text:
    LILLY et al. v. CITY OF HOUSTON HEIGHTS et al.
    (Court of Civil Appeals of Texas. Galveston.
    May 12, 1913.
    Rehearing Denied June 5, 1913.)
    1. Appeal and Error (§,719) — Assignments oe Error — Necessity oe Assignments.
    While ordinarily, in absence of fundamental error apparent upon the face of the record, assignments of error will not be considered when not presented as required by the appellate court rules, under Eev. Civ. St. 1911, art. 4645, providing that the case on appeal from interlocutory orders granting or refusing an injunction may be heard on the bill, answer, and affidavits, assignments of error need not be filed in such case but the case will be beard on bill, answer, and the evidence introduced.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.*]
    2. Injunction (§ 9)— Ordinances — Right.
    Equity will not enjoin the enforcement of a void ordinance where its enforcement would not injuriously affect complainants’ property rights! and hence will not enjoin the enforcement of an ordinance prohibiting stock from running at large in a city, even if void, where it is not shown that complainants own any animals in the city.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 8; Dec. Dig. § 9.*]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Suit by S. A. Lilly and others against the City of Houston Heights and others. From a decree for defendants, plaintiffs appeal.
    Affirmed.
    Dowell & Dowell, of Houston, for appellants. Robert L. Cole, of Houston, for ap-pellees.

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

   McMEANS, J.

S. A. Lilly and several other resident citizens of the city of Houston Heights presented to the district court of Harris county their petition praying that a temporary writ of injunction be issued restraining the defendant the city of Houston Heights, its agents and representatives, from enforcing two ordinances passed by the city council of said city, one of which prohibited the running at large of certain animals in said city, known as the “stock ordinance,” and the other providing for the impounding of such animals running at large contrary to the provisions of the stock ordinance. The petition was set for hearing on a certain day. and notice of its filing and of tlie day of hearing was served upon tlie defendants. On or before the day of hearing the defendants filed their answer. Upon a hearing before the court the prayer for the temporary writ of injunction was refused, and plaintiffs have appealed.

Appellants filed assignment of errors in the court below in which they attach, on many grounds, the action of the court in refusing to grant the writ of injunction prayed for, and h¿ve filed in this court their brief urging each of the assignments as ground for reversal. These assignments are not presented in such a way as to require us to consider them. Many of them, not propositions in themselves, are presented as propositions, and the statement subjoined to others are not such as are required by rule 31 (142 S. W. xiii) in that such statements are not sufficient to explain and support the assignments presented. However, the statute allowing appeals from interlocutory orders or judgments granting, refusing, or dissolving injunctions does not require the filing of assignment of errors in the trial court, nor of briefs in the appellate courts, but provides that the case on appeal may be heard and determined on the bill and answer and such affidavits and evidence, as may have been admitted by the judge of the trial court. Revised Statutes 1911, art. 4645.

Ordinarily when assignments of error are refused consideration because not presented in the manner required by the rules, the appellate court will, in the absence of fundamental error apparent upon the face of the record, treat the appeal as if no assignment of errors were filed and affirm the judgment; but, in view of the statute referred to, it is incumbent upon us to decide the ease upon the bill and answer and evidence introduced in support thereof, and this we will now proceed to do.

The ordinances in question, together with copies of the minutes of the city council of the city of Houston Heights, showing the manner in which they were passed, are attached as exhibits to and made a part of the bill for injunction. From the proceedings thus shown we are of the opinion that both ordinances were duly adopted in the manner provided by the charter and are valid in so far as the manner and form of their adoption is concerned, and their requirements and ex-actions are not so harsh, oppressive, or unreasonable that we can say that the ordinances or either of them are invalid as a matter of law.

But aside from all other considerations, and admitting for the purpose of this opinion that all or some of the objections raised by appellants to the validity of the ordinances are sound, we think that the court did not err in refusing to grant the temporary injunction for the reason that appellants have not in their bill shown themselves entitled to injunctive relief. Appellants alleged that they brought the suit in their own behalf and “in behalf of several hundred of other persons like qualified and situated as themselves.” Paragraph 8 of the bill charges that the defendants are threatening and preparing to put said ordinances into effect at once, and will do so, and remove all the live stock of the owners thereof running at large in Houston Heights, and under the provisions of said ordinances would impound, sell, and kill such live stock, and arrest, fine, and imprison and impose penalties', civil and criminal, on offending persons and animals, to the damage and detriment of the owners and possessors of such animals in said city, which animals are of the estimated value of $20,000, and that the estimated number of owners of such animals in said city who will be affected by such ordinances is more than 1,000, and that if such owners have to remove such animals from said city, or confine them, they will be put to great expense, damage, and inconvenience, amounting to several thousand dollars, and that several, and probably many, of such owners have not the ready means to remove or confine their animals and thereby protect themselves from irreparable loss, etc. Nowhere in the bill is it alleged that appellants or either of them own any animals in Houston Heights which are prohibited by the stock ordinances from running at large in said city, nor is there any allegations that the appellants or either of them would suffer damage, inconvenience, or annoyance by reason of their ownership of such animals through the enforcement of either of the ordinances in question. The allegations are that in Houston I-Ieights there are about a thousand owners of stock, such as are prohibited from running at large, and that such owners will be damaged, etc., by the enforcement of the ordinances. There is not a suggestion that the appellants are such owners or that they will be injuriously affected.

It seems to be well settled that equity will not enjoin the enforcement of an ordinance, even though void, where such enforcement would not injuriously affect the property rights of the complainants. City of Austin v. Cemetery Association, 87 Tex. 331, 28 S. W. 528, 47 Am. St. Rep. 114; Manor Casino v. State, 34 S. W. 769; City of Houston v. Richter, 157 S. W. 189 decided by this court May 8, 1913, and, as we have seen, the allegations of the bill do not show that the complainants here would be so affected.

We think that under the allegations of the bill appellants were not shown to be entitled to the relief they sought, and therefore the injunction was properly refused, and that the judgment of the court below must be affirmed, and it has been so ordered.

Affirmed.


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    GUERRA v. GUERRA.
    (Court of Civil Appeals of Texas. San Antonio.
    June 4, 1913.)
    1. Appeal and Error (§ 907) — Presumptions in Support op Judgment.
    Where an order overruling a plea of privilege recited that evidence relating thereto was heard, it would be presumed, in the absence of any bill of exceptions or statement of facts, that the evidence was insufficient to establish such plea.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. § 907.*]
    2. Domicile (§ 10) — Evidence.
    The issuance of a citation to a county other than that in which an action was brought did not establish that defendant’s residence was in the county to which it was issued.
    [Ed. Note. — Eor other cases, see Domicile, Cent. Dig. § 39; Dee. Dig. § 10.*]
    3. Continuance (§ 53) — Proof and Effect.
    Where an order continuing a case to the next term was made after an order was passed by the commissioners’ court changing the time of the next term from August to the intervening June, the continuance was to the June term, although the parties were not apprised of the change in the date of the term.
    LEd. Note. — Eor other cases, see Continuance, Cent. Dig. § 150; Dec. Dig. § 53.*]
    4. Appeal and Error (§ 288) — Objections in Lower Court — Motion for New Trial.
    While the court should not have tried a case at the term to which it was continued, unless convinced that the parties knew of the change in the time of holding such term, the judgment entered upon such trial could not be complained of, where the complaining party did not move for a new trial during the term, or to set aside the judgment after the term on a showing of the reasons for his absence from the trial, and that his defense was meritorious.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. '§§ 1673, 1676-1679; Dec. Dig. § 288.*]
    5. Appeal and Error (§ 239) — Taxation-Review on Appeal.
    The allowance to witnesses of certain fees and mileage could not be reviewed on appeal, where it was not called to the attention of the trial court by a motion to retax the costs, or otherwise.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 239.*]
    Errorto Brooks County Court; J. A. Brooks, Judge.
    Action by Arcadio Guerra against Francisco B. Guerra. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Pope & Taylor, of Corpus Christi, for plaintiff in error. T. Wesley Hook, of Falfurrias, for defendant in error.

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

   MOURSUND, J.

Defendant in error sued plaintiff in error in justice court of precinct No. 1 of Brooks county upon a verified account showing a balance due of $162.07. Plaintiff in error interposed a plea of privilege, which was overruled, and judgment entered in favor of defendant.in error. After appeal to the county court defendant in error, on May 20, 1912, again presented his plea of privilege, which was again overruled. On May 21, 1912, he filed his original answer, consisting of exceptions and a denial of each item of the account, but such answer was not sworn to. The case was then continued until the next term of court. At the May term of the commissioners’ court, 1912, an order was entered changing the time for holding the county court, fixing the next term as beginning on the 3d Monday in June, instead of August. The date when such order was made is not disclosed. On June 26, 1912, the case was called for trial, and defendant did not appear; whereupon the issues were submitted to the court, and he rendered judgment for defendant in error for the amount for which judgment had been rendered in the justice’s court. The term closed on June 29, 1912, and on Jan. 9, 1913, petition for writ of error was filed.

The first and second assignments complain of the overruling of the plea of privilege. The order overruling the plea of privilege recites that evidence relating thereto was heard. There is no statement of facts in the record, and while certain letters are copied in the transcript, two of which were filed on the date of such order, yet we have no means of knowing that other evidence was not introduced. There being neither a statement of facts nor a bill of exceptions, it will be presumed that the allegations of his plea of privilege were not established by the evidence. Railway v. Shivel & Stewart, 114 S. W. 196; Mangum v. Lane City Rice & Milling Co., 95 S. W. 605; Houston Rice Milling Co. v. Swinney, 45 Tex. Civ. App. 303, 100 S. W. 204; Railway v. Cock, 51 S. W. 354; Hopson v. Caswell, 13 Tex. Civ. App. 492, 36 S. W. 312; Graves v. Bank, 77 Tex. 555, 14 S. W. 163.

Plaintiff in error contends that from defendant in error’s pleadings it is clear that plaintiff in . error was not a resident of Brooks county, and did not agree in writing to pay the debt in Brooks county. There is no admission in the pleadings that plaintiff in error was a resident of Duval county; nor does the issuance of a citation to Duval county establish such fact.

The pleading filed by defendant in error on May 20, 1912, contains certain allegations by which it was sought to avoid the force of proof that plaintiff in error resided out of the county, should such proof be made; but such allegations cannot be construed as an admission supplying the want of proof of such non-residence, and in support of the judgment of the court it must be presumed that the evidence did not sustain the allegations of the plea of privilege. The assignment is overruled.

The third assignment complains because judgment was rendered at the June term, in the absence of plaintiff in error and his counsel; the contention being that, as plaintiff in error was not apprised of the change'of term, the case should have been continued to a term beginning subsequent to the term to which the case went over at the previous term. The commissioners’ court ■made the order at the regular May term, 1912. Said term began on the second Monday, which was the 13th of May, and ended within one week from said date. No order appears in the record continuing the case •after the overruling of the plea of privilege, but such continuance was taken either on May 20, 1912, the date on which the plea of privilege was overruled, or thereafter. This continuance was to the June term, as the •order of the commissioners’ court changing the terms had been previously passed. Harper v. State, 43 Tex. 431; Bond v. Rintleman, 24 Tex. Civ. App. 298, 59 S. W. 48.

While the court should not have tried ■the case, unless convinced that the parties knew of the change of the time of holding court, yet the judgment entered upon such ■trial, we think, should be put upon the same footing as any other judgment rendered against a party, where for reasons which he •could not help he was unable to be present At the trial. In such cases, by a motion for new trial during the term, or an action to set aside the judgment, brought after the •term, the party by showing the reasons Why he was absent from the trial, and showing that his cause of action or defense was meritorious, can have the judgment set aside. Jordan v. Brown, 94 S. W. 398; Robbie v. Upson, 153 S. W. 406. In this case, although •defendant in error appeared at the following term of court and filed an application to have the orders entered in this case corrected, and succeeded in his efforts, yet he did not see proper to file any application to have the .judgment set aside. Under the circumstances he is not in position to com plain of the judgment, and we therefore overrule the as.signment.

The remaining assignment complains of the allowance to witnesses of certain fees and mileage. Appellant failed to call the •attention of the trial court to this matter by motion to retax the costs, or otherwise, and we therefore can give no relief. Valentine v. Sweatt, 34 Tex. Civ. App. 135, 75 S. W. 385; Castro v. lilies, 11 Tex. 39; Hoskins v. Bank, 48 Tex. Civ. App. 246, 107 S. W. 605; Salt Co. v. Blount, 49 Tex. Civ. App. 138, 107 S. W. 1165.

The judgment is affirmed.


author: TALIAFERRO, J.

text:
    ST. LOUIS, B. & M. RY. CO. v. HICKS et al.
    (Court of Civil Appeals of Texas. San Antonio.
    June 4, 1913.)
    1.Caebiebs (J 140) — Cabkiage oe Goods— Notice to Consignee — Diligence.
    Under Rev. St. 1895, arts. 323, 324, providing that a railroad company is liable for the loss of goods as a common carrier from the time of shipment until delivered to the consignee, except that, after the railroad company has used due diligence to notify the consignee and the latter does not remove the goods, the carrier is liable only as warehouseman, due diligence in notifying the consignee depends upon the circumstances of the case, the character and amount of the goods shipped, the situation of the consignee, and the custom and business usages of the place.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 609, 609½, 611-616; Dee. Dig. § 140.]
    2. Caebiebs (§ 114) — Bill oe Lading — Pko-visions eok Notice — Validity.
    Where the carrier and shipper contract that the liability as carrier shall terminate 48 hours after notice is given the consignee, and the provisions of the contract are not in conflict with the law, it will govern the relations between the parties, even though it imposes a greater burden upon the carrier than Rev. St. 1895, arts. 323, 324, relating to the same matter.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 608-620; Dec. Dig. § 114.]
    3. Caebiebs (§ 140) — Bill oe Lading — Con-STBXTOT'ION — ‘ ‘LEGAL HOLIDAY’ ’ — SUNDAY.
    Under a bill of lading providing that the carrier should be liable only as a warehouseman after 48 hours, “exclusive of legal holidays,” have elapsed from the time notice of the arrival of the goods was given or sent to the consignee, the term “legal holidays” is not restricted to statutory holidays, but includes Sundays as well, since a holiday at common law was a consecrated day; a religious festival; a day on which the ordinary occupations are suspended; and Sunday became a legal holiday by the adoption of the common law as the basic law of the state.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 609, 609½, 611-616; Dec. Dig. § 140.

    For other definitions, see Words and Phrases, vol. 5, pp. 4064, 4065; vol. 8, p. 7704.]
    4. Caebiebs (J 51) — Bill oe Lading — Con-steuction — Implication Against Cabeieb.
    A clause inserted in a bill of lading by the carrier for its own benefit must be taken to have meant all that the words implied.
    (Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 148, 149; Dec. Dig. §, 51.]

      &. Caebiebs (§ 85) — Bill of Lading — CONSTKUCTION — NOTICE — “GIVEN” — “Sent.”
    Under a provision of a bill of lading making a carrier liable only as warehouseman after 48 hours after notice has been sent or given the consignee, a notice by mail is “given” only when it is delivered; and, when the consignee is in the town to which the goods were shipped and is well known to carrier’s agents and equipped with modern means of communication, a notice posted and not delivered until two days thereafter will not be construed to have been “sent” so as to limit the carrier’s liability from the time of mailing.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 316-321; Dec. Dig. § 85.

    For other definitions, see Words and Phrases, vol. 4, pp. 3099, 3100; vol. 8, p. 7671.]
    6. Contbacts (§ 155) — Constkuction—Pasty Wbiting Contracts.
    A contract must be construed most strongly against the one who wrote it.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 736; Dec. Dig. § 155.]

      7. Contracts (§ 169) — Construction—Extrinsic Circumstances.
    Contracts that are not self-explanatory .must be construed in the light of reason and of the surrounding circumstances shown by the evidence.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 752; Dec. Dig. § 169.*]
    Appeal from Cameron County Court; E. H. Goodrich, Judge.
    Action by E. I. Hicks and another against the St. Louis, Brownsville & Mexico Railway Company. Judgment for the plaintiffs, and defendant appeals.
    Affirmed.
    Claude Pollard, of Kingsville, Jones, West, West & Dancy, of Brownsville, and Zeb V. Nixon, of Kingsville, for appellant. Rich & Searle, of Brownsville, for appellees.

      For other cases 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 Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALIAFERRO, J.

This ease originated in the justice court, where appellees sued appellant railway company for $160.01 damages for loss of goods destroyed by fire while in appellant’s depot at Brownsville, Tex. Judgment in the justice and county court was for plaintiffs, and the railway company appeals. The case comes here upon an agreed statement of facts, which is adopted here and is as follows: “On July 18, 1911, the E. T. Barnum Wire & Iron Works of Springfield, Ohio, delivered in proper condition to the Pitts-burg, Cincinnati, Chicago & St. Louis Railway Company certain hardware billed at Hicks Hardware Company, plaintiffs herein, at Brownsville, Tex., and said railway company issued to said E. T. Barnum Wire & Iron Works for plaintiffs a through bill of lading from Springfield, Ohio, to Brownsville, Tex., covering said hardware, and delivered the same to said E. T. Barnum Wire & Iron Works. That said hardware reached Brownsville, Tex., over the lines of the defendant, St. Louis, Brownsville & Mexico Railway Company on July 27, 1911, and was promptly handled from the car and stored by said railway company, defendant, in its warehouse in Brownsville, Tex., and that notice of its arrival properly addressed to the plaintiffs at Brownsville, Tex., was written and placed in the United States mail, proper postage prepaid, at Brownsville, Tex., on said date. That said notice was received by due course of United States mail by the plaintiffs in Brownsville, Tex. (Brownsville, Tex., being their residence and place of business), about 9 o’clock a. m. on July 29, 1911, that being the first notice plaintiffs had of the arrival of said goods; and that about 5 o’clock a. m. on August 1, 1911, being before daylight, the defendant railway company’s warehouse and contents, including the hardware of plaintiffs, was totally destroyed by fire. That between the time of receiving the notice of the arrival of said goods on July 29, 1911, and the time same was destroyed by fire, it was not convenient for the plaintiffs to take out said goods from defendant’s depot. The bill of lading, or contract, under which said goods were transported from Springfield, Ohio, to Brownsville, Tex., and under which the defendant St Louis, Brownsville, & Mexico Railway Company was holding same at the time of their destruction by fire, contains among other things the following provision: 'For loss, damage or delay caused by fire, occurring after forty-eight hours (exclusive of legal holidays), after notice of the arrival of the property at destination, or at port of export (if intended for export), has been duly sent or given, the carrier’s liability ' shall be that of a warehouseman only.’ That the property at the time of its destruction was the property of the plaintiffs and of the reasonable market value in Brownsville, Tex., on the day of its destruction, to wit, August 1, 1911, of $160.-01. That plaintiffs had given defendant no instruction with reference to said property prior to its destruction; neither had there ever been any agreement between plaintiffs and defendant with reference to this or any shipment as to the mode or manner through or by which the defendant should give plaintiffs notice of the arrival of any of their goods in Brownsville, Tex. No notice of the arrival or storage of the goods in controversy was posted on the depot door as provided in article 6590, Revised Civil Statutes of Texas, 1911, prior to their destruction by fire. It was and is agreed that more than 48 hours had elapsed from the time the defendant railway company deposited in the United States post office the notice of the arrival of goods in controversy, Sunday, July 30, 1911, excluded, but that less than 48 hours had expired after the plaintiffs received said notice and before the property was destroyed by fire, Sunday, July 30, 1911, excluded. It was further proven that the defendant was and is a railway corporation handling freight and passengers as a common carrier for hire in Texas, at all the times from the time it received the goods in controversy to and including the time that the goods were destroyed by fire.” It was further agreed between the parties “that if at the time of destruction of said goods by fire that defendant railway company was a warehouseman or a bailee for hire and not a common carrier as to said goods, it exercised such care referring to said goods as would relieve it from liability for their value; but if at the time of the destruction of said goods by fire the defendant railway company was a common carrier as to said goods, then it is liable to plaintiffs for the value of said goods.”

A railroad company, by statute, is liable, as a common carrier, for loss of or damage to goods intrusted to it for transportation from the commencement .of the journey until the goods are delivered to the consignee at the point of destination, except that if at the point of destination such carrier shall use due diligence to notify the consignee, and the goods are not taken by the consignee, and have, in consequence, to be stored in the depots or warehouse of the carrier, it shall thereafter only be liable as a warehouseman. Articles 828 and 824, R. S. 1895. What in such cases is due diligence on the part of the carrier has been held by our courts to depend upon the circumstances of the case, the character and amount of the goods, and the situation of the consignee with reference to his remoteness from the point of destination as well as upon the customs and business usages of the place.

Whether the notice received by appel-lee in this case was reasonable, and whether the appellee acted with due diligence, however, becomes immaterial, because the period of notice by appellant and the diligence required of appellee are both fixed by'the contract of shipment at 48 hours after “notice has been sent or given.” This contract of appellant may impose upon it a greater burden than that which is fixed by the statute, but if it saw fit to stipulate the character and time of notice that it should give before its quality of warehouseman attached, and if the provisions of the contract be not in conflict with the law, they are enforceable and will govern the relation between the parties.

The time specified in this contract was 48 hours after notice “sent or given” exclusive of “legal holidays.” The goods arrived at destination on July 27th, and notice was at once sent to the consignee by post card through the United States mails properly-stamped and addressed. The notice was not received by consignee until 9 a. m. on the 29th, which was Saturday. The fire occurred on Tuesday at- 4 o’clock a. m. Between 9 a. m. Saturday and 4 a. m. Tuesday 48 hours did not intervene unless Sunday be included in the time, which cannot be done because Sunday is a legal holiday. A holiday is defined: “A consecrated day; a religious festival; a day on which the ordinary occupations are suspended.” Oye. 21, p. 440. It is a dies non juridicus. In its derivation it is a holy day. Sunday, since the beginning of the Christian Bra, has been recognized and enforced by all Christian nations as a holy day, a day of rest, recreation, and cessation from labor. It was the first of the Christian holidays, and other days of rest, as they were established by law or custom, were called at common law “feast or festival days.” Sunday was the most sacred, and other feast days or holidays in later years, created by law, have been made to partake in part only of the quality of Sunday. In the adoption of the common, law as the basic law of this state, Sunday became a legal holiday. without special statutory designation. There can be no holidays in the state but “legal holidays,” and to say that Sunday is not a holiday because it has not been so expressly declared by statute would be ignoring the fundamental principles of our law. It has been said that “in the present conventional meaning Sunday can scarcely be called a holiday”; but the learned judge who so wrote had under consideration the validity of a legal process issued upon a statutory holiday. His intent clearly was to emphasize the solemnity of the Sunday as a day of rest and retirement from labor, and not to differentiate it from holidays in reference to matters of contract and business relations. He said: “The statutory declaration that these days shall be legal holidays does not indicate an intent to assimilate their status to that of Sunday. ‘Holiday,’ in its present conventional meaning, is scarcely applicable to Sunday. Phillips v. Innes, 4 Clark & E. 234. It is applicable to all and has long been applied to some of the days named. When the statute declares them to be legal holidays, it does not permit a reference to the legal status of Sunday to discover its meaning ; for it proceeds to interpret the phrase, so far as it is prohibitory, by an express enactment declaring what shall not be done thereon. What it thus expresses is prohibited; what it fails to prohibit remains lawful to be done. The plain intent of the statute, therefore, is to free all persons, upon the days named, from compulsory labor, and from compulsory attendance upon courts, as officers, suitors, or witnesses. Its true interpretation will limit the prohibition, with respect to the courts, to such actual sessions thereof as would require such attendance. Glenn v. Eddy, 51 N. J. Law, 255 [17 Atl. 145, 14 Am. St. Rep. 684].” Spalding v. Bernhard, 76 Wis. 372, 44 N. W. 644, 7 L. R. A. 423, 20 Am. St. Rep. 78.

The clause in the shipping contract in this ease was inserted by the carrier for its own benefit and in its construction must be taken to have meant all that the words imply. It cannot be held that in using the words “legal holidays” it intended to limit the meaning to statutory holidays, and exclude a day which was a holiday at common law before the state of Texas or the continent of America was known to be a part of the world. Furthermore, to so hold would be to say that a railway company can by contract require a consignee to remove his goods from its depot at a time when it has the legal right to refuse to permit him to enter its depot for the purpose of removing them. No such meaning can be given to a contract made by rational people, and especially can it not be applied to a contract prepared by one of the contracting parties, in the writing of which the other has no voice.

We reach then the remaining question, of notice, the decision of which presents serious difficulties. What construction is to be applied to that portion of the shipping agreement which provides that the carrier shall, be liable' only as warehouseman after it has “sent or given” 48 hours’ notice of the arrival of the goods?

Bearing in mind the rule that a contract must he construed most strongly against the one who wrote it, we must determine whether the mere mailing of a notice is the “sending or giving” thereof within the meaning of this contract. There is no doubt that notice mailed and received is sufficient notice at law; such notice being considered given at the time of its delivery and not when it is mailed. But, in view of the word “sent,” in the present contract, the application is not easy. "We must start upon the premises in this case that the word “sent” contemplated “delivery.” Otherwise the terms of the contract would open a door for fraud which would render the contract void and which we cannot assume that the carrier intended. There are many ways by which a notice may be sent. The surest and most expeditious way should be adopted by the carrier. If it chooses the means of the United States mails, it must assume the burden of delays and miscarriage in the mails. If a notice so sent should arrive at the address of the consignee and he be absent or the no-' tice should be there lost or destroyed so that he did not receive it, then the carrier would have performed its duty. If the address of the consignee were not given and the carrier, after reasonable diligence, could not learn his whereabouts and addressed the notice by mail to the “General Delivery” and the consignee failed promptly to receive it, the carrier would be acquit of responsibility as such. But, as in this case, where the consignee was in the town where the goods arrived -well known to the carrier’s agents and equipped with modern means of communication, it is not reasonable to say that a notice posted in the mail and not delivered until two days later is notice “sent” which will be conclusive of the consignee’s rights from the hours it was mailed.

Contracts that are not self-explanatory must be construed in the light of reason and the surrounding circumstances shown by the evidence. And so we construe this one, that appellee’s notice dated from the time it was received, and, 48 hours not having elapsed between its receipt and the destruction of the goods by fire, the railway held the goods, not as a warehouseman, but as a carrier and was liable as such.

The judgment of the lower court is affirmed.


author: PLEASANTS, C. X

text:
    DUPONT et al. v. TEXAS & N. O. R. CO.
    (Court of Civil Appeals of Texas. Galveston.
    June 4, 1913.
    On Motion for Rehearing, June 19, 1913.)
    1. Judgment (§ 256) — Conformity to Verdict.
    In trespass to try title where the defense was adverse possession and the jury affirmatively found that defendants had had adverse possession of only 2½ acres, the judgment thereon must conform to the verdict, and defendants’ motion for judgment for the entire tract on the theory of constructive possession was properly refused.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 446 — 454; Dec. Dig. § 256.*]
    2. Appeal and Error (§ 1003) — Review — Verdict — Evidence—Sufficiency.
    In trespass to try title where defendants claimed constructive possession of the entire tract, a finding that they had possession of only 2½ acres held, not so palpably against the evidence as to authorize the appellate court in setting it aside.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.*]
    3. Adverse Possession (§ 85) — Constructive Possession — Evidence—Sufficiency.
    In trespass to try title where defendants set up constructive possession of the whole tract, they are not entitled to judgment unless their claim to the entire tract, in addition to the possession of a part, be shown by clear and definite testimony; a mere inference not being sufficient.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 498-503, 656, 657, 660, 668, 688-690; Dec. Dig. § 85.*]
    4. Trespass to Try Title (§ 50) — Costs.
    In trespass to try title where plaintiff recovered judgment against defendants for a large portion of the land in controversy, plaintiff is entitled to costs.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 80, 81; Dec. Dig. § 50.*]
    5. Appeal and Error (§ 226) — Presentation of Grounds of Review in Court Below —Necessity.
    Where costs were incurred because of-plaintiff’s error in making persons who disclaimed parties defendant, defendants must call that fact to the attention of the trial court in a motion for new trial or to retax costs, and if that he not done the improper allowance of costs cannot be complained of on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1324; Dec. Dig. § 226.*]
    On Motion for Rehearing.
    6. Adverse Possession (§ 98) — Constructive Possession.
    One holding a part of a tract of land adversely is not entitled to the whole on the theory of constructive possession, in the absence of the showing of an actual claim to the entire tract during the period of limitations or that it would be unjust and inequitable to set off only that portion actually held.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 542-546; Dec. Dig. § 98.*]
    Appeal from District Court, Jefferson County; W. H. Pope, Judge.
    Action by the Texas & New Orleans Railroad Company against John Dupont and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    V. A. Collins and John J. & David E. O’Fiel, all of Beaumont, for appellants. Hightower, Orgain & Butler and D. Edward Greer, all of Beaumont, for appellee.

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

   PLEASANTS, C. X

This is an action of trespass to try title brought by appellee against the appellants, John Dupont, G. Stewts, Joe Stewts, Will Stewts, David R. O’Fiel, John O’Fiel, and Orella Dupont, to recover a tract of 42i/io acres of land, a part of section 121, Texas & New Orleans Railway survey in Jefferson county. The defendants John Dupont, G. Stewts, and John O’Fiel filed disclaimers. The other defendants answered by plea of not guilty and a plea of limitation of ten years. The claim in the plea of limitation was to all of the 42i/io acres described in plaintiff’s position.

The cause was submitted to a jury in the court below upon special issues. The questions propounded to the jury and their answers thereto were as follows:

“(1) Have the defendants had actual, open, continuous, adverse possession of any of the land involved in this suit for ten years prior to the 22d day of August, 1911? Answer yes or no.
“(2) If you answer issue No. 1 in the affirmative, then answer this: Gan you describe from the evidence what part of the land defendants have had such actual, open, continuous, and adverse possession of? Answer yes or no.
“(3) If you answer issue No. 2 ‘Yes,’ then in answer to this, the third, issue give a description of the land of which you fiud the defendants have had such actual possession for ten years.”

The jury found in the affirmative on Nos. 1 and 2, and on No. 3 they answered:* “That portion of the land containing about 2½ acres, as shown on the maps furnished us by the court, which was furnished as evidence and made by S. F. Daniels.”

Upon the return of this Verdict judgment was entered in favor of plaintiff for all of the land except the 2½ acres mentioned in the verdict, for which judgment was rendered in favor of defendants. Thereafter the defendants filed a motion to correct the judgment and award defendants all of the land; the ground of the motion being that, upon the finding of the jury that defendants were in actual possession of 2½ acres of the land, they were entitled to judgment for the whole tract, because as a matter of law such actual possession of defendants extended by construction to the boundaries of their claim and included all of the 42i/io acres. This motion asked in the alternative that the judgment be set aside and a new trial granted defendants on the ground that all of the evidence showed that defendants were in actual possession of the 2½ acres and claimed all of the 42Vio acres for more than ten years before this suit was filed.

The evidence shows that the appellee has title from the state to all of section 121, of which the land in controversy is a part, except such portion of said section as defendants may have acquired title to by adverse claim and possession under the ten years’ statute of limitation. The actual possession by the defendants of the 2½ acres described in the verdict of the jury for more than ten years before October 15, 1910, the date on which the suit was filed, was shown by all of the testimony in the case. The only evidence of the claim of defendants to any portion of the land other than the 2½ acres actually used and occupied by them is found in the testimony of the defendant Joe Stewts and a witness for the defendants named Frugia.

Stewts testified, in substance, that he went on the land in January, 1900, and has lived there continuously since that time. He de: scribed the improvements which he had placed on the land, all of which were on the 2½ acres. He further testified: “My brother Will and stepfather are living on the premises with me; only my brother Will and myself went on the place first and we have been living on the place and claiming it ever since we first went on it. We had Mr. Daniels to survey the land and furnish us a plat. For natural boundaries of the land it goes around the bayou and up near where the old county bridge was and back to the railroad on the southeast side of the county road.” The survey made by Daniels for the defendants was made on August 18, 1910. After identifying the map and explaining the field notes made by Daniels, which included one acre of land that defendants do not claim, the defendant Joe Stewts further testified: “We claimed all the land, but did not set up any claim to that acre because we thought it was the right of way for the county; there was a new bridge to be built there about that time. The bridge was there but was all torn up; it was an old wooden bridge. We claimed the whole piece we had surveyed, except the one acre, up to the corner there next to the bridge. The dotted lines on the plat represent the garden, house, and woodyard; the dotted lines represent what we have actually inclosed and in use and occupied by the houses; we had that actually inclosed and in use all the time. Mr. Daniels furnished us with the plat of the land made from a survey made on the ground. We settled on the land for the purpose of getting title to it.”

The witness Frugia, after stating that the defendants had been on the land ever since he could"remember, testified: “I used to go there every four or five months, and to pass on the way from Sabine -Pass to Beaumont, and they were on the land then; they had some trees on the land when I first went there, and the Stewts boys had some little houses on the bank, and they were staying in them; the defendants claimed the land; I stopped there to get some wood in a skiff in 1907 or 1908, and defendants forbade us taking it.”

Under their first, second, and fourth assignments of error the appellants complain of the refusal of the trial court to correct the judgment or to grant them a new trial upon the grounds set out in their motion, which we have before stated.

It is clear that no other judgment than that rendered by the court could have been properly rendered upon the verdict returned by the jury. The' judgment must follow and conform to the verdict, and, the jury having found that the defendants had held adverse possession of only 2½ acres of the land in controversy for ten years before the suit was filed, judgment could not have been rendered for defendants for any part of the land except the 2½ acres, and the court properly refused the motion to correct the judgment.

While the testimony above set out may be sufficient to justify a finding that the defendants claimed the whole of the 42i/io acres during all of the time that they had been on the land, it does not compel such finding, and the verdict of the jury that the defendants had adverse possession of only the 2½ acres for ten years before the filing of this suit is not so against the weight and preponderance of the evidence as to authorize this court to set aside the judgment of the trial court, based on said verdict.

The testimony of the defendant Stewts as to the length of time he had been claiming the 42i/io acres is not as clear and definite as it should be, and the testimony of the witness Frugia upon this issue is more uncertain and indefinite. To entitle them to recover all of the land the defendants were required to show, in addition to their actual occupancy of a portion, that they had been claiming all of it for ten years before the suit was brought, and this showing should have been made by definite testimony and not left to inference. The statement of the defendant Stewts that he had been claiming “the place” ever since he first went on it may mean that he was claiming the whole of the 42y10 dcres or that he was claiming the place or portion of the land used and occupied by him. The land was not surveyed until just before this suit was brought, and there is no testimony which definitely fixed the boundaries or extent of defendant’s claim prior to the time the survey was made. We think the jury were authorized upon this state of the testimony to find that defendants had not had adverse possession for ten years of any part of the land except the 2½ acres actually used and occupied by them.

Plaintiff in the court below, having recovered judgment against defendants for a portion of the land in controversy, was entitled to recover costs against the defendants.

If the costs ' incurred by plaintiff in making the defendants who disclaimed parties to the suit was improperly adjudged against the appellants, the matter should have been called to the attention of the trial court in the motion for new trial or to retax the costs. This not having been done, the question cannot be raised in this court, and the third assignment- of error which complains of the judgment for costs cannot be sustained. Clark v. Adams, 80 Tex. 674, 16 S. W. 552.

We are of opinion that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.

On Motion for Rehearing.

As. stated in our main opinion, the evidence is not such as to require the finding that appellants claimed the specific 42i/io acres of land involved in this suit for tqn years prior to the institution of the suit.

If it be conceded that appellants, having shown adverse possession and claim to the 2½ acres awarded them by the jury for more than ten years before the suit was filed, were entitled as a matter of law to have set apart to them as much as 160 acres of the section of which the 2½ acres was a part, they would not be entitled to any specific portion of said section outside of the boundaries of their actual possession without showing that they had claimed such specific and defined portion for the ten years required by the statute, or alleging and proving that it would not be unfair or inequitable to have the specific 42/i0 acres now claimed by them set apart to them. No such allegation or proof was made, and their right to the specific 42i/io acres depends upon whether they have been claiming that particular part of the section for ten years before the suit was brought. Louisiana & Texas Lumber Co. v. Stewart, 130 S. W. 199.

•We think the motion for rehearing should be overruled, and it is so ordered.


author: FLY, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. HUEGLE.
    (Court of Civil Appeals of Texas. San Antonio.
    May 28, 1913.
    Rehearing Denied June 25, 1913.)
    1. Railroads (§ 369)—Injuries on Track— Injuries to Trespassers.
    The fact that one injured on a railroad track was a trespasser did not relieve train employs of the duty of keeping a lookout or justify them in running over such trespassers without endeavoring to discover them on the track.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1259-1262; Dec. Dig. § 369.]
    2. Railroads (§ 370)—Injuries on Track-Duty to Give Signals.
    It was a duty of trainmen to give the statutory signals by bell and whistle at a point on the right of way which was customarily used by pedestrians as a footpath or crossing to the company’s knowledge.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1263-1265; Dec. Dig. § 370.*]
    3. Railroads (§ 390) — -Injuries on TRACK-CONTRIBUTORY NEGLIGENCE — DISCOVERED Peril.
    If one who negligently went on a right of way was discovered by train employés in a place of danger in time to have stopped the train and avoided his injury, the company would be liable for his failure to do so, notwithstanding the injured person’s contributory negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. § 390.*]
    4. Railroads (§ 370) — Injuries on Track-Care Required.
    Train employés on a train passing through a town at a rapid rate of speed about 8 o’clock in the evening at a place habitually used by pedestrians are required to keep a reasonable lookout for pedestrians at such place.
    '[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1263-1265; Dec. Dig. § 370.*]
    5. Railroads (§ 370) — Injuries on Track-Duty of Company — Keeping Dookout.
    While ordinarily railroad companies may rely upon having a clear track, except at public croséings, etc., they must keep a lookout to prevent injury to any one who may be on the track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1263-1265; Dec. Dig. § 370.*]
    6. Railroads (§ 400) — Injuries on Track-Jury Question — Discovered Peril.
    Evidence in an action against a railway company for injuries by being struck by a train while at a place on the right of way habitually used by pedestrians held to make it a jury question whether the trainmen discovered plaintiff’s peril in time to have stopped the train before striking him.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 400.*]
    Appeal from District Court, Medina County; R. H. Burney, Judge.
    Action by Frank Huegle against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, De Montel & Fly, and V. H. Blocker, all of Hondo, and W. B. Teagarden, of San Antonio, for appellant. D. J. Brueks, of Hondo, D. A. McAskill, Perry J. Lewis, and H. C. Carter, all of San Antonio, for appel-lee.

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

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

   FLY, C. J.

Appellee instituted this suit to recover damages which he alleged accrued through injuries negligently inflicted on his person by appellant. Appellant answered by general denial and special plea of contributory negligence on the part of appellee. A trial by jury resulted in a verdict and judgment for appellee in the sum of $9,000.

The facts show that while appellee was walking in a path near the main line of appellant in the town of D’Hanis, which was habitually used by pedestrians, he was struck by a west-bound train, and knocked down and seriously injured; that he fell on a side track, also near the -much-used path, and while lying there in an unconscious condition he was run over by an east-bound train, and one of his feet so injured that it had to be amputated. The two accidents occurred through the negligence of the crew of each train, either in failing to keep an outlook and give signals while running through the town, the west-bound at a high rate of speed, or in failing to use any means at hand to prevent injuring appellee after he had been discovered near the track. One or two things is absolutely true in connection with the accidents — either no watch whatever was kept on the tracks and paths near by while the trains were passing through the town, or appellee was seen first near the track, in a place of danger, by the employés on the west-bound train, and no warning of the approach of the train was given and no effort made to stop it and was then seen on the side track by the employes on the east-bound train, and no effort made to stop the train or warn appellee of its approach. The engineer on the west-bound train stated that he ran through D’Hanis at the rate of 20 or 25 miles an hour, that he was looking ahead, and, if a man had been walking between the main and side tracks, he would have seen him when he was 600 or 700 feet distant. There was evidence tending to show that there was no headlight on the west-bound engine. The west-bound train passed through D’Hanis between 8 and 8:30 o’clock, and ap-pellee was injured about that time. No trains passed through D’Hanis between 8 and 10:15 o’clock p. m. except the one going west and the other east. The east-bound train passed through D’Hanis at 10:15 p. m. The engine and caboose going west could have been stopped in a distance of 100 feet or less. The east-bound train was moving at the rate of four or five miles an hour when it ran over appellee. The engineer swore that there was no obstruction that would have prevented him from seeing ap-pellee lying on the track, but swore he did not see him, and yet he was run over and hurt. After appellee was injured, the train was stopped and the employés went to him¡ [1] The evidence failed to show contributory negligence on the part of appellee, but, if it had, all the facts tend to show that appellant’s employés knew, or should have known, the peril of appellee. As said by this court in Railway v. Broomhead, 140 S. W. 820: “If it be true, however, that deceased was a trespasser upon the track of appellant, that fact did not relieve appellant of the duty of keeping a lookout on its track, and give license to its employés to shut their eyes to objects on the track and to run down and kill human beings thereon, and obtain immunity from such acts by the plea that they had no right to be on the track. * * * The fact that a person may without authority enter upon a railroad tract does not relieve railroad companies of tlie duty devolving on tliem in the operation of their dangerous agencies of being watchful for men or beasts upon the tracts, but they will be held to owe the duty at all times when a train is in motion, at all points along their highways, to teep a reasonable outloot, and to exercise reasonable care to prevent injury to any one on the tract.” Broomhead was waiting in a path near the tract, which was habitually used by pedestrians, with his bact towards the train that struct him. That path was not in or near a town. The employés could have seen Broomhead, but swore they did not see him. No signals were given, and the train was running at a high rate of speed. The facts in this case are more potent than in the Broomhead Case. Appellee herein was in a path habitually used by pedestrians in the town of D’Hanis, no signals were given, and the train was running at a high rate of speed. The first, second, and third assignments of error, which' attack the sufficiency of the evidence to show negligence on the part of appellant, are overruled. Railway v. Watkins, 88 Tex. 20, 29 S. W. 232.

It is the contention of appellant that the court erred in submitting as an issue of negligence the failure of appellant to ring the bell or blow the whistle or to have its headlight burning within eighty rods of a road crossing, if appellee was struck within that distance of a public crossing. The court did not declare that it was negligence to fail to do the things enumerated, but left it to the jury to determine whether or not it was negligence. Appellant in his fourth assignment of error claims that the charge was erroneous, “because these were not any of the legal duties due to plaintiff under the circumstances of this case, and could not be looked to for any other purpose, except to pass upon the conduct of plaintiff only.” The court did not state that it was a duty owed by appellant to appellee to blow the whistle, ring the bell, and keep the headlight burning, but merely submitted it to the jury to say whether it was negligence for a railroad train to run through a town with no lights and without giving any signal of its approach. It is provided by statute that every locomotive engine be equipped with headlights of not less than. 1,500 candle power, measured without the aid of a reflector, but, if the Legislature had not provided for the headlight or the ringing of the bell or sounding of the whistle, the jury might have found that .it was negligence under the facts of this case to fail to give notice of the approach of a train at night by light, whistle, or bell. Speaking of the statutory signals, the Supreme Court, in the case of Railway v. Saunders, 101 Tex. 255, 106 S. W. 321, 14 L. R. A. (N. S.) 998, 16 Ann. Gas. 1107, held: “These signals are required because of the nature of the place, a crossing of the railroad by a road or street which others have the right to occupy and use with their persons and property. The deduction seems plain that the protection is given to those who are exercising their right with respect to the road or street. The requirement is not adapted to the protection of others, the warning being required only at a certain distance from the highway and until it has been passed.” The court quotes with approbation the case of Railway v. Gray, 65 Tex. 32, and says: “The doctrine laid down by Chief Justice Willie in Railway v. Gray admits allegation and proof of the failure to give such signals as a fact to be considered by the jury in determining whether or not under the facts of a particular case there was, in fact, negligence on the part of a railway company in the conduct of its business; and, in order to explain the bearing of such evidence, the court may inform the jury of the statutory provision, provided it leaves to them the decision, from all the evidence, of the ultimate question of negligence vel non.” In the Gray Case, approved in the Saunders Case, it was held: “Whilst the statutory signals to be given at road crossings are intended as warnings to persons upon the road or near the crossing, the failure to give them may be taken into consideration, together with other facts, to show want of reasonable care on the part of the company as to other parties lawfully upon the railway. ⅜ * * In the one case the omission of the signals is negligence per se, and may be so declared by the court; in the other it may or may not be negligence under the circumstances, and the jury must pass upon the question.” In this case, coupled with the failure to give signals, was a failure to have a headlight, a statutory duty, and appellee when struck was in a pathway habitually used by the public in a town at a place within eighty i'ods of a public crossing. The issue was raised by the evidence as to negligence in regard to the light and the signals, and it was not error to present it to the jury.

The fifth assignment of error complains of a certain part of the charge of the court which, it is stated, instructed the jury that it was the duty of appellant to give the statutory signals and have the engine lighted at time of accident, and then complains because the court did not so charge, but left it to the jury to determine. The charge of the court did not submit the question of the duty to give statutory signals or to light the engine to the jury, but submitted the question as to whether it was negligence to fail to do those things. The charge was not erroneous in any particular or injurious to appellant, and it would have been error to have instructed the jury that it was a duty of the appellant to appellee to give the signals by bell and whistle under the facts of this case.

If appéllee was guilty of negligence by going on or near the track of appellant, and was by such negligence in a place of danger and peril, but was discovered by the employés of appellant in his place of peril in time to have stopped the train and prevented the accident, appellant would be liable, in spite of the contributory negligence of appel-lee. That is in effect what the court gave in charge to the jury in the fourth paragraph of the general instructions, and that forms the subject of complaint in the sixth assignment of error. Discovered peril in time to prevent an accident by the reasonable use of the means at hand blots out and destroys the effects of contributory negligence. The evidence shows that the peril of appellee must have been discovered by the employés of appellant. Railway v. Wallis, 47 Tex. Civ. App. 120, 104 S. W. 418; Railway v. Rogers, 55 Tex. Civ. App. 93, 117 S. W. 939; Railway v. Staggs, 90 Tex. 458, 39 S. W. 295. The rule is recognized and applied to the facts by appellant in a special charge requested by it and given by the court. By that special charge the effect of the contributory negligence of appellee is destroyed by proof of the timely discovery of his peril on the part of the employés of appellant. If the charge of the court had been erroneous, under the facts, appellant has placed itself in such a position that it cannot complain.

The charge complained of in the seventh assignment of error as imposing a higher degree of care upon appellant in keeping a lookout along its track than authorized by law we do not think open to the attack made upon it. No higher degree of care is demanded by the charge than a “reasonable lookout for pedestrians at said time and place.”

It surely cannot be maintained that the employes on a train passing through a town about 8 o’clock in the evening, at a place habitually used by pedestrians and at a rapid rate of speed, are not required to keep a “reasonable lookout for pedestrians at said time and place.” Even under the narrow and restricted rule enunciated by the Supreme Court in Railway v. Malone, 102 Tex. 269, 115 S. W. 1158, which holds that no duty arises to keep watch by night in passing a bridge which was habitually used by pedestrians during the day, but was used by only a few persons at night, the charge was not erroneous. The rule announced in Railway v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632, and Railway v. Hewitt, 67 Tex. 473, 3 S. W. 705, 60 Am. Rep. 32, and followed in a number of recent cases by the Courts of Civil Appeals and approved by the Supreme Court, by the refusal of writs, is the more salutary rule. Railway v. Burnett, 49 Tex. Civ. App. 244, 108 S. W. 404; Railway v. Williams, 50 Tex. Civ. App. 134, 109 S. W. 1126; Railway v. Poteet, 53 Tex. Civ. App. 44, 115 S. W. 883; Railway v. Broomhead, 140 S. W. 820; Hig-ginbotham v. Railway, 155 S. W. 1025. j

The rule, we think, is well stated by Judge Stay ton in the cited case of Railway v. I-Iewitt: “Ordinary railway companies, running cars propelled by steam, have the exclusive right to the use of their tracks, except at such places as they are intersected by public crossings or such private ways as they may permit, and they may therefore expect that no one will violate this right, and may rely upon a clear track, but it is very generally held that notwithstanding this, such is the hazardous nature of the business in which they are engaged, it is the duty of such carriers, not only for the safety of their passengers, but for the safety of any one who may be on the track, to keep a lookout.”

It is rarely the case that direct and positive evidence of a discovery of a person on the track by the employés can be obtained and necessarily circumstantial evidence must be relied upon to prove the issue. In this case appellee swore that he was walking in a path near the main line of the railway, and that he was struck by a passing train; the employés on the west-bound train swore that they had a strong headlight capable of revealing the presence of a person in the path a long distance off, and that they were keeping watch along the track. The jury could reasonably conclude, in spite of their statements to the contrary, that they saw appellee at such distance that they could have warned him or have stopped the train in time to have prevented disaster. The evidence of the employés on the east-bound train was to the same effect. The court did not err in presenting the issue of discovered peril to the jury, and the eighth assignment of error is overruled.

The ninth assignment of error presents matters herein considered adversely to appellant, and is overruled. Nothing is assumed in the charge, but every question was clearly and impartially submitted to the jury, and the tenth and eleventh assignments of error are overruled.

The court submitted nothing but questions of fact for the consideration of the jury, and the twelfth assignment of error is overruled.

There is no error requiring a reversal, and the judgment is affirmed.


author: RAINEY, C. J.

text:
    BOWMAN et ux. v. FARMERSVILLE MILL & LIGHT CO.
    (Court of Civil Appeals of Texas. Dallas.
    May 24, 1913.
    Rehearing Denied June 21, 1913.)
    1. Electricity (§ 18)—Action foe Injuries —CONTRIBUTORY NEGLIGENCE.
    Deceased, who knew that electric light wires were dangerous, and who saw a wire fall during a storm and burn the grass, and who, after warning that it was dangerous, stopped and took hold of it with his hanus, was guilty of contributory negligence.
    [Ed. Note.—For other cases, see Electricity, Cent. Dig. § 10; Dec. Dig. § 18.]

      2. Electricity (§ 19) — Action for Injuries —Sufficiency of Evidence — Negligence.
    Evidence, in an action against an electric light company for the death of plaintiffs’ decedent by contact with one of its fallen wires, held to sustain a finding that defendant was not guilty of negligence.
    [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.*]
    3. Trial (§ 260) —'Instructions — Negligence-Instructions Covered by Others Given.
    In an action against an electric company for the wrongful death of plaintiffs’ son, where the only issue under the pleadings was whether defendant was negligent in discovering that the wire had fallen during a storm and in failing to remove it or cut off the current before deceased was killed, the court instructed that if the defendant by ordinary care might have known that the wire had fallen in time to have removed it, or to have turned off the current and have prevented the injury, and failed to do so, it was liable, but that if tnere was no negligence in the falling of the wire, and defendant by ordinary care could not have discovered its fall in time to have removed it or cut off the current before the injury, it was not liable, and refused plaintiffs’ instruction that if defendant should have known that the wire had fallen in time to have prevented injury, and that if its failure to do so was the proximate cause of the death, it was liable. Meld, that the charge given covered the issue and that the failure to give the requested charge was not prejudicial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]
    4. Trial (§ 260) — Given Instructions — Requested Instructions.
    Where the court’s charge, taken as a whole, fairly submitted all material issues in a way not likely to mislead the jury, the refusal of requested charges therein was not reversible error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig-. §§ 651-659; Dec. Dig. § 260.*]
    5. Appeal and Error (§ 1068) — Review — Harmless Error — Instructions.
    Where the evidence, in an action against’ an electric light company for the death of plaintiffs’ decedent from contact with a fallen wire, showed that he was guilty of contributory negligence in taking hold of the wire, any error in the court’s charge was harmless to plaintiffs, since the verdict for defendant was the only one that could have been rendered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]
    6. Appeal and Error (§ 216) — Parties Entitled to Allege Error — Necessity of Requesting Charge.
    Where plaintiffs, in an action against an electric light company for the death of their son by contact with a -live wire, pleaded that the persons in charge of defendant’s plant were incompetent and unfit, but requested no charge on such issue, they could not, on appeal, complain of the court’s failure to submit such issue.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216.*]
    Appeal from District Court, Collin County; J. M. Pearson, Judge.
    Action by A. A. Bowman and wife against the Farmersville Mill & Light Company. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    G. R. Smith, F. E. Wilcox, and J. E. Abernathy, all of McKinney, for appellants. W. R. Abernathy and R. C. Merritt, both of McKinney, for appellee.

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

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

   RAINEY, C. J.

This is a suit by appellants to recover damages against appellee for the death of their son, who was killed by coming in contact with a live electric wire belonging to appellee, which was down on a street known as Rike avenue, in the town of Farmersville, Tex.'

The negligence charged in plaintiffs’ peti-. tion was in effect: First. Permitting an electric light wire charged with electricity to become broken and fall upon, across, and along Rike avenue. Second. In failing to keep and maintain appliances to indicate when a light wire had fallen and was grounded. Third. Failing to use ordinary care and diligence to discover that said wire was down or grounded and to remove it or render it harmless. Fourth. In failing to turn off the current of electricity from its lines and from its fallen or grounded wires. Fifth. That the person or persons in charge of appellee’s plant were incompetent and not fit for the-position. Appellee answered by general denial, specially pleading that the wire was broken as the result of being struck by-lightning during an unusual and severe storm prevailing at the time; that deceased was guilty of contributory negligence in taking hold and coming in contact with said wire after knowing it was down and with the knowledge that it was dangerous, and after having been warned that it was dangerous. A trial before a jury resulted in a verdict and judgment for appellee, from which judgment appellants have appealed.

Conclusions of Fact.

That appellee is a corporation, owning and operating an electric light plant in the town of Farmersville. That appellants were the parents of Joseph E. Bowman, deceased, who was 19 years of age at the time of his death. Joseph was a blacksmith and earning about $75 per month. On the day of his death, about 4 p. m., he left his place of business for home and a severe storm broke and he took shelter in the house of John Holloway and remained on the porch with Holloway during the storm, which lasted 20 or 30 minutes and was of unusual severity. During the storm there was a hard rain, considerable wind, vivid lightning and thunder, and during said time there was a loud and keen clap of thunder and flash of lightning which seemed to strike near, and immediately thereafter they noticed a broken electric wire down across the street from where they were. Holloway called deceased’s attention to the wire hanging down and to its burning the grass and smoking and that it was dangerous. Holloway and deceased watched it burning the grass for some little while. After the storm slackened Holloway went out and crossed the street and telephoned the electric plant to shut off the current, and as he started he told deceased to wait for him. But deceased followed him across the street to within 8 or 15 feet of the wire, which was hanging from the electric light pole down in and across the alley and upon and across the corner of Mrs. Coffey’s yard and back into the main street. Mrs. Coffey was on her front porch and deceased said to her, “Your lights are out;” and he immediately stopped, leaned forward, took hold of the wire with his right hand, and was almost instantly killed.

Deceased had lived in Farmersville about five years where electric lights were strung ov%r the town, knew what they were and that they were dangerous. The evidence shows, we think, beyond controversy that deceased was guilty of contributory negligence. We also think the jury were justified from the evidence in finding that appellee was not guilty of negligence.

Opinion.

The first assignment of error complains of the refusal to give the requested charge No. 1, as follows: “If you find from the evidence that the defendant maintained proper and suitable appliances and devices at its power plant for the purpose of indicating when a wire charged with electricity was broken and down on the ground, but if you find that it failed to exercise ordinary care as to the inspection of such appliances, and you further find that if defendant had inspected such devices or appliances, it could and would have seen and known that such charged wire, if any, was broken and down on the ground in time to have prevented injury, and that defendant’s failure to exercise ordinary care as to inspecting such appliances, and if you further find that such failure, if' any, was negligence, and that said negligence was the proximate cause of the death of said Joseph E. Bowman, and that deceased was not guilty of contributory negligence, and that on account of his death plaintiffs sustained a pecuniary loss, you will find' for the plaintiffs.” On this issue plaintiffs pleaded as follows: “Plaintiff would further represent and show to the court that the defendant company did not keep and maintain a ground detector or other appliance to announce and indicate at the plant or power house when a circuit was grounded or when a live wire had fallen to the ground, and that it was the duty of the defendant company to have had and maintained an appliance for this purpose in order to discover and render harmless a fallen wire charged with electricity, and in failing to do so the said defendant company was further guilty of negligence, which was the direct and proximate cause of the death of said Joseph E. Bowman. But, if mistaken in the allegation that the defendant company did not have and maintain a ground detector or an appliance that would indicate a fallen wire charged with electricity and a grounded circuit, then the plaintiffs allege and charge that the defendant company knew that a wire was down or grounded somewhere on its line in said city charged with electricity at and prior to the death of said Joseph E. Bowman, as aforesaid, or by the exercise of ordinary care should have known it and would have known it, and that the defendant knew that said wire was then and there charged with a dangerous current of electricity, and knew it would be dangerous to persons passing along the streets of said city, and especially on said Rike avenue, and further knew.that the streets of said city and said Rike avenue were in constant use by the public, and that persons so passing along said streets, and especially Rike avenue, might come in contact with said fallen wire, and that death or serious bodily injury would be caused thereby; that it was the duty of the defendant company to use ordinary care and diligence to discover that said wire was down or grounded and to remove it or render it harmless, and that it was the duty of the defendant company to use ordinary care and diligence to prevent the said wire from causing injury to any one who might be upon or using said street or streets, where said fallen wire was down; but that the defendant company, unmindful of its said duty, negligently failed to discover and remove said fallen wire and negligently failed to render the same harmless and negligently failed to turn off said current of electricity from its said line and from its said fallen or grounded wire, and by reason thereof said defendant was further guilty of negligence which was the direct and proximate cause of the death of said Joseph E. Bowman.”

The court submitted to the jury in its general charge the issue as follows: “But if you find and believe from the evidence that one of defendant’s wires charged with electricity was caused by lightning to fall upon and obstruct the streets or Rike avenue, and while so obstructing the streets or sidewalk Joseph E. Bowman, while walking or standing upon said street or sidewalk, was exercising ordinary care for his own protection, came into contact with said wire so charged and was thereby killed, and if you further find and believe from the evidence that after the fall of said wire on the street or sidewalk, and before the death of Joseph E. Bowman, the defendant company, by the exercise of ordinary care, could and would have known of the falling and grounding of one of its wires charged with electricity upon its line for a lapse of time reasonably sufficient to have enabled the defendant company to have removed said wire from the streets or to have turned off the electric current and thereby to have prevented the death of Joseph E. Bowman, and you further find and believe from the evidence, under the circumstances above enumerated, that the defendant company was guilty of negligence in failing to discover the falling and grounding of said wire upon its line, if you find it so failed, or in failing to remove the wire from the street, if you find it so failed, or in failing to turn off the electric current in time to have prevented the death of Joseph E. Bowman, if you find it so failed, and was guilty of negligence in either respect above enumerated, and you further find and believe from the evidence that such negligence, if any, was the direct and proximate cause of Joseph E. Bowman’s death, you will find a verdict for the plaintiffs and assess their damages as hereinafter instructed. On the other hand, if you find and believe from the evidence, under all of the facts and circumstances in the case, that the defendant company was not guilty of negligence in the falling of its wires charged with electricity upon Rike avenue, and you further find and believe from the evidence that the defendant company did not know and could not by the exercise of ordinary care have discovered the falling and grounding of its wires upon its line a reasonably sufficient lapse of time beforehand to have enabled it to have removed the same or to have turned off the current and thereby have prevented the death of Joseph E. Bowman, then you will return a verdict for the defendant.”

The undisputed evidence shows that appel-lee had an appliance at its plant that would indicate the fallen wire in question. Then the only issue that arose was, Did the appel-lee use diligence in discovering that the wire had fallen, and was it negligent in failing to remove it from the street before deceased was killed, or in failing to cut off the current? The court in its general" charge fully covered this issue as presented by the evidence. "We are of the opinion that appellants were not prejudiced by the failure to give the charge requested.

The <second and third assignments complain of the ninth and tenth paragraphs of the court’s charge, and the fourth and fifth assignments complain of the refusal to give requested charges. We find no reversible error in these assignments. The court’s charge, when taken as a whole, fairly submitted all material issues and in a way that it is not probable the jury were misled thereby.

Besides, the evidence conclusively shows that deceased was guilty of contributory negligence in taking hold of the live wire, and appellants were not entitled to recover, and if there was any error in the court’s charge, which we do not believe, it becomes harmless as the verdict was the only one that should have been rendered.

The sixth assignment of error is: “The charge of the court as a whole does not submit all of the law of the case as demanded by the evidence in this: The plaintiffs allege in the fifth paragraph of their petition that the person in charge of and running the motive power of defendant’s plant at the time of the death of Joseph E. Bowman was incompetent and not fit for the position, and the defendant company in having said person so in' charge at the time was guilty of negligence which directly and. proximately caused the death of said Bowman, and that if a competent person had been in charge at the time such person could and would have discovered the fallen wire in question, and could and would (have) turned off current from said fallen wire and thereby have averted the death complained of, and evidence amply established these allegations, or at least clearly raised the issue, and the court should have submitted this issue to the jury.” The proposition submitted under said assignment is: “The charge of the court did not submit all the law of the case in that the court failed to submit to the jury the issue of the negligence of the defendant in having an incompetent and unfit person in charge of the power plant at the time the deceased met his death.”

The appellants pleaded but requested no charge on this issue and, having failed to do so, are in no attitude to complain.

Finding no reversible error in the record, the judgment is affirmed.


text:
    O’CONNOR v. CAMP et al.
    (Court of Civil Appeals of Texas. Dallas.
    May 24, 1913.
    Rehearing Denied June 14, 1913.)
    1. Pbincipad and Agent (§ 149)—Atjthob-ITY.
    A contract signed by “M. & B. agents of the estate of B. O’Connor, authorized by E. O. Tenison,” which recited that there was received of C. a certain sum in payment of a lot, would not bind John F. O’Connor, in the absence of proof that the contract was authorized to be signed for him, though he was. the executor of the estate and one of the heirs.
    [-Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 553-555; Dec. Dig. § 149.!
    2. Evidence (§ 455) — Paeod Evidence — Modification of Contbact.
    Parol evidence is not admissible to show that the parties to a contract used language in a sense different from its ordinary meaning.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2104; Dec. Dig. § 455.]
    3. Evidence (§ 455) — Paeol Evidence— Vabying Contracts.
    It is not permissible to show that the word “estate” used in a contract purporting to sell land as agents of the estate of another was intended to be used for the word “heirs,” or that heirs were included therein.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2104; Dee. Dig. § 455.]

      4. Principal and Agent (§ 164) — Ratification.
    To permit a valid ratification of a contract made by another, it must purport to be made for or in the name of the ratifying person.
    [Ed. Note. — Por other cases, see Principal and Agent, Cent. Dig. §§ 622-625; Dec. Dig. § 164.]
    Error to District Court, Dallas County; J. C. Roberts, Judge.
    Action by T. D. Camp against John P. O’Connor and others, heirs of B. O’Connor, for specific performance of a contract to sell land. Judgment for plaintiff and others, and defendant named brings error. Reversed and rendered. ■
    Spence, Knight, Baker & Harris, of Dallas, for plaintiff in error. Crane & Crane and
    K. R. Craig, all of Dallas, for defendants in error.

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

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

   RAINEY, C. J.

Defendant in error Camp sought to recover on the following contract', viz.: “Dallas, Texas, July 12, 1906. Received of Thomas U. Camp the sum of $200.00 in part payment for 50x100 feet, the southwest corner of Main and Dove streets, part of block 171, according to Murphy & Bolanz’s official map of the city of Dallas, Texas, this day sold by us as agents of the estate of B. O’Connor to the said Camp for the purchase price of $4,000.00, payable as follows: $1,-000.00 cash, balance in three notes of $1,000.-00 each, due in 1, 2 and 3 years after date, bearing interest from date until paid at the rate of 6% interest, payable semiannually as it accrues. Privilege of paying off any or all notes at end of any year. Said notes to be secured by the usual form of .vendor’s lien and deed of trust. Conditioned upon an authentic abstract showing good title to said property and should the title to said property prove not good and cannot be made good within a reasonable time, say 60 days from date thereof, then we obligate ourselves to return to said Camp the sum of $200.00 now paid, upon the return and cancellation of this receipt. ‘ The balance of cash payment to be paid and notes and deed of trust to be executed upon delivery of general warranty deed properly conveying the hereinbefore described property. It being understood that the property shall be free and clear of all in-cumbrances of whatsoever nature, including taxes of 1906. Insurance and rents to be pro rated from date of delivery of deed. Deed to be made to whomsoever the said Camp may name. Murphy & Bolanz, Agents of the Estate of B. O’Connor, Authorized by E. O. Tenison.” Defendant in error claimed that J. C. O’Connor was the independent executor of the estate of B. O’Connor, and had the control and management of said estate, and that the legal title to said land was in him, that said J. C. O’Connor had authorized E. O. Tenison to sell said land, and he, Tenison, had authorized Murphy & Bolanz to make the contract of sale. It was also claimed that Murphy & Bolanz intended in making said contract of sale to bind all the heirs of B. O’Connor, deceased, who were named as defendants in the petition, and that said contract of sale had been ratified by plaintiff in error. Plaintiff in error denied the authority of Murphy & Bolanz to enter into said contract of sale for him, and denied ratification of same by him.

The will of B. O’Connor, deceased, nominates J. C. O’Connor as his executor, and states “hereby authorizing and empowering him to in all things manage and control the estate as in his judgment may seem best,” and then names other executors to act in the event J. C. O’Connor fails to act, conferring upon them the same powers as conferred upon J. C. O’Connor, and providing that no bofid shall 'be required of said executors by any court. The will gave J. C. O’Connor no authority to sell the land, and therefore he could confer none on Murpry & Bolanz to dispose of the interest of the plaintiff in error. There was no testimony showing authority in Murphy & Bolanz from John F. O’Connor, plaintiff in error, to make the contract of sale. There was testimony tending to show ratification by plaintiff in error, though he testified to the contrary. There being no testimony showing that plaintiff in error authorized the making of the contract, the jury must have based its verdict on the testimony of ratification. While the testimony was sufficient upon which to base a finding of ratification, had the contract been made by plaintiff in error’s authority, or had it purported to have been made for him, then he would have been bound thereby.

We are of the opinion that the contract here sued upon is very similar to the one passed upon in Morrison v. Hazzard, 99 Tex. 583, 92 S. W. 33, and on the authority of that case' we feel bound to construe the contract here as the one in the Morrison-Hazzard-Case was construed; that is, the contract here purports to have been made by Murphy & Bolanz as agents of the estate of B. O’Connor. The name of John F. O’Connor is not mentioned therein, nor was it authorized by him. There is no authority shown-in said agents to sell said land for plaintiff in error, and the contract is of no effect as to him. '

The petition alleged that all the defendants are the heirs of B. O’Connor, etc., “but there is no allegation that there was any mistake in preparing the contract, or in the language used therein. Parol evidence is not admissible to show that parties to a contract used language in a sense different from its ordinary meaning, for that would effectually vary the terms of the contract.” Morrison v. Hazzard, supra.

We therefore conclude from the foregoing language used by Mr. Justice Brown that, in the absence of allegations of mistake, it was not competent to show that by the use of the word “estate” in the contract that “heirs” was intended to be used or that heirs were included therein.

To make a valid ratification of a contract by another party, the contract must purport to be in the name of or for the person ratifying. Bank v. Jones, 18 Tex. 811; Moore v. Powell, 6 Tex. Civ. App. 43, 25 S. W. 472. As the contract was not made in the name of John E. O’Connor, nor purports to be made for him, his acquiescence therein and promise to make deed to the land, there being no writing to that effect, did not amount to a ratification, and there was error in the court so holding.

The case shows that it has been fully developed, and there seems to be no need to remand for another trial. The judgment will therefore be reversed, and judgment here rendered for plaintiff in error.

Reversed and rendered.