author: HODGES, J.

text:
    BEARD v. INTERNATIONAL & G. N. RY. CO.
    (No. 1348.)
    of Civil Appeals of Texas. Texarkana.
    Dec. 4, 1914.
    Rehearing Denied Dec. 17, 1914.)
    1.Tbial (§ 252) — Requested Instructions— Applicability to Evidence.
    Where an agent in charge of a car of ■bananas traveled on a nontransferable pass, issued to his principal, to a junction point, with the consent of the. conductor of the branch train, and was there injured while the car was being coupled onto a train on the main line, a requested charge that if the agent presented the pass believing he had a right to ride thereon, and it was accepted by the conductor knowing that he was the agent of the person named therein, the agent was a passenger, was not applicable to the evidence, since the conductor of the train •on which he was injured had not consented to his riding.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    2. Cabriers (§ 244) — Carriage of Passengers — Acquiescence oe Conductor.
    One who took charge of a car of bananas as the agent of another, and attempted to travel along with the car on a nontransferable pass issued to his principal, not believing that he had a right to ride thereon, but only that the train employes would permit him to do so, is not a passenger toward whom the law owes a high degree of care, but at most a licensee, since the railroad company cannot be bound by the acts of its conductors in accepting persons for passage when done in violation of law or of the known rules of the company.
    [Ed. Note. — For other eases, see Carriers,' Cent. Dig. §§ 1115, 1116; Dec. Dig. § 244.]
    3. Carriers (§ 246) — Carriage of Passengers — Burden of Proof — Existence of Relation.
    One who attempts to ride on a nontransferable pass issued to another has the burden of showing that he was accepted by the carrier as a passenger.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1275, 1284, 1296; Dec. Dig. § 246.]
    4. Appeal and Error (§ 1064) — Harmless EteROR — Instructions — Unnecessary Instructions.
    Where a person, injured while accompanying a car of fruit, was a licensee, not a passenger, because traveling on a nontransferable pass issued to another, an instruction that he was not a passenger because he had the car stopped at a place not authorized by the bill of lading, while unnecessary, was not prejudicial to plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    5. Trial (§ 252) — Instructions — Applicability to Evidence.
    In an action for injuries received by a licensee while in a railroad car, an instruction that the plaintiff could not recover for any defect in the brake was proper, where there was evidence that the brake was defective, but no evidence that there was any attempt to use the brake, since the defect could not have been the proximate cause of the injury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    6. Trial (§ 260) — Requested Instructions —Repetition.
    The court should not give a special charge embodying the same instructions that were previously given in the main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    7. Appeal and Error (§ 499) — Presenting Questions in Lower Court — Objections to Charge.
    A bill of exceptions to the giving of a special charge should show that the particular objection urged on appeal was called to the attention of the trial court as required by Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59 (Vernon’s 'Sayles’ Ann. Civ. St. 1914, art. 1971), although the language of that article mentions only the general charge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-229S; Dec. Dig. § 499.]

      Appeal from District Court, Rusk County; W. C. Buford, Judge.
    Action by John A. Beard against tbe International & Great Northern Railway Company. Judgment for defendant and plaintiff appeals.
    Affirmed.
    Beard & Davidson, of Marshall, and J. Y. Gray, of Henderson, for appellant. Wilson, Dabney & King, of Houston, and Morris & Sims, of Palestine, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HODGES, J.

This is an action by the appellant to recover damages for personal injuries.

On October 31, 1911, H. M. Turner shipped over the appellee’s road from Galveston a car load of bananas consigned to himself at Longview, Tex. The bill of lading contained the following notation:

“Mr. H. M. Turner, as a messenger in charge of the following cars loaded with bananas: R. D. 9174; and is entitled to accompany any one or all of these cars, to waybilled or to substitute destination in case of reeonsignment. He has been furnished with return transportation over the International & Great Northern, Missouri Pacific.Railroads, and no additional return transportation should be furnished over those lines, but return transportation should be furnished over all other lines interested in the going movement. H. M. Turner holds I. & G. N. local ticket No. 216, Longview to Galveston.”

Across the face of the bill of lading was stamped the words, “Copy — Not Negotiable.” The waybill contained the same notation, and also showed that the privilege of stopping and partially unloading at Henderson, Tex., was allowed. After the arrival of the car at Henderson it was stopped about two days, during which time a portion of the fruit was unloaded. Turner, desirous of sending the car on to Longview, employed the appellant, Beard, to accompany it in his stead. In order to reach Longview the car had to be transported over a branch road to Overton, there to connect with the main line of the International & Great Northern Railway. A delay at Overton of several hours occurred by reason of the schedule of the railway company. When this car reached Overton it was placed upon what was called the “house track” to await the next freight going north. According to the testimony of the appellant, he then opened the doors, and proceeded to sell the fruit, and did sell a quantity of it before the arrival of the freight train that was to carry him on to Longview. When this train came, the engine was detached, coupled to the fruit car, and pulled it north a short distance beyond the depot. The car was then released from the engine and permitted to roll down toward a number of other cars, with which it collided. Appellant remained in the fruit car during this time, and the collision, he says, was so violent that it threw him against the end of the car, and inflicted the injuries of which ,he complains. Appellant testified that, before he left Henderson, Turner delivered him the bill of lading containing the transportation issued to him, Turner, and directed appellant to use it. He exhibited this to the conductor on the branch road from Henderson to Overton, and it was accepted. He testified that this conductor knew both him and Turner; but it is undisputed that the conductor on the main line, where the injury occurred, did not know him.

The court, in effect, instructed the jury that the appellant was not a passenger, but a licensee, and that he was entitled to the exercise of ordinary care on the part of the railway employés, for his protection, that if he was injured as alleged by the negligence of such employés, to return a verdict in his favor, unless the appellant was guilty of contributory negligence. The jury returned a verdict in favor of the railway company.

Among other instructions,. the court gave the following:

“The written contract introduced in evidence between the railway company and H. M. Turner shows that the said H. M. Turner was permitted under the terms of his contract to have transportation along with said car of bananas from Galveston to Longview with stop-over privileges at Henderson, but that said transportation was not transferable, and as a matter of law the plaintiff, John A. Beard, could not legally and lawfully ride upon said transportation.
“In the waybill and other papers offered in evidence, it appears that Henderson was the only place at which a stop-over privilege was allowed under the contract. The contract, however, provides that other points may be substituted and. other points agreed to by said Turner paying some additional amount and complying with certain other requirements under the contract; but this appears not to have been done; so as a matter of law the plaintiff had no legal right to be transported under this contract, nor had the plaintiff the legal right to have the car of bananas stopped at Overton and placed upon the side track and to make sales from said car. Therefore the relation of carrier and passenger did not and could not, under this contract, exist between the parties.
“However, if you find from the testimony that I-I. M. Turner had control and possession, under this contract which has been offered you in evidence, of the car of bananas with stop-over privileges at Henderson, and that the plaintiff, John A. Beard, was employed by the said Turner to aid and assist him in selling fruit from said car, and in managing the business and caring for the fruit, and that the railway company knew said fact and permitted the plaintiff, John A. Beard, with such knowledge and consent, to ride in said car and care for said fruit and to sell the same at Overton, and transported him from Overton to Longview without demand of further compensation, then you are instructed that the plaintiff, John A. Beard, would be what in law is called a licensee; that is, although he had no legal right to demand said privileges to sell said fruit from said car, still if the company, by its agents or servants, with knowledge of these facts, permitted him to ride in said car and sell fruit from the same, and be transported over the road, he would not be a trespasser, but would be what is called a licensee.”

The objection to these charges is that they assumed as a matter of law that Beard was a mere licensee, and toot a passenger, and therefore was not entitled to that high degree of care winch, common carriers owe to their passengers.

In a special charge requested and refused, the appellant urges the proposition that if Beard presented the transportation to the conductor believing that he was thereby entitled to'ride upon the train of the defendant, and the conductor accepted the transportation and permitted Beard to ride upon the train, knowing that he was the agent of Turner, to care for the fruit, then Beard was a passenger and entitled to the; high degree of care which the law accords to passengers. Such an instruction could only he applicable to the conditions under which appellant traveled from Henderson to Overton; for it is not contended that the conductor on the main line saw the pass, or knew the identity of the appellant, or that he was not Turner. In their brief, counsel for the appellant quote the following from the testimony of the conductor:

“I did not tell him to get out of the car. I knew he was there when we started the car * * * to couple into it. * * * I did not take up his ticket. I did not ask him anything more about any ticket, or anything, or any transportation. * * * I asked him if he was in charge of that car of stuff; I saw a notation on the waybill that there was a man in charge; of course I did not know who it was; I did not recognize the name.”

The question is, Was appellant entitled to an instruction telling the jury that he was a passenger, or one submitting that issue to the jury, to be determined by his good faith in believing that he had a right to use the transportation issued to Turner? Assuming that a charge instructing the jury that negligence in this instance was the failure to exercise the highest degree of care for the appellant’s safety, instead of making ordinary care the test, might have led to a different verdict, still we do not think there is here presented any error of which the appellant could complain. One who boards a car with the intention of using transportation which does not entitle him to passage cannot claim tó be a passenger, in the legal sense, till after he has been accepted as such. Way v. Ry. Co., 64 Iowa, 48, 19 N. W. 828, 52 Am. Rep. 431; Ry. Co. v. Beggs, 85 Ill. 80, 28 Am. Rep. 613; Ry. Co. v. Headland, 18 Colo. 477, 33 Pac. 185, 20 L. R. A. 822. According to appellant’s own testimony, he had ridden from Henderson on the pass issued to Turner, and expected to continue his journey on the same transportation. The injury occurred before the train left Overton, and even before the car. in which he was riding had been incorporated into the train. The conductor, who did not know Beard, saw from the waybill that Turner was permitted to accompany the car as the caretaker. He asked Beard if he was the man in charge of the car, and naturally assumed that he was the man designated in the waybill. ■ The only legitimate inference is that Beard was allowed to remain in the car because he had failed to make known his identity. But the appellant contends that he would be entitled to be treated as a passenger if he in good faith entered the car believing that he had a right to be carried on that transportation. That might be true if there was any ground for such a belief in the evidence. Appellant does not say in his testimony that he entertained any such belief; neither does he say that he intended, in the event the pass was not honored, to pay his fare. Upon its face the pass gave notice that it was good only in the hands of Turner, and there is nothing to indicate that the appellant did not fully understand that fact. He may have believed that the conductor would carry him notwithstanding he was not entitled to use the pass, or that he would accept him with the impression that it was Turner who was presenting the transportation. But such conduct would not give him the status of a passenger, because Beard knew the conductor would have no right to make such a substitution. Article 1533, Pen. Code 1911, excepts from the general prohibition against free transportation by railways “the necessary caretakers” accompanying shipments of “live stock, poultry, fruit, melons, or other perishable produce.” The proper railway officers had in this instance designated the individual who should accompany this car of fruit, and the appellant must have known that a freight conductor had no authority to substitute another person for the one named, or to carry still another caretaker. The railway company cannot be bound by the unauthorized acts of its conductors in accepting persons for passage when done in violation of the law or known rules. T. & P. Ry. Co. v. Black, 87 Tex. 160, 27 S. W. 118.

the circumstances attending this injury the burden was upon Beard to prove that he was entitled to be treated as a pas-pasBut he shows no facts which justify an inference that he was knowingly permit-permitto use transportation to which he was not entitled, or that he intended in any event to pay his fare to Longview.

In the ease of S. P. Co. v. Schuyler, 227 U. S. 601, 33 Sup. Ct. 277, 57 L. Ed. 662, 43 L. R. A. (N. S.) 901, it was held that the fact that an interstate passenger was being transported free in violation of the act of Congress did not exonerate the railway company from liability for negligence. An examination of the facts in that case shows that the free transportation being used by the deceased was such that both the railway company and the deceased might have believed in good faith that it came within the exceptions provided. But the question there was, Did the deceased occupy the status of a trespasser, by which he forfeited the right to even ordinary care? Justice Pitney, in rendering the opinion of the court, says, that the right to safe carriage “arose from the fact that lie was a human being of whose safety the plaintiff in error had undertaken the charge.” The judgment affirmed that of the Supreme Court of Utah, where the case was discussed at considerable length, in concluding the opinion, Chief Justice Straup of that state used the following language:

“A mere intruder or trespasser, of course, cannot create the relation of carrier and passenger by his own act. Nor can one create such relation by fraudulently or deceitfully making an unauthorized use of a commission, pass, ticket, or the like, nor by likewise gaining his presence on the train by fraud or deceit, or through collusion or connivance with mere train crews.” Schuyler v. S. P. Co., 37 Utah, 581, 611, 109 Pac. 458, 470. -

In this case, the bill of lading provided for only one stop-over privilege. That had been exhausted by the stop at Henderson, and Beard had no legal right to open the car and sell fruit therefrom at Overton. We fail to see how the charge upon that feature of the case operated to the injury of the appellant, although not necessary to the proper determination of the real issues involved.

At the instance of the appellee the court gave the following charge:

“You are instructed that the plaintiff in this case cannot recover on account of any defect in the brake or brake-rigging by which the car could have been controlled; and if you find from the evidence that on account of a defective brake .or brake-rigging the car was caused ’to bump into another ear, and that he was thus injured, then it will be your duty to return a verdict for the defendant.”

According to Beard’s testimony the car in which he was riding at 'the time of the injury was equipped with a defective hand brake. He admitted that he knew of that defective condition of the car before it left Henderson, and knew that it still existed when he remained in the car at Overton. There is no evidence that this defect caused the injury, further than Beard’s testimony concerning the statement of a brakeman at Overton. Beard testified that after the collision which caused his injuries, he got out of the car and inquired what was the matter, and a brakeman told him that the brakes on the car would not hold anything. There is no testimony that any attempt was made to use those brakes for the purpose of holding the car on that occasion. Beard testified that the car was pulled north and turned loose from the engine, and that it then rolled down towards the others, with which it collided. Even if this charge stated an incorrect proposition of law, the error, if any, was harmless because of the insufficiency of the facts to justify a finding that the defective equipment of the car was the proximate cause of the collision.

Appellant also complains of the charge of the court on the. issue of contributory negligence. It is contended,1 in, the first place, that the facts do not raise that issue; and in the second, that the special charge was but a repetition of what the jury had already been told in the main charge, and that it placed undue emphasis upon the issue of contributory negligence. It is true the court should not have embodied the same instructions in a special charge which had previously been given in the main charge, but we do not think, under the facts of this case, that the error operated to the prejudice of the appellant.

Moreover, the bill of exception reserved to the giving of this special charge does not comply with the provisions of article 1971, Rev. St. 1911, as amended by the acts of 1913. See Acts 1913, p. 113. The bill should show that the particular objection here urged was called to the attention of the court before the charge was read to the jury. The parties are restricted on appeal to the objections there made. It is true that the language of the article referred to mentions only the general charge as the one to be objected to under such conditions, but the spirit of the law would apply the same rule to special charges which are given at the instance of one of the parties. See Ry. Co. v. Wadsack, 166 S. W. 42.

The testimony as to the circumstances under which the injury occurred is conflicting. That offered by the appellant tended to show that* the car was detached from the engine and permitted to violently collide with other cars. That offered by the appellee tended to show that there was no such collision, that the car moved slowly and gently down to the other cars, and the coupling made without any unusual jar. There was also testimony from which the jury might have found that the appellant was injured at Henderson before he reached Overton.

We find no error which justifies the reversal of the judgment, and it is accordingly affirmed.


source: Caselaw Access Project

author: ’McMEANS, J.

license: Public Domain

text:
    HOUSTON OIL CO. OF TEXAS v. SUDDUTH et al.
    (No. 6679.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 21, 1914.
    Rehearing Denied' Dec. 17, 1914.)
    1. Lost Insteuments (§ 23) — Actions— Lost Deed — Evidence.
    Where, in trespass to try title, plaintiffs claimed under an alleged deed from the patentee to F., which they were compelled to prove by circumstances, evidence of a chain of title to 800 acres of the same survey but not a part of the land in controversy, beginning with a deed from the same F., and evidence of another chain of title to other portions of the survey which failed to connect with the sovereignty of the soil, the deeds having been of record for many years and the parties having long since died, were admissible as circumstances to- prove the execution of the alleged deed from the patentee to F. . . „
    [Ed. Note. — For other cases, see Lost Instruments, Cént. Dig. §§ 51-57; Dec. Dig. .§ 23.J

      2. Lost Instruments (§ 23) — Actions—Lost Deed — Evidence.
    Where an alleged administrator’s deed in plaintiff’s chain of title was claimed to have been lost, a certificate by the administrator, reciting that in the year 1843 or 1844 he, as administrator of the decedent’s estate, executed to S. a conveyance of the land in controversy, was not a mere ex parte statement, but was admissible as a circumstance to show that the patentee had previously conveyed the land to the intestate.
    [Ed. Note. — For other cases, see Lost Instruments, Cent. Dig. §§ 51-57; Dec. Dig. § 23.]
    3. Executors and Administrators (§ 275)— Real Property — Sale — Exchange por Claims.
    Act Feb. 3, 1844 (Gammel’s Laws, p. 990; Hartley’s Dig. art. 1075), provided that an administrator with the consent of the court and creditors, or the court without the creditors’ consent, may apportion the assets to the creditors in settlement of their claims. Helé that, where an administrator, executed a certificate dated August 21, 1850, declaring that “some time in 1843 or 1844 he conveyed certain land in controversy alleged to belong to the estate, to S. and his heirs, in consideration of all the claims of S. against the intestate’s estate,” the deed being lost, it would be presumed in support of the transfer that the conveyance postdated the statute, and was therefore based on legal authority; it appearing that the probate record had been destroyed by fire.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1076-1091, 1093, 1094; Dec. Dig. § 275.]
    4. Tenancy in Common (§ 55) — Possession as Against Trespasser — Deeds—Insufficient Certificate.
    Where defendant, as tenant in common, claimed under a deed sufficient in form, but defective only with respect to the certificate of acknowledgment, and the grantors and their heirs for more than 50 years recognized the deed as valid, and did not join in a suit by another cotenant to recover the land, or otherwise repudiate the conveyance, defendant was not a trespasser, within the rule that a tenant in common may recover the whole tract against a trespasser.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 140-156; Dec. Dig. § 55.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Trespass to try title by Katie V. Sudduth and others against the Houston Oil Company of Texas. Judgment for plaintiffs, and defendant appeals.
    Affirmed in part, and reversed and rendered in part.
    Hightower, Orgain & Butler, of Beaumont, H. O. Head, of Sherman, and Parker & Ken-nerly, of Houston, for appellant. John B. Warren, of Houston, for appellées.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   ’McMEANS, J.

This is an action of trespass to try title, brought by the plaintiffs, Katie V. Sudduth and others, against the Houston Oil Company of Texas, to recover an undivided two-fifths interest in 250 acres of land, part of the Lewis Donaho one-half league and labor, in Newton county, and for the possession of the entire 250-acre tract. The case was tried before the court without a jury, and resulted in a judgment for the plaintiffs for the title to the two-fifths interest sued for, and declaring defendant a trespasser, and awarding plaintiffs a writ of possession for the entire 250 acres, and decreeing that “all right, title, or interest of defendant to the whole of said land be divested out of defendant and vested in plaintiffs.” From this judgment the defendant has appealed.

The appellant and appellees claim title to the land in controversy through a common source, to wit, H. W. Sudduth; the appellees claiming two-fifths interest. The appellant claimed three-fifths interest by virtue of a quitclaim deed from three of the five heirs of H. W. Sudduth and his wife, Sarah Sud-duth; the said three heirs being married women, who were joined by their husbands in the execution of the deed. As the title claimed by the respective parties was from the common source, it would not be necessary to go behind the common source, except for the fact that the appellant also claims under a deed executed by the heirs of Lewis Donaho to it in 1893. The common chain of title of both parties is as follows: (1) Patent from the state of Texas to Lewis Donaho. (2) Deed from Lewis Donaho to William McFarland. This deed was proved by circumstances. (3) Deed from Thos. S. McFarland, administrator of the estate of William McFarland, to Seth Swift. (4) Deed from Seth Swift to H. W. Sudduth, the common source. This deed was also proved by circumstances.

The appellees proved that H. W. Sudduth died in 1853, and that his wife, Sarah Sud-duth, died in 1855, and that they were heirs of said Sudduths through John G. Sudduth, a son, and through Elizabeth Saulberry, a daughter.

The appellant claims an undivided three-fifths interest in the land in controversy: (1) Under a quitclaim deed of three married daughters of H. W. Sudduth, viz., Nancy West, Emily Conn, and Mary Ann Lewis, joined by their respective husbands, to Jesse Dickerson. (2) Deed from Jesse Dickerson to D. R. Wingate. (3) Deeds from D'. R. Win-gate to Charles G. Saunders. (4) Deed from Charles G. Saunders to appellant, Houston Oil Company. Appellant also introduced the chain of title emanating from the heirs of Lewis Donaho, as follows: (1) Powers of attorney from the heirs of Lewis Donaho to Seale & Powell, authorizing them to make sale of the Lewis Donaho survey or any portion thereof. (2) Deed from the heirs of Lewis Donaho, through Seale & Powell, their attorneys in fact, to the appellant, Houston Oil Company, conveying the entire tract of land in controversy.

From the foregoing it will be seen that the appellees claimed title to an undivided two-fifths interest, and the appellant an undivided interest of three-fifths, by a chain of title emanating from Lewis Donaho, the original grantee, and passing into H. W. Sudduth. It was proved that II. W. Sudduth and his wife, Sarah, died Intestate, and that the ap-pellees were their heirs, as were also the grantors in the deed to Jesse Dickerson, appellant’s remote vendor, and that appellant also claimed under a chain of title originating with a deed from the heirs of Lewis Don-aho to D. R. Wingate. But for the defective certificate of acknowledgment to the deed of Nancy West, Emily Conn, and Mary Ann Lewis, three of the five heirs of H. W. Sud-duth and wife, Sarah Sudduth, and to which we shall hereinafter refer, we apprehend that no serious question would be made upon this appeal as to the title of appellant to a three-fifths interest to the land in suit.

Appellant by its first assignment of error complains that the court erred in rendering judgment for the plaintiffs for any of the land in controversy, for the reason that the evidence adduced by plaintiffs i'n the trial was insufficient to establish the execution of deeds from Lewis Donaho, the original grantee, to William McFarland, McFarland to Seth Swift, and Swift to H. W. Sudduth, plaintiffs’ ancestor, the execution of all which was proved by circumstances. It asserts in its proposition that:

“The most perfect proof of long-continued claim, consistent with the existence of a supposedly lost deed from Lewis Donaho down, does not authorize an inference of the existence of such deed, in the absence of facts tending to show acquiescence in such claim by Lewis Don-aho or his heirs.”

Appellant seems to concede that there was such circumstantial evidence introduced by plaintiffs of claim under the original grantee by those in defendant’s chain of title, claiming under plaintiffs’ ancestor and adversely to plaintiffs, as would have warranted an inference that the deeds constituting links in their chain of title existed, provided there had been proof of acquiescence on the part of defendant and its grantors since they acquired the Donaho title in 1893, and of the Donaho heirs prior to that time, but contends that plaintiffs failed to make the requisite proof of acquiescence in the claim relied upon to warrant an inference of the execution of such deeds. We have carefully examined the evidence in record bearing on the issue of. acquiescence, and are of the opinion that the testimony was amply sufficient to raise the issue. To set out the facts in detail would extend this opinion to an unreasonable length, and we therefore, content ourselves with the statement that it is our finding that the evidence was sufficient in that regard.

During the trial the appellees introduced in evidence, over appellant’s objection, a chain of title to 800 acres of the Lewis Dona-ho survey, of which the land in controversy was not a part, beginning with a deed from William McFarland to Lewis J. Miles, dated January 26, 1840, followed by a deed from Miles to Lydia 6. Swift, dated June 1, 1840, and continuing down through the probate proceedings and partition of the estate of Lydia G. Swift and Elizabeth Swift, and deeds made by parties claiming under the Swifts. They also introduced, over appellant’s objection, certain deeds in a chain of title to other portions of the Lewis Donaho survey, which failed to connect with the sovereignty of the soil, including deeds from Alfred West to Jordan Reese, from J. T. Man-gum to Albert Bean, and from J. E. B. Bean and wife to J. T. Bean. All these deeds were introduced as circumstances, in connection with other circumstances, to prove the execution of a deed from Lewis Donaho to William McFarland. The deeds had been on record in Newton county for years, and the parties to all of them had long since died. In addition to the deeds above mentioned the appellees introduced in evidence, also as a circumstance to prove the execution of said deed, an instrument executed by Thomas S. McFarland, administrator of the estate of William McFarland, his father, to Seth Swift, dated August 21, 1850, which is as follows:

“The State of Texas, Newton County.

“Know all men by these presents, that whereas, some time in the year of 1843 or during the year eighteen hundred and forty-four, as administrator of the estate of William McFarland, dee’d, I made to Seth Swift a deed of conveyance; and whereas, the said Seth Swift has certified the same was burned in the destruction of his house, and made affidavit of the fact before J. S. Cochran, a justice of the peace of the county aforesaid: Therefore I make this certificate by way of substitution for the loss of said deed, which embraced and conveyed the following property, viz.: One certain tract or parcel of land situate on Cow creek in the county aforesaid, the headright of Lewis Don-aho, being all of said Donaho's headright situate on Cow creek, after deducting that portion of said tract which was previously sold, which leaves for said Swift fourteen hundred and fourteen acres. For further particulars refer to the original field notes, and deed from said Don-aho to said McFarland, Also, one certificate for two-thirds of a league and one labor of land, the headright of Enis Hardin, granted at Jasper, the 7th day of Dec’r, 1838, No. 502. Also a certificate for (309) three hundred and sixty-nine acres of land, the headright of Corbet Stevens, granted at San Augustine July 7, 1838, No. 957.
“The foregoing property, as specified, was sold and transferred to said Seth Swift and his heirs and assigns forever, for and in consideration of all and singular the claims of said Swift against the said estate of Wm. McFarland, dec’d. To acknowledge and certify which I hereto subscribe my signature and scrawl instead of a seal on this twenty-first of August, A. D. eighteen hundred and fifty.”

We think that the deeds were admissible in evidence as circumstances, along with other circumstances, upon the issue of the execution of the deed from Lewis Donaho to William McFarland. Carlisle v. Gibbs, 44 Tex. Civ. App. 189, 98 S. W. 196; J. M. Guffey Petroleum Co. v. Hooks, 47 Tex. Civ. App. 560, 106 S. W. 695; Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1035. Appellant’s second and third assignments, which raise the point, are overruled.

By its fourth assignment appellant complains of the action of the court in admitting in evidence, over its objection, the instrument executed by Thomas S. McFarland, administrator of the estate of William McFarland, which has hereinbefore substantially been set out in the discussion of appellant’s second and third assignments. The first objection urged is that the instrument, being merely an ex parte statement, was not brought within any exception to the hearsay rule, there being no showing of actual age of as much as 30 years, and that the same was not admissible as a recorded instrument, because not such as is authorized by law to be recorded. The instrument was only one of many circumstances introduced in evidence to prove the truth of the facts therein recited —that is to say, that Lewis Donaho had previously deeded the land to William McFarland — and as such circumstance, in connection with the other circumstances proved, it was admissible in evidence.

A second objection is that plaintiffs’ evidence indicated the existence of' the original of such instrument, and that, therefore, no sufficient predicate for the admission of secondary evidence was laid. On this point we have examined the evidence carefully, and find that a thorough and complete search for the original was made at every place where it reasonably could be expected to be found, and that inquiry was made of every person that reasonably could be expected to know where it was, and that such search and inquiry, although prosecuted with diligence, failed to discover the original.

A third objection is that the instrument shows an invalid administrator’s sale, since it shows that the administrator transferred the property to Swift “in consideration of the claims of Swift against the estate,” and that such transfer was not authorized under the law of its purported date, and no presumption could be indulged that it was confirmed. This objection cannot be sustained. The instrument, which is dated August 21, 1850, recites that “some time in the year 1843 or during eighteen hundred and forty-four” the administrator made the deed of conveyance to Seth Swift, and further recites that:

“The foregoing property, as specified, was sold and transferred to said Seth Swift and his heirs and assigns forever, for and in consideration of all and singular the claims of said Swift against the estate of Wm. McFarland, dec’d.”

The act of February 3, 1844 (Gammel’s Laws of Texas, page 990; Hartley’s Dig. page 345), provides in section 1 thereof:

“That in all cases in which there may be debts due the estate of any deceased person, or property sold by the executor or administrator thereof, prior to the first day of May, eighteen hundred and forty-two, or upon contracts made by the deceased, in his lifetime, and prior to said first day of May, 1842, it shall be the duty of the chief justice of the probate court, upon a representation of the facts, by petition, by the administrator or executor, to cause the creditors of the estate to be notified to appear at some specified term of the court, and have their claim settled. * * * ”

Section 2 provides:

“That when the time for said settlement shall arrive, the court, after ascertaining the amount due to each, and what proportion of their respective claims the estate will be able to pay, shall cause the executor, or administrator (as the case may be), to transfer to each of the several creditors so much of the credits thereof, at their appraised value, as may appear to be their respective proportion: Provided, that the same shall be taken and held to be in full and perfect satisfaction of their claims, to the amount received.”

The third section provides:

“That should any of the creditors be unwilling to receive said credits in satisfaction of their claims, the court shall set apart such proportion thereof as they may be entitled to, and the settlement shall take place as to the other creditors. * * *

If we assume that the conveyance referred to in the instrument under discussion was executed in 1843, then it may be that no title passed to Seth Swift thereby, because of a want of authority in the probate court and the administrator to order and make an exchange of property of the estate for debts owing by it; but if it be assumed that the conveyance was made in 1844, and after the adoption of the act, above copied, on February 3, 1844, then the conveyance for such purpose was authorized by law and passed the title of the estate. The instrument in question says that the deed was made some time in the year 1843 or during the year 1844. We think it reasonable, after so great a lapse of time, and after the probate and other records had, as the record shows, been destroyed by fire, to indulge the presumption that the deed in question was made in 1844, and after the adoption of the act above copied, and that it was made under the authority of the act, and that all the necessary prerequisites thereof had been complied with in order to pass the title to the land out of the estate of William McFarland and vest it in Seth Swift.

The fifth, seventh, eighth, and ninth assignments assail in various ways the action of the court in rendering judgment in favor of ap-pellees for the three-fifths undivided interest claimed by appellant, and' ousting appellant from the possession thereof. It appears that when H. D. Sudduth died administration was had upon his estate, and that in course of time a partition thereof among his heirs was ordered. After this order was made Wm. McF. Lewis, administrator, filed his application requesting that the land in controversy be left out of said partition; and the administrator, joined by Nancy West, Elizabeth Saulsberry, Mary Ann Lewis, Emily 'Conn, and Solomon Wright, guardian of the minors, Henry and Sarah Ann Sudduth, said parties constituting all the heirs of H. W. Sudduth, deceased, also filed a petition to leave said land out of the partition, reciting that said H. W. Sud-duth, during his lifetime, had sold the land in controversy to Jesse Dickerson, and that said heirs were desirous of relinquishing to said Dickerson the title to said land, and that they had received payment therefor. Upon this request the land was left out of the partition of said Sudduth’s estate. After-wards, on March 18, 1859, three of the five heirs of H. W. Sudduth, viz., Nancy West, joined by her husband, Jefferson West, Emily Conn, joined by her husband, Joseph Conn, and Mary Ann Lewis, joined by her husband, Wm. McE. Lewis, executed to Jesse Dicker-son, appellant’s predecessor in title, a quitclaim deed to the land. These heirs owned three-fifths undivided interest in the land. The certificate to this deed was held by the court to be invalid, and the deed for that reason ineffectual to pass the title of the grantors. The certificate is as follows:

“The State of Texas, County of Newton.

“Before me, T. S. McFarland, chief justice of county aforesaid, personally appeared in my presence all of the signers of the within quitclaim deed, viz., Jefferson West and wife, Nancy West, Joseph Conn and wife, Emily Conn, and Wm. McF. Lewis and wife, Mary Ann Lewis, all of whom are well known to me, and they signed in my presence and then acknowledged the same to be their voluntary acts. All the said women aforesaid were examined separately and apart from their husbands, and they said they were acquainted with the circumstances and transaction and did not wish to retract what was done. To certify to the foregoing', I hereto place my signature and affix the seal of the county court this 18th day of March, 1859. T. S. McFarland,
“Chief Justice Newton County.”

Appellees are shown by the evidence to be owners of the title to the other two-fifths. After the execution of the above-mentioned deed in 1859, the grantors and their heirs never asserted any title to the land adversely to the title or claim of Jesse Dickerson, nor were they parties to this suit. The judgment awarding possession to appellees of the three-fifths interest was no doubt based upon the view that the appellees were tenants in common with the grantors in said deed, and that, as the deed was ineffectual to pass the title of the grantors, the appellant was without title, and, being without title, could be regarded as a trespasser against whom the appellees, as tenants in common with the owners of the title to the three-fifths interest, were entitled to possession.

It is a general rule that a tenant in common of a tract of land may recover the possession of the entire, tract as against a mere trespasser; but we do not think that the rule applies under the facts of this ease. The deed to Dickerson was admitted in evidence and in form was sufficient, but was held to be ineffective- only because of the insufficiency of the certificate of acknowledgment. The grantors and their heirs for more than 50 years have recognized the deed as valid, and did not join in this suit to recover the land, or otherwise repudiate the conveyance. In these circumstances the appellant was not a mere trespasser, and the appellees are strangers to the title of appellant’s vendors, and as such were not entitled to interpose as a defense to appellant’s title that the defective certificate rendered the deed ineffectual. A very similar question was before our Supreme Court in Spivy v. March, 105 Tex. 473, 151 S. W. 1037, 45 L. R. A. (N. S.) 1109, and in an opinion by Chief Justice Brown it was said:

“It is not necessary for us to decide in this case whether a stranger to the title should ever be permitted to interpose this defense; but we are firmly convinced by authority and sound reasoning that, under such conditions, a court should construe the language as Mrs. Hensley (the grantor) and her heirs have construed it by their inaction for half a century. * * * We have in this case by the decision of the Court of Civil Appeals a stranger setting up a defect which the vendor refuses to assert. The injustice and unreasonable character of the proposition forbids that this court should approve it, unless required to do so by precedents that we dare not disregard. We do not find the decisions of our courts to be of that character.”

Nor are we prepared to hold that the court correctly held the certificate of acknowledgment to be fatally defective. It is true that the law in force at the time of the acknowledgment of the deed required the officer to certify that he explained the instrument to the married woman whose acknowledgment he took; but the statute also provides that any certificate showing that the requisites of the law have been complied with shall be as valid as the form there prescribed. Hartley’s Dig. page 131. Here the officer, instead of certifying that he fully explained the instrument, certified that “they said they were acquainted with the circumstances and transaction.” The certificate shows that the husbands and wives together signed the deed, after which the wives were removed from the presence of their husbands, so that they would be entirely free from their influence, and then the married women were examined separately and apart from their husbands. It was upon this examination that the wives stated to the officer that they were acquainted with the “circumstances and transaction” ,and that they did not wish to retract what.’ was done. We probably could conclude, vjithout entering too far into the realms of conjecture, that the “circumstances and transaction” referred to were the facts connected with the sale of the land by H. W. Sudduth to Jesse Dickerson under such eircumstancles as to not pass the legal title, the payment of the purchase money by Dickerson, which facts were set out in the 'petitions filed in the probate court, and the leaving of said land out of the partition of said Sudduth’s estate, because it had theretofore been sold by Sudduth to Dickerson. The petition to the probate court, signed by the married women who executed the deed in question, recites, and shows that they knew, that their father during his lifetime had sold the land to Jesse Dickerson, and stated that they were desirous of relinquishing to said Dickerson the title thereto and that they had received payment therefor. Although the deed was executed more than half a century ago, neither the married women who executed it, nor their heirs, have since then made any claim to it; but have recognized the deed as valid. Paraphrasing the language of our Supreme Court in Spivy v. March, supra, it is safe to construe the language of the certificate as if the court were performing the duties of the officer, and if Mrs. West, Mrs. Conn, and Mrs. Lewis, upon privy examination, should use the words of this certificate, would it not reasonably appear to such court that they understood the nature of the instrument and the legal effect of their acts, and that they were satisfied?

But we do not rest our decision upon the sufficiency of the acknowledgment, as it is not necessary, but rest it upon the view, above expressed, that the appellant is entitled, as against the appellees, to remain in undisturbed possession of a three-fifths undivided interest in the land in controversy.. It follows that it is our opinion that appellant, in so far as the appellees are concerned, was, under the facts of this case, entitled to remain in the undisturbed possession of a three-fifths undivided interest in the land in controversy, and that the judgment of the trial court, in so far as it ousted appellant of such possession, and divested title out of it, and vested the title thereto in appellees, was erroneous.

We are of the opinion that the judgment in favor of appellees for two-fifths undivided interest in the land should be affirmed, and that the judgment ousting the (appellant and divesting it of title to three-fifths undivided interest should be reversed, and judgment be here rendered in favor of appellant therefor; and it has been so ordered.

Affirmed in part. Reversed and rendered in part.


author: WALTHALL, X

text:
    HOUSTON LIGHTING & POWER CO., 1905, v. CONLEY.
    (No. 367.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 19, 1914.
    Rehearing Denied Dec. 17, 1914.)
    1.Master and Servant (§ 185) — Duty oe Master — Delegation oe Duty.
    A master’s duty to provide the servant with a safe place to work is nondelegable, and a servant who selects a location for' a spool of wire which is to be unwound represented the master in the performance of a nondelegable duty, and the master is liable for negligence in the performance of such duty.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.!
    2. Master' and Servant (§ 279) — Negligence— Sufficiency oe Evidence.
    Evidence, in an action for injuries to a servant, held sufficient to support a finding that 'another servant was guilty of negligence in performing a nondelegable duty of the master.
    [Ed. Note. — For other cases, see Master and' Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. § 279.]
    3. Master and Servant (§ 208)— Place to Work — Assumption oe Risk.
    The risk of failure to provide a safe place to work is one not ordinarily assumed as incident to servant’s employment.
    [Ed. Note. — For other cases, see Master and' Servant, Cent. Dig. § 551; Dec. Dig. § 208.]
    4. Master and Servant (§ 203) — “Ordinary Risk” — “Extraordinary Risk.”
    Ordinary risks arising in a service are assumed by the servant; negligence of either master or servant is not an element of such risks, but they arise out of the conditions of the employment, and are such that the servant could not reasonably anticipate that injury would occur from them in the usual course of the-service, and are incapable of being foreseen or-avoided by the exercise of ordinary care by either master or servant. Extraordinary risks are those that are abnormal and arise out of the-master’s negligence.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. §• 203.

    For other definitions, see Words and Phrases, Second Series, Extraordinary Risk, also, First and Second Series, Ordinary Risk.]
    5. Master and Servant (§ 208) — Assumption oe Risk — Place to Work.
    The selection of a safe place for the location of a spool of wire while it was being unreeled was not a risk assumed by the servant who assisted in the unreeling.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 551; Dec. Dig. § 208.]
    6. Master and Servant (§§ 101, 102) — Selection oe Place to Work — Degree of-Care.
    It is the master’s duty to exercise ordinary care to furnish a servant a reasonably safe place to work, and his failure to do so is negligence which renders him liable for an injury proximately caused thereby.
    [Ed. Note. — For other cases, see Master and. Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.]
    7. Master and Servant (§ 286) — Selection oe Place to Work — Questions for Jury.
    Whether a master was negligent in selecting a place for a servant to work held a question for the jury.
    [Ed. Note. — For other cases, see Master and-Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by T. J. Conley against the Houston Lighting & Power Company, 1905. Judgment for plaintiff and defendant appeals.
    Affirmed.
    Andrews, Streetman, Burns & Logue, Blake Dupree, and W. L. Cook, all of Houston, for appellant. Geo. H. Currier and Kinard, Men efee & York, all of Houston, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.

   WALTHALL, X

This is a suit by Conley to recover damages arising from personal injuries sustained while in appellant’s employ.

Upon the occasion of the accident, defendant company was stringing wire upon its poles in the city of Houston, the wires being drawn over the crossarms along a series of poles, from and off of a reel. This reel or spool was situate upon the ground and fixed at point designated by one Browan, defendant’s foreman, in charge of the work atod gang of men. Conley was employed and working as a “groundman,” and was placed in charge of the reel to hold it in place, and see that the wire reeled oif properly as it was pulled from the other end. The reel was placed near a dead tree which was seen by Browan at the time the reel was placed there. The wife proceeded from the reel upon and over the first pole, and in so doing passed through the branches of this tree. At the time of the accident plaintiff was at his post of duty, and, in the discharge thereof, was using a two by four timber as a brake in retarding, the revolutions of the reel. As a pull was made in the wire at its further end, and as it drew taut, it broke a limb which fell and struck him, inflicting injuries of which he complains in this suit.

The only grounds of recovery submitted in the court’s charge were as follows:

“You are instructed as a matter of law that it was the duty of the defendant company to use reasonable care and diligence to furnish the plaintiff a reasonably safe place in which to work, and that this duty upon its part was nonassignable.

“If, therefore, you believe from the evidence that the spool of wire was placed, under the direction of plaintiff’s foreman Browan, at a point where the wire or spool to the first pole upon which it was being strung necessarily passed in close proximity to a dead tx-ee; and if you further believe from the evidence that the vibration of said wire during a pull of the same by defendant’s employés caused same to foi’cibly come in contact with the limbs, or some of the limbs, of said dead tree, and that one of said limbs by reason thereof broke off, striking plaintiff in the back; and if you further believe from the evidence that in so placing the spool of wire, at which plaintiff was required to work, plaintiff’s superiors in defendant’s service, charged with that duty, failed to exercise that degree of care and prudence to see that plaintiff had a reasonably safe place in which to work, ordinarily exercised by reasonably prudent and careful persons under the same or similar circumstances, and that, as a proximate result of such failure, plaintiff was injured in one or more of the particulars alleged; and further believe from the evidence that defendant’s em-ployés charged with the duty of directing the location of the spool of wire in question, in the exercise of ordinary care and pradence, should have reasonably foreseen that plaintiff might have been injured in some like manner, by reason of pulling the wire in close proximity to said dead tree — then in such event, you will let your verdict be for the plaintiff, and assess his damages as hereinafter instructed, unless you find for defendant under other portions of this charge, or special charges, given you by the court.”

No complaint is made of the manner in which this issue is submitted, but the point is made that the jury’s finding thereon in plaintiff’s favor is unsupported by the evidence. The duty of the master to provide a safe place to work is nondelegable, and it is immaterial whether Browan be regarded as a vice principal. In the selection of the spot where the reel was to be placed, and plaintiff was to work, he represented the master in the performance of a nondelegable duty, and the master is liable for any negligence upon his part in the performance thereof. It could not be regarded as a mere detail of the work, and the evidence amply supports the finding that Browan was guilty of negligence in placing the reel in such proximity to the tree.

The risk incident to the master’s failure to provide a safe place to work is not a risk ordinarily incident to the servant’s employment, and as such assumed; hence, the second assignment must be overruled.

What has been said necessarily adversely disposes of all assignments except the third, under which it is contended the evidence discloses plaintiff’s danger to have been obvious and patent, and the risk assumed.

The reel was placed upon an axle and about 35 feet distant from the nearest pole. The wire extended upward therefrom through the branches of the tree, which intervened, and over the crossarm on the pole. The tree was a dead one, with long extending branches. Plaintiff, at the time the limb fell and struck him, was between the pole and reel with his back to 'the pole and tree. He was stooping over, using the two by four as a brake to’ retard the movement of the reel of wire. He had been in the employ of defend•ant as a groundman for about four years, and was thoroughly experienced in such work, and the work he was doing was incident to his employment, and he was thoroughly familiar therewith. He had been engaged in the same service all the day before at about the same place, and all of the morning of the day upon which he was injured until 11 o’clock, at which time the accident happened.

Appellant’s statement under this assignment refers to and adopts the testimony set out under previous assignments as embodying practically all of the evidence from any source throwing any light on the subject. We therefore copy from the assignments such evidence as we deem necessary to a full comprehension of the issue involved. Ap-pellee Conley said:

“I had nothing whatever to do with the choosing of the position of the reel. The foreman directed the. work that particular morning, and directed that the reel should be placed in that particular place. I was working under the direction of that foreman. After the reel was placed, I was left there to see that the wire did not run off the reel when the team stopped work, that is, to take up the slack in the wire, keep up the slack in the wire. * * * While the wire was pulling off, the wire was jumping, bounding up and down, and struck a limb on this tree and knocked it down on me; when the limb fell on me I was between the reel and the pole with my back toward the pole and tree. That was a necessary position for the work I was doing with the tools I had to use. I was using a small piece of two by four some six or seven feet long. * * * I used that for a brake. * * * It was not my duty to do anything except to take care of the spool and reel. * * * Neither the foreman nor any one in charge who had charge of the placing of the reel informed me of any danger. I did not know of any danger then existing. I did not know whether the limbs on that dead tree would break off and fall on me. * * * I saw the tree. The tree was something like 30 feet from where the spool was placed when I was at work. The wire that went over the poles came in contact with the limbs of the tree; the wire went over some limbs and underneath others. The foreman directed the placing of those wires over these poles that went through the limbs of that tree. The foreman gave the linemen their orders. * * * I did not know the tree was rotten. I knew it was dead. I did not have anything to do with making an inspection of it. The foreman said nothing to me about the tree. The foreman said: ‘Place the reel there, boys, at this particular place’ — and pointed that place out. * * * The day I got hurt was not the only day I had worked at it right there where the spool and reel were then. * * * I had worked about that same spot before with the spool and reel. * * * I noticed from time to time when those pulls were being made there was small stuff fell. Some of those pieces that fell were about as big as my finger and 10 or 12 inches long, something like that. * * * There was not anything about there from my point of view, and with the opportunity I had for general observation in and about the work, to indicate to me that there was any danger of that wire slipping a limb on my shoulder.”

D. E. Bostick testified: \

“I am general foreman of the defendant. * * * B. D. Browan had charge of the gang that was doing that work. * * * Where wires go through the limbs of a tree it is Our custom to saw off limbs that may endanger the wires or the men, that is; where wires go through between limbs. It is the duty of any lineman that the foreman should appoint to saw off those limbs, to go up there and saw off the limb. When the accident happened, I was out on one of the other jobs. I had been on this job where the accident happened that day, possibly an hour earlier than the accident. * * * I saw where the plaintiff was at wort. I knew the work was going on there. I saw the wire running up from the reel and over the first pole. I did not see any unusual condition of danger there. No condition of danger existed there, any more than that of a man getting tangled up in the wire. I did not see any occasion to saw off any limbs.”

Ben Browan testified:

“When we went to work there in the morning I told them where to set the reel. * * * I did not have the tree inspected by any one.”

The court, by proper instructions, submitted to the jury the issues of assumed risk and negligence on the part of defendant to furnish plaintiff a safe place to work. The jury found against appellant on both issues. The appellant, in this assignment, says that the verdict of the jury and the judgment of the court were contrary to the uncontradict-ed evidence, in that, under the evidence, the dangers from which plaintiff’s injuries proximately resulted were patent, obvious, and the result of the operation of natural laws, of which plaintiff had notice, and was required to take notice.

It would not be necessary to do more than to read the evidence of appellant’s foreman to see that the danger from falling limbs was not patent and obvious. The foreman was at the place of the accident about an hour before the accident happened, and he testified that he saw where the appellee was at work, knew the work was going on there, saw the wire running up from the reel over the first pole, and did not see any unusual condition of danger, said that no unusual condition of danger existed there any more than that of a man getting tangled up in a wire. Did not even see any odcasion to saw off the limbs, and his underforeman, Browan, did not deem it necessary to even have an inspection made to determine the necessity of sawing off the limbs.

The law makes a distinction between ordinary risks arising in the service, and extraordinary risks. The former the employs assumes. Ordinary risks do not involve negligence of either master or servant, and arise out of such conditions of employment that the servant could reasonably anticipate that injury would occur in the usual course of the service, incapable of being foreseen and avoided by the exercise of ordinary care of either master or servant. It is elementary that all risks not arising from some default of the master are necessarily assumed by the servant. The very basis of ordinary risks is the fact that the servant contemplates the danger arising from the service, has an implied knowledge of it, and have no relation to the master’s neglect of any duty he owes the servant. Such risks the servant assumes. If the plaintiff had gotten tangled up in the wire on the reel, or in the wire as it left the reel, it might be said that such danger was an ordinary risk and assumed. Extraordinary risks are such as are abnormal, or such as arise from the negligence of the master.

We are of the opinion that circumstances of this case show that the risk was not one assumed by the servant, and that the liability of the company, if any, arose from a failure to perform some duty to plaintiff. It is the duty of the master to exercise ordinary care to furnish the servant a reasonably safe place to work. A failure to do so would be negligence, and if the negligence proximately causes an injury the master would be liable. That was the negligent act alleged by plaintiff, and the one submitted to the jury. It was purely a question of fact for the jury to determine, and we think the finding was amply supported by the evidence.

We find no error and the case is affirmed.


author: BROWN, C. J.

text:
    CARTWRIGHT et al. v. CANODE.
    (No. 2326.)
    (Supreme Court of Texas.
    Dec. 16, 1914.)
    1.Intoxicating Liquors (§ 257) — 'Unlawful Seizuee — Liability oe Third Peksons.
    Defendants, who voluntarily participated in a raid upon plaintiff’s hotel and assisted Rangers in forcibly breaking and entering his storeroom, and carrying away his stock of liquors, knowing the invalidity of the search and seizure warrant under which the Rangers purported to act, and that the seizure was unlawful, even though commanded or requested to do so by such Rangers, were liable to plaintiff in damages.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 396; Dec. Dig. § 257.]
    2.Tkial (§ 139) — Question eoe Juey.
    When the evidence is such that reasonable men may fairly differ upon questions of fact, its determination thereof is for the jury; and it is only where the facts are such that all reasonable men must draw the same conclusion that it is a question of law for the court.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. ‘ 139.]
    3.Appeal and Erbok (§ 989) — Verdict— Conclusiveness.
    In passing upon the question whether there was evidence to sustain a verdict for plaintiff, the Supreme Court must reject all evidence favorable to defendant, and consider only that sustaining the verdict, and, if the jury might have reached such verdict on the evidence, the court on appeal cannot set it aside.
    [Ed. Note. — For. other cases, see Appeal and Error, Cent. Dig. § 3897; Dec. Dig. § 989.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by I-I. P. Canode against J. W. Cartwright and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (138 S. W. 792), and defendants bring error.
    Affirmed.
    Madden, Trulove & Kimbrough and F. M. Ryburn, all of Amarillo, for plaintiffs in error. Reeder & Graham, of Amarillo, N. A. Stedman, of Austin, and F. A. Williams, of Galveston, for defendant in error.

      For other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-

   BROWN, C. J.

We copy from the opinion of the Court of Civil Appeals the following statement of the case:

“Appellee, H. B. Canode, instituted this suit in the district court of Potter county against appellants, J. W. Cartwright, S. P. Vinyard, W. A. Askew, R. H. McAlpine, W. D. Twitch-ell, Howard Trigg, W. H. Caviness, and W. H. Lewis, to recover damages for the alleged wrongful acts of appellants in breaking into a private storeroom in appellee’s hotel knojvn as the Amarillo Hotel, on September 10, 1908, and taking therefrom wines, whiskies, beer, etc., and transporting the same through the streets of Amarillo for a distance of about three blocks, thus publishing appellee’s hotel as a blind tiger and causing his guests to leave, and to otherwise injure his business. Appellee itemized his damages as follows: Value of stock of liquors seized and carried away, $1,500; loss of patronage occasioned by the disturbance at the hotel at the time of the raid, $500; injury to his business caused by the notoriety given the occurrence in carrying away the goods saved, $25,000 ; exemplary damages, $25,000.
“Appellants pleaded the general denial, and specially denied that there was any concerted action or agreement between them to do the acts complained of by appellee, and that, if any act was done by them as alleged, it was so done at the request and under the direction of known officers of the law, viz., E. Putnam and O. J. Rountree, special officers known as Texas Rangers, who are acting under and by virtue of a ‘search and seizure writ duly issued and legal upon its face.’ A return of the goods seized was also alleged.
“A trial was had before a jury, and a verdict returned in appellee’s favor against all of the defendants for the sum of $1,600 as actual damages, and judgment was rendered in accordance therewith.
“At the time of the occurrences under review the city of Amarillo was operating under a published local option law, and it is undisputed that the Rangers named in the special plea of appellants in due form sued out a warrant on its face authorizing a search of appel-lee’s premises and a seizure of intoxicating liquors, as provided by section 2 of the act approved April s, 1907. See General Laws 1907, p. 157. It is also undisputed that, with this warrant in hand, and acting by virtue thereof, said Rangers forcibly broke open a storeroom in appellee’s hotel and seized one or more dray loads of wines, whisky, beer, and perhaps other intoxicating liquors found therein. Appellee did not sue either of the Rangers so acting, but specially alleged that the defendants advised and agreed to the issuance of the warrant and to. the seizure made. The proof, however, affords little or no warrant for this allegation. On the contrary, we think the record only supports the conclusion that, after the forcible entrance and seizure stated, appellants, without malice and in good faith, and at the request of said Rangers, assisted in removing the intoxicating liquors mentioned into drays, and thereafter accompanied the conveyances to a place where they were temporarily deposited. It is also undisputed that the liquors were later returned without injury, and the court peremptorily instructed the jury not to find damage because of a retention of the property.”

The defendants below, the plaintiffs in error here, claimed that they were not liable-for damages, because they were summoned to aid Rangers under a writ which the Rangers had secured in accordance with the statutes enacted by the Legislature empowering them to do so. The plaintiffs in error defended upon the ground that they were summoned by officers who held the process before stated, and that they acted in obedience to that summons. Before the trial of the case, the statute under which process was issued had been declared unconstitutional, and the-trial court held that the plaintiffs in error were liable for damages occasioned by the-acts of the Rangers and themselves under said writ of seizure. The Court of Civil Appeals of the Second District affirmed the-judgment, holding that, the statute having been declared void, the plaintiffs in error could not. protect themselves by reason of authority given in it to sue out the writ, and because they had acted upon authority and summons of officers authorized to do so.

The trial court charged the jury as follows:

“(4) If you find and believe from the testimony that the defendants, or any one or more of them, did the acts of trespass complained of in plaintiff’s petition, and you further find that he, or they, did not'do it voluntarily, but did it at the command or request of the said O. J. Rountree, or cither of his fellow Rangers, Putnam and .Tones, with no malicious intent on his or their part to humiliate, harass, or injure the plaintiff, but did so under the honest belief at the time that the said Rangers were acting under proper and legal warrant of authority to do the acts that were done, you will find a verdict in favor of such defendant or defendants as you may believe from the evidence so acted, and in favor of the plaintiff against the defendant or defendants as the testimony may show acted otherwise in regard to the alleged trespasses.
“(5) If you find for the plaintiff for actual damages, then you will find for him such amount as will fairly and reasonably compensate him for the actual injuries sustained by reason of the breaking into his private storeroom and the seizure and removal of his goods, wares, and merchandise from his possession, and for such humiliation and mental anguish, if any,' as he may have suffered by reason of the trespass and seizure, and for such damage, if any, as he may have sustained to his business and reputation as a hotel keeper. And if you find and believe from the testimony that the trespasses, etc., were willfully or maliciously done, or done for the purpose or with the intent to humiliate, harass, or injure the plaintiff, then you may give such additional damages as you may see proper as vindictive or punitory damages.
“The goods in question having been returned to plaintiff, and no proof having been submitted as to any damage done them, or any damage done the plaintiff on account of their detention, you will not consider these as items of damage in making up your verdict.
“Xou are further charged that, in case you find for plaintiff, but fail to find that he has sustained any material damage, you will, in such case, return a verdict in his favor for nominal damages, which means any insignificant sum. In this connection you are also charged that you cannot find vindictive or punitory damages for plaintiff where you fail to find actual damages.”

The defendants below requested the court to give a peremptory charge to find for the defendants, which was refused; also to give in the charge to the jury special charge No. 1, as contained in the assignments, which was by the court refused.

The plaintiff in error presents the following grounds of error:

“The trial court erred in overruling defendants’ motion for a new trial and in refusing to set aside the verdict and judgment and grant defendants a new trial, because the verdict is contrary to the law and the evidence, in that the undisputed evidence shows that the defendants did the acts complained of at the request of known officers of the law, in ignorance of the invalidity of the writ of search and seizure under which said officers were acting; that the acts of defendants were mere servile and ministerial acts, committed at the request and under the direction of State Rangers, acting under a writ valid on its face and issued by an officer authorized to issue writs of that character; that there was no evidence adduced upon the trial that plaintiff suffered any damages, his goods having been returned to him, and that, iff he is entitled to any damages, it is merely nominal damages; that the legal wrong, if any, was committed by the Rangers at the time the room was broken into; and that any acts committed by defendants subsequent to that time were merely ministerial acts performed under the direction and at the request of known officers of the law.”

It is unnecessary to consider the issue made by the assignments of error upon the liability for plaintiffs in error aiding an officer, at bis command, in the execution of an invalid writ. That issue was not submitted to the jury in the charge, but the court, in effect, told the jury that the defendants would not be liable for such acts:

“The search and seizure warrant issued by Justice of the Peace J. W. S. Holman and read in evidence before you was and is void in law, and will furnish no protection in a suit for damages growing out of a search of premises or seizure and removal of goods made thereunder by State Ranger O. J. Rountree and his fellow Rangers, Putnam and Jones, or any other person or persons voluntarily acting with or assisting said Rangers, or to any person or persons knowing the invalidity of said writ or that the invasion of the premises or that the seizure and removal of goods therefrom was unlawful and wrongful, who acted with or assisted such Rangers, even though they may have been commanded or requested so to do by said Rangers. Therefore, if you believe and find from a preponderance of the evidence, that O. J. Rountree and his fellow Rangers, Putnam and Jones, or either one or more of them, on or about the time and at the place alleged by plaintiff, did, without plaintiff’s consent, enter upon his premises and forcibly open the door of his storeroom, and then and there did, without plaintiff’s consent, seize and carry away the goods, wares, and merchandise, as alleged by him, and you further believe and find, from a preponderance of the testimony, that the defendants, J. W. Cartwright, S. P. Vinyard, W. A. Askew, R. II. McAlpine, W. D. Twitchell, Howard Trigg, W. H. Caviness, and W. H. Lewis, or any one or more of them, voluntarily acted with, aided, or otherwise assisted the said Rountree and his fellow Rangers in forcibly breaking and entering plaintiff’s private storeroom, or if they or any of them voluntarily acted with, aided, or otherwise assisted the said Rangers in seizing and carrying away the plaintiff’s goods, wares, and merchandise, as alleged by him, or if the said named defendants, or any one or more of them, knew of the invalidity of said search and seizure warrant, or knew that the forcible entrance of said private storeroom, or knew that the seizure and carrying away of said goods, wares, and merchandise, were wrongful and unlawful, and, so knowing, they, or either of them, acted with, aided, or otherwise assisted the said Rountree and his said associate Rangers in seizing and carrying away said goods, wares, and merchandise, such defendants would be liable for the injuries done the plaintiff, even though he or they may have been commanded or requested so to do by the said Rangers, and if you so find and believe, in either event, you will find for the plaintiff and against such defendants, as the evidence may implicate, and assess his damages as hereinafter directed.”

It is urged upon this court that there was no evidence to justify the finding that either of the defendants voluntarily participated in the seizure of the goods. It cannot be doubted that the charge of"the court stated the law correctly, if the evidence was sufficient to justify the submission of the issue.

This court cannot reverse a judgment because the preponderance of the evidence is against the jury’s conclusion.

The rule by which this court must be governed is well stated thus:

“When a given state of facts is such that reasonable men may fairly differ upon the question as to whether-there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the courts.”

That authority is sustained by courts generally. Baltimore & Ohio R. R. Co. v. Emma Griffith, 159 U. S. 603, 16 Sup. Ct. 105, 40 L. Ed. 274; F. B. Choate v. San Antonio & Aransas Pass Ry. Co., 90 Tex. 82, 36 S. W. 247, 37 S. W. 319.

In passing upon this question, we must reject all evidence favorable to the plaintiffs in error, and consider only the facts and circumstances which tend to sustain the verdict, and if the jury, in an honest and impartial effort to arrive at the truth, might have reached the conclusion embodied in this verdict, this court cannot set it aside. In considering this question, we must take into account all- of the facts and circumstances attending the transaction. We can have no doubt that there had been general talk of a “raid” to be made on “the blind tiger” at the hotel. Rangers had arrived in the town and procured a writ in terms authorizing the seizure. There was a gathering of men at the hotel, the defendants being among them, and they aided in loading the barrels onto a wagon, and the crowd followed the wagon. A jury might conclude from the facts that the defendants volunteered to aid in the raid, and that it had the legal authority to discard the evidence explanatory of defendants’ conduct, which they must have done'in this instance. This court must pass upon that issue as if the evidence favorable to defendants had not been before the jury. The facts are of such nature that one reading the record might not get their full force, as would one seeing and hearing the witnesses.

We are of the opinion that there is in the record sufficient evidence to sustain the verdict, and the judgments of the Court of Civil Appeals and district court are affirmed.