to have his statement of facts filed in the trial court, and, without any order fixing the time within which bills of exception must be filed, said article allows the appellant SO days after the adjournment of court in which to file his bills of exception. Manifestly the grant of 90 days for the filing of statement of facts cannot be curtailed by any court order attempting to fix a less time for such filing. So, if any correct statement of facts herein had been tendered to the clerk of the trial court for filing and transmission to this court, within 90 days from October 22, 1928, and such filing and transmission had been refused, upon proper showing we would have granted a writ of certio-rari to perfect the record, or would have reversed because appellant had been denied his statement of facts.

This cause was set for submission in this court on January 16, 1929, and was held in abeyance at appellant’s reguest to allow him time and opportunity to file a supplemental transcript, the record being out for 2 weeks. We now find with the papers an unsworn, unsupported statement of appellant’s attorney, setting up that the action of the trial court in fixing 60 days for filing bills of exception and statement of facts was arbitrary; and that he (appellant) had prepared bills of exception and a statement of facts which would have been filed with the lower court and sent here but for such arbitrary action of the lower court in fixing the said 60-day period. Nothing further than said unsworn statement appears in support of its contentions. It is not even stated that any bills of exception or statement of facts were ever tendered to the trial court for his approval, or to the clerk of the trial court for his filing. Since the statute fixes 30 days as a proper time for filing bills of exception, and the court below granted 60 days, we perceive nothing arbitrary in such action. The court’s inclusion of the statement of facts within his 60-day order was doubtless an inadvertence. This court has no reason for believing that the judge of the trial court in this instance would arbitrarily fix a time too short for filing papers, or that he would not approve a statement of facts properly presented to him within the time allowed by law. Our knowledge of, and experience with, him leads us to contrary conclusion.

There being in this record neither a statement of facts nor bills of exception, nor any legal showing why same are not here, the judgment will be affirmed.


text:
    PATE v. STATE.
    (No. 12385.)
    Court of Criminal Appeals of Texas.
    March 6, 1929.
    N. W. Graham, of Ozona, for appellant.
    A. A. Dawson, State’g Atty., of Austin, for the State.
   MORROW, P. J.

Assault with intent to murder is the offense; punishment fixed at confinement in the penitentiary for a period of two years.

No sentence is found in the record. In the absence of a final judgment, the court is without jurisdiction to consider the appeal. It is therefore dismissed.


author: MARTIN, J.

text:
    Ex parte RICHMOND.
    (No. 12484.)
    Court of Criminal Appeals of Texas.
    Feb. 27, 1929.

      Jesse Owens, of Crowell, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Relator was convicted of a misdemeanor in a justice court of Foard county. Arrested under the judgment of conviction, relator sued out a writ of habeas corpus before the district court of Foard county, and upon a hearing was remanded to the custody of the sheriff of said county, from which order he appeals to this court. /"This record presents the point of whether ibr not a judgment of conviction is void which is entered by a justice of the peace who waives all claim to any fees, and who neither claims, collects, nor attempts to collect the fees heretofore allowed justices of the peace funder the statute.

Relator relies upon the recent case of Ex parte Kelly (Tex. Cr. App.) 10 S.W.(2d) 728, to sustain his position. The Kelly Case is authority only for the proposition that a justice of the peace claiming and taxing as costs the fees provided by statute, and collectable only in case of conviction, with no provision for remuneration in case of acquittal, was disqualified to try an accused under such state of facts.

A Texas justice court is a creature of the state Constitution. Its life and its jurisdiction came from this source. Its existence is therefore beyond the power of legislative enactment to destroy. If the statutory enactment ' regarding justice of the peace fees, above mentioned, had the effect of making impotent all justice courts by rendering the agency through which they function powerless to act under all circumstances, it would in effect be giving to the Legislature the power to destroy what the Constitution has created, a thing that cannot be. ⅜ If a justice court is prevented from functioning, even though no facts disqualifying the justice of the peace are present, does not this in effect nullify the provision of the Constitution creating su2h court?

In this case, among other things, the justice of the peace before whom relator was tried testified: “I did not collect any costs in this case, neither did I assess any, and I did not go into trial for that purpose. I did not intend to charge any costs for the Justice of the Peace. Since the decision of the Court of Criminal Appeals has been handed down I have made it a point to not assess any costs where there is a plea of not guilty.”

The intimation is plain in the recent case of Ex parte West (Tex. Cr. App.) 12 S.W.(2d) 216, that under such a state of facts as is here present, no disqualification of the justice of the peace exists.

Believing that a correct - disposition was made of this case by the trial court, and that relator is properly in custody, the judgment of the trial court is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.


text:
    MORTON v. STATE.
    (No. 12357.)
    Court of Criminal Appeals of Texas.
    Feb. 27, 1929.
    J. J. Greve and H. L. Edwards, both of Nacogdoches, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for cattle theft; punishment, two years in the penitentiary. ■

In view of the disposition deemed necessary of this case, we omit discussion of the facts. Appellant’s witnesses testified that his reputation as a peaceable, Iaw-abid-mg citizen in the community in which he lived was good. The court charged the jury as follows: “The evidence as to reputation of the defendant for peace and violence is to be considered by you, if at all, to enable you to pass upon his application for a suspended sentence, and for no other purpose.” This charge was properly excepted to. It was error to give same. Long before we had the Suspended Sentence Law (Acts 1911, c. 44), this court repeatedly said that pro.of of good reputation for peace and law observance was relevant, and to be considered by the jury as any other testimony in determining the guilt of the accused. House v. State, 42 Tex. Cr. R. 125, 57 S. W. 825; Lincecum v. State, 29 Tex. App. 328, 15 S. W. 818, 25 Am. St. Rep. 727; Lann v. State, 25 Tex. App. 495, 8 S. W. 650, 8 Am. St. Rep. 445; Lockhart v. State, 3 Tex. App. 567; Coffee v. State, 1 Tex. App. 548. The rejection of testimony of good reputation of the accused, where the only issue was his guilt or innocence, has been held of such materiality as to call for reversal of the ease.

There is a bill of exceptions complaining of the refusal of the court to submit the affirmative defense relied upon by appellant. While it is true the state showed that appellant and one Brit Murray went in a truck 12 or 15 miles at night, shot a four months’ old calf, took it back home and appropriated it, still the appellant and his wife testified very positively that he was employed by Murray to go with him on the occasion in question, and to assist him in killing and butchering the animal in question, and that Murray paid him $2 for his services and the use of his truck in that connection.. The court should have instructed the jury that if they believed that appellant was employed by Murray to aid and assist him, and that he had no guilty connection with the transaction, he should be acquitted. We are not laying down any form for the court’s charge, but indicating what should be its substance.

For the error mentioned, the judgment must be reversed, and the cause remanded.


author: MORROW, P. J. LATTIMORE, J.

text:
    LITTLES v. STATE.
    (No. 12151.)
    Court of Criminal Appeals of Texas.
    Feb. 13, 1929.
    State’s Rehearing Denied March 20, 1929.
    Fly & Ragsdale and P. P. Putney, all of Victoria, for appellant.
    J. V. Vandenberge, Jr., Dist. Atty., of Victoria, and A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of five years.

From the evidence we learn the following: Charley Littles and his wife, Ethel Littles, negroes, conducted a restaurant. M. I-I. Ellis, Jr., a youth 14 years of age, was an employee of Charley Littles. While in the restaurant, Charley Littles received a gunshot wound in the head which killed him. The only witness present besides the appellant was the Ellis boy. He was called and used by the state as a witness. After describing the altercation between the appellant and the deceased, his version of the immediate facts attending the homicide was that in the course of the quarrel the appellant struck the deceased and went to a trunk. The witness at the time had a broom in his hand. Observing his wife opening the trunk, the deceased took the broom from the witness and rushed in the direction of his wife and was shot by her. She fired one shot, which 'felled him to the floor. Upon the arrival of the officers the witness Ellis, in describing the tragedy to them, stated that the deceased had a pistol in his hand and was attacking the witness, who, using a broom to protect himself, struck the pistol, which accidentally fired and killed the deceased while it was in his hand. That he so described the tragedy was admitted by him upon the witness stand and proved by the sheriff, who went to the scene of the tragedy soon after it occurred and before the body of the deceased was removed.

The witness Ellis testified that his declarations to the, officers were false; that he uttered them at the direction of the appellant; that he made the utterance to the sheriff about 30 minutes after the homicide; and that the appellant told him to do so. By the state’s witnesses who arrived soon after the shot was fired it was shown that the appellant was screaming and claiming that Charley had shot himself. The testimony of the witness Ellis classifies him as an accessory. Admittedly, he made false statements to the sheriff relative to the appellant’s connection with the homicide in order to aid the appellant'to evade arrest or trial or the execution of his sentence, as that language is contained in article 77, P. C. 1925. The evidence that would characterize him as an accessory to the homicide (Blakely v. State, 24 Tex. App. 622, 7 S. W. 233, 5 Am. St. Rep. 912; Gatlin v. State, 40 Tex. Cr. R. 118, 49 S. W. 87; Caylor v. State, 44 Tex. Cr. R. 124, 68 S. W. 982) would likewise classify him as an accomplice witness; and article 718, C. C. P. 1925, forbidding the conviction of one upon the uncorroborated testimony of an accomplice, would preclude the conviction of the appellant upon the testimony of Ellis in the absence of corroboration such as is required by the statute mentioned above. Willman v. State, 92 Tex. Cr. R. 77, 242 S. W. 746; Howard v. State, 92 Tex. Cr. R. 221, 242 S. W. 739. See, also, Vernon’s Ann. Tex. C. C. P. 1925, vol. 2, p. 774, note 1; page 777, note 3; page 783, note 14; page 785, note 15. In the present instance, the court refused to instruct the jury upon the subject of accomplice testimony with reference to the witness Ellis, and declined to amend his charge in response-to an exception duly made and properly preserved. The appellant’s complaint of the-action of the court mentioned is deemed sound and of a nature so material as to require a reversal of the judgment.

There are other questions presented, a discussion of which is deemed unnecessary, as it is not likely that they will occur upon another trial.

We are precluded from giving consideration to the special charges requested for the reason that the record fails to disclose that they were presented to the trial court before the reading of the charge and before-argument as the statute demands. See article 659, C. C. P. 1925; also, Norman v. State, 91 Tex. Cr. R. 486, 239 S. W. 976; Harris v. State, 93 Tex. Cr. R. 349, 248 S. W. 54; Preston v. State, 94 Tex. Cr. R. 645, 252 S. W. 507; Berlew v. State, 88 Tex. Cr. R. 241, 225 S. W. 518; Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703.

The judgment is reversed and the cause-remanded.

On Motion for Rehearing.

LATTIMORE, J.

The state insists-that witness Ellis was not and could not be an accessory because, as contended, he was-a domestic servant, and under the terms of' article 78, P. C., such person cannot be an accessory. The state cites three cases, Coleman v. State, 44 Tex. 109, Taylor v. State, 42 Tex. 387, and Douglas v. State, 88 Tex. Cr. R. 295, 225 S. W. 536. We have been unable .to locate the Taylor Case, supra, and neither-of the other two authorities support the proposition that Ellis was a domestic servant. In Coleman’s Case two women were washing and ironing for a family, and on the second day of such employment took a pocketbook with money in it; one kept the money, the other the pocketbook. The latter turned state’s evidence. The point was raised by the refusal of the court to instruct for a mitigated penalty sought on the ground that the accused was a domestic servant, the appellate-, court holding erroneous such refusal. It is interesting to note in the opinion that the other woman — the state witness whose relationship to the family was exactly that of the accused — is referred to in the opinion as an accomplice. We find- no discussion in that case of what is or is not a domestic servant, and the only thing we learn is that our Supreme Court regarded the fact that the women were washing and ironing for a family seemed to require the submission of the issue as to whether they were domestic servants. In the Douglas Case, supra, we held the issue-of domestic servant not to be raised in a burglary case where the duties of the accused were to sweep, wash, and clean windows on the fifth floor of the building, he being charg--ed with burglary of a room on the sixth floor of the same building.

From the statement of facts we learn that the witness Ellis had been working at the restaurant where this killing occurred some two months. He testified: “I was waiting tables at that time. I did something else, working around the house sweeping and dusting. That café had four rooms on the first floor. * ⅜ * While I was working tables, working in the house, I was getting four dollars. From time to time I was hauling wood and waiting tables, and I was getting five. 1 was hauling wood for Charlie Littles. Part of the time that I was working I was helping haul wood. * * * I live in Bettin’s rent house in Victoria, Texas. * ⅜ * That is a two story house there. I don’t know who lives upstairs, if any one. They had rooms, I know.

Witness’ reference to the two story house was to the restaurant where he worked. We have tried to state all that is in the testimony bearing on the question as to whether Ellis was a domestic servant. He worked in a public restaurant; sometimes he hauled wood; sometimes he swept and dusted in other rooms whose oceupance is not stated. Where he slept is not stated, but it is inferred that he slept in another house than the restaurant. In Waterhouse v. State, 21 Tex. App. 663, 2 S. W. 889, this court said a domestic servant means a servant who resides in the house with the master he serves, and does not include a servant whose employment is outside. In Richardson v. State, 43 Tex. 456, we said a domestic servant is one who is employed as a house servant or outdoor worker and has general access to the premises. In Ullman v. State, 1 Tex. App. 220, 28 Am. Rep. 405, we held substantially as in the Waterhouse Case, supra. So, in Wakefield v. State, 41 Tex. 556, it was held that a domestic servant is one who lives in the house, and does not extend to one" whose employment is out of doors. A gardener, having charge of the garden and sleeping in a house in the garden, was held not a domestic servant. Vaughan v. Booth, 13 Eng. Law & Eq. 351. So a cook, valet, etc., employed in a public tavern or hotel was held not a domestic servant. Cook v. Dodge, 6 La. Ann. 276. The term “domestic servant” is held to relate to one’s home or household employees and would not include a maid in a hotel. Barres v. Hotel Co., 196 Ky. 100, 244 S. W. 308.

These expressions from decisions construing what is meant by a domestic servant, as that term is used in various statutes, seem in substantial accord, and lead us to the conclusion that Ellis, witness in this case, being employed in a public restaurant, which occupation was varied occasionally by hauling wood, and sometimes sweeping and dusting rooms not shown to be occupied by any members of the family, will be held by us to fall outside the pale of such domestic servant.

Nor have we any doubt of the correctness of our holding that one who affirmatively aids in any way another who has committed a crime, to evade arrest or escape prosecution or punishment, is an accessory to such crime; and if in the course of human events he turns against the person so aided and give testimony against him in a criminal judicial proceeding, his testimony should be characterized as that of an accomplice. Ellis did render such aid to this appellant, according to his own admission, purposely telling the authorities after the homicide that same was an accident, caused by the throwing of a broom and the consequent accidental discharge of a pistol.

Believing the matter rightly decided in our original opinion, the motion for rehearing will be overruled.


text:
    SHIMEK v. STATE.
    (No. 12377.)
    Court of Criminal Appeals of Texas.
    March 6, 1929.
    I-I. A. Townsend, of Columbus, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for manufacturing intoxicating liquor; punishment, one year in the penitentiary.

Upon a search of appellant’s home, under a search warrant apparently regular, officers found a quantity of intoxicating liquor, including several gallons of whisky and some hundred or more bottles of beer which the officers said was intoxicating. Appellant admitted the manufacture of the beer. Not far from the house was found a still, three barrels of whisky mash, two five-gallon jugs with about a gallon ánd a half of whisky in them, •and other smaller jugs with some little whis-ky in them. A plain path led from appellant’s house to the still. One witness testified that soon after getting to the place he went 'down to where the still was and secreted himself. In a short time appellant’s wife and son came down and began overturning the barrels of mash. He stopped them. The evidence seems ample.

Two bills of exception are in the record. One complains of the action of the court in letting the state ask appellant, while a witness, if he was not under indictment for another felony. ■ This is held proper under all of our authorities, as affecting his credibility as a witness. The other hill sets up objections to the affidavit for search warrant for reasons stated, but nowhere in the bill is the affidavit or any part of same set hut. Such bill of exceptions manifests no' error.

The judgment will be affirmed.


author: DUNKLIN, J.

text:
    FORT WORTH & D. C. RY. CO. v. BELL.
    (No. 12048.)
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 2, 1929.
    Rehearing Denied March 2, 1929.
    Thompson & Barwise, of Port Worth, Donald & Donald, of Bowie, and P. B. Walker, of Port Worth, for appellant.
    Thompson, Knight, Baker & Harris, of Dallas, and T. H. Yarbrough, of Nocona, for appellee.
   DUNKLIN, J.

On the night of’February 8, 1926, in the city of Bowie, Grady B. Bell attempted to pass between two box cars of a freight train operated by the Fort Worth & Denver City Railway Company, and while so doing he fell, and one of his arms was so badly crushed under the wheels of the train that it had to be amputated just below the elbow.

He instituted this suit against the railway company for damages for that injury, and this appeal has been prosecuted by the defendant company from a judgment in his favor in the sum of $10,000.

The case was tried before a jury, to whom was submitted special issues. The issues submitted, with the findings of the jury thereon, were, in substance, as follows: (1) The accident happened at a public street crossing in the city of Bowie just south of defendant’s depot. (2) Immediately prior to the accident and prior to the time the train was set in motion, the defendant company willfully obstructed the public street crossing where the accident occurred for a length of time in excess ,of five minutes; and its act in so doing was the proximate cause of plaintiff’s injury. (3) Defendant’s employés were “negligent in the matter of time that its train obstructed” the public street crossing in controversy immediately prior, to the accident; and such negligence was the proximate cause of plaintiff’s injury. (4) The defendant was “negligent in the matter of giving adequate warning and notice by the blowing of the whistle or the ringing of the bell that the train was going to move forward,” which negligence was the proximate cause of plaintiff’s injury. (5) The defendant was not guilty of negligence in failing to have a watchman ,or flagman at the crossing. (6) The plaintiff was not guilty of negligence, proximately contributing to his injury, in attempting to pass between two of defendant’s freight cars at the time and place and in the manner he attempted to pass between the same on the occasion of his injury. (7) Plaintiff made no inquiry of the crew in charge of the train as to whether it would be safe for him to pass between the cars; but his failure to make such inquiry was not a failure to exercise ordinary care for his safety. (8) As a result of his injury, plaintiff sustained damages in the sum of $10,000.

The issues determined by the jury were duly presented in the pleadings of the parties.

Under appropriate assignments of error, it is insisted by appellant that the evidence introduced showed conclusively, as a matter of law, that plaintiff was guilty of negligence in attempting to cross the railway track, which was the sole cause, or at least a proximately contributing cause .of his injury, by passing between two box ears connected together and constituting parts of a connected freight train attached to a live engine which, at the time, was in the act of starting on its journey.

The record shows without dispute that on the night of the accident plaintiff had gone to Fort Worth on a passenger train, and alighted therefrom at defendant’s depot in the town of Bowie shortly after 9 o’clock at night. After his arrival he went to a garage and got his auto, and went to the home of a Mr. Sprowles to see him on a matter of business, after which he proceeded ,on his way to his home. At that time defendant’s freight train was on a siding track, having come from Amarillo, and was headed south towards Fort Worth. That siding divides the business section of the city of Bowie from the residence section, and it extends in a northerly and southerly direction; the business district being on the east side of the track, and the residence section, where plaintiff intended to go, being on the west side. There are four public street crossings on this siding, all within the boundaries of the city of Bowie; beginning from the north, they are designated as the stock pen crossing, the Smokey or Smythe street crossing, the depot crossing, and the cotton yard crossing.

We quote the following from plaintiff’s testimony, which is copied in his brief to refute appellant’s contention that, as a matter of law, he was guilty of negligence proximately contributing to his injury:

“When I got in my car I drove to the crossing on Smokey or Smythe Street. That street leads from the west side of the business section of Bowie. It was the principal traveled street of -the town at that time. I was going to Harry Sprowles. * * * When I drove up • to the track * * ⅜ a freight train was standing on the track blocking my way there. * * * I turned and drove west to the stock pen crossing, where I found the crossing blocked by the same freight on the same siding. I -then turned and drove back 'to the Electric Café and got me a drink of water. I just walked in the café and out and then drove to the depot. I don’t know the name of that street, but it leads off .one side of the square and goes right in the main building section. When I got to that crossing, it was blocked by the same freight train. When I found it was blocked by the same freight train, * * * then I turned around and went back by the underpass, which is d.ue east.
“I went to Harry Sprowles’ house but he wasn’t at home, and I sat there and waited for him thirty or forty minutes, and then started back to town. I then drove straight to the stock pen crossing. s ⅜ * When I got there I found it blocked by the same freight train. The rear end of the train was somewhere about three or four or five car lengths behind this stock pen crossing when I came up and found it blocked — I never counted them but that is my estimate. After I came back and found the stock pen crossing blocked, I then drove to Smokey Street. I was attempting to pass through and get back to the city — back to the business section. When I got there, I found the crossing blocked by the same freight train on the same siding, and then I passed up at the next crossing at the depot and went right on by the depot crossing and went to the next crossing at the cotton yards and attempted to cross’ there. I found it blocked by the same freight train on the same siding.
“I was nearer the engine then than I had previously been, and the engine was to my right. I could see the engine. The engiñe was just sitting still, wasn’t moving. There was no sign of life. It was just standing there and appeared to he dead.
“I did not hear any bell ringing or a whistle blown, and did not see any smoke. I then started to back up and turn around and I killed the engine of my car. I tried to start it until I run the batteries down, and then I got out and cranked it for some little bit. ® * * I worked with my ear until I considered it hopeless so far as getting my engine started again.
“When I found my car was dead, I decided to go to town to get someone to come and get my car. From this crossing there at the cotton yard I walked hack toward the end of the train, just one block — that was the main street that I had just passed up previously at' the depot, and it was still blocked.
“It was something like an hour from the time I first found it blocked until I came up to this main crossing and found it blocked again.
“When I got there I looked both ways, and there was so sign of life. I saw nothing. No noise or nothing. Everything was still. I can hear good. * * * I could have heard the bell or whistle if it had sounded.
“I then reached the point where I was going, and at that time where I had stopped and • started to go through, they have a flower bed of some kind — the point where I attempted to pass was right at the point where the sidewalk would project across the track if there had been a sidewalk there.
“After I looked in every direction and saw no sign of life and heard no sound of any kind, I believed I could go through there safely. .
“It was light at the point where I attempted to pass. In attempting to pass I caught hold of the step on one end of the car and the step on the other, on each end of the cars. ⅜ * * When I swung myself up those two steps were down something like, that high to me. I put my foot on a sill at the end of each car and was holding to a step, and I was leaning against the end of a car, and of course I was aiming to go on through to the drawhead and out — when I got to the drawhead I could jump on out, and right there at these sills is as far as I ever got.
“I don’t know a thing in the world about what happened at that time, only I know it jerked, and that is the last I knew.
“Prior to that there was no whistle blown or bell rung. I did not see any brakeman waving a lantern before I got up there. I did not see any sign of life about the train. It would have taken me something between five and ten seconds to have gone on through.”

Some of the testimony quoted above is also copied in appellant’s brief, and in addition thereto the following is set out in its brief as supporting the assignment now under discussion :

“I don’t know how long it took me to go from Sprowles’ house and make those crossings up until the time I killed my car — I don’t know how to put it plain, but I have an idea driving about seven blocks it ought to take a man five minutes working with the car. I did not see any member of the train crew during the time I was there working with the car. I saw the engine down there and saw that it was headed towards Port Worth; I seen it the first I drove up to it. It wasn’t making a. bit of noise. I never noticed any steam, but there might have been. If it was making any noise it wasn’t enough to attract my attention. I know how an engine sounds when it is fired up, when they are kind ,of blowing ofC, but I didn’t hear anything like that. I wasn’t paying any attention to that. I did not see any of .the train crew around there. I was looking .for someone, but I never seen a soul. There was a light in the cab of the engine, but I never saw any member of the train crew in the cab, not a soul. I don’t tell the jury there wasn’t anybody on the engine, but I say I never seen them. There was no men around there, whether connected with the train or not, that I saw. * * *
“I have ridden freight trains in shipping cattle and have ridden hack in the caboose, and I know that in the handling of any freight train there is more or less jar in the handling of it. I knew if that locomotive started up there that I was in a pretty bad shape. I knew before I got in there that I was in a dangerous place if that locomotive started. I knew that by having been around them and by common sense. I knew that when I made my move to throw myself up in there that night. When I did that I knew that every car was attached to a locomotive down at the other end.”

According to the testimony of the operatives .of the train, including the engineer, brakeman, and conductor, the train was cut and openings left at the several crossings which plaintiff testified were blocked prior to the time of his injury, and those openings were not closed dntil the train was ready to start on its journey southward, and the couplings were then made, one after another in consecutive order, and the times consumed in making those three couplings aggregated only a few minutes. They further testified that before the train started, the brakemen signaled the engineer with’ their lanterns, and that as soon as those signals were given two blasts of the whistle were sounded before the train was put in motion. However, in the determination of merits of the assignment now under discussion, the testimony of plaintiff must be locked to alone, to the exclusion of all testimony offered by the defendant bearing upon the issue of plaintiff’s contributory negligence.

Many authorities are cited in the briefs <of counsel for the parties to this appeal to ■support their respective contentions. We shall not undertake a review of all those authorities, since the facts of each case necessarily differ from those of every other case. In many of the decisions cited and referred to in which- damages were claimed for injuries to persons at railroad crossings, or while attempting to pass between two cars, those injured were held to be guilty of contributory negligence barring a recovery, as a conclusion of law. In many other decisions cited and referred to, rulings were made that whether ■or not the plaintiff was guilty of negligence proximately contributing to his injury was an issue of fact to be determined, not by the •court, as a conclusion of law, but by the jury from all the facts and circumstances in evidence. In every such case, by reason of the varying facts involved, necessarily the question must be determined according to a certain fixed standard or test which is to be applied to the facts in each ease". The test to 'be applied has been well expressed by Chief .Justice Conner, of this court, in Weatherford, M. W. & N. W. Ry. Co. v. Thomas, 175 S. W. 822, as follows: “It will be sufficient to here •say that we think it will be found, generally speaking, that in those cases where the courts have declared a party guilty of negligence as a matter of law in attempting to eross a railway track between cars to which is attached a live engine, there is an absence •of justifying or excusing circumstances.”

In the opinion in that case the decision of our Supreme Court in Choate v. S. A. & A. P. Ry. Co., 90 Tex. 88, 36 S. W. 247, 37 S. W. 319, is cited with quotation therefrom, to the effect that to authorize the court to say, as a conclusion of law, that plaintiff has been guilty of contributory negligence barring a recovery by him for injuries he has received at the hands .of another, the evidence must be of such a character as that there is no room for ordinary minds to reach any other •conclusion.

In G., H. & S. A. Ry. Co. v. Price, 240 S. W. 524, by the Commission of Appeals, a judgment in favor of Mrs. M. S. Price, for damages sustained by reason of the death of her husband, who was killed by one of the trains of the railway company at a public crossing, was reversed and judgment was rendered in favor of the railway company. The opinion in that case contains an extended review of the many decisions of this state in which -different conclusions were reached upon the same issue, but upon different facts, of course. The following excerpt from the opinion in that case embodies the test applied in the determination of the question: “The uncon-tradieted evidence and the specific findings of the jury present a clear case of a pedestrian stepping in front of a slowly moving train under circumstances which present no excuse for Ms not discovering it." (Italics ours.)

G., C. & S. F. Ry. Co. v. Gaddis, 208 S. W. 895, by the Commission of Appeals, also cited in the Price Case, supra, was a suit to recover for the death of Jack Gaddis, who was killed by a passenger train at a public crossing in the city of Fort Worth. The judgment in favor of plaintiff was reversed and judgment was rendered in favor of the railway company by the Supreme Court in that case, upon the conclusion reached that the negligence of the deceased was conclusively established as a matter of law. In that ease the test to be applied in such cases is stated as follows: “Where no care whatever has been exercised, .our courts uniformly hold that contributory negligence exists as a matter of law, and recovery is denied.”

The test announced in Sanches v. S. A. & A. P. Ry. Co., 88 Tex. 117, 30 S. W. 431, also referred to in the Price Case, is embodied in the following quotation from the opinion: “Ordinarily, negligence is a fact to be found or inferred from the testimony; but where from the testimony on the issue of negligence no inference but negligence can be drawn, it becomes a question of law, and the court may instruct the jury that negligence has been established.”

It is apparent that the same test was applied in all of those decisions but expressed in different language; and we know of no authorities to the contrary.

Necessarily, the test so announced must be applied to the facts of this case and must be our sole guide in the determination of the issue now under discussion. As shown above, plaintiff testified, in part, as follows: “I knew if that locomotive started up there that I was in a pretty bad shape. I knew before I got in there that I was in a dangerous place if that locomotive started. I knew that by having been around them and by common sense. I knew that when I made my move to throw myself up in there that night. When I did that I knew that every car was attached to a locomotive .down at the other end.”

He further testified that he had seen a light in the cab of the engine prior to his attempt to eross. The only excuse or reason offered by him for his attempt to pass between the cars was that he looked up and down the track and saw none of the trainmen, did not see the engineer in his cab, heard no whistle from the engine, and heard no hissing of steam therefrom, although he did not pay any attention to that matter, and concluded that the train was dead. But the fact that the engine was emitting steam was conclusively shown by the start of the train just as plaintiff threw himself between the cars; and that fact being open and easily ascertainable had he looked to discover whether the engine was in fact dead, he was chargeable with knowledge that the train was then prepared to move; and that it was more likely to move at any time if it had then been standing for about one hour, as he testified. The facts so testified to by him cannot reasonably be construed as amounting to anything more than a mere scintilla of proof, which, tested by common experience of men having due regard for their personal safety, was so lacking in probative force as to be insufficient to furnish a reasonable excuse, prima facie, for voluntarily exposing himself to a known danger of such serious and imminent probable consequences. Under the doctrine which obtains in this state, as announced by our Supreme Court in Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059, and other decisions following it, a mere scintilla of proof is not sufficient to support a verdict; and in our opinion, no reasonable inference can be drawn from plaintiff’s testimony, copied above, except that he was guilty of contributory negligence in going between the two box cars, under all the facts and circumstances related by him.

Several decisions are cited to support plaintiff’s contention that the issue of his alleged contributory negligence was properly submitted to the jury, and that the. verdict rendered thereon is binding upon this court, including Irvin v. G., C. & S. F. Ry. Co. (Tex. Civ. App.) 42 S. W. 661; Texas & N. O. Ry. Co. v. McLeod (Tex. Civ. App.) 131 S. W. 311 (boy tender age); Freeman v. Terry (Tex. Civ. App.) 144 S. W. 1016; Weatherford, M. W. & N. W. Ry. Co. v. Thomas (Tex. Civ. App.) 175 S. W. 822, cited above; S. A. & A. P. Ry. Co. v. Bergsland, 12 Tex. Civ. App. 97, 34 S. W. 155.

Those cases are distinguishable from the present suit by reason of the difference in the facts. In each case the plaintiff sued for damages for injuries received as the result of a sudden start of a train while he was passing between cars that were connected together and which constituted parts of a train; but in each case there was proof of something more than a mere semblance of excuse for taking that risk. In the first case eitéd, Irvin v. Ry. Co., it appeared that plaintiff stood at the crossing for 15 minutes waiting for the train to start. During that time, and just as plaintiff started between the cars, he was watching the engineer, who was leaning out of his cab and looking directly at plaintiff, or at least in line with his position, and by reason of that fact plaintiff concluded he could make the crossing before the train would start.

The case of Texas & N. O. Ry. Co. v. McLeod, supra, was for injuries to a boy 14 years old. The facts recited in the opinion, which the court held made the issue of contributory negligence on the part of the boy a question for the jury, were, substantially, as follows: After waiting at the crossing for ten minutes while it was blocked by a string of standing cars one-half mile long, and after seeing other persons older than he cross the track by going between the cars, and not seeing any engine attached to them, and believing it was a “dead train,” he endeavored to cross the track on said street by going between two of the standing cars.

In Freeman v. Terry, supra, the testimony recited in the opinion, which was held .sufficient to require the submission to the jury of the issue of plaintiff’s contributory negligence, included the following: The train that blocked the crossing where plaintiff was injured while passing between two of its cars was a stock train that had stood on the same track in the city of Houston, from 3:30 o’clock p. m. until after 6 o’clock the same evening when plaintiff was injured, and while the train was engaged in loading stock from the stock pen. The engine was north of the pens, which were also north of the crossing where the injury occurred. The cars were loaded from the pens, one at a time, and when the loading of a car was finished the train would be pushed to the south to spot another car at the pens. The following is quoted from the opinion: “He [plaintiff] testified that he stood and waited a while to see if there was any occasion to move the train at that time, and hearing the men whooping and ‘hollering’ down at the pen, and knowing that they were loading cattle, he passed over between two cars, and while he was doing so the cars moved forward and backward and jammed together, and his foot was caught and injured.”

In W., M. & N. W. Ry. Co. v. Thomas, supra, it appears that plaintiff Thomas was making a through shipment of his cattle over appellant’s line of railway to Weatherford, its terminus, and thence to Fort Worth over the Texas & Pacific Railway, the connecting line. After appellant’s train had stopped, at Weatherford, plaintiff attempted to cross over to the depot of the connecting carrier in order to get his shipping contract signed by that carrier, and while passing between two cars with his feet on the drawheads, the train suddenly started and caused him to be injured. As pointed out in the opinion, the evidence showed that it was customary for shippers, while at that station and under such circumstances, to cross between the cars as plaintiff did, and that the defendant not only knew of and acquiesced in that practice, but had invited it.

S. A. & A. P. Ry. Co. v. Bergsland, supra, was a suit for damages for injury to a boy nine years old while he was crawling between two cars, after he had been told he could safely do so by a man standing by whom he believed was one of the trainmen.

It would unduly extend this opinion to review the facts of the many other decisions of this state in which it was held that the issue of contributory negligence was a controverted issue of fact for determination by the jury, and not by tbe court. The foregoing cases, we believe, are fairly typical of most of them.

Many decisions might be cited which we believe are more nearly applicable to the present suit, but only a few of them will be referred to.

In International & G. N. Ry. Co. v. Edwards, 100 Tex. 22, 93 S. W. 906, our Supreme Court reversed a judgment in favor of plaintiff Edwards and rendered' judgment for the defendant, because the proof conclusively established contributory negligence of plaintiff. We quote from the opinion as follows:

“The evidence, without contradiction, shows that the plaintiff walked -along the road at night, approaching the railroad obliquely, with his side towards it, until he came near the crossing when he turned with the road across the track, and was struck as he reached the center thereof. The train was visible by its electric headlight upon a straight track for a mile or more before it reached the crossing and the noise of its motion was plainly audible. Plaintiff admits that, before stepping on the track, he neither looked nor listened for the train, although he was familiar with the crossing and knew of the frequent passing of trains, and that he could have seen and heard it, had ho done so. All of the other evidence is to the same effect. He relies alone upon the fact, which the evidence is sufficient to prove, that the whistle was not blown nor the bell rung as required by the statute, claiming that he was listening for those signals, and, because he did not hear them, did not look for the train nor pay any attention to the noise it made. * ⅜ *
“While persons using a railway crossing have the right to expect that the law requiring signals will be obeyed, this is not a substitute for the duty of exercising care for themselves and they are not excused from that duty by the fault of the other party. No case in this court has allowed a recovery upon facts such as these and the judgment cannot be permitted to stand without abolishing the rule, recognized by all authority, requiring the exercise of ordinary prudence on the part of persons crossing railroad tracks.”

In Freeman v. Huffman, 61 Tex. Civ. App. 200, 130 S. W. 195, it was held that a person in undertaking to pass between cars to which was attached a live engine, without first notifying the engineer or persons in charge of the train of his intention so to do, was guilty of negligence, as a conclusion of law. And in the opinion in that case many authorities are cited to the same effect, including decisions from Indiana, Iowa, Kentucky, and Missouri, and the courts of this state ; and quotations are made from several decisions of other states to the same effect as the following quotation from Elliott on Railroads, vol. 3, par. 1169: “Although a railroad company may be guilty of negligence in suddenly moving cars without warning which it had left at a crossing with a space between them, inviting- people to pass through, but where no space is left between the cars, and engine is attached to them, which is liable to move them at any moment, one who attempts to pass over or under them may be declared guilty of contributory negligence as matter of law.”

In San Antonio & A. P. Ry. Co. v. Singletary, 251 S. W. 325, by the San Antonio Court of Civil Appeals, opinion by Justice Smith (writ of error dismissed by Supreme Court), it was held that the evidence conclusively established contributory negligence of plaintiff’s son, who was killed at a public highway crossing,' in failing to discover the approach of the train in time to avoid the accident, notwithstanding the findings of the jury that the defendant was guilty of negligence which was the proximate cause of the injury in running the train at an excessive rate of speed and in permitting weeds to grow on the right of way, on account of which deceased could not see the approaching train.. In that case the following was quoted from Galveston, H. & S. A. Ry. Co. v. Ryon, 80 Tex. 59, 15 S. W. 588: “The less ability one has to discover approaching danger the more careful he should be in going within its reach.” And other decisions of our Supreme Court were cited to the same effect; and in that connection this was added: “We make this last observation in response to appellee’s testimony and argument that the deceased was traveling in a Ford car, the noise of which would lessen his ability to hear the signals and rumble of the train which struck him.”

The language quoted from those two decisions is applicable to the precautions taken by plaintiff, as testified to by him, before attempting'to cross between the cars, for in view of the hazardous risk which he says he appreciated, the same could not afford any reasonable assurance to him that he could make the crossing before the train would move.

The care which plaintiff was in duty bound to exercise for his personal safety in order to recover for the negligence of the defendant is designated in law as “ordinary care,” but it is a familiar principle that the term has a variable meaning according to the different circumstances of each situation. In other words, the greater and more imminent the danger to be encountered, the more caution is required; and this rule has special application to plaintiff in this case, in view of the manifest hazard of his venture.

In the case of Baltimore & O. Ry. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645, there was a reversal of a judgment in favor of the administratrix of the estate of Nathan Goodman, who was killed at a public crossing of the railway as the result of a collision of a train with an automobile which deceased was driving; the judgment of the trial court being based on the negligence of the defendant railway company. That judgment was reversed by the Supreme Court upon its finding that deceased was guilty of contributory negligence as a conclusion of law. It appears that until deceased approached within a distance of 12 or 20 feet of the crossing, his vision of the approaching train was obstructed by the section house, for a distance of 243 feet; that the train was running not less than 00 miles an hour, and deceased had reduced the speed of his ear from 10 or 12 miles to 5 or 8 miles an hour, and those facts were relied on to refute the inference of contributory negligence. After reciting those facts, the court said:' ‘‘We do not go into further details as to Goodman’s precise situation, beyond mentioning that it was daylight and that he was familiar with the crossing, for it appears to us plain that nothing is suggested by the evidence to relieve Goodman from responsibility for his own death. When a: man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train, not the train stop for him. In such circumstances * * * it seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk. If at the last moment Goodman found himself in an emergency it was his own fault that he did not reduce his speed earlier or come to a stop. It is true as said in Flannelly v. Delaware & Hudson Co., 225 U. S. 597, 603 [32 S. Ct. 783, 56 L. Ed. 1221, 44 L. R. A. (N. S.) 154], that the question of due care very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once ‘for all by the Courts. See Southern Pacific Co. v. Berkshire, 254 U. S. 415, 417, 419 [41 S. Ct. 162, 65 L. Ed. 335].”

There is an instructive review of that decision and many decisions of the appellate courts of this state by Mr. Sol Goodelsky in volume 7, p. 128, of the Texas Law Journal (issued December, 1928), in which the writer intimates a possible conflict between the views expressed in the Goodman Case and those of the Texas courts. We express no opinion with respect to that question, but cite the Goodman decision because we believe that at all events the reasoning advanced sup-Xiorts our former conclusion.

For the reasons indicated above, the trial court erred in refusing appellant’s request for an instructed verdict in its favor.

It is well settled that whether or not negligence, when established, is the proximate cause of an injury, is a separate and independent issue from that of the negligence complained of, and its proof is just as essential to a recovery as is a proof of negligence itself. Texas & P. Ry. Co. v. Reed, 88 Tex. 439, 31 S. W. 1058; Gulf, C. & S. F. Ry. Co. v. Bennett, 110 Tex. 262, 219 S. W. 197; Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Campbell v. Johnson (Tex. Com. App.) 290 S. W. 526.

The Bigham Case just cited was a suit for damages sustained by the plaintiff when cattle confined in defendant’s shipping pen broke through the gate and ran over him. The fastenings of the gate were defective, and plaintiff was engaged in tying it with a rope' when the cattle broke out of the pen. That defect in the gate was due to defendant’s negligence, by reason of which plaintiff secured a judgment. But the judgment was reversed, by reason of the conclusion reached that such negligence of the defendant was not the proximate cause of the injury, because an injury of that character, reasonably, could not have been anticipated as a probable result of that negligence, notwithstanding such negligence brought about the condition that rendered the accident possible. The decision of the same court in Seale v. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602, was cited with approval and was to the same effect; as was also the decision in Gulf, C. & S. F. Ry. Co. v. Bennett, supra. In the present suit, it was conclusively shown that none of defendant’s employSs engaged in handling the train was present when the accident happened or knew of plaintiff’s presence, and there was an absence of proof to show that plaintiff or any one else might probably attempt to pass between the cars while the train was standing across the street. According to plaintiff’s testimony, the accident happened about 10 o’clock at night, and no testimony was introduced to show that other persons in that vicinity were accustomed to pass over trains blocking street crossings, by climbing between the cars while the same were attached to a live engine with the engineer in his cab. Without some proof of that character there was no proper basis for the findings of the jury that any of the acts of negligence found by the jury either in blocking the crossing, or its failure to warn plaintiff that the train was about, to move, was the proximate cause of plaintiff’s injury; and the defendant’s request for an instructed, verdict in its favor should have been given for that reason, independently of the other reasons expressed in our conclusion on the issue of plaintiff’s contributory negligence.

From the foregoing conclusions it follows that the judgment of the trial court must be reversed and judgment here rendered in favor of appellant; and it is so ordered.

There are other assignments of error which would probably cause a reversal of the judgment and a remand of the cause for another trial, at all events, but they will not be discussed or their merits determined because unnecessary, in view of what we have said above.


author: "WALKER, J.

text:
    LANIER et al. v. ROYALS et al.
    (No. 1796.)
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 28, 1929.
    Smith & Lanier, of Jasper, for appellants.
    Adams & Hamilton, of Jasper, for appel-lees.
   "WALKER, J.

This suit was instituted by appellees against appellants in trespass to try title to recover a small tract of land situated in Jasper county, bounded on the south by the W. J. Mashaw 200-acre tract, on the west by the J. R. Royals 51-acre tract, and on the north and east by Little Walnut creek. Appellees are the widow and surviving children of J. R. Royals. Appellants claim under W. J. Mashaw. Neither appellees nor appellants showed a record title to the land. Both parties claimed only by limitation. Though appellants had prior possession to J. R. Royals, they admit in their brief that they had no record'title, and that the issue was one solely of limitation. It was agreed “that the land in controversy is a part of the Joel Robinson survey duly patented from the state of Texas in 1835 before the period of occupancy began.” On the issue of limitation, the evidence raised the issue that J. R. Royals, not having the record title to this land, entered upon it in 1904 at a place outside of the boundaries of his 51-acre tract, and wholly upon the land in controversy cleared a small cane patch of about three-quarters of an acre; that every year thereafter until 1923 he cultivated, used, and enjoyed this cane patch, claiming the land in controversy as his own. In other words, the evidence raised an issue of 10-year limitation in favor of appellees, and was clearly sufficient to support the finding in their favor on that issue. Against appellees the evidence raised the issue that in 1904, when J. R. Royals cleared this cane patch, he began his clearing on the west side of the east line of his 51-acre tract, and by mistake extended the clearing on to the land in controversy; that at that time both J. R. Royals and W. J. Mashaw believed that the land in controversy was a part of the Mashaw 200-acre tract, and that, while the land was being cleared, or immediately thereafter, W. J. Mashaw, on a visit to the home of J. R. Royals, discussed with him that the clearing extended across Royals’ east line and on to his land. To quote the testimony of Bud Harris, Royals’ brother-in-law, on this issue:

“Mr. Bill Mashaw came into Mr. Royals place on the gallery, and remarked T was up the creek yesterday squirrel hunting, and I.' come down to your clearing, and you have got a little over me,’ and Mr. Royals replied and said ‘Yes, Mashaw,’ and he said there is no timber on it, and it is but little, and to go ahead. There was no dispute about it. Mr. Mashaw told him to go ahead, it was all right. I suppose the line between Mr. Royals and Mr. Mashaw ran through that clearing. Part of the clearing was on Royals and part on Mashaw’s land; that is what Mr. Royals and Mr. Mashaw told mev”

J. D. Henderson also testified as follows:

“Mr. Jack Royals was a brother to the one that was working for me, and half-brother to Mr. Conn, * * * and then he went on to say how they got over the line. He said the way they got that, Mr. Royals seen Mr. Ma-shaw and spoke to him about clearing a little cane patch over the line and getting over the line near the creek, and that was about all that was said.”
“He didn’t tell me how he heard that. He told me that Mr. Royals seen Mr. Mashaw about it, and he told him it would be all right. Royals is the father of the Royals boys, and the step father of the man that was talking. Mashaw is the man Mr. Lanier is claiming title under.”

While Mashaw had possession prior to the clearing of the cane patch, there is no contention that he had matured at that time a title by limitation. As we understand the record, the limitation claims of .both parties are based upon the possession, use, and occupancy of the land by J. R. Royals. Appellees claim that the possession was by Royals in his own right, while appellants claim that the possession was by him as tenant under Mashaw. Appellants also advance the theory that the possession of Royals was nothing more than an encroachment.

On conclusion of the evidence, appellants moved for an instructed verdict in their behalf. This motion was properly overruled. The evidence did not show conclusively that Royals held the land as tenant or with permission of W. J. Mashaw.

Only one question went to the jury, which was as follows, answered as indicated:

“Do you believe from the evidence that J. D. Royals, prior to his death, and the plaintiffs since his death, have had and held peaceable and adverse possession of the lands described in plaintiffs’ petition, claiming the ■same and cultivating, using or enjoying the same continuously for any period of ten consecutive years prior to October 28th A. D. 1927?”

The jury answered this question, “Íes.” The statement we have made supports the submission of this question and the jury’s answer thereto. The effect of this answer was to deny appellants’ claim that the holding of Royals was as their tenant. But, as appellees were the plaintiffs, and could recover only by showing a limitation claim against the record owner, appellants requested the following issue on their theory of encroachment:

“Where was the field testified about, as ■originally cleared, located? whether on the J. D. Royals 51 acres tract, or on the land in question, or partly on the J. D. Royals 51 acres tract and the land in question:
“Answer this question by stating ‘on J. D. Royals 51 acres tract,’ or ‘on the land in question,’ or ‘partly on the J. D. Royals 51 acres tract and partly on the land in question,’ as you find the fact to be.”

The refusal of this issue was reversible error. The evidence raised the issue that the true line between Royals 51 acres and the land in controversy ran through the cane patch about its center, and the Royals did not cross this line with hostile intent. But, whatever may have been his secret intent, the law declares the effect of such an entry to be an encroachment, provided the jury had found that the dividing line between the two tracts of land ran through the cane patch. In Temple Lumber Co. v. Low, 272 S. W. 769, quoting the Syllabus, the Commission of Appeals held:

“Small field of 3 or 4 acres, 1 ½ acres of which was located on land of plaintiff and remainder on land on which house of defendant was located, was not sufficient occupancy under ten-year statute to put plaintiff on notice that defendant was claiming title to 160 acres of plaintiff’s land; such occupancy being an encroachment.”

Reviewing the authorities of this state on the issue of encroachment when the case just cited was before, this court (Temple Lumber Co. v. Low, 260 S. W. 637), we held, quoting the syllabus:

“An owner of land with his home and main improvements on his own land' can not acquire title to an interest in an adjoining survey by encroaching thereon, either willfully or by mistake, aqd such encroachment affords a basis for the acquisition by limitations of no more of the adjoining survey than is actually possessed and used.”

While the Supreme Court reversed our application of the law of encroachment to the particular facts of that case, it did not disagree with our statement of the law as formulated by the syllabus just quoted. We think that an answer to the requested issue to the effect that the dividing line crossed the cane patch would have entitled appellants to a judgment. Accordingly, the judgment of the lower court is reversed, and this cause remanded for a new trial.


author: COBB 8, J.

text:
    FRAME v. FRAME.
    (No. 8159.)
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 13, 1929.
    Rehearing Denied March 20, 1929.
    T. H. Ridgeway and Edwin G. Black, both of San Antonio, for appellant.
    White, Wilcox & Taylor, of Austin, for ap-pellee.
   COBB 8, J.

Appellant, the widow of David A. Frame, deceased, brought this suit against appellee as executor to recover on a promissory note, substantially as follows:

“April 19th, 1922.
“I promise to pay to my wife on condition-ary, the sum of Five Thousand ($5,000.00) Dollars, providing she stays with me while I live and take care of things as she always has done: this note not due for six months after my death, and to bear no interest until due. This note to have no lien on my property while I live. Providing that should my wife die before me, this note will become due to her father, Curtis Stanfield.
“This April 20th, 1922.
“D. A. Frame.”

Among other defenses set up, appellee, by way of cross-action, alleged that decedent had on deposit in the Frost National Bank just before his death. $1,700, being his separate estate, and that appellant the day preceding her husband’s death withdrew $1,000 and later withdrew $504.25, which appellee sought to recover.

Appellant answered that the money had been placed there subject to the check of either, for the purpose of paying expenses incidental to the operation of the farm, upon which they all lived, and for the purpose of paying household expenses during the summer and spring of 1925. She used the money for that purpose, so that after, the death of her husband the money was used to pay the expenses of operating the farm and for household expenses, and she alleged that she and her minor daughter were entitled, out of the estate of her. husband, to have a sufficient amount for their maintenance, and the amount of money drawn from the bank was not sufficient for such purposes.

There were other sums charged against her, but they were all disposed of by the judgment of the trial court.

It was shown that David A. Frame died three years and ten days after he executed this note. 'He bequeathed $5,000 to four of the grandchildren. He gave to his wife a life estate in the farm upon which he and his wife resided. His eldest son was appointed independent executor and acted, as such.

The inventory listed all his property as his separate estate, notwithstanding the fact that they lived together as man and wife for about 18 years.

There are but few real questions of law in this case, and they grow out of a proper construction of the note. Was appellant entitled to judgment for the face of said instrument with legal interest?

We shall dispose of the question at once as to whether appellee is permitted to attack the validity of said note without a sworn plea challenging the consideration. The note on its very face discloses the consideration, and from its own language discloses the true consideration, and the same is not subject to attack without a sworn pleading.

It must be remembered that they had lived together for about 15 years before the note was executed, and thereafter until his death, which occurred about 3 years later. When she married him she was 31 years old, a young, stout, healthy woman, and he was a matured man of -71 years old. He died at the age of 89 years.

The woman was indeed a splendid type of a wife, and she rendered in that relation all kinds of domestic service and drudgery that a wife is not ordinarily required to perform. We quote from appellant’s brief:

“Mr. Frame had been married prior to his marriage to Mrs. Fannie S. Frame, and had five children by his prior marriage. Mrs. Fannie. S. Frame was a school-teacher prior to her marriage to Mr. Frame. They were married on January 29th, 1907, and lived together until his death on May 1st, 1925. At the time of their marriage Mr. Erame was about 71 years of age. He was 89 at the time of his death. At the time of their marriage he owned 828 acres of land in Bexar county, upon which they established their home. Mrs. Erame was a willing worker. The evidence disclosed that she did her house work, cooked for hired hands, kept' the books, looked after the collection of rents, helped look after the grubbing of more than 200 acres of land, often made trips to town to buy parts for plows annd farming implements, and. made one or two trips to town each week for eighteen years to peddle butter. She did most of her washing and ironing. She had to frequently go to the blacksmith shop. She hauled most of the seed that was used on the farm, hauling 500 or 000 pounds at a time. Mr. Erame had considerable property and was amply able to have hired some one to do the extra work Mrs. Erame was required to do.
“Hugh Stanfield testified, about the kind and character of work he had seen Mrs. Frame do. At one time he heard Mr. Frame tell her to hurry up with her dinner and as soon as dinner was over to go down and get the mowing machine and get it fixed. He also testified to having seen her going to town once or twice a week with butter.
“As shown by bill of exception he heard Mr. Frame say, ‘She can slash around and do more work than any woman. I ever saw; I have given her a note for $5,000.00' payable after I croak.’
“Mrs. Frame’s mother also testified as to the hard, work Mrs. Frame performed.
“A child was born to Mr. and Mrs. Frame in December, 1922, after the note was executed on April 19th, of the same year.”

This is a remarkable case; it is one in which the husband and wife were unusual companions and helpmates. Though he was fairly compensating her by giving her the note for $5,000 and a life estate in his property, still it may be, had he not given her the $5,000 note, he would have given her a fee-simple title to the land in lieu thereof. He knew and felt his obligation to the good wife more deeply than any one else could realize. They were congenial and happily mated.

It is true, as Mr. Chief Justice Brown said in Grigsby v. Reib, 105 Tex. 597, 158 S. W. 1124, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011: “Marriage is not; a contract, but a status created by the mutual consent of one man and, one woman.” And the Good Book further recognizes the institution and says that those whom God hath joined together let no man put asunder. It is fully recognized by all our laws and is the most sacred obligation ever assumed by man and woman.

If she had not given her life, labor, and devotion to her old husband, he would have had to employ some one to do the work, for nothing but her volition could have compelled her to do it.

There is no inhibition against a husband conveying property to his wife. In Sparks v. Taylor, 99 Tex. 424, 99 S. W. 489, 6 L. R. A. (N. S.) 381, our Supreme Court has said: “The cases cited,, as well as others which might be referred to, establish as the law in this state these propositions: (1) The husband may enter into contracts with his wife concerning their property rights. He may purchase land from her and may sell land to her. He may borrow money from her, and he may pay the debt, just as he would to any other creditor. He may become her trustee or agent for the investment of funds which belong to her, the same as he may assume those relations to any other person. In fact, his power to contract with her seems to be limited only by her incapacity to convey land to him because of the fact that he cannot join her in the conveyance. (2) A married woman may, when joined by her husband, sell or mortgage her separate property. She may, with her separate funds, buy real or personal property from her husband or another, which will be her separate estate. She may borrow money, and by mortgage bind her separate estate for its payment, or she may make her separate property surety for her husband’s debt or for the debt of a third person with her husband’s concurrence.”

In the case of Taylor v. Leonard (Tex. Civ. App.) 275 S. W. 135, the court said, in part: “What are commonly called the disabilities of coverture are not, in fact, civil disqualifications inherent in the female sex, nor are they a necessary or «natural sequence to the assumption of the marriage relation. In the absence of some positive law to the contrary, the right of contract is a necessary incident to the right to own and hold| property. The law does not prohibit a married woman from contracting. She commits no offense by making contracts, or by performing them. What the common law does is to relieve her of personal liability upon certain kinds of contracts which are binding on all others who are sui juris. The law does not undertake to penalize her marriage, but to protect her after marriage from the usual legal consequences of her business engagements. Her contracts are not void, but only voidable. It is not the aim of the law to impose a burden, but to grant an immunity designed for her good.”

In the case of Pitts et al. v. Elsler, 87 Tex. 347, 28 S. W. 518, the Supreme Court ruled: “In this state the right of a married woman to acquire and. hold property, real and personal, either by gift, devise, descent, or purchase, is as absolute as that of her husband. She may, with his consent, mortgage her real estate to secure his debts, or she might give her personal property to him, or to any other person. If she contract to buy oh a credit, and execute a note for the price, she may or not, as she may elect, proceed with the contract, and the person contracting with her cannot refuse to carry out the agreement because she is a married woman. If she elect to abandon the contract, she cannot be compelled * * * to complete the unexecuted part of the. contract; but when she elected to abandon the trade she must determine for herself, as if she were a man, whether it was to her advantage to refuse to proceed, and, having so decided, she has only such remedies as a man would have had under the same state of case. It would be a novel casé for a plaintiff to allege that the defendant had done no wrong in the transaction, but that, because she was not bound to carry o.ut her agreement, she was entitled to relief against her own deliberate act, which was lawful in itself, or, if unlawful, would not put the defendant in the wrong. If she is damaged by the result, she had it in her power to have protected herself by paying the remainder of the price and taking. the goods; and if the property purchased was not, in her opinion, of sufficient value to justify this, she has the advantage, over a man, of abandoning the contract, and escaping responsibility for other damages than the sum advanced.”

The trial court concluded that the defendant’s recovery of $1,000 should be offset by the twelve months’ maintenance allowance of $600 and by the expenses in the sum of $400 paid by plaintiff on account of funeral and last illness of the deceased; and that no recovery can be had by either party on account of these items; and that an offset should be made of the value of the bond against the last item of $504.25. We believe this to be a just and fair disposition of the accounts between the parties, and therefore affirm it.

The most important feature in this case is: Shall the appellant recover on the note? From what has been said it will be seen that we believe the note to be a valid and binding obligation and that appellant is entitled to recover thereon.

The judgment of the trial court is reversed, and judgment is here rendered for appellant as above set out.

Reversed and rendered.


author: HIGHTOWER, O. J.

text:
    LINN MOTOR CO. v. WILSON et al.
    (No. 1820.)
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 27, 1929.
    Orgain & Carroll, of Beaumont, for appellant.
    O. M. Lord, of Beaumont, for appellees.
   HIGHTOWER, O. J.

Tbe plaintiffs, J. O. Wilson and bis wife, brought this suit against appellant, Linn Motor Company, to recover damages for personal injuries alleged to have been sustained by Mrs. Wilson, as the result of a collision between an automobile in which Mrs. Wilson was riding and a motortruck driven by one of appellant’s employes. The petition alleged, in substance, that about 5 o’clock p. m. on October 27, 1927, Mrs. Wilson and her daughter were traveling south on Sabine Pass avenue in the city of Beaumont, and that when their automobile reached the intersection of Sabine Pass avenue and Railroad avenue the automobile, which was being driven by Mrs. Wilson’s daughter, was brought to a stop, in compliance with an ordinance of the city, and that while the automobile was stopped, a heavily loaded motor-truck, owned by appellant and driven by one of its negro employes and going in a southerly direction on Sabine Pass avenue, ran into Mrs. Wilson’s car at the rear thereof, with great force and violence, thereby seriously and permanently injuring Mrs. Wilson; the nature and extent of her injuries being specified in detail. It was alleged in the petition, in substance, that the driver of appellant’s motortruck was guilty of negligence, which proximately caused Mrs. Wilson’s injuries in four particulars, to wit: (a) That appellant’s motortruck was being driven, at the time of the collision, in excess of 20 miles an hour, which was in violation of an ordinance of the city of Beaumont, (b) That appellant’s driver of the motortruck failed to bring the same to a stop when the truck arrived at the intersection of Sabine Pass avenue and Railroad avenue, as was required by an ordinance of the city of Beaumont, (e) That appellant’s driver failed to keep a proper lookout as the motortruck approached the intersection of the two streets, (d) That appellant’s driver failed to have the motortruck under proper control at the time of the collision.

Appellant answered by general denial and specially averred that if Mrs. Wilson was injured, as alleged in her petition, appellant’s negligence, if any, was not the cause thereof, but that her injuries were caused by the negligence' of her daughter, who was driving Mrs. Wilson’s automobile at the time, and that the daughter’s negligence was the sole proximate cause of her injuries.

The case was tried with a jury and was submitted upon four special issues for the plaintiffs, in answer to which the jury found in favor of plaintiffs as to all of these issues. In other words, all the acts and omissions charged against appellant by plaintiffs, as above stated, were submitted for the jury’s consideration, and the jury found that the appellant was guilty of negligence as to each act and omission charged, and that each was a proximate cause of Mrs. Wilson’s injuries. The jury further found, in answer to a proper special issue, against appellant on its contention that Mrs. Wilson’s injuries were caused by the negligence of her daughter, who was driving her automobile.

Upon the verdict as returned the trial court entered judgment in favor of Mrs. Wilson in a lump' sum for $10,000, with interest at the rate of 6 per cent, from date thereof, and it is from this judgment that this appeal is prosecuted.

The trial court, in the instructions to the jury, after telling the jury that the case was submitted to them, upon special issues and that the jury were the sole and exclusive judges of facts proved, the credibility of the witnesses, and the weight to be given their testimony, but that they would receive the law of the case from the court as was given in the charge, then gave the jury the following charge on the burden of proof: “The burden of proof rests upon the plaintiffs to establish by a preponderance of the evidence of the facts necessary to their recovery.”

Counsel for appellant in due time tendered to the trial court objections to the charge on the burden of proof, as follows:

(a) Said charge is unintelligible and is calculated to cause the jury to return an erroneous verdict.
(b) Because said charge requires the jury to find the facts necessary to a recovery in favor of the plaintiffs, then to answer the issues in' such way as'to give the plaintiffs a verdict. ■
(c) Because it permits the jury to set up their own standard as to what facts are necessary for the jury to find in order to permit the plaintiffs to recover' and is a charge on a mixed question of law and fact, requiring the jury to find the facts that as a matter of law would entitle the plaintiffs to recovery rather than to only be concerned with the facts in the case.
(d) Because said charge is too general and indefinite to guide the jury in their deliberation and in their findings of fact.
(e) Because said charge as worded is calculated to cause, and probably will cause, an improper verdict on the part of the jury and is calculated to be confusing to the jury.

The court overruled these objections, and its action in doing so is properly assigned as error by appellant.

According to the authorities in this state, relative to this question, the court was in error in giving the charge' on the burden of proof, as above shown, and for that reason the judgment in this case must be reversed. Where this character of charge has come before any of our appellate courts, it has been condemned as reversible error, where the case was submitted "upon special issues. It would serve no useful purpose for us to discuss this matter at length, because the reasons for condemning this charge are stated in the following authorities: Wootton v. Jones (Tex. Civ. App.) 286 S. W. 680; M. K. & T. Ry. Co. v. Thomason (Tex. Civ. App.) 3 S.W. (2d) 106; Morris v. Davis (now Nelson) Agent (Tex. Civ. App.) 3 S.W.(2d) 109. In the last-cited case it was the plaintiff who was complaining of the character of charge that we are now considering, and the appellate court held the charge to be reversible error, and a writ of error was granted by our Supreme Court in that case, but the judgment of the Court of Civil Appeals was affirmed, 13 S.W. (2d) 63.

It is earnestly insisted by learned counsel for appellees that even if the court’s charge on the burden of proof here complained of was error, it was harmless to appellant for the reason, as counsel contends, that the undisputed evidence in this case showed that appellant’s driver was guilty of negligence in all respects as found by the jury, and that such negligence was the proximate cause of Mrs. Wilson’s injuries. We cannot agree with counsel for appellees in this, because in order to do so we would have to say that the record in this ease shows as a matter of law that appellant was liable to Mrs. Wilson to the full extent of the judgment recovered by her. This we are unable to say, and must therefore sustain appellant’s assignments challenging the court’s charge on the burden of proof.

Plaintiffs laid their damages in this ease at $60,000, all of -which amount they alleged was for injuries sustained by Mrs. Wilson, with the exception of $3,000, which amount plaintiffs alleged they had paid and obligated themselves to pay for physician’s services in treating her and for medicines in her treatment. Issue No. 19 submitted to the jury was as follows:

“What sum of money, if paid now in a lump sum, would fairly compensate plaintiffs for the injury and damages, if any, sustained by airs. Wilson?
“Answer by giving the amount in dollars, if you find that the plaintiffs have sustained damages; or answer ‘none,’ if you find that no damages were sustained.
“In answering this question, you may take into consideration the mental and physical pain and suffering, if any, that plaintiff has suffered, if any, from the time of the injury, if any, to the present time, as well as the future suffering, if any, and the loss or impairment of her earning capacity, if any.
“You may also take into consideration the money paid, if any, for the fair value of physician’s services from the time of the injury to the present time. ⅜ * * ”

To the last paragraph of this charge counsel for appellant in due time tendered objections to the court on the ground that there was no testimony in the case showing that the amounts paid or promised to be paid by plaintiffs for physicians’ services or medicine were reasonable charges therefor. The court overruled this objection, and counsel for appellant have assigned that action as error. The only testimony in the record bearing upon this point was that of Mrs. Wilson herself, which was, in substance, that she and her husband had paid out for physicians’ services and medicine in treatment of her injuries between $800 and $1,000. She stated that for a long time after she was injured she had to have the services of a physician on an average of two or three times a day, and that she has been treated by physicians and compelled to buy medicine ever since she was injured in this collision. There was no testimony by any physician upon this point, nor from any other source as to the reasonableness of.the charges made by physicians or as to the reasonableness of the charges for medicine. This being so, there was no evidence before the jury upon which to base the instructions here complained of by appellant, and its objection should have been sustained. Counsel for appellees makes the contention in this connection that the charge here complained of by appellant was not erroneous because, as counsel contends, the jury were authorized to infer from Mrs. Wilson’s testimony, as we have stated it, that the amounts paid to physicians and for medicine in treatment of her injuries were reasonable charges, in the absence of any showing to the contrary. We cannot sustain counsel in this contention, because the authorities in this state are to the contrary. In the case of Corpus Christi Ry. & Light Co. v. Baxter (Tex. Civ. App.) 217 S. W. 187, the court had before it this very question and disposed of it as follows: “The court submitted as elements of damage expenses incurred for medical attendance and for medicines. The charge was objected to as to each item on the ground that there was no evidence that any expenses of either kind were reasonable. We conclude that under the rule established by our decisions, such evidence is necessary, and that it cannot be inferred that expenses are reasonable from the fact that the sums were exacted.” See, also, Houston & T. C. Ry. Co. v. Rowell, 92 Tex. 147, 46 S. W. 630; Wheeler v. Ry., 91 Tex. 356, 43 S. W. 876; M., K. & T. Ry. v. Bellew, 22 Tex. Civ. App. 264, 54 S. W. 1079. It is clear from these authorities that the trial court was in error in permitting the jury to take into consideration expenses that had been incurred by the plaintiffs in treating Mrs. Wilson, because there was no evidence before the jury upon which they could arrive at any conclusion in that connection.

We have not overlooked the fact that counsel for appellant challenges the court’s charge as being subject to the construction that it allowed the jury to award double dam-' ages in this’case, but we conclude that this contention cannot, be sustained and overrule it. We also overrule all other contentions made by counsel for appellant with the exception of their criticism of the court’s definition of the term “proximate cause.” The court defined “proximate cause” as follows: “ ‘Proximate cause’ as tliat term is’ used in this charge means the moving and efficient cause, without which the injury in question would not have happened. An act or omission becomes the proximate cause of any injury whenever such injury is the natural and probable consequence of the act or omission in question and one that ought to have been foreseen by a person of ordinary care and prudence in the light of attending circumstances.” Counsel for appellant contended that this definition of “proximate cause” was not a sufficient and complete definition of “proximate cause,” in that it omitted the necessary element therefrom of the intervention of a new or independent cause. As an abstract proposition, counsel for appellant are right in their criticisms of the court’s definition of “proximate cause” as given, but whether the inaccuracy or incompleteness of the court’s definition of “proximate cause” would of itself be reversible error in this ease, we shall not undertake to determine, because in all probability this question will not arise upon another trial.

Counsel for appellant in due time also objected to the court’s definition of “proximate cause,” on the ground that it failed to define what the court meant by the term “moving and efficient cause” as used in the definition. It is counsel’s contention in this case that the term “moving and efficient cause” is a legal term that is not understood by the ordinary juror, and that the court should have defined this term in order that the jury might have a complete definition of the term “proximate cause.” This question will probably not arise upon another trial, and for that reason we decline to say whether or not the failure of the court to define the term “moving and efficient cause” was reversible error, if error at all. We are aware that the statute makes it the duty of the trial judge to define in his instructions to the jury such-legal terms as may be necessary to guide the jury in making answers to special issues; but, as stated, it is unnecessary that we determine that the failure of the court complained of -in this connection was error. We are aware that some of our courts have gone very far, in our opinion, in holding that trial courts were in error for failure to define legal terms, and we are unwilling to go any farther in that direction than other courts have already gone. Upon another trial of this case, if there be any, the trial court can obviate this criticism by giving to the jury the well-understood and often approved definition of -the term “proximate cause” as applied in cases of this nature. He should tell the jury that the “proximate cause” of an injury, as used in cases of this character, is that cause which in a natural and continuous sequence, unbroken by any new independent cause, produces the injury, and without which the injury would not have occurred, and from which it ought to have been foreseen or reasonably anticipated by the defendant, in the exercise of ordinary care that the injury complained of, or some similar one, would result naturally and probably, in the light of the attending circumstances.

The judgment is reversed, and the cause remanded.