author: RASBURY, J.

text:
    TEXAS MIDLAND R. R. v. KAUFMAN COUNTY IMP. DIST. NO. 1.
    (No. 7307.)
    (Court of Civil Appeals of Texas. Dallas.
    March 20, 1915.
    Rehearing Denied April 17, 1915.)
    1. Eminent Domain &wkey;>8 — Construction of Authority.
    All grants of the governing authority conferring the right of eminent domain are to be strictly construed.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 25, 30, 34, 43, 44; Dec. Dig. &wkey;>8.]
    2. Eminent Domain <@^47 — Property Subject to Condemnation — Property Pbevi-ously Condemned.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, enacted for the purpose of reclaiming swamp and overflow lands for agricultural purposes, article 5567 of which confers upon improvement districts generally the right of eminent- domain lo be exercised for acquiring rights of way for levees, etc., over and through any private or public lands, including levees or other improvements already constructed, the district may condemn a railroad right of way spanned by trestles upon the showing that the right of way for a levee, after filling certain openings therein, would not destroy or injure its use as an integral part of the railroad or materially impair or interfere with or be inconsistent with the railroad’s use or be detrimental to the public.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig. <@¿>47.]

      3. Eminent Domain <&wkey;47 — Property Previously Condemned — Inconvenience and Expense.
    In such case, where it appeared that, if the improvement district did not use the railroad right of way, it would entail an increased expense of $3,000 without any compensating benefit, the public interest in the building of the levee to reclaim and increase the value of agricultural lands overcame the railroad’s right to halt the construction of such improvement by the cheapest and most utilitarian method by which the purpose of the act might be accomplished, so that matters of convenience and expense to the district might be considered, although, if not considered, they would not make performance of its duty practically impossible.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig. &wkey;>47.]
    4. Appeal and Error <&wkey;1008 — Review — Question op Fact.
    Where the trial court’s conclusions of fact, not challenged by the appellant, are sufficient to support judgment, the Court of Civil Appeals has no authority to disturb them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3960, 3962-3969; Dee. Dig. <&wkey;>1008.]
    Appeal from Kaufman County Court; Jas. A. Cooley, Judge.
    Condemnation suit by Kaufman County Improvement District No. 1 against the Texas Midland Railroad. Judgment for complainant, and defendant appeals.
    Affirmed.
    Dashiell & Coon, of Terrell, for appellant G. O. Groce, of Waxahachie, for appellee.
   RASBURY, J.

Appellee brought this suit against appellant in the court below under the provisions of title 83, Vernon’s Sayles’ Civil Statutes 1914, enacted for the purpose of reclaiming, for agricultural uses, swamp lands and those subject to overflow and temporary and permanent excessive accumulation of waters. The purpose of the suit was to condemn, by the right of eminent domain conferred by the act, a portion of appellant’s right of way for use by appellee as part of a levee proposed to be constructed under the statutory provisions cited. There was first a ■hearing before commissioners, as provided by .the act, who found that appellee was entitled to appropriate to its use, by way of easement, the specified portion of appellant’s right of way and assessed the resulting damages to appellant at $250. Appellant, in the statutory manner, contested the finding of .the commissioners, and the proceeding was transferred to the county court of Kaufman county for trial in the ordinary manner for civil cases in the county court. In that c.ourt appellant answered by general demurrer and on the merits in effect that, in order to use its right of way, appellee proposed to fill certain openings in its right of way spanned by trestles, which would prevent the free and unobstructed passage of the water and prob'ably wash away its tracks and cause great damage to adjacent property owners to whom .appellant would be liable in damages, and further that the use of its dump or right of way for the purpose sought would be wholly inconsistent with and repugnant to the uses and purposes of its construction. There was trial in the county court without the intervention of a jury, resulting in judgment condemning the dump and assessing the damages again at $250. From that ■ judgment this appeal is perfected and revision thereof sought.

Conclusions of fact were upon request of appellant prepared and filed by the trial judge; and since no question arises in relation to the lawful creation of appellee for the purposes indicated, or the manner and method of enforcing the right conferred, or that appellant is a common carrier of freight and passengers, and is operating a line of railway through Kaufman county, we will not state the findings in that respect. The substance of the other essential facts found by the trial judge are, in our own language, as follows: Appellant’s line of railway is partly within the lands sought to be improved and partly near the western edge thereof. Upon such right of way so running through or contiguous to the land sought to be reclaimed, there is, for the most part, a dump properly and conveniently located for a portion of the proposed levee. At different places in the dump and right of way so sought to be condemned by appellee aré openings, spanned by trestles, left by appellant to afford a passage for overflow waters of the Trinity river. These openings appellee intends to and will fill in. Appellant’s right of way was acquired and its dump constructed and is now used as part of its line of railway, but the use of the same by appellee in the manner indicated will, not materially impair nor interfere with or be inconsistent with the use of the same for railway purposes, nor will such use be detrimental to the public. The damage to appellant by such appropriation of its dump and right of way is $250. We will discuss the issues as such without reference to the assignments.

This brings us in order to the prefatory proposition, by an appellant that all grants of the governing authority conferring the right of eminent domain are to be strictly pursued. The proposition is correct and universally conceded. Lewis, Eminent Domain, § 253. “But,” says the same author in section 254, “as in other cases, such a construction will, if possible, be given to an act as will carry into effect the chief and manifest purpose for which it was passed, and such as will give effect to all its words.” As stated in the beginning, however, it is not complained but that the authority conferred by the act was in the instant case strictly pursued, and the discussion in that respect is rather academic than otherwise.

It is next asserted that property once .dedicated to the public use cannot be appropriated to another and a different public use, in the absence of express legislative authority or authority from which such taking may he necessarily implied. In our opinion the proposition states the rule incorrectly. An accepted authority states the rule to be that:

“In the absence of some statutory provision expressly or by implication forbidding it, property devoted to one public use may, under general statutory authority, be taken for another public use, where the taking will not materially impair or interfere with or is not inconsistent with the use already existing and is not detrimental to the public. It is not material that some inconvenience may result to the prior occupant, if the conditions are such that the two uses can stand together. The rule that power must be conferred expressly or by necessary implication applies only where the second use will destroy or injure the use to which the land was originally appropriated.” 15 Cyc. 616.

The act conferring the right of condemnation invoked by appellee in this proceeding does not expressly or by implication forbid the taking of property already dedicated to a public use. It rather expressly sanctions it. Article 5567, Vernon’s Sayles’ Texas Oivil Statutes. The rule announced by Oyc. is the ■ rule in this state and has with its variations been applied. Sabine & East Texas Ry. Co. v. Gulf & Interstate Ry. Co. of Texas, 92 Tex. 162, 46 S. W. 784; Ft. Worth & R. G. Ry. Co. v. Southwestern T. & T. Co., 96 Tex. 160, 71 S. W. 270, 60 L. R. A. 145. In the case last cited it is said:

“The rule of construction laid down * * * in the authorities generally is applied in cases where the second use to which the property is sought to be put will destroy or, at least, materially interfere with that to which such property has been previously devoted. When this is the situation, courts refuse to hold that the Legislature, by a mere general grant of the power to enter upon and condemn land, intended to authorize the destruction or material impairment of an already established public use, unless it appears that the power last conferred can be exercised in no other practical way. * * * But all authority concedes the power of the Legislature to authorize the taking of property which has already been condemned to public use.”

The writer then adds that the pertinent inquiry is: Was such power, conferred by the act'invoked as authority? ,The article cited, supra, conferring upon appellee generally the right of eminent domain, provides that such power may be exercised for the purpose of acquiring the fee-simple title, easement, or right of way to and over and through any and all lands, waters, or lands under waters, private or public, except lands, etc., used for cemetery purposes, as well as to acquire the necessary right of way for all levees, etc., by gift, grant, purchase, or condemnation proceedings, and may by the same method acquire levees or other improvements already constructed. The designation of the property that may be acquired is clear and comprehensive, since it permits the appropriation of either private or public property, including private or public levees or other improvements already constructed. It is hardly necessary to say that lands, levees, or other improvements held privately refers to those belonging both to individuals and private corporations, since private corporations are but artificial persons, The kind and the extent of the property authorized to be condemned by the act would not have been enlarged by specifically classifying the individuals and corporation included within the term “private and public.” The law itself automatically classifies who is included within the term “private or public.” It being api>arent, then, that appellant is included within the provisions of the act, it also appearing that the property sought to be condemned was at the time of trial already devoted to one public use, it becomes necessary, in order to condemn appellant’s property under the general provisions of the statute, for the appellee to show that the use of the dump for a levee would not destroy or injure its use as an integral part of appellant’s line of railway, and that its use by appellee would not materially impair or interfere with or be inconsistent with that use, and that such additional use would not be detrimental to the public. These are matters peculiarly of fact to be deduced from, and in this court supported by, competent evidence.

As we have said, the case was tried in the court below without the intervention of a jury, and the conclusions of fact filed by the trial judge, deduced from the evidence developed on trial, and not challenged by appellant, are in all respects sufficient to support the judgment; and, that being true, we are without authority to disturb the same.

It is further urged by appellant that the holding in S. & E. T. Ry. Co. v. G. & I. Ry. Co., supra, that “the first occupier of the ground is entitled to all the advantages derived from the establishment of the public Use therein, and no question of convenience nor expense to the company seeking condemnation can be considered, unless it be such as to render the performance of the duty enjoined by law practically impossible by any other means which can be used by the constructing company,” precludes appel-lee herein from appropriating its dump. In that respect, in addition to the facts already stated, the court below found, as a fact, that, if appellee did not use appellant’s dump, it would cause appellee greatly increased expense, to wit, $3,900, without any compensating good to any person. We are unable to. see that the reference, in the opinion from, which we have quoted, to the matter of expense and convenience, is applicable to this proceeding. In that case there was an. attempt by one corporation possessing the right of eminent domain to destroy property of another corporation already dedicated' to-the public use on the sole ground that it would be more convenient and less expensive to the corporation seeking so to destroy the use to which it was then dedicated in-the transaction of its business. Thus it is quickly seen that no interest of the public was involved, and the pertinency and correctness of the language used is obvious. In the same case, however, it is further said that:

“When such a conflict arises, * * * the private interest of the corporation cannot be regarded, but it is the duty * * * of the courts to keep in mind the interest of the public, which is superior to that of any private person.”

So, in our opinion, it is here. The public is interested in the building of levees, since the result is to reclaim and increase the value of lands and increase the productiveness of the state, and consequent betterment of the inhabitants. The public being thus interested, the right of a private person or corporation to halt such improvements depends upon showing it will destroy a public use to which it is already put; and it occurs to us that that interest extends to and comprehends the cheapest, most utilitarian method by which the primary purpose of the act may be accomplished.

Finding no reversible error in the record, the judgment of the court below is affirmed.
      <g3»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    ALLEN v. FIRST GUARANTY STATE BANK OF PITTSBURG.
    (No. 1444.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 25, 1915.)
    Usury <&wkey;100 — Penalty—Necessity of Payment of Interest.
    Where the face of a note exacting usurious interest was not fully paid, and all payments made thereon were applied on the principal, there can be no recovery under the statute providing for a recovery by the party who .“pays” usurious interest of double the amount so paid.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 219-234; Dec. Dig. &wkey;>100.]
    Appeal from Camp County Court; J. M. Burford, Special Judge.
    Action by M. L. Allen against First Guaranty State Bank of Pittsburg. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    J. D. Bass, of Pittsburg, for appellant. W. R. Heath and C. G. Engledow, both of Pittsburg, for appellee.
   HODGES, J.

The appellant, as plaintiff in the court below, instituted this suit against the appellee to recover the sum of $246 as a penalty for the unlawful collection of $123 in usurious interest. From a judgment in favor of the appellee, this appeal is prosecuted.

After a trial before the court the following are, in substance, the facts found as a predicate for the judgment rendered: On April 18, 1911, the appellant procured from the appellee the loan of $1,930, for which he gave his note for $2,000, payable on the 31st day of July following, with interest at the rate of 10 per cent, per annum from maturity, and the usual attorney’s fees. The note was not paid at maturity, but was allowed to run until the following October 24th, several payments having been made in the meantime, which reduced the note to $1,535, including the accumulated interest. About October 24th the bank collected the sum of $82 on a collateral note which had been deposited by the appellant as security for his note. Thirty-five dollars of that sum were applied as interest by the bank, and the balance credited on the principal. It appears that an extension of time was then granted, until the following November 24th. Upon the failure of payment on that date, suit was instituted and a judgment recovered against the appellant and one of his sureties for the full amount of the balance due upon the note, which, it appears, had in the meantime been reduced. It appears that $123 at that time represented the accumulated interest. The court also finds that the $35 which had theretofore been applied by the bank to the payment of interest on the note without the knowledge and consent of the appellant was in the judgment credited as a payment on the principal. The court further finds that the appellant never in fact paid any sums which had been applied as interest.

It is conceded by the appellant that these findings of fact are correct, his contention being that upon them a judgment should have been rendered in his favor. The statute upon which this suit is based provides for a recovery by the party who pays usurious interest of double the amount so paid, and can only be invoked where the usurious interest has actually been paid. The evidence in this case shows that the appellant had contracted to pay such interest. Had he paid all that was due upon the face of his note, he would have paid usurious interest; but it is clear that he had never in fact paid any interest.

For that reason, we think the court was clearly correct in the judgment rendered, and it is accordingly affirmed.
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text:
    DAY et al. v. COOPER.
    (No. 1439.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 18, 1915.)
    Bills and Notes <&wkey;474 —Pleading —Answer.
    Where, in an action on a note, the only defense was a general denial, and the petition stated all the facts essential to a recovery, and the note was put in evidence, judgment was properly rendered for plaintiff, as the facts pleaded were admitted, because not put in issue, as required by Acts 1913, e. 127 (Vernon’s Sayles’ Ann. Civ. St. 1914, §§ 1827, 1828, 1829, 1902, 1829a, 1829b).
    [Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1508-1513; Dec. Dig. <&wkey;> 474.]
    Appeal from Shelby County Court; E. W. Hooker, Judge.
    Action by M. D. Cooper against A. E. Day and O. M. Gibbs. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    D. M. Short & Sons, of Center, for appellants. Zed Bridges, of Center, for appellee.
   HODGES, J.

This appeal is from a judgment in favor of the appellee against the appellants, rendered in a suit on a promissory note, for the sum of $218.66, together with interest and attorney’s fees. The only defense urged by the appellants in the court below was a general denial. The only assignments of error presented in this court are those which question the sufficiency of the evidence to support the judgment for the amount of the note and the attorney’s fees.

The original petition of the appellee was in the usual form of suits of this character, and stated all the facts essential to the recovery awarded. The answer filed by the appellants did not put those facts in issue under the statute as now amended. See Acts 1913, p. 256 (Vernon’s Sayles’ Ann. Civ. St. 1914, §§ 1827, 1828, 1829, 1902, 1829a, 1829b). Those facts were therefore before the court as admittedly true. The note itself, with all of its contents, was offered in evidence and considered by the court. There was nothing left for the jury to do but to return a verdict for the amount sued for.

The judgment is therefore affirmed.


author: FLY, C. J.

text:
    INTERNATIONAL & G. N. RY. CO. v. WILLIAMS.
    (No. 5446.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 31, 1915.
    Rehearing Denied April 21, 1915.)
    1. Railroads <&wkey;102 — Crossings—Right to Compel.
    A railroad company cannot be compelled to place a crossing leading from a road parallel to the right of way to a private lane closed by a gate and having no outlet.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 306-314, 320-322, 769; Dec. Dig. <&wkey;>102.]
    2. Railroads &wkey;441 — Injuries to Animals —Fences—Crossings—Burden op Proof.
    In an action for killing stock entering the right of way at a crossing leading into a private lane, the burden was on the railroad company to show that it was not required by law to fence at that place so as to escape liability under Rev. St. art. 6603, placing an absolute liability on railroad companies for value of stock killed, with a proviso that, if it fences the track, it shall be liable only for want of ordinary care.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. <@=»441.]
    3. Railroads <&wkey;413 — Injuries to Stock-Crossings — Failure to Fence — Absolute Liability.
    Under Rev. St. art. 6603, making a railroad company absolutely liable for stock killed by locomotives, etc., with a proviso that, if the company fence its road, it shall only be liable for injury resulting from want of ordinary care, and articles 6494 and 6485, requiring public crossings to be kept open and in condition for public travel, the company’s liability for injuries to stock entering the right of way by a crossing leading from a road parallel to the tracks to a private closed lane, having no outlet ánd not used by the public, is the same as at any other place in the road where the company may fence and fails to do so, it not being a crossing in an inclosure contemplated by article 6486, and there being no showing of a crossing by necessity.
    [Ed. Note. — For other cases, see Railroads, Gent. Dig. §§ 1459-1472; Dec. Dig. <®=»413.]
    4. Railroads <&wkey;413 — Injuries to Stock-Crossing — Contracts—Effect.
    Under Rev. St. art. 6603, placing an absolute liability on railroad companies for value of stock killed, with a proviso that, if it fence its track, it should be liable only for want of ordinary care, the company can enter into contracts with adjacent landowners for crossings over the tracks, but such contract would not affect their absolute liability unless the crossing was one required by law for public convenience.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1459-1472; Dec. Dig. &wkey;413.]
    5. Evidence <&wkey;113 — Value—Market Value.
    The intrinsic value of stock killed on a railroad right of way is provable where there is no market value.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. <&wkey;113.]
    6. Evidence <&wkey; 142 — Value of Stock — Price of Other Stock.
    In an action for value of steers killed by a locomotive, evidence of what plaintiff paid for a yoke of steers not so good as those killed was admissible.
    [Ed. Note. — For other cases, see Evidence, Gent. Dig. §§ 416-423; Dec. Dig. <&wkey;142.]
    Appeal from Anderson County Court; E. V. Swift, Judge.
    Action by H. W. Williams against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Wilson, Dabney & King, of Houston, and Morris & Sims, of Palestine, for appellant. Kay & Seagler, of Palestine, for appellee.
   FLY, C. J.

This suit was brought by appellee in the justice’s court to recover the value of two work oxen that were killed by appellant on its track, as well as $20 attorney’s fees. A trial in the justice’s court resulted in a verdict for $90. The cause was appealed to the county court, where it was tried by jury, resulting in a verdict and judgment in favor of appellee for $110, for the steers, and $20 for attorney’s fees.

The steers were killed at a private crossing which was approached from the west by an open road, but which, on the east side, was closed by a gate leading into a lane. The two fences inclosing the lane were joined to the fence of appellant that inclosed it¡3 right of way. The lane fences were extended beyond the gate in order to reach appellant’s fence. Animals entering the crossing from the west side of the track were in a cul-de-sac when the gate was closed, from which they could not extricate themselves except by going back across the track. The crossing and gate and lane fences formed a trap for animals going over the crossing. A public road ran along the railroad fence on the west side of the track, and the way to the crossing led from that public road.

It was neither pleaded nor proved that appellant was compelled by law to place a crossing at the place where the oxen were killed, but, on the other hand, it appears that the public road was on the west side of the fence, and consequently the crossing was not in some person’s inclosure. It is not pretended that the road across the railroad was one ordered or laid out by the commissioners’ court, but the road was merely a private one leading up by a lane to the house of a man named Suggs. The evidence fails to show that it was ever used by any one except Suggs or some one desiring to go to his house. The evidence does not show that the road ran any farther than Suggs’ house, and the fact that it was inclosed by fences on either side would indicate that there was no outlet from it. However that may be, the evidence fails to indicate that appellant was required by law to keep a crossing at that place, or, which amounts to the same thing, was not authorized to fence at that point. There was no way, by law, under the facts, to open a road across the railroad at that point except through the commissioners’ court; for it has been held that articles 6486 and 6488, Rev. Stats., which provide for openings or crossings through the fences of railway companies every one and one-half miles at such times and places “as may be demanded by any two or more citizens of the state who either live or own land within five miles of the place where such crossings may be demanded,” are unconstitutional. Railway v. Webb, 102 Tex. 210, 114 S. W. 1171.

Appellant could not, under the facts, have been compelled to have the crossing where it was, leading into a private lane closed by a gate. Rhine v. McKinney, 53 Tex. 354; Bennett v. Railway, 146 S. W. 353.

If appellant was not required to fence its right of way at that place, it should have proved that fact. Railway v. Saunders, 26 S. W. 128; Railway v. Lee, 135 S. W. 694.

Railroad companies are not required by law to fence their tracks at any point on their lines; the only provision of law on the subject being article 6603, Revised Statutes, which provides for the absolute liability of railroad companies for the value of live stock killed or injured by locomotives or cars in running over their lines, and which contains the proviso:

“That in all cases, if the railroad company fence its road, it shall only be liable for injury resulting from a want of ordinary care.”

Whether a fence is built or not, it is required by article 6494 that roadbeds and right of ways over and across which any public county road may run shall be kept in proper condition for the use of the traveling public. To the same general effect is article 6485. The only other provision as to providing for crossings is found in article 6486, which, as hereinbefore stated, has been declared unconstitutional, except in so far as it provides for crossings in inelosures. No doubt, railroad companies can leave their tracks unfenced, or they can make just as many crossings over their tracks as they may desire, but in either instance they act at their own peril. When an injury to stock occurs at a crossing not required by law, the liability is the same as if the track had not been fenced at all at that place. Railway v. Webb, hereinbefore cited. As said in that case:

“The crossing was pot upon a public road, and it is not shown that it was at a place where the company was required to keep one. * * * The liability must be held to be the same as if the track had not been fenced at all at that place.”

In the case of Railway v. Cocke, 64 Tex. 151, the Supreme Court held:

“Under statutes in effect the same as in force in this state, it has been held that the general terms used in such statutes imposing a liability on railway companies for injuries done to animals, unless their railways are fenced, do not apply to such places as public necessity or convenience require should be left unfenced, as the streets of a city or town, depot and contiguous grounds, the crossings of highways, and other like plates.”

It was held in that case that, even where stock are injured within the limits of a city or town, it devolves upon the railroad company to show that the Injury occurred at a place where the track could not be fenced. To the same effect is Railway v. Dunham, 68 Tex. 231, 4 S. W. 472, 2 Am. St. Rep. 484.

If, under the common law, “a road of necessity” could be opened across a railway track, it might become a road required by law, as it would be opened under the provisions of law. But no such character was given by the evidence to the road in question. It was not opened by the commissioners’ court nor by any law, so far as appears from the evidence. As said in Railway v. Richmond, 28 Tex. Civ. App. 515, 67 S. W. 1031:

“When openings are left in the right of way fence where the railway is not required to leave them, or, in other words, where they are not authorized by law, the fence is not complete; and it would be no defense that this condition was attributable to an arrangement with an adjoining owner, so far as the rights of the public or third parties may be affected by the failure to fence at that particular place.”

Speaking on the same subject, this court held, in Railway v. Wesendorf, 39 S. W. 132:

“The evidence indicates that the horse was out on the commons, and entered an open gate that led into the right of way of appellant. Because the gate was erected for the benefit of a landowner on the other side of the track presents no defense to the negligence of appellant in leaving the gate open. There was no attempt to show that the gates were at a spot where the law required openings; the only effort being to show that gates were built as a convenience to a man who had land adjoining the track.”

So in the present case there was a crossing which, under the testimony, was for the accommodation of Suggs alone, not even being a neighborhood road. It was not shown to be a road of necessity, if such roads are recognizable under the laws of this state. The naked proposition is: The oxen were killed at a railway crossing which had been open for a number of years, and therefore appellant was not liable in the absence of proof of a lack of ordinary care. There was no effort to show that the crossing was one recognized or required by law. Railway companies undoubtedly can enter into contracts with owners of land adjacent to their tracks as to giving crossings over the same, and the law would enforce such contracts, but such contracts will not protect the railways from their liability to the public.

Railway companies are not compelled, but permitted, to fence their tracks, except across public roads and other places where public convenience requires that they should not be fenced, and, if they, for accommodation or under contract, permit other openings or crossings they can do so, but not at the expense of the public. If this court were to hold that crossings given wherever the law permitted them would protect railway companies from liability for stock killed or injured, it might as well be held that they would not be liable if the tracks were not fenced at all, because the law permits unfenced tracks all along the right of way. It must be held that exemption from liability, except on proof of negligence, will not be sustained except at those places required by law to be left open.

The evidence was ample to show the value of the steers independent of the testimony of appellee as to what they were worth to him. The animals were well trained for work.. There was no market value for the animals, and appellee was authorized to prove their intrinsic value. It was permissible for him to state that he was compelled to pay $115 for a yoke of steers not so good as those killed. The witness Wright qualified himself to testify as to values of steers, and he testified that those that were killed were worth from $110 to $120. This testimony was not contradicted.

The judgment is affirmed.
      ©awFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    INTERNATIONAL & G. N. RY. CO. v. JONES et ux.
    (No. 5436.)

    (Court of Civil Appeals of Texas. San Antonio.
    March 17, 1915.
    On Motion for Rehearing April 21, 1915.)
    1. Continuance @=14 — Grounds — Amendment of Petition.
    In an action for personal injuries, an amendment of the petition as to the character of the injuries did not entitle defendant to a continuance, where the change made was covered by depositions then on file, the application did not indicate the probability of the necessity for any further testimony, and no injury or surprise was shown, especially where the amendment made no material'change, and the application was not supported by an affidavit, as expressly required by Rev. St. 1911, art. 1917.
    [Ed. Note. — For other eases, see Continuance, Cent. Dig. §§ 25, 99-112; Dec. Dig. @=14.]
    2. Appeal and Error @=1050— Harmless Error — Admission of Evidence.
    In an action for personal injuries, evidence that plaintiff did not or could not accept invitations to social functions did not injure defendant, as it could not intensify or add to her testimony as to her physical and mental condition.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. @=1050.]
    3. Carriers @=298 — Liability for Injuries to Passengers — Contributory Negligence.
    If a railway passenger was thrown down by an unusual and negligent jerk of a train, it was immaterial whether or-not the train was moving when she arose to leave the car.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1192, 1205, 1206; Dec. Dig. @= 298.]
    4. Trial @=>350— Special Issues — Issues to be Submitted.
    The court properly refused to submit special issues calling for mere details not controlling the disposition of the case, on the answer to which no judgment could have been predicated, as only the controlling issues should be submitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. @=>350.]
    5. Appeal and Error @=>704 — Record—Matters to be Shown — Special Issues — Submission to Adverse Party.
    An assignment of error complaining of the refusal to submit special issues cannot be considered, where the bill of exceptions does not indicate that the issues were ever submitted to the counsel for the adverse party.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2900, 2939-2941; Dec. Dig. @=>704.]
    6. Appeal and Error @=>730, 757 — Briefs— Assignments of Error — Requisites and Sufficiency.
    Where assignments of error complaining of the trial court’s definitions of proximate cause and negligence did not show what such definitions were, and the charges complained of were not copied into the briefs, there being neither a proposition nor a statement, the court was not called upon to examine the record to find out what the charge was.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016, 3092; Dec. Dig. @=>730, 757.]
    7. Damages @=221 — Special Findings — Inconsistency.
    In an action for personal injuries, there was no contradiction between special findings in answer to special issues that plaintiff was suffering from neurasthenia, and that she was not suffering from neurasthenia before or at the time the injury was inflicted.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 563-566; Dec. Dig. @=>221.]
    8. Appeal and Error @=>742 — Assignments of Error — Statement Accompanying Assignment.
    The words “see under seventh,” following assignments of error, did not comply with the rule as to statements, especially where the statement under assignment No. 7 had no pertinency to the assignments in question.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=742.J
    9. Appeal and Eeeoe <§=>1052— Haemless Eeeoe — Evidence.
    In an action for personal injuries, whether there was any evidence tending to. show the permanency of the injuries was immaterial, where there was no claim that the verdict was excessive.'
    Ed. Note. — For other cases, see Appeal and Error, Cent.Dig. §§ 4171-4177; Dec.Dig. <§=>1062.] 10. Teial <§= 194"- Insteuctions — Weight op Evidence.
    In a railway passenger’s action for injuries, it would have been a clear invasion of the province of the jury to charge that it was negligence for a passenger to pass from a car to the platform while the car was moving.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-464, 466-466; Dec. Dig. <§=>194.]
    11. Trial <§=>187 — Insteuctions—'Weight op Evidence.
    In an action against a railway company, an instruction that the testimony of witnesses in the employment of the railroad company, in the absence of anything to 'discredit or contradict their evidence, could not be arbitrarily disregarded, was properly refused, as the jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 414 — 419; Dec. Dig. <§=>187.]
    12. Trial <§=>260 — Instructions Covered by Those Given.
    Where the question of contributory negligence was fully submitted in the court’s charge, there was no necessity to reiterate it by a special charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <§=>260.]
    13. Appeal and Error <§=>727 — Briefs—Assignments of Error — Requisites and Sufficiency.
    In a passenger’s action for injuries, an assignment of error asserting that prejudice and excitement concerning the trial of the cause existed among the people of C., that during the argument the courthouse was crowded with citizens of C. and with sympathizers and probably relatives and friends of the jurors, which influence was under the observation of the court and exhibited itself by applause, laughter, and in other respects, and that such influence was not likely to give a railroad a fair trial, was too general to require consideration, especially where there was no showing of anything to arouse any community to such a pitch of excitement, it did not appear whether the laughter and applause were drawn out by plaintiff’s attorneys or those for defendant, and, though the court on a motion for new trial found against such charges, the assignment was not supported by a bill of exceptions or by the affidavits of bystanders, but was based only on the motion for a new trial supported by the affidavit of one of defendant’s counsel upon information and belief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2998, 3016-3024; Dec. Dig. <§=>727.]
    14. Appeal and Error <§=>560 — Record — Form.
    Where the testimony of jurors in support of a motion for a new trial on the ground that the verdict was taken by lot, together with objections and remarks of counsel, covered 40 typewritten pages, the evidence should have been put m narrative form, agreed to by the attorneys, and approved by the judge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2490-2493; Dec. Dig. <§=> 560.]
    15. New Trial <§=>52 —Grounds —Misconduct of Jury — Quotient Verdict.
    Though the conduct of a jury, in dividing by 12 the aggregate of the different amounts which the different jurors thought should be awarded, was not to be commended, it did not require a new trial, where there was no prior agreement that the quotient so obtained should be the verdict, .and the verdict was in fact for $2,500 less than the sum so obtained.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 101; Dec. Dig. <§=>52.]
    16. Exceptions, Bill of <§=>36 — Time foe Filing.
    A bill of exceptions to the action of the court in refusing a motion for a new trial should not be considered, where it was not filed until nearly two months after the adjournment of the court at which the cause was tried.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. §§ 44-46, 48, 51-53, 56; Dec. Dig. <§=>36.]
    17. Exceptions, Bill of <§=>10 — Requisites and Sufficiency.
    ' A_bill of exceptions complaining of the argument of plaintiff’s counsel, which recited that defendant contended that the court, having ruled against defendant on the same question, was thereby allowed by force of the ruling to make the same argument, for which reason defendant did not except in open court before the jury, and that defendant contended that such argument was improper and should have been stopped by the court, and prejudiced and influenced the jury improperly, was too indefinite and uncertain to support an assignment of error, especially as it apparently indicated that no exception was taken to the argument.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 11; Dec. Dig. <§=>10.]
    18. Trial <§=>121 — Argument of Counsel-Scope.
    In an action for personal injuries, it was not improper for plaintiff’s counsel, in his argument, to tell the jury what amount he thought they should give plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 294-298, 300; Dec. Dig. <§=>121.]
    On Motion for Rehearing.
    19. Appeal and Error <§=>837 — Matters Reviewable — Matters Not Complained of.
    An appellate court has no authority to consider the excessiveness of the verdict, if no complaint is made thereof by the party affected.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274-3277, 3289; Dec. Dig. <§=>837.]
    20. Trial <§=>250 — Instructions — Applicability to Case.
    Where a ease was submitted on special issues, special charges to find for defendant under certain circumstances therein stated were properly refused, as they called for a general verdict.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. <§=>250.]
    21. Appeal and Error <§=>766 — Briefs—Excuses for Defects.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2115, providing that, not less than five days before the time of filing of the transcript in the Court of Civil Appeals, the appellant or plaintiff in error shall file with the clerk of the district court a copy of his brief and give notice to the appellee or defendant in error of such filing, defects in. appellant’s brief were not excusable on the ground that the cause was set down for submission shortly after it was filed, as the law contemplates that appellants should be ready to submit their eases when they file their transcripts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3101, 3126; Dec. Dig. <§==» 766.]
    Appeal from District Court, La Salle County; J. P. Mullally, Judge.
    Action by C. B. Jones and wife against the International & Great Northern Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Wilson, Dabney & King, of Houston, and Cobbs, Eskridge & Cobbs, of San Antonio, for appellant. E. B. Earnest and C. C. Thomas, both of Cotulla, and Hicks & Hicks & Teagarden and C. M. Dickson, all of San Antonio, for appellees.

       Writ o£ error pending in Supreme Court.

   FLY, C. J.

This is a suit for damages instituted by C. B. Jones and his wife, Eudella Jones, alleged to have arisen from injuries inflicted upon Mrs. Jones through the negligence of appellant, in causing a violent jar or jerk by which she was thrown to the platform of a ear from which she was seeking to alight at Troup, Tex. The cause was tried by jury and resulted in a verdict and judgment for appellees in the sum of $15,000. The evidence justified the jury in finding that appellee Mrs. Jones was permanently injured through the negligence of appellant in unnecessarily jerking the car in which she was riding, thereby throwing her violently to the platform.

The first and second assignments of error are overruled. The application for a continuance was not supported by affidavit, as required by law. Article 1917, Rev. Stats. There was no material change in the amended petition from the original allegations. It has been held that an amendment as to the nature of the injuries does not warrant a continuance, when the original petition was sufficient to apprise the defendant of the probable injuries named in the amended pleadings. Railway v. Partin, 33 Tex. Civ. App. 173, 76 S. W. 236. No sufficient cause was shown for the continuance sought, because the change in the amended petition was completely covered by depositions filed in the case at that time. Railway v. Brown, 16 Tex. Civ. App. 93, 40 S. W. 608. The application did not indicate that there was any probability of procuring or needing any further testimony. No injury or surprise is shown to have resulted from the amendment.

The fifth assignment is not followed by the statement contemplated by the rules; but, if it were there is nothing to indicate that the testimony of which appellant complains could possibly have affected the case, in fact the testimony, as set out in the -bill of exceptions, does not appear in the statement of facts.

The sixth assignment of error is not followed by a statement. The bill of exceptions shows, however, that the testimony to which objection was made was withdrawn from the jury. If it had not been withdrawn, it could not, under the other facts of the case, have caused injury to appellant. The fact that Mrs. Jones did not or could not accept invitations to social functions did not intensify or add to her testimony as to her physical and mental condition.

Every issue fairly arising from the testimony was submitted by the court to the jury, and it was not error to refuse the special issues prepared by appellant. It was immaterial whether the train was moving or not when appellee arose to leave the car, if an unusual and negligent jerk of the train threw her down and hurt her. The question of contributory negligence was submitted to the jury. Seven issues were requested by appellant, some of them leading in their na-ture, and the court properly refused all of them. If the issues had been submitted as requested, no judgment could have been predicated on the answers thereto, for they were as to mere details that could not control the disposition of the case. In no possible way could any answers responsive thereto have influenced the issue of negligence. Railway v. Miller, 79 Tex. 78, 15 S. W. 264, 11 L. R. A. 395, 23 Am. St. Rep. 308. Only the controlling issues of a case should be submitted to a jury, as was done in this case. There is nothing in the bill of exceptions indicating that the issues were ever submitted to counsel for appellees, and the assignment could not be considered. Floegge v. Meyer, 172 S. W. 194.

The eighth and ninth assignments of error are too general and indefinite to be considered. What was the definition given of proximate cause and that of negligence, of which complaint is made? This is not shown in the assignments of error, and the charges complained of are not copied into the brief. There is neither proposition nor statement. This court is not called upon to seek the record to find out what the charge was, and, if it did, it would not know what objections were urged against it.

The tenth assignment is without merit, and is overruled. There is no conflict whatever in the answers of the jury; in fact, the answers are clearer and more intelligible than in any case submitted to this court under the new law as to special issues. There is no contradiction answering to the sixth issue that Mrs. Jones was suffering from neurasthenia and .in answering to the seventh issue that. she was not suffering with neurasthenia before or at the time that the injury was inflicted. Although it is stated in the complex and indefinite assignment of error that the answer to the seventh issue was contradictory and in total conflict with undisputed facts, and over 30 pages of testimony are-copied into tlie brief as a statement, no effort is made to point out the evidence that contradicts the answer that Mrs. Jones never had neurasthenia until after she was hurt.

The eleventh and twelfth assignments of error are not followed by statements and are overruled. “See under seventh” does not comply with the rule as to statements. If by “see seventh” it is meant that the court should consult the assignment so numbered, the statement thereunder has no pertinency to the assignments under consideration.

There is evidence tending to show the permanency of injuries to Mrs. Jones, but, if there was not, it was a matter that merely went to the amount of the verdict, and appellant makes no claim that the verdict is excessive. The assignment of error, which attempts to raise the question as to the permanency of the injuries, is not followed by a statement, and, in order to ascertain the status of the testimony on that matter, recourse to the statement of facts is required. The assignment is overruled.

The .sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, and twenty-third assignments complain of the refusal of special charges requested by appellant. None of the assignments is followed by a statement, but it may be stated that most of the charges were on the weight of the evidence, and those containing the law were already embodied in the charge of the court. It would have been a clear invasion of the province of the jury to have instructed the jury that it was negligence for a passenger to pass from the cai-to its platform while it was moving, but this is what appellant sought to have the court to instruct the jury. It would have been inexcusable for the court to have instructed the jury, as requested by appellant, as to their duty in their treatment of witnesses for the railroad company. Juries are the exclusive judges of the credibility of witnesses and the weight to be given their testimony, and it was not proper for the court to instruct the jury “that the evidence of all persons and witnesses who swore in this case, in the employment of the railroad company, in the absence of anything to discredit or contradict such evidence, cannot be arbitrarily dis-. regarded.” The question of contributory neg-' ligence was fully submitted in the charge of the court, and there was no necessity to reiterate it.

The issue as to the amount of damages that would be allowed by the jury was correct. It followed any number of precedents on the subject. The fourteenth and fifteenth assignments of error are overruled.

The twenty-fourth assignment of error seeks to attack the verdict on the ground that there were prejudice and excitement among the people of Cotulla concerning the trial of this cause, and that during the speeches the courthouse “was crowded with people and citizens of Cotulla, and all the ladies, friends, neighbors, sympathizers, probably in some instances relatives and friends of the jurors who tried said cause, which influence was under the observation of the court and exhibited itself in many different ways, such as by applause, laughter, and in other respects not requiring the court to absolutely take notice of the same in a more peremptory manner, yet was under its observations, and-such present and potent influence is not likely to give a railroad fair and just hearing and trial.” The record fails to show anything in the facts of this case to arouse any community to such a pitch of excitement, and we must conclude that the speeches must have been the attraction, as is often the case in rural communities; and the assignment fails to show whether the laughter and applause that punctuated the speeches of counsel were drawn out by the attorneys for appellant or appellees. The assignment of error is not supported by a bill of exceptions or by the affidavits of bystanders; the only basis for it being the motion for new trial, which, is supported by the affidavit of one of the counsel for appellant “upon information and belief.” The charges contained in the assignment of error are too general, vague, and indefinite to merit consideration. The court, in overruling the motion for new trial, found against the charges, which were denied under oath by appellees’ counsel. The remarks under the assignment have no reference or pertinency thereto.

The verdict was attacked on the ground that the verdict of the jury was taken by lot. There is appended to the motion for new trial a number of questions to and answers by some of the jurors as to how they arrived at their verdict,.as well as objections and suggestions of counsel. The evidence should have been put in narrative form, agreed to by the attorneys, and approved by the judge, and no court should be called upon to consider evidence that must be gleaned by going through such a mass of matter. Nearly 40 pages of typewritten matter a!re covered with this mass of testimony, questions, objections, and remarks. Our inspection of the evidence, however, leads us to the conclusion that the trial judge was justified in finding that the verdict was not arrived at by “a prior agreement made by said jury that each juror should write down the amount he would award, and that the total of such amounts should be divided by 12, and the quotient should be the verdict.” The conduct of the jury in arriving at a verdict is not to be commended, but there was no agreement shown to the effect that the sum arrived at by dividing the aggregate of the different amounts by 12 should be the verdict of the jury, and the proof fully showed that the sum so obtained was not made the verdict, but a sum $2,500 less was the verdict of the jury. No juror, so far as we can ascertain from the jumble of questions and answers, testified that the jury would be bound by the sum of all the amounts put down by the individual jurors and divided by 12. The bill of exceptions to the action of the court in refusing the motion for new trial was not filed until nearly two months after the adjournment of the court at which the¡ cause was tried and should not be considered.

The bill of exceptions upon which the twenty-eighth assignment of error is based is too indefinite and uncertain to support any assignment of error. The bill as to the argument of one attorney does not show that any objection was made to the argument of appellee’s counsel, but seems to indicate that no exception was taken to the argument. It is recited in the bill of exceptions:

“Defendant contends that the court, having ruled against defendant on the same question, was thereby allowed, by force of said ruling, to make the same argument, and for which reason defendant did not except in open court before the jury; that defendant contends said argument was improper .and should have been stopped by the court, and prejudicial, as defendants contend, and influences the jury improperly.”

The argument of the other attorney for ap-pellees, in which he informed the jury what amount he thought they should give his client, was not objectionable. He had the right to ask for every dollar he sued for, and, as he stated to .the jury, “of course it was a matter for the jury to determine from the evidence.” Railway v. White, 80 Tex. 202, 15 S. W. 808.

The twenty-ninth assignment of error is overruled. The evidence showed an unusual and unnecessary jerk of the train when Mrs. Jones was hurt.

The judgment is affirmed.

On Motion for Rehearing.

Appellant seems to think that it is the duty of appellate courts to decide as to whether a verdict is excessive, even though no complaint is made of excess by the party affected. The ruling of the courts is to the contrary. Railway v. Hadnot, 67 Tex. 503, 4 S. W. 138; W. U. Tel. Co. v. Perry, 30 Tex. Civ. App. 243, 70 S. W. 439. If an appellant is not dissatisfied with the amount of a verdict, a court has no authority to raise the question.

The charges requested by appellant, which called for a general verdict, were properly rejected. In this list were the first, second, third, fourth, fifth, sixth, seventh, and eighth special charges, which were instructions to find for appellant tinder certain circumstances therein stated. The case having been submitted on special issues, the eight charges were properly rejected. Cole v. Crawford, 69 Tex. 124, 5 S. W. 646; Southern Oil Co. v. Wallace, 23 Tex. Civ. App. 12, 54 S. W. 638; Moore v. Pierson, 93 S. W. 1007; Pac. Express Co. v. Rudman, 145 S. W. 268; Hengy v. Hengy, 151 S. W. 1133. The eight charges requiring a general verdict are those whose rejection is complained of in the sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, and twenty-third assignments of error. The court did not err in rejecting the charges.

The twenty-fifth assignment of error was fully considered by the court in spite of the fact that it was not supported by a proper statement of facts.- A number of the assignments of error were considered by this court, although they failed to conform to rules that have been adopted in order to save labor and expedite the work of the courts.

The defects in the brief are sought to be excused on the .ground that the cause was set down for submission so short a time after it was filed in this court. If the law had been complied with, the brief would have been prepared and a copy of it filed with the clerk of the district court not less than five days before the transcript was filed in this court. Vernon’s Sayles’ Stats, art. 2115. The law contemplates that appellants should be ready to submit their cases when they file their transcripts.

The motion for rehearing is overruled.
      For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=>For other cases see same topic and KEY-NUMBER in all If ey-Numbered Digests and Indexes


author: LEVY, J..

text:
    TEXAS & PAC. RY. CO. v. KEY.
    (No. 1442.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 6, 1915.
    Rehearing Denied April 15, 1915.)
    1. Railroads <§=400 — Injuries About Track—Question for Jury.
    In an action for personal injury to a boy of nine, who, while on a pathway crossing defendant’s track, was struck and injured by a shunted car, held, on the evidence, that whether the pathway was one commonly used by the public was for the jury.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. <§=400.]
    2. Railroads <§=356—Accident on Track-Liability.
    Where a pathway crossing a railroad track had been generally used by the public, the road’s implied permission to so use the pathway might be inferred, and it was bound to use such vigilance and caution as a person of ordinary prudence would use under like circumstances.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1228-1234; Dec. Dig. <§=356.]
    3. Trial <§=260—Requested Instructions— Given Instructions.
    Where the charge given sufficiently submitted the question, the refusal of a requested charge thereon was not error.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. <§=260.]
    4. Railroads <§=381—Accident on Track-Contributory Negligence.
    It was the duty of one walking upon or crossing a railroad track to use ordinary care to protect himself from the danger from moving cars; and if 'he failed to exercise such degree of care, or if the place was not commonly and habitually used for public travel with the knowledge and acquiescence of the road, or if he was sitting under or near a standing car when it was moved by a kicked car, he could not recover.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. .§§ 1285-1293; Dec. Dig. <§=381.]

      5. Appeal and Error <@=1062 — Harmless Error — Submission of Questions — Contributory Negligence or Infant.
    In an action for injury to a boy of nine, struck by a moving car while on or crossing defendant’s track, where the father testified that he was intelligent, and knew enough to get out of the way of the danger of the track, the submission to the jury of the question whether he was of sufficient age to know the danger from the cars was -not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <@=1062.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by Dreeben Key, by his next friend, against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Dreeben Key, a boy nine years old, sues, through his father as next friend, the appellant for damages for personal injuries. The boy was struck and knocked down by a moving car, and the flange of one wheel ran over his foot, grievously injuring him, while he was walking across the extreme north track, where a pathway crosses it at the west end, in the yard of appellant at Marshall. The injury occurred at about 9:30 o’clock in the forenoon. The negligence alleged is (1) in bumping loose and uncoupled cars over and across a pathway which crosses the track, frequently and commonly used by people with the knowledge and acquiescence of the railway company; and (2) in failing to give signal or warning, or to keep a lookout, while operating cars, for persons using the crossing in traveling the pathway. The appellant entered a general denial, and pleaded as a defense that Dreeben Key at the time of the injury was a trespasser in the private yards of the railway company, and that none of the employés on the cars knew or had reason to suppose that he was in a place of danger, or was in a position that he would be injured by the cars bumping against cars placed on the track. The jury decided the issues of fact in favor of appellee.
    The railroad yards at Marshall are about 700 yards long east and west, and about 300 or 400 yards wide north and south, embracing about 60 acres of land. The yards are situated between the streets of the business section of Marshall on the south, and the residence section, known as North Marshall, on the north. In the northwestern portion of the yards is a large brick building, about 300 feet wide and 500 feet long, called the “New Shops.” The railway yard has some 12 or 14 tracks, running east and west. Several of the tracks run into the New Shops, but the extreme north track, on which the injury occurred, runs to the north of it. On the morning of the injury a string of some 20 or 25 cars Was standing on this north track, with the end of the rear car resting near and east of a pathway that crosses the track there. Previous to the injury the switch engine went in on the track from the east to get several of the cars out and to put another string of 5 or 6 cars in their place back on this track. In order to put this string of ears back westward on the track, the engine gave them a kick. When the cars that were kicked back reached the string of cars already on the track, they bumped against them with force sufficient to move them 6 or 8 feet further west. A brakeman rode the kicked cars to apply the brakes. The men operating the engine were some 600 or 700 feet east of where the injury occurred, and did not know, they testified, that the boy was there. Before having the cars kicked, the foreman did not send any person back to see if there was any one in the way, or to the rear of the standing cars, or on or near the track. According to the evidence of ap-pellee, he was walking from the shops in a northeasterly direction along a pathway that crosses near the west end of this north track; and while momentarily on the track, in the act of crossing it, and not knowing or seeing there was to be a movement of cars, was struck and injured by the sudden moving of the string of cars that were bumped against. In respect to the pathway in issue there is a conflict of evidence. According to the testimony in behalf of appellee, at the time of injury, and long before, there was a pathway, which was habitually and commonly used by the public in walking, that turned from the concrete walk east of the New Shops at a point opposite the north opening in the shops, and leading by the wheel tracks, and across the extreme north track, and beyond it in a northerly direction,, then turning east across ■ the yard, and leaving the yard at an opening in the north fence. Charles Key testified:
    “That pathway crossing the track at the point where he was injured had been there for about six years.”
    According to the testimony in behalf of appellant, the public enter the shop grounds at a gate in the north fence around the shops, and pass along a publicly used path just east of the shop building on south to the town, and return the same way. It was further shown by appellant that east of this pathway, and north of the north track, is a piece of level ground, and to this piece of ground trash is hauled in trucks from inside the shops and burned; and when laborers would come out. of the shops at the east end thereof with trash, they would frequently go from the door of the shops to the northeast and cross the north track about where the boy was injured, and in traveling that way had formed a beaten path. A steel apron, or piece of iron, one-half inch thick and about 4 feet wide and 4 feet long, was placed there, so that trucks of rubbish would mount the rail easily. It was further shown by appellant that people not in the employ of the railway company would often cross to where the rubbish was burned, either for curiosity or to get bolts, pieces of plank, or other rubbish. It was the contention of appellant that the boy was not injured on any crossing habitually used by the public, but near a path made by employes, and 70 or 80 feet from the public pathway.
    The jury, in their province, determined the question .in favor of appellee. After the boy was injured, he was carried into the office of the foreman of the shops, and several witnesses testified that the boy then stated he was sitting by the track, under the shade of the car, when he got hurt. The boy denied having said he was under the car, and there is some evidence corroborating him. The boy’s father testified, on examination by appellant, that the boy was a boy of intelligence, and in his opinion knew of the danger of moving cars in the yard, and knew that they would hurt him, and had' sufficient intelligence to get out of the way of the danger of the track. The verdict of the jury comprehended the finding that appellant was guilty of negligence as pleaded proximately causing the injury, and that the boy was not guilty of contributory negligence. As there is evidence to support the verdict, we make the finding of fact involved in this verdict.
    P. I-I. Prendergast, of Marshall, for appellant. Beard & Davidson, of Marshall, for appellee.
   LEVY, J..

(after stating the facts as above).

Error is predicated upon the refusal of the court to grant a new trial upon the ground that the verdict is contrary to the evidence, in that there was no such crossing used by the public at the place appellee was hurt as would make it the duty of the employes operating the cars to keep a watch for his presence there. As to whether there was a footpath commonly used by the public, leading across, the railway track at the place of injury'to the opening in the north fence, was a matter about which there is conflicting evidence. Taking the evidence offered by ap-pellee, the jury could say that such footpath existed, and that for some time it had been commonly and extensively used by the public. In this state of the evidence, it is thought, the question was one entirely for the determination of the jury.' And finding, as the jury were authorized to find from some of the evidence of appellee, that there had been for several years an extensive use of the footway by the public, an implied'permission on the part of the appellant, such as is claimed by appellee, to use the yard and track as a foot-way, could be inferred. In such circumstances, the duty devolved upon the appellant, within the terms of the law, to use such amount of vigilance and. caution as a person of ordinary prudence would use under like circumstances. Railway Co. v. Crosnoe, 72 Tex. 79, 10 S. W. 342; Railway Co. v. Smith, 87 Tex. 357, 28 S. W. 520.

Therefore the first, second, and fourth assignments of error, it is concluded, should be overruled. And as the evidence raised an issue as to the extent and publicity of the use of the place by the public as a footway, the sixth assignment is overruled. And because'the court’s charge sufficiently submitted the question to the jury, the refusal to give the special charge complained of in the seventh assignment does not constitute ground for reversible error.

In view of the evidence, it is not thought that it could be held, as a matter of law, that the boy was guilty of contributory negligence, and therefore the third and fifth assignments of error are overruled.

In the thirteenth paragraph of his charge the court instructed the jury as follows:

“It was the duty of Dreeben Key to use ordinary care to protect himself against the dangers arising from the movement of the cars through the yards, and if he failed to exercise this degree of care in walking upon or crossing the track of the defendant, if he did so, you will find for the defendant; or if you find that the said Dreeben Key was injured at a place not commonly and habitually used for travel by the public with the knowledge and acquiescence of the defendant, you will find for the defendant; or if you shall find that Dreeben Key was sitting on the ground under or near the car at the time he was injured, if he was injured, you will find for the defendant.”

This charge sufficiently covered the question of contributory negligence, and assignment No. 10 is overruled.

The court in the twelfth paragraph of his charge instructed the jury as follows:

“If you find from the evidence that Dreeben Key was guilty of contributory negligence, as this term has been defined to you, which caused or contributed to cause his injury, he cannot recover, even though you find that the defendant was guilty of negligence in causing him injury, if any. And in this connection you are instructed that the conduct of a person of tender years is not to be judged by the same rule which governs adults, for the law does not require that a person of tender years shall exercise the same degree of care and caution as a person of mature years, but only that degree of care and caution that a person of the same age, intelligence, and experience would reasonably be expected to use under the same or similar circumstances. Bearing in mind this instruction, if you find that he contributed to Ms injury by his failure to .exercise ordinary care, you will find for the defendant.”

The objection to this charge made in the trial court was:

“Because the facts show that Dreeben Key was of sufficient age to know the dangers from the cars.”

The proposition is:

“Where a boy nine years old is injured in the railroad yard, and the evidence shows he knew the danger, and no evidence that he did not know the danger from the cars, then that matter should not be submitted to the jury.”

The following evidence given by the father of the boy is all the evidence in the record pertaining to the question:

“Q. Was your boy of any intelligence? A. I suppose so. Q. Did you think he knew of the danger of the cars moving on towards the yard? A. I think he knew they would hurt Mm. Q. Did you think he had intelligence enough to get out of the way of the danger of the track? A. Sure I did.”

Clearly the father’s evidence as to the boy’s appreciation of the danger of passing near the cars was opinionative in its nature, and not conclusive. The hoy testified in the case, and his appearances were before the court and jury for observation and estimation of capacity to take care of himself and appreciate danger. He was of the age of nine years, according to the proof. In Railway Co. v. Voss, 159 S. W. 64, a charge like this was held harmless in the facts. And in view of the facts, and ruling only upon the precise objection made, it is concluded that reversible error was not committed.

The remaining assignments have been considered, and are overruled.

Affirmed.
      <®=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>Eor other oases see same topic and KEY-NUMBER in All Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    WELLS FARGO & CO. EXPRESS et al. v. WILSON.
    (No. 1424.)

    (Court of Civil Appeals of Texas. Texarkana.
    April 8, 1915.
    Rehearing Denied April 15, 1915.)
    1. Railroads <©=>274 — Injuries to Licensee —Employé of Express Company.
    A railroad company, which has permitted an express company to use its station for the conduct of its business, owes to the express company’s employés the duty to keep the premises in a reasonably safe condition.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 868-872; Dec. Dig. @=>274.]
    2. Master and Servant @=>106 — Injuries to Servant-Safe Place to Work— Ownership by Another.
    The fact that a railroad station, regularly used by an express company in the conduct of its business, was owned by the railroad, does not relieve the express company from its duty to keep the station reasonably safe for its employes to work in.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 193-198; Dec. Dig. @=> 106.]
    3. Master and Servant @=>276 — Injuries to Servant — Sufficiency of Evidence — Defective Place to Work.
    In an action for injuries to an express company’s employs, resulting from his slipping on ice which had accummulated in the archway of a railway station, evidence held sufficient to warrant the jury in finding that the ice was formed from water that had leaked out of a gutter over the archway.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. @=>276.]
    4. Master and Servant @=>270 — Injuries to 'Servant — Defective Place to Work — Proximate Cause.
    Where ice was formed on the floor of an archway of a railroad station from water which leaked from a gutter and froze during a sudden cold snap, the fact that the cold weather co-operated with the negligence of the company in not repairing the gutter did not show that the negligence was not the proximate cause of the injury to a servant who slipped on the ice.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dee. Dig. @=>276.]
    5. Master and Servant @=>278 — Injuries to Servant — Sufficiency of Evidence — Safe Place to Work.
    In an action for injuries to an express company’s employe who slipped and fell on ice accumulated on the floor of the station archway, evidence held sufficient to warrant the jury in finding negligence in not discovering the leaky gutter from which the water came, in not removing the ice, and in providing insufficient light.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. @=>278.]
    6. Master and Servant @=>286 — Injury to Servant — Questions for Jury —Negligence.
    Where the facts are such that reasonable minds may differ whether a master exercised ordinary care to provide a safe place for work, it could not be said, as a matter of law, that there was no negligence.
    [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, Lamar County; A. P. Dohoney, Judge.
    Action by J. W. Wilson against Wells Fargo & Co. Express and another. Judgment for the plaintiff, and defendants appeal.
    Affirmed.
    The appellee sued the express company and the Texas & Pacific Railway Company for damages for personal injuries. The appellee is an employe of the express company, as driver of its express wagon. his duties are to take express packages received for shipment from the express company’s local office on Main street to the railroad depot and then load them on the train, and to unload from the train and take to the local office all express packages destined to Paris. A four-wheeled truck pulled by hand is furnished by the express company for the purpose of accomplishing the loading and unloading of the wagon at the railway depot, and appellee used it. At 7:30 o’clock p. m. of January 3, 1912, the appellee, while performing his duties in- trucking express packages from the train of appellant railway company to the wagon of appellant express company, through the archway of the railway depot, slipped and fell to the brick floor of the archway and was thereby grievously injured. According to appellee’s testimony, he was 'caused to slip and fall by stepping upon a sheet of ice covering the space of about the width of a candy bucket, which had been permitted to form over the brick floor under the archway, and which ice, owing to the insufficient lighting of the archway, he had not observed. The acts of negligence alleged are: (1) Allowing holes in the gutter extending across the north side of the archway, which permitted water to drip from the gutter and fall on the brick platform and freeze in the archway; (2) permitting the formation of ice beneath and under the archway; (3) having poor and inadequate lighting of the depot platform and archway; (4) permitting the above conditions to exist after both actual and constructive knowledge of them; (5) failure in the above respects to exercise ordinary care to furnish and maintain a safe place for appellee to work in, upon the part of the express company, because of the relation of master and servant between it and appellee, and, upon the part of the railway company, because of its general invitation to all persons having business with it to use its premises, and by reason of the use by the express company and its employés of the premises and cars of the railway company under contract or agreement with the railway com-pan’y. The defendants denied the allegations and pleaded assumed risk and contributory negligence, the want of knowledge on their part of the existence of any ice under the .archway, or reason to anticipate any sudden formation of ice, and a proper and skillful construction and maintenance of the depot building and platform. There was a jury verdict in favor of appellee.
    At the time of the injury the depot of the railway company at Paris was situated between the railway tracks on the south and a public street on the north. The building was so planned and constructed as to have between the east wall of the ticket office and the west wall of the baggage room a passage or archway, which was of the length of 24 feet from wall to wall east 'and west, and of the width of 30 feet north and south. The archway was covered by the roof of the building, but it was open and without walls on the north and south. The eaves of the roof, situated on the north and south, extended three feet over the width of the walls of the entire building, and, as to the archway, were provided with gutters with a down pipe from the guttering located on each side of the archway, which fastened into tiling under the ground. The brick floor under the archway is so laid as to slope a little both to the north and to the south from the center line. The archway is regularly used by the employés of the railway company and the public generally for transaction of railway business, and also is and has been regularly used by the express company and its em-ployés in the necessary handling of its express business from the public street to the ■ railway tracks and train and from the railway tracks and train to the public street. It reasonably appears that the depot and archway are owned by the railway company, but the archway is used and occupied regularly and generally, and has been so used for some time previous to the injury, by both the railway company and the express company, as a means and place required for the handling of their respective business as common carriers. The regular use and occupancy of the archway by the express company is, as inferably, with the knowledge and consent of the railway company and under- some unexplained business arrangement for hire. In the center of the archway, and about 18 inches from the ceiling, which is between 12 ánd 14 feet from the flooring, there is suspended a flat reflector, between 8 and 10 inches wide, provided with 3 sockets for electric light globes of 16 candle power. At the end of Main street, and directly in front of the passenger department of the depot, and about 50 or 60 feet from the north opening of the archway, the railway company maintained an arc light, which throws light to the north opening of the archway, but not very far into it. The evidence presents a state of conflict respecting whether the three lights in the archway were burning on the night of the injury. According to appellee, only one of the lights was burning, and the other two were not giving any light, and, as a consequence, the archway was dimly lighted, which fact was known to appellee. According to appellee, he complained, a month before the injury, to the agent of the railway company, about the insufficiency of the lights; and he worked for a month knowing the lights had not been fixed. The agent testified that he had no recollection of any complaint by appellee, and never promised to fix the lights. Three days before the injury, it had rained and sleeted, and the weather had continued cold up to noon of the day the injury occurred, at which time it cleared up, and the sun began to shine, and for a time it was warm enough to thaw ice that had formed. But at 4 o’clock of that afternoon the weather again changed to cold and freezing, and at 7 p. m. was in that condition. The wind was blowing hard from the north. It had not rained, sleeted, or snowed that day. On the day of injury appellee met the 3:30 p. m. train, and when hei left the depot at about 3:50 p. m. there was no ice formed or on the floor of the archway. After dark appellee met the 6:59 and the 7:30 trains. Appellee knew the condition of the weather. While trucking express matter through the archway from this latter train to the express wagon, appellee was injured. -He testified that the ice he fell upon was a spot of frozen water within the archway, about four or five feet from the west wall, and four or five feet back of the column at the northwest entrance of the archway, which would be practically south within the archway between seven and eight feet from the eaves of the building. There is a state of conflict as to the existence of any ice within the archway. According to the witness Newell:
    “I saw a small piece of ice. It was on the north side, about halfway between the arch and the stobs of the brick pavement. The ice I saw was on this brick platform on the north side of the arch, about three feet from the west edge. It was a little thin crust of ice about a foot square, frozen over on the brick. That piece of ice was all I saw there. There was no ice in the archway, or any other place.”
    The stobs of the pavement are five feet from the eaves of the roof. This witness also says the place appellee fell was “on the northwest part of the outside of the archway.” According to appellee, at 10:30 o’clock next morning lie visited the place of injury and discovered that the gutter on the north eaves of the roof of the archway leaked. “The leak in the gutter,” according to appellee, “was right up just a little east of the west wall on the north side,” which was between seven and eight feet from the ice, as located by him. It was shown by some evidence that in the early part of the day of injury there was melting ice and sleet on the roof. It was shown that the agent of the railway company was provided with salt to be used to put upon ice forming upon the depot platforms in freezing weather. It does not appear whether or not the gutter had been inspected at all before the injury. It is concluded that there are circumstances sufficient to authorize the jury to find, as involved in their verdict, that the gutter extending across the north side of the archway was defective, and the water leaking from it was blown by the hard wind from the north onto the brick floor seven or eight feet under the archway and formed there into ice, which ice the appellee, owing to insufficient lighting, did not observe or know was there, and stepped upon it and fell and was injured thereby.' In deference to the verdict, we conclude that the appellants were guilty of negligence, as alleged, proximately causing the appellee’s injury and- that appellee was not guilty of contributory negligence and did not assume the risk.
    Park, Moore & Hardison and Long & Wortham, all of Paris, for appellants. Wright & Patrick and B. B. Sturgeon, all 'of Paris, for appellee.

       Writ of error pending in Supreme Court.

   LEVY, J.

(after stating the facts as above).

The railway company, having furnished the archway to the express company for which appellee was using it, owed the duty to exercise ordinary care to keep the archway in a reasonably safe condition from obstacles. Railway Co. v. Beasley, 155 S. W. 183. And it is concluded that, under the circumstances of .this case, the mere fact that the express company did not own the archway does not relieve it from the duty of exercising ordinary care to furnish appellee a reasonably safe place to work. The express company regularly used and occupied the archway as a place for the conduct of its business. Therefore it is thought that the first, second, and fourth assignments of" error should be overruled.

The third assignment predicates error in the sixth paragraph of the court’s charge, in so far as it refers to the leaky gutter. The objection made is that there is no evidence that any leak from the gutter caused the ice upon which appellee slipped. It is believed that, in the respect mentioned, an issue for the jury is raised by the evidence. It must be regarded as a fact that there was a spot of frozen water at the time, for both appellee and the appellants’ witness Newell testified there was. Appellee located the ice he fell upon within the archway, about four or five feet from the west wall, and four or five feet back of the column of the northwest entrance of the archway, which would be practically south within the archway, between seven and eight feet from the gutter under the eaves of the roof. The witness Newell located the ice outside the archway, about three feet from the eaves. The precise location of the ice was therefore a matter much in conflict. But taking the location of the ice as fixed by appellee, between seven and eight feet within the archway, such fact could not be regarded, it is thought, as necessarily so conclusive as to not be open to reasonable difference of opinion that it did not come, in the first instance, from a leak in the gutter. It was shown that the archway was .open on the north, and the gutter under the eaves was between 12 and 14 feet in height from the floor. Appellee says, and it does not appear to the contrary, that a north wind was blowing hard, which inferably was from '4 o’clock in the afternoon, when the weather changed to cold and freezing. It was further shown that the sleet and rain that had fallen on the 3d before had begun in • the early affernoon to thaw and run on the roof. In the view of all these circumstances, and there being no other evidence tending to account for the presence of frozen water on the floor, the jury, as within their province, might reasonably infer that the sleet melted and ran into the gutter, leaked from the gutter, and was blown by the wind to the distance of seven or eight feet on the floor in the archway, and there, by reason of the freezing weather, formed into ice. The slight slope in the floor might or might not be considered by the jury as a sufficient condition to exclude the idea that water would remain at the placed fixed by appellee. Appellee testified that on the next morning the gutter there was leaking. And in the absence, as here, of evidence showing an inspection of the gutter and its good condition and quality, the jury might fairly infer that the leaky condition of the gutter existed the afternoon before.

It is not thought that the court erred in refusing the special charge made the basis of the fifth assignment of error; and it is overruled.

The remaining assignments of error, which are here disposed of together, are to the effect that there is failure of proof that appellee’s injury was caused by any negligence on the part of the appellants. The maintenance of the archway, with gutters under the eaves to carry off the water from the roof of the building, was a part of the permanent arrangement of the building. And it is thought that the circumstances-shown warranted the jury in inferring as a fact that, owing to a defect in the gutter, water from the roof got on the floor of the archway and, by reason of the cold weather, was there formed into ice, thereby exposing appellee to danger of slipping and injuring himself. The place where the ice was located was where appellee was required to go in the regular and customary performance of his duties. The evidence would warrant the jury in finding that the appellee did not know, and by reason of the inadequate lighting of the archway did not observe, that the ice was on the floor. Therefore it may be said that the element of cold weather, combined with the fact of a leaky gutter, caused the accumulation of the ice on the floor under the archway, and that the existence of the ice there was an obstruction creating a danger to appellee in the performance of his duties, and which obstruction was not, by reason of inadequate light, observed by appellee. While the element of cold weather was beyond the control of appellants, the injury did not result solely from the operation of this nonresponsible agency. And to discharge the obligation of making the place of work reasonably safe involved, within the terms of the law, the use of reasonable care to guard against so much of the danger as ordinary prudence would anticipate and ordinary effort avoid. According to the evidence, the weather began to change into cold and freezing, and the wind to blow hard from the north, at about 4 o’clock in the afternoon. At noon, it appears the sleet of several days before began to thaw and run. It might be inferred by the jury from these circumstances that appellants had reasonable notice that the weather elements were such as to require the use of reasonable care on the part of appellants to see to it that the gutter was in proper condition and reasonably free from defects to prevent water from the gutter getting into the archway and forming ice. It being the duty of appellants to exercise ordinary care to provide and keep a reasonably safe place in which to work, it could be inferred that appellants had notice of the defect in the gutter; it being a part of the original and permanent arrangement of the place. There does not appear any evidence respecting inspection of the gutter and its good condition at any time before the injury, or that the defect was sudden or not discoverable by ordinary inspection. The inadequacy of the lighting was, as the jury could say, known to appellants. The time within which the ice formed in the archway is a matter of inference from the evidence. At 3:50 p. m. there was no ice on the floor. At 4 o’clock it began to turn cold and freezing. At 7:30 o’clock appellee slipped on the ice. The ice, therefore, formed at some time between 4 and 7:30 o’clock. It appears that the agent of the railway was provided with salt for the purpose of melting ice on the platforms as it might occur, and that from 4 o’clock to the time of injury was within the business hours of the work for employés of appellants at the place, and the place was easily and conveniently accessible to observation of the agents. It is believed that, under all the circumstances, the sole question to be determined is whether the result produced by the negligence of appellants was one which might reasonably have been anticipated, and the question is one that the jury in their province must determine.

After a careful consideration of all the facts, we conclude that they are such that the minds of men may reasonably differ as to whether or not the appellants, owing the duty of providing a reasonably safe place in which to work, exercised ordinary care to discharge the duty owing appellee. Therefore it could not properly be held, we think, that no negligence, as a matter of law, was proven.

The judgment is affirmed.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    RAIKE v. CLAYTON.
    (No. 1449.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 13, 1915.
    Rehearing Denied April 15, 1915.)
    1. Bills and Notes <&wkey;471 — Actions — Pleadings — Proof.
    Where a note contained a stipulation requiring the maker to pay 10 per cent, as attorney’s fees in case the instrument was sued on or placed in the hands of an attorney for collection, plaintiff, in an action on the note, need not aver or prove that suit was brought in order to warrant recovery of the fee; the court knowing from the pendency of the suit that it had been brought.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1467-1470; Dec. Dig. <&wkey;> 471.]
    2. Costs <&wkey;234^-AppEAL — Error in Computation.
    Where judgment was reformed as to the matter of computation, which under Vernon’s Sayles’ Ann. Civ. St. 1914, §§ 2016, 2017, could have been corrected in the court below, costs will be taxed against plaintiff in error, who was not otherwise successful.
    [Ed. Note. — For other cases, see Costs, Cent Dig. §§ S92-899; Dec. Dig. &wkey;234.]
    Error from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by J. B. Clayton against F. M. Raike. Judgment for plaintiff, and defendant brings error.
    Reformed and affirmed.
    Dashiell & Coon, of Terrell, for plaintiff in error. Clark & Leddy, of Greenville, for defendant in error..
   WILLSON, C. J.

Defendant in error obtained a judgment by default against plaintiff in error for the sum of $2,201.10 (the principal, interest, and attorney’s fees found by the trial court to be due on certain promissory notes made by plaintiff in error) and foreclosing a vendor’s lien on certain land existing in favor of defendant in error to secure the payment of the notes.

In his petition defendant in error alleged that the notes were past due, and that plaintiff in error had refused to pay them. He further alleged that it was stipulated in the notes that plaintiff in error should pay 10 per cent, on the amount of the principal and interest thereof in the event suit was brought on the notes, or they were placed in the hands of an attorney for collection. He prayed for judgment for the attorney’s fees stipulated for, as well as for the principal and interest due on the notes. It was not alleged in the petition that the notes were ever placed in the hands of an attorney for collection. Plaintiff in error insists that for this reason it was error for the trial court to adjudge a recovery against him for attorney’s fees. It has been repeatedly held that an allegation that a note sued on contained a stipulation that the maker would pay attorney’s fees if suit was brought thereon is sufficient as a basis for the recovery of such fees. The court knew from the pendency of the suit before him that suit had been brought on the note, and it was not necessary to either allege or prove the fact. McKelligon v. Bank, 24 S. W. 688; Dignowity v. Staacke, 25 S. W. 824; Hefley v. Bank, 39 S. W. 325; Harris v. Schrivener, 78 S. W. 705; McAnally v. Vickry, 79 S. W. 857; Adams v. Bartell, 46 Tex. Civ. App. 349, 102 S. W. 779.

Plaintiff in error insists that the judgment against him should have been for $2,-164.53, instead of for $2,201.10. Defendant in error concedes that an error was made in calculating the amount due on the notes, and that the judgment should have been for $2,-164.53 as claimed by plaintiff in error. The judgment will accordingly be reformed here, and, as reformed, will be affirmed.

As the error in the judgment could have been corrected in the court below as provided in articles 2016 and 2017, Vernon’s Statutes, without an appeal to this court, the costs of the writ of error will be taxed against plaintiff in error. Ellis v. Bank, 42 Tex. Civ. App. 83, 94 S. W. 437; De Hymel v. Mortgage Co., 80 Tex. 493, 16 S. W. 311.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes .