author: DAVIDSON, P. J. DAVIDSON, P. J.

text:
    COATES v. STATE.
    (No. 4790.)
    (Court of Criminal Appeals of Texas.
    April 24, 1918.
    On Motion for Rehearing, May 29, 1918.)
    1. Criminal Daw <&wkey;'517(l) — EVIDENCE—CONFESSION.
    In a prosecution for murder, defendant’s written confession, stating fairly well the facts of the case as proved by the witnesses as to most of the incidents in connection with the homicide and matters loading up to it, taken in compliance with the statute, was properly admitted.
    3. CRIMINAL Law &wkey;>1092(13) — Appeal — Bill of -Exceptions — Venue.
    A bill of exceptions to overruling of motion to change the venue must be, in accordance with Code 'Or. Proc. 1911, art. 634, providing that the order of the judge granting or refusing change of venue shall not be revised upon ap.peal lurilees ’the iacts on whieli ’the same was Rased ¡are presented in a -bill 'Of 'exceptions prepared, -signed, approved, and 'filed at the term of .the i eourt -at "which such order was made, and •a bill, :the statement of facts being in question and .answer form, signed by the county attorney, but mot by -counsel for defendant, and not approved by the court, is mot ¡a compliance with 'the statute.
    :3. Homicide &wkey;294(2) — Instruction—Insan-UTY FROM 'INTOXICATION.
    ■In a prosecution for murder, ithe -charge that .i'f -defendant .was .so drunk he was-unable to ■understand the nature -and quality of the act, •and .know the -same .was wrong, the jury might consider such temporary insanity in mitigation of the penalty, ,u connection with -the charge on insanity, covered every .phase of the issue .as to condition of .mind from the recent use of intoxicants. _
    ■4. 'Griminal ¡Law <&wkey;lT69(0> — Aebeal—Cube ■os’ Ebboe.
    _Any error tin .admitting .defendant’s written confession -.was cured by 'the charge, more favorable than the ia.w accorded defendant, that no .act .of .his .or statement .made by him or confession of his -was sufficient in law to warrant .his.conviction, etc., unless .corroborated by other legal and competent evidence.
    :5. Homicide cs&wkey;309(3) — Instruction—Man--SL'AUGHTBR.
    'The refusal -of a charge that 'if 'defendant’s ,mind .was enraged with reference .to the conduct ■ of the girl lie .killed, and the ¡killing occurred -.while his miad -was so enraged, they should consider .it a ground for manslaughter, was not er¡ror, .in view of evidence which failed to show .such ■ condition of mind.
    16. Homhcide -i&wkey;290 — Instruction — Use of \Weabon.
    If defendant’s «weapon was used so as to •show .an evident intention to kill .deceased, and there is sao evidence that such was not defendant's intention, it is not error to fail to charge ,on -.Code ¡Or. Ptooc. 1911, art. 1147, providing that the instrument whereby .a homieide is committed is ,to be .considered in judging the intent, and that, if the instrument is not likely to produce death, it is not to be presumed death •was .designed, unless the .intention appeal's from ¡the .manner «f use.

      H. Criminal Law i&wkey;59t>(7) — Continuance— Absent \Witne-ss.
    In .a prosecution for murder, the court properly overruled defendant's application for continuance to procure testimony of an absent witness by whom he -expected “to prove that he was present on the night of the killing and saw defendant immediately after the killing, and would testify that defendant was insane at the time,” the statement being too general.
    8. ¡Criminal Law .@=»1091(4) — Bill of Exceptions — Indefiniteness.
    Defendant’s bill of exceptions to the refusal to exclude testimony that on the night of the killing defendant had had a fight, etc., was too indefinite for consideration, merely showing objection to the question which elicited the testimony, sustaining of objection, and denial of motion to exclude, etc.
    9. Criminal Law <&wkey;1091(5) — Appeal — Bill of Exceptions.
    Defendant’s bill of exceptions reciting that while a witness was testifying defendant’s counsel propounded to him a question set out, to which objection was sustained, was too meager.
    10. Cbiminal Law &wkey;>1169(5) — Appeal — Habmless Ereob.
    Defendant’s bill of exceptions to testimony of a witness that he went with defendant under arrest to the scene of the killing, etc., elicited by a question which the state finally withdrew after objection, did not present reversible error.
    11. Cbiminal Law &wkey;486 — Testimony as to Sanity — Conduct in Jail.
    A physician’s testimony as to defendant’s sanity, based on observation of and conversation with defendant while in jail, was admissible whether defendant was warned or not as to use of the physician’s testimony against him, such testimony not being of criminative character in connection with the case on trial.
    On Motion for Rehearing.
    12. Cbiminal Law <&wkey;1098 — Appeal — Bill of Exceptions — Venue—Statute.
    Statement of facts introduced on motion for change of venue, attached to the statement of facts on appeal at the first portion, was not such statement of facts as is required by Code Civ. Proe. 1911, art. 634, in a bill of exceptions to ruling on motion to change the venue.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Rufus Coates was convicted of murder, and he appeals.
    Affirmed.
    Turner, Cummings & Doyle, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of the murder of Zella Faulk.

Appellant made a confession in writing while under arrest which he contends, in a bill of exceptions, should not have been admitted because not in compliance with the statute. We have examined the confession, and cannot agree with appellant’s contention. We hold, therefore, there was no error in admitting this confession. The confession states fairly well the facts of the case as proved by the witnesses as to most of the incidents in connection with the homieide and matters leading to it. It appears from the evidence that appellant had been going with the girl, perhaps engaged to her, and they had been having illicit relations. On the night of the homicide for some time they were not together. He was seeking her about the city of Ft. Worth, and finally, while at a certain house, he ascertained her whereabouts, and went to the place, and another party was in company with her. From there they went some distance, she being drunk. Without going into details of what occurred, among other things he says he ascertained from her that she had intercourse with another party for which she received $5; that he then determined to kill her. Going with the girl and another party he secured an axe, and in going by a house for some purpose he changed his mind with reference to the axe and left it. He and the girl separated from the other party. He took her into the Trinity bottom, near the river, and while she was sitting upon the ground he got a stick or limb from a tree about Sy2 or 4 feet long, and about 3 inches in diameter, and struck her three blows, two on the head and one across the breast, near where the throat and body join. She fell over. He felt her pulse and came to the conclusion she was dead and left. He went to the residence of Clyde Tucker, and informed him of what he had done, and also informed Aubrey of the same facts. Aubrey went to bed and Tucker and appellant went back to where the girl was, and upon reaching that point discovered that she was still breathing. He says at Tucker’s suggestion that as he had fatally hurt her, and she could not get well, he might as well finish the job, and that he used a knife with a blade three and one-half inches long with which he cut her throat from ear to ear, and then fled the country. He was captured in a distant state and brought back. Upon his trial he was awarded the death penalty. It would serve no practical purpose to go further into the details of this transaction.

Appellant made a motion to change the venue, which was overruled. Tho bill of exceptions sets out the testimony, or part of it, with the exhibit of newspapers attached. The evidence set out in this bill is signed by the county attorney, but not by counsel for appellant nor approved by the court. The testimony, with the exception of the attached newspaper articles, is also set out in question and answer form. In order to have a bill of exceptions with reference to this matter considered it must be in accordance with the statute, which is article 631, Revised O. G. P. 1911. It provides that the order of the judge granting or refusing a change of venue shall not be revised upon appeal unless the facts upon which the same was based are presented in bill of exceptions prepared, signed, approved, and filed at the term of the court at which such order was made. This statute has been construed in a great number of cases which will be found collated in 2 Vernon’s Grim. Proc.' p. 342. This bill of exceptions clearly is not in conformity to our law.

There were several charges asked by appellant, some of which were given and some refused. Exception was reserved to the court’s charge on insanity, especially with reference to the condition of the mind from the recent use of intoxicants. At the request of appellant, however, the court gave this charge:

“On the issue of temporary insanity produced by voluntary use of ardent spirits, I charge you that if you find and believe from the evidence that at the time of the homicide the defendant was so drunk that he was unable to understand the nature and quality of the act and to know the same was wrong, then you may consider such temporary insanity in mitigation of the penalty in this case, and it will be your duty to thereby mitigate his penalty, if any, as you may see fit and proper.”

This charge, taken in connection with the court’s charge on insanity, covered every phase of that issue.

Exception was also reserved to the court’s charge in regard to appellant’s confession. The court, however, gave a charge upon this at the request of appellant. This charge is as follows:

“I instruct you that no act of the defendant or statement made by him, or confession of his, is sufficient in law to warrant his conviction, as the law provides that no defendant shall be convicted upon his confession alone, but that the same must be corroborated by other legal and competent evidence, which, when taken in connection with such confession, shows his guilt of the offense of murder beyond a reasonable doubt. And in this connection I further charge you that such corroboration is not sufficient if it merely shows that the offense of murder of Zella Faulk was committed by some one, but it must of itself, and independent of the defendant’s confession, show first that such confession is true; and, second, that it must of itself, and independent of such confession, tend to connect the defendant with tho offense of the murder of Zella Faulk. And if-you do not so find in this case, it will be your duty to acquit the defendant.”

The giving of this charge at the request of appellant would cure any real or supposed error on the part of the court. This charge as given was more favorable than the law accorded appellant with reference to this question ; therefore no error was committed in this matter.

The. court, at the request of appellant, gave this further charge:

“That if you find and believe from the evidence that at the time the defendant made the confession introduced in evidence to W. R. Parker he was laboring under such a defect of reason as to not understand the nature and quality of his act, then you will not consider the same for any purpose in this case.”

The following charge was also given at appellant’s request:

“I instruct you that the law requires that, before a confession can be considered in evidence, it must appear that the same was freely and voluntarily made by defendant, that he was properly warned and cautioned before making tho same, that any such statement would be used against him upon the trial of this case by the person to whom such confession, if any, was made, and that he understood such warning before he made such confession. Now, unless you find these facts to ho true you will not consider such confession for any purpose, or if from the evidence before you you have a reasonable doubt as to either of such facts, then it will be your duty to' exclude such confession from your consideration.”

It is also contended that the court should have given a charge more full in its language with reference to the question of manslaughter, and especially should he have charged the jury that if appellant’s mind was enraged with reference.to the conduct of the girl that night, and the killing occurred while his mind was so enraged, they should consider this as a ground for manslaughter. The court gave a charge upon manslaughter. We are of opinion there was no error in refusing this charge, and in fact we are of opinion that manslaughter was not in the case. The facts do not show that his mind was in such condition as contended, not only by the testimony, but by his confession. There may be a case where a party might have the benefit of manslaughter where Ms betrothed has been guilty of such conduct as to enrage lier lover; but tbis record does not show such a state of case nor do the attendant facts and circumstances so show. He states that he made up his mind to kill her, secured an axe for that purpose,- ehang-his mind, took her off to the woods for quite a distance and away from the city in the river bottom, and procured a bludgeon 3% or 4 feet long, struck her three blows, and these are shown by the testimony to have been fatal. He went away and returned in company with Clyde Tucker. Finding her breathing, he took Tucker’s knife with a blade 3V> inches long and cut her throat from ear to ear. This does not, in our opinion, raise the issue of manslaughter under the facts.

An exception was reserved to the charge also on the ground that it did not charge the provisions of article 1147 as found in Mr. Branch’s Ann. P. C. p. 1179. This reads as follows:

“The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent’ of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears.”

It would seem from this, under the authorities, that if the evidence shows that the weapon or means used by the slayer were, without controversy, a deadly one, and that he intended to kill, it would-be error to 'charge the jury that the instrument or means by which the homicide was committed is to be taken into consideration in judging of the intent of the accused. This would be a presumption of law against the defendant, and wherever that is the case the charge should not ordinarily be given. See Branch’s Ann. P. C. § 2099, for collation of authorities. This statute should be given in charge usually where there is an issue as to the deadly-character of the weapon in committing the homicide and where the intention does not evidently appear. If the weapon used is used in such manner as to show an evident intention to kill the deceased, and there is no evidence that such was not his intention, it is not error to fail to charge on this statute. This seems to be borne out by the authorities. See Ford v. State, 64 Tex. Cr. R. 14, 142 S. W. 6; Baker v. State, 81 S. W. 1215, and cases there cited.

The court properly overruled the application for a continuance. The only witness who was absent was Woolwine. By that witness, the bill states, he expected “to prove that he was present on the night of the killing, and saw defendant immediately after the killing, and would testify that defendant was insane at said time.” This is too general a statement. It sets out no fact, but only a general conclusion that the witness would so swear.

-The bill of exceptions with reference to the motion to quash the venire served upon him is too indefinite for consideration. It does not show wherein the motion to quash was sustained in any way, and there was nothing offered to show that the motion should be sustained.

Bill No. 4 recites;

“While the witness A. C. Donohoe was upon the stand and being examined as a witness on behalf of defendant, on said application, defendant’s counsel propounded to witness the following question: T will ask you if in your opinion the people out there in that community (North Ft. Worth) have not already prejudged this case — got their minds made up ?’ ”

The witness would have answered in the affirmative. In the absence of a motion for change of venue and the meagerness of this bill, we are unable to say how it could have had any bearing upon the question then under consideration before the trial court.

Another bill recites that while the witness McBride was testifying he was questioned by the county attorney as follows:

“Q. This defendant, Rufus Coates, is the man you were talking to that night and the man you saw with this girl (Zella Faulk)? A. Yes, sir; that night he had had a fight, and had a little skinned place on his eye, or he told me he had a fight that night. Mr. Cummings: I object to that. The Court: Sustain the objection. Mr. Cummings: And what he told him, I move to exclude that evidence. Mr. Spoonts: Statement' of the defendant, corroboration. The Court: I will give you a bill, Mr. Cummings. Mr. Cummings: We except. The ground I object to it on, it is injurious and prejudicial; not relating to the homicide in question; having no bearings or relation to it save to prejudice the defendant’s case before the jury.” t

These exceptions, were overruled. Just what connection this had with the case is not manifested by this bill. When and where defendant may have had a fight, or stated he had a fight, is not shown by the bill of exceptions, or what connection it had with the killing of the girl. The bill is too indefinite for consideration.

Another bill recites that while the witness McBride was testifying defendant’s counsel propounded to him the following question:

“You didn’t think that was her home when you took her up there? A. I didn’t know. Q. You were taking a girl that was drunk and having spells around and hunting for Rufus Coates in the nighttime, hunting for a man you didn’t know? Mr. Spoonts: He didn’t say she was drunk. We object to that. The Court: Sustain the objection. Mr. Cummings: Note our exception.”

What the object and purpose of offering this testimony was is not shown, or what connection it had with the case. The bill is too-meager.

Another bill recites while John Connelly was on the stand one of counsel for the state asked him:

“Now, after, the defendant was arrested in this case and brought to Ft. Worth, I will ask you to state to the jury whether or not you went in company with him. and any one else to the scene of the killing. A. Yes, sir; I did. Q. I will ask you to state whether or not he directed the way through the woods to the scene of the killing. Mr. Cummings: He was under arrest at that time. A. Yes, sir. Mr. Cummings: We object to any statement or act of the defendant while under arrest. The Court: Objection overruled. Mr. .Cummings: Note our exception. We object to anv statement by the defendant at this time because he was under arrest, and because the evidence does not show that at that time he Was duly warned or cautioned as required by law; and, further, that the statute requires that any statement or act of the defendant in the nature of a confession must be in writing, and before making the same the defendant must be' properly cautioned as required by law. Mr. Parker: He showed where the place was, pointed it out, and it is a matter of corroboration. Whereupon the state withdrew the question.”

As this matter is presented, we do not think it presents reversible error. The bill is very indefinite, and from the matter sought to be elicited it seems that the defendant went in company with witness to the scene of the killing, and it is stated he was under arrest. Just how this came about, or what induced it, is not shown. ’We do not believe there is enough merit in this matter to require serious consideration, in view of the fact that the matter was withdrawn from the jury.

Another bill recites that while Dr. McLean was on the stand he was asked by one of state’s counsel if he had ever previously seen the defendant. Being answered in the affirmative, he was asked when and where he saw him, and he stated four or five days ago in jail. Objections were urged to this by appellant’s counsel that he could not use any statement made by defendant whilei in jail as a basis for an opinion with reference to insanity, and counsel for the state then stated it was with reference to insanity, and he was taken there to jail for that purpose, referring to witness. The court remarked:

“Is he going to testify as to statements?”

Counsel for the state said:

“He asked the boy questions. The Court: Sustain the objection.”

The assistant county attorney then asked:

“Doctor, at that time did you talk to him and observe him and examine him with reference to his mental condition? Mr. Cummings: The objection goes to this also, your honor. The Court: On the same grounds? Mr. Cummings: Yes, sir. The Court: I overrule the objection. Mr. Cummings: We except. The witness answered: I talked to him about 45 minutes.”

He was then asked by state’s counsel:

“Did you make any. physical examination of him in any way? A. Yes, sir. Q. From the observation that you there made— Mr. Cummings: Our objection goes to all this without renewing it each time. Counsel for State: I will ask you to state to the jury whether or not in your opinion, from your observation you had with him and the examination you made of the defendant, whether or not in your opinion he is a degenerate? Same objection, same ruling, and exception. A. I do not consider him a degenerate.”

Then came a hypothetical question to the doctor by the state, and the answer was:

“This particular man that I talked to I would regard him as having been sane; I mean sane at the time— Mr. Cummings: .Same objection, same ruling, and exception. Answer of witness continued: There was not evidence in anything he told me that would indicate he was insane prior to the killing or subsequent. Mr. Cummings: For the purpose of determining the admissibility of this: You are basing opinion al- . together on what you saw and what he told you in jail? A. On his talk and his chain of thought and the way he related circumstances. Q. And that occurred there while he was in jail under arrest? A. Yes, sir; that is the only time I have ever seen him. State’s Counsel: In this conversation he didn’t detail to you in any way anything about this crime? A. No, sir; I didn’t ask him about i.t. The Court; I overrule the objection. Mr. Cummings: We except.”

This is the entire bill, and we are of opinion error is not shown. The rule is announced in Mr. Branch’s Ann. P. O. p. 18, as follows:

“Proof of statements and acts made and done while defendant is in confinement or custody, and which is not of a criminative character, in connection with the ease on trial, is admissible on the issue of insanity, whether the defendant be warned or not.” Burt Case, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330.

Mr. Branch collates quite a number of au- , thorities.

There are two bills reserved to argument of counsel, some of the objectionable parts of the statements were withdrawn by the court, and the jury instructed to disregard them. The others remained before the jury. We deem it unnecessary to discuss these matters, believing there is no sufficient reason shown why the judgment should be reversed. They are brought fairly within the rule laid down in Thomas v. State, 33 Tex. Cr. R. 608, 28 S. W. 534. See Branch’s Ann. P. C. p. 209, for collation of cases.

We have not deemed it necessary to go into a detailed statement of. the evidence. The record is very full in detail and rather voluminous. It may be seriously questioned whether or not the details of ,¿ horrible crime as this should be perpetuated in our jurisprudence. The trial court and jury, we think, were justified in holding the testimony sufficient as viewed from the light of this record. We have stated enough to show that the killing was one of unusual note in deliberation and atrocity.

The judgment will be affirmed.

PRENDERGAST, J., absent

On Motion for Rehearing.

DAVIDSON, P. J.

At a former day of this term the judgment herein was affirmed. Appellant has filed a motion for rehearing, ■ complaining of the opinion in several respects: First, he says the court was in error in not reversing the judgment because of the failure to obtain a change of venue. The motion to change veiuse was not considered, as shown by the original opinion, because the statement of facts was not approved by the judge nor signed by counsel for appellant, and further, because the statement of facts in the purported bill of exceptions was in question and answer form. Appellant refers to the fact that attached to the statement of facts, and at the first portion thereof, is a statement of facts introduced upon the motion for change of venue, and all of the facts as shown by said statements of facts, and that said Statement of facts was duly signed by counsel for the state and counsel for appellant, and approved by the court on September 29, 1917. There is some testimony with reference to change of venue in the statement of facts. The statement of facts at its termination is signed as stated by counsel and approved by the judge. The evidence in the statement of facts with relation to the change of venue was not reserved in a bill of exceptions as required by the statute, and therefore is not noticed. The statute is imperative, and has always been so held that in order to have a motion for change of venue considered a bill of exceptions must be reserved and the evidence set out in the bill of exceptions. It is not sufficient to set out testimony in a statement of facts, but the evidence must be reserved in a bill of exceptions. This is demanded by the statute, and has always been so held. There is nothing stated to show that appellant was placed in such condition that he could not obtain a statement of facts in a bill of exceptions or a proper bill containing the evidence. Therefore there is no question that the bill of exceptions could have contained a statement of the facts approved by the judge. What purports to be a bill is not approved by the judge, and it is not sufficient to include the evidence in a general statement of facts. There is no sufficient reason why the court should reconsider this case upon that ground or grant a rehearing.

Complaint also is made that the court was in error in not sustaining appellant’s proposition that the charge on manslaughter was not sufficient. We hardly deem it necessary to review this matter, but refer to the original opinion for a statement of the condition of the record as to the facts in this connection. The case of Lane v. State, 29 Tex. App. 310; 15 S. W. 827. cited by appellant, •does not seem to be in point, and it is therefore deemed unnecessary to review that case in connection with this record.

We deem it unnecessary to review or discuss other questions. We are of opinion that the judgment affirming the case was correct.

The motion for rehearing will be overruled.
      <g^?Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

       other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. LUTEN et al.
    (No. 7961.)
    (Court of Civil Appeals of Texas. Dallas.
    May 4, 1918.
    Rehearing Denied June 1, 1918.)
    1. Railroads <&wkey;369(2) — Highway Crossings — Signals.
    The omission of the statutory signals on approach of a train to a highway crossing is negligence per se only in cases of those using or about to use the highway, and not with respect to trespassers.
    2. Railroads <&wkey;400(l) — Crossing Accidents — Questions for Jury.
    In an action for the death of plaintiff’s decedent through being struck by a railroad train, evdience held not, as a matter of law, to show that deceased was a trespasser, and not at the public crossing when struck.
    3. Trial &wkey;>142 — Direction of Verdict — Sufficiency of Evidence.
    To authorize the court to take a material issue from the jury, the evidence must be of such a character that there is no room for ordinary minds to differ as to conclusion to be drawn from it.
    4. Railroads <&wkey;316(4) — Crossing Accidents — Negligent Speed.
    In an action for the death of plaintiff’s decedent through being struck by a train at a crossing, negligence might be predicated on the speed of the train, although the place of the accident was in the country, and there was no statute regulating the speed; it being the duty of defendant to exercise ordinary care in regard thereto.
    5. Railroads <&wkey;350(7) — Crossing Accidents — Questions of Facts.
    In an action for the death of plaintiff’s decedent through being struck by a railroad train at a public crossing, evidence held to make a question for the jury as to whether statutory crossing signals were given.
    6. Railroads <&wkey;350(33) — Crossing Accidents — Questions of Fact — Discovered Peril.
    In an action for the death of plaintiff’s decedent through being struck by defendant’s train at a public crossing, whether defendants did all in their power to avoid the accident after observing deceased held, under the evidence, for the jury.
    7. Trial <&wkey;253(4) — Crossing Accidents — Instructions.
    In an action for the death of plaintiff’s decedent through being struck by defendant’s train, it was not error to refuse a special charge that, unless the jury believed that decedent was struck while upon the road crossing, they could not find for plaintiff; such instruction ignoring the issue of discovered peril, and requiring a finding for defendant, unless decedent was at the crossing when struck.
    8. Railroads i&wkey;401(l) — Crossing Accidents — Instructions.
    In an action for the death of plaintiff’s decedent from being struck by defendant’s train, an instruction that the law requires those in charge of railroad trains to use great care and prudence in operating them, so as to avoid injury to others, and if by the want of such care injury is inflicted upon others, without fault of themselves, the company would be liable, was not erroneous, as being misleading.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by Mrs. E. E. Luten and others against the Missouri, Kansas & Texas Railway Company of Texas to recover for wrongful death. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    A. H. McKnight, of Dallas, W. E. Spell, of Waco, and Collins, Morrow & Morrow, of Hillsboro, for appellant. Wear & Frazier, of Hillsboro, for appellees.
   TALBOT, J.

This is the second appeal of this case. 184 S. W. 798. The suit was instituted by Mrs. E. E. Luten, for herself and as next friend for her four minor children, to recover of appellant damages sustained on account of the death of her husband, and the father of said children, E. E. Luten, who it is alleged was killed on April 1, 1914, as a result of being negligently struck by one of appellant’s trains at a public dirt road crossing. The acts of negligence charged and which were submitted to the jury as issues of fact, are: (1) That appellant’s servants in charge of the train negligently ran it, in approaching and passing over the crossing, at a dangerous rate of speed; and (2) that said servants in charge of said train negligently failed to blow the whistle or ring the bell of the engine in approaching the crossing as required by law. It is also charged, in effect, that appellant’s servants in charge of said train saw E. E. Luten, the deceased, on appellant’s railroad track and, after realizing his danger from the approaching train operated by them, negligently failed to use the means at their command to stop the train and avoid striking the deceased, but, on the contrary, negligently ran said train against him, and inflicted the wounds which resulted in his death.

The appellant answered, specifically denying that the dirt road crossing, where it is alleged that the deceased was struck and killed, was a public road crossing, or one commonly and habitually used by the public as such. Appellant also denied that it was guilty of any of the acts of negligence charged, and alleged that the injuries received by the deceased on the day in question resulted from his own negligence and carelessness, in that he was a trespasser upon defendant’s railroad track at the time of the accident, using it as a footpath; that he was extremely deaf, which was unknown-to appellant until after the accident, but known to all of the members of his family; that deceased had been warned by his family and friends that his conduct in trespassing upon the track of appellant would sooner or later result in his death, but that, notwithstanding such warning, he continued to use the same as a footpath. Appellant further answered by saying that, when its servants operating the engine which struck the deceased discovered that the deceased was upon its track, they immediately rang the bell, and kept it ringing until the deceased was struck, and blew the whistle of the engine, giving what is known as the stock alarm whistle,- which is two long and two short blasts; that the deceased appeared to have heard the. said alarm signals given, as he veered from about the center of the track to near the east rail of the track, and appellant’s servants believed that he -was leaving the track; that at the very moment they discovered he was continuing northward on the track, and did not intend to leave it, they did everything in their power with the means at their command to reduce the speed of the train, stop the same, and prevent the striking of the said Luten. A jury trial resulted in a verdict and judgment in favor of appellees for $6,000. From this judgment the appellant perfected an appeal.

The first assignment of error complains of the trial court’s refusal to give a special charge, requested by appellant, directing the jury to return a verdict in its favor. The proposition advanced under the assignment is as follows:

“Where, as here, the evidence as a matter of law' is insufficient to support a judgment in favor of plaintiff, it is the duty of the trial court, especially upon request, to instruct a verdict for the defendant.”

The appellant, under this assignment and proposition, sets out the testimony at length and argues that it show's conclusively that it was through no fault or negligence of its servants that E. E. Luten lost his life; that it discloses beyond dispute that the deceased, Luten, was not struck by the train while he was in the act of passing over the dirt road crossing, but at a point 200 or 300 feet north of this crossing and w'hile a trespasser upon, appellant’s property, and after the operatives of the train had done all they possibly could do, by the use of the means at their command, to stop the train and avoid striking. Mr. Luten after discovering his perilous position; that if, by any possible construction of the testimony, it can be said that the deceased, Luten, was struck by the train while he was attempting to pass over appellant’s railroad track at the dirt road crossing, said testimony further shows beyond controversy that appellant’s servants in charge of said train gave the statutory signals in approaching said crossing, and was in no. manner w’hatever guilty of negligence which proximately caused the accident and death of the said Luten.

We make the following findings and statement of the testimony:

The deceased lived west of the appellant’s railroad and about 400 yards northwest of the crossing in question. A short time before the accident causing his death he left home, carrying a shotgun. The railroad, w'here it intersects the dirt road leading, from the deceased’s house, runs practically north and south, and the dirt road practically east and v'est. At this intersection of said roads the railway company had constructed, and maintained for many years-prior to the death of the deceased, Luten, the crossing in question, and the same had been commonly and habitually used by the public for travel 'during all those years. About 9 o’clock of the morning the deceased left home'With his gun, a train operated by the appellant’s servants passed over the road crossing going north. At this time two reports of a gun at or near the crossing were heard by some of the witnesses who testified in the case, and immediately thereafter a train whistle, giving two short blasts, was heard at or about the same point, and the train stopped immediately thereafter. In perhaps an hour, or less time, after this, the body of the deceased, Luten, was found at the estimated distance, according to testimony offered by appellees, of 40 or 50 feet north of the crossing and about 15 feet east of the railroad track. When found, Mr. Luten was dead, his gun broken, and both barrels had been discharged. There was a wound on his right side, below the arm and shoulder blade. The right leg was broken. The wound on the leg was on the right side of the leg. The deceased’s hat was found on the ground about 15 feet north of the crossing and on the east side of the railroad bed. About 30 feet north from the crossing, on the east side of track, some letters belonging to the deceased were also found. There was also near this place where blood was found an indentation in the ground at the end of the cross-ties, as if some object had struck .there. There was another such place about 70 feet from the crossing and 16 feet east of the railroad track, and there was blood on the weeds there.

H. B. Idaho, an undertaker, testified that he embalmed the body of the deceased after removing the clothing and washing it. He said the deceased “had one wound on the right side, under the right arm; it was an incision like wound; looked like it was torn in the body, right smart sized wound” ; that he found another wound on the right side of the head near the temple; that the right leg was broken, and that the wound on the right leg was on the right side of the leg. The railroad bed or dump at the crossing was about 10 feet high and on the morning of the accident there was a very dense fog. Mrs. Luten heard the noise of the train as it passed, but on account of the fog could not see the train. The deceased was a sober, industrious farmer. His hearing was defective, but, if spoken to in a loud tone of voice close to him, a conversation could be carried on with him. His wife, Mrs. Luten, said: “He could hear a train blowing.”

The engineer operating the engine drawing the train on the morning of the accident testified that he had been familiar with the crossing in question for about 17 years; that as he approached said crossing on the morning E. E. Luten was killed he sounded the road crossing whistle and rang the bell; that he saw a man on the track, who he afterwards learned was Mr. E. E. Luten; that when he first saw'him he was 150 or 200 yards ahead of the engine; that it was very foggy when he approached the crossing; that when he first saw Mr. Luten on the track he could not tell that he was a man, could just tell that an object was on the track; that when he sounded the whistle he veered to the right of the track, and he thought he was going to get off, but did not do so; that when the deceased did not get off the track he began the stock alarm whistle and put on the emergency brakes and opened the sand box; that when he first saw the deceased the train was running 40 miles an hour, and that when the engine struck him it was running about 20 or 25 miles an hour; that when he began the stock alarm whistle the engine was something like 100 yards from the deceased, but that the deceased did not seem to notice it and continued up the track. He further said the deceased was struck just north of, and about 200 or 300 feet from, the crossing; that he did all he possibly could to stop the train, after he saw that the deceased did not leave the track, to avoid striking him; that when the train struck the deceased he heard a report that sounded like the report of a gun. This witness further stated that the average speed of the train was 28 miles an hour, but that to make that average they had to run faster between stops and stations. On cross-examination this witness testified that, when approaching the point where the Dallas and Waco road crosses appellant’s railroad, which was about a half mile south of the crossing at which it- is claimed the deceased was struck, he gave the usual crossing signals; that after that crossing was passed he “cut the bell off,”;and it was started again after he blew the whistle for the man he saw on the track; that “when I first blew the whistle I was about 150 yards from him [the deceased], and I was 'about that far from him when I could tell it was a man”; that when he saw the object on the track, and blew the whistle, he must have been' just south of the crossing in question a few yards; that he could not tell just how far, but it was either a short distance south of it, or about where the crossing is; that he did not take his eyes off the deceased, and that he never saw him look around at any time; that he could not tell how far the pilot knocked him; that the deceased was on 'the right-hand of the railroad track, between the rails, when struck, and that the fireman, who was sitting on the left-hand side of the engine, could not have seen him at all after he was struck. ,1-Ie also stated that he blew the whistle “between a half and a quhrter of a mile south of this crossing where the accident happened”;, that the train hit the deceased, in the back; that when the train struck him he went immediately to the right, but that he could not tell for sure about that; that, after he fell back against the engine, he didn’t see him any more until he was picked up.

This witness, the engineer, was corroborated by the fireman as to the time the deceased was discovered on the track, the fog that prevailed, the blowing of the whistle, the statement that the deceased veered to the right of the track, and the efforts made to stop the train; but he stated positively that the bell was rung continuously from the time the train left the city of Waco until the happening of the accident. He also stated that, when the deceased was struck, he “was thrown right off on the right-hand side of the track. He was thrown off of the track right about the place where he was struck.” Several other employés of the appellant testified that the whistle was sounded just before the accident occurred and that their attention was attracted by the continuous sounding of it.

Sam Chase, a witness offered by the appellant, testified that he was a passenger'on the train the morning of the accident; that he had been railroading for 21 years, and was at the time of giving his testimony in the case working for the appellant; that he assisted in putting the body of the deceased on the train; that at the time it was picked up it was lying about 75 yards north of the crossing. On cross-examination he said that he had seen trains running at a rapid speed hit objects on the track and knock them quite a distance. He further said:

“Yes; I make that testimony that it [the bodyl was 75 feet north of the crossing, in face of the fact I got off .the train and went immediately to the body, helped the people put him on, and got on as quickly as I could, * * * and we pulled out as soon as we could.”

Dr. J. H. Thomas, a witness introduced by the appellant, testified:

That he had been the railroad surgeon since about January, 1915; that on the day of the accident he was called to see Mrs. Luten; that after he had been at her house about 20 or 30 minutes he, with -G. L. Johnson and some others, went over to the road crossing; that after they got to the crossing they went north on the railroad track and found a hat, supposed to be Mr. Luten’s hat, off the track on the east side; that the bat was picked up, and that they “went further on up the track, to see if we could see where the body was supposed to have been found, but didn’t find anything, only a place where there was a disturbance in the gravel, like where people had walked around. * * * I didn’t step to see how far that was north of where we found the hat, but it was about 20 steps. I stepped the distance from the crossing to even with where we found the hat, and it was 45 steps, or 130 feet. * * * Mr. Johnson was there, and X think he is the man that picked up the hat, and .somebody picked up a candidate card there somewhere. I didn’t see any blood on the weeds; if there was blood on the weeds there, there is no reason why I didn’t see it.”

In this connection it may be stated that G. L. Johnson, the man referred to by the witness Dr. Thomas, testified that the hat found was about 15 feet north of the road crossing on the east side of the track and about 8 feet from the track; that-he did not see Dr. Thomas measure or step the distance from the road crossing to where the hat was lying; that about 15 feet north of the hat he saw where something had hit the ground near the end of the ties and knocked a hole in the ground, and that there was blood on the ground there; that further north about 40 feet, and about 16 feet from the track on the east side, there was a place where something had hit th'e ground, and there was blood on the weeds there; Further phases of the testimony will be disclosed in the discussion of the assignments of error.

The law seems to be well settled that the omission of the signals required by statute on approach of a train to a highway crossing can be treated as negligence per se only in cases of those using or about to use such highway; that is to say, the failure to give crossing signals is, by law, made negligence only “with respect to those for whose protection the statute was designed. As to others, the omission may or may not constitute negligence in fact; the question depending on the circumstances of the particular case, and being one for the jury, and not for the court, to determine.” Railway Company v. Saunders, 101 Tex. 255, 106 S. W. 321, 14 L. R. A. (N. S.) 998, 16 Ann. Cas. 1107. In this case the Supreme Court takes occasion to discuss the question very fully, and to review a number of decisions theretofore rendered upon the subject by both that court and Courts of Civil Appeals. Some of those decisions are approved and followed, some of them disapproved, and others distinguished. But the rule, as above stated, is firmly established. There seem to be no peculiar circumstances in the case at bar, if the deceased was not struck by appellant’s train at the dirt road crossing, that raised an issue of fact for the determination as to whether or not the failure of appellant’s employés in charge of the train to give the statutory signals for said crossing constituted negligence, and if the evidence shows conclusively that the deceased was struck by appellant’s train at a place other than said crossing, and while he was a trespasser upon appellant’s track, as contended by appellant, the deceased was not entitled to the protection of the statute in question, and the failure to give the signals as the train approached the crossing gives them no cause of action, and their right of recovery depends solely upon the issue of whether or not the appellant’s employés in charge of the train could have stopped the same, by the use of the means at their command, after discovering Luten’s peril, in time to have avoided striking him, and failed to exercise ordinary care to do so.

Do the facts conclusively show that the deceased was not struck by appellant’s train at the dirt road crossing, but away from said crossing, and whilst he was walking north on appellant’s railroad track? We think not. The testimony offered by the appellees on the trial in which the judgment from which the present appeal is taken is practically the same as it was on the former appeal, and what we said upon this question in our opinion on that appeal is pertinent and applicable under the facts and circumstances shown by the record now before us, notwithstanding the testimony of appellant's engineer and fireman, who claim to have witnessed the unfortunate accident. We then said, and now repeat, that from the location of the wounds found upon the body of the deceased, and the proximity of his hat and body to the crossing, together with other circumstances in evidence to be considered, it may reasonably be inferred that he was at the crossing when struck by the train. The conclusion is warranted that he traveled east after leaving his home along the road leading to the crossing until he reached the railroad; and that he was going straight across the track from the west to the east side thereof when the collision occurred, and not walking north in tiie,direction the train was moving, is a reasonable, and not an improbable, deduction from tiie facts and circumstances proved. Tiie serious wounds, if not all of them, that were inflicted upon the deceased, were on the right side of the body. This is a strong fact or circumstance tending to show that he was standing facing the east, or moving directly across the railroad track, when struck. It is clear that, if he was walking north along the railroad track when struck, the wounds inflicted upon him would have been on his back, the back part of the head, and the back part of his leg. The fact that the wounds were on his right side is entirely consistent with the idea that he was. standing or walking with that side of his body toward the approaching train when the collision that cost him his life happened.

True, it is possible, or even probable, that he may have turned- his right side towards the train just before the collision; but that he did so is no more to be inferred from the established facts and circumstances than that he was going straight across the tracé. And while it is possible, it is not very probable, it occurs to us, that the deceased attempted to cross the railroad track north of the dirt road crossing, at or near where his body was lying when found. The railroad bed or dump at that point was several feet high, and evidently more difficult to pass over than at the road crossing, and there is nothing to indicate why he may have left the traveled road to cross the track at such a place. Moreover, his hat, as has been stated, was found within 15 feet of the crossing, some letters belonging to him about SO feet from the crossing, and his body at the greater-distance of about 40 or 50 feet therefrom, indicating that, after being struck by the train, he was carried, before being east to the side of the track, some distance; for it is an exceedingly fair inference that the deceased’s hat was caused to fall from his head by the collision, and that, if it fell directly to the ground, the location of the deceased’s body indicates that it was pushed or thrown thereafter by the train the distance of 25 or 30 feet. Again, it is not at all improbable that, after the deceased was struck, his hat, after being dislodged from, his head, was carried by the suction or agitation of the air produced by the running train some distance in the direction the train was moving, and this would suggest that he was at the crossing, or at least nearer to it than at the point where his hat was found, when the collision occurred. At all events, we think it cannot be said, from the facts and circumstances shown, 'as a matter of law, that the deceased was not at the crossing when struck by the railway train,

Now it is settled law in 'this state that, to authorize the court to take a material issue from the jury, the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it. This has been affirmed in many decisions of our courts. The testimony of the witnesses introduced by appellant, which was not before the court on the former appeal, does not necessarily, we think, require a finding that the deceased was not struck by appellant’s train at the crossing in question. The testimony of these witnesses in important particulars is not in harmony with the fair and reasonable inferences and deductions to be drawn from certain relevant "facts and circumstances established by the testimony of witnesses offered by the appellees. That testimony is to the effect that the engine struck the deceased in the back, while the wounds inflicted upon the body of the deceased unmistakably indicate that they were inflicted on the side of the body and head, and just where he would necessarily be struck, if, as appellees contend, he was walking directly east over the crossing when hit by the engine. The finding of the deceased’s hat, and letters belonging to him, and blood on the ground so near the crossing, are cogent circumstances indicating that the deceased was struck by the train at or very near the crossing, contrary to the-testimony of appellant’s witnesses. Besides, there are inconsistencies or contradictions in the testimony of some of appellant’s most important witnesses, and the jury were the exclusive judges of their credibility and the weight to be given to their testimony. In weighing this testimony, the relation of the witnesses to the appellant as employes, and tlieir probable interest in its behalf as such, were proper matters for the consideration of the jury, and their verdict indicates the testimony was unsatisfactory, and that at least vital parts of it were discarded.

In view of all the facts and circumstances of the ease, we do- not feel authorized to say that it was conclusively shown that the deceased was not struck at the crossing. It is true the witness J ohnson on cross-examination said he merely estimated the distance from the crossing to where the hat of the deceased was found, and the appellant’s surgeon, Dr. Thomas, stated that he stepped the distance, which he says he found to be 130 feet; but the value and weight to be attached to the respective statements' of these witnesses was for the jury. Neither the ability of the witness Johnson to closely approximate the distance from the crossing to the place where the hat was lying, nor the correctness of his estimate, was, except by the testimony of Dr. Thomas, called into question, and the jury was authorized to conclude that he was not as badly mistaken in his estimate of the distance as the testimony of that witness would indicate. Dr. Thomas merely stepped the distance, and according to his statement of the number of steps Johnson underestimated the distance 115 feet. This is hardly probable, and the jurors were warranted in concluding, as they evidently did, that Johnson’s estimate of the distance was accurate. Besides, Johnson, who was present when Dr. Thomas claims he stepped the distance, says that he did not see Thomas step it, and the jury may have concluded that he did not in fact step the distance, but merely estimated it, as he did the distance from the hat to the place where he discovered “a disturbance in the ground like where people had walked around.”

Having held that the evidence raised an issue of fact as to whether or not the deceased, Luten, was struck at the crossing, it becomes necessary to consider whether or not it raised issues of negligence with .respect to the speed at which the train was being propelled and the failure to give the statutory signals as the train was approaching the crossing. First, could negligence be predicated upon the speed of the train? We think so. That this crossing should be classed as a public one, though not established by the commissioners’ court or worked by the county, so far as the giving of the statutory signals is concerned, can hardly be questioned. It was over a high dump in appellant’s road. The approaches, which extended back about 35 feet, were built by appellant, and the crossing maintained by it. For many years the crossing, with full knowledge of appellant, had been habitually used by the people in the neighborhood, and the necessity for giving the statutory warnings for their protection prior to the accident in question had been recognized by appellant, and such warnings usually given. The undisputed evidence shows that the train which struck and killed E. B. Luten was running 35 or 40 miles an hour as it approached this crossing, and that a dense fog prevailed. The crossing, it is true, was in the. country; hut it was a public one, in the sense that it was commonly used by pedestrians and persons traveling in wagons, buggies, and other vehicles, and a place where the operatives of appellant’s train might expect persons to be at any time. In approaching such a crossing, although it be in the country, railway companies have no right, regardless of the danger to persons that may be lawfully using the crossing, to operate its trains at such speed as they see proper. Although the place of the accident is in the country, and there is no statute regulating the speed of trains, yet negligence may be evidenced by the speed at which the train is being propelled, when considered “in connection with the place of the accident and the circumstances surrounding it.” It was the duty of 'appellant’s servants on the occasion in question to exercise ordinary care, and whether they were exercising such care in the speed of the train under the circumstances of the situation was a question for the jury. The case of Railway Co. v. Langham, 95 S. W. 686, cited by appellant, does not, in our opinion, announce a contrary rule. Instead, the rule as stated here is distinctly recognized.

Did the evidence show beyond controversy that the statutory signals were given? We think this question shoirld be answered in the negative, notwithstanding there is positive testimony of some of appellant’s witnesses that they were. The testimony of the engineer is to the effect that he sounded the road crossing whistle about one-quarter of a mile distant therefrom, but that just before, or about the time, the bell, which had been ringing for the Dallas-Waco road crossing, was stopped, and not started again un-' til the stock alarm whistle was blown, when he discovered the deceased on the track. As to the sounding of the whistle, the fireman’s testimony is practically the same as that of the engineer; but he testified that the bell was not only kept ringing after the Dallas and Waco dirt road had been passed, but made the unreasonable statement that the bell “had been ringing all the time since we left Waco,” a distance of about 19 miles. In this latter statement the fireman was contradicted by the engineer who said:

“Yes; put the bell to ringing when we approached that Dallas and Waco crossing with the railroad, and then cut the bell off after passing that crossing, and the boll was started to ringing next after I blew the whistle for this man. No ; the bell was not ringing all the way from Waco.”

These were the only witnesses who testified in regard to the ringing of the bell. The train passed along on the east side of the deceased’s house, and Mrs. Luten, who was sitting in the east room of her house as the train approached the crossing where the deceased was struck, and who heard the noise of the train, but could not see it on account of the density of fog, said:

“I heard the train that morning as it went by. The whistle was not blown that morning for that crossing. I heard the train coming before it got even with the house. It wasn’t making very much noise. The first time I heard the whistle blown, it blew two 'short blasts, and then stopped right after that; while it was coming to a stop I could hear a grating sound. When I heard the two short blasts, and the stopping of the train right after that, the train was over in the direction of that crossing near where Mr. Luten was found.”

‘ This positive testimony of Mrs. Luten is not qualified by any other statement made by her in reference to the blowing of the whistle for the crossing in question., She said that, if the engineer sounded the whistle for the Dallas and Waco crossing, which was a half mile or mile south of the crossing where it is claimed the deceased was struck, she did not hear it; that she did not mean to tell the jury it did not blow for that crossing. In addition to Mrs. Luten, other witnesses introduced by appellees testified with respect to the blowing of the whistle at or near the crossing. W. W. McCoy, who lived about three-quarters of a mile away, said that at the time Mr. Luten was killed he was at home chopping wood; that he did not see the train, but heard it; that he also heard the report of a gun, and that right after he heard the report of the gun he heard the whistle of the train give two short blasts, and that the train then stopped. He further said that he heard the noise of the running train before he heard the report of the gun, that he heard the whistle just after the report of the gun, and that he did not hear the whistle before the gun fired. N. H. Humphreys’ testimony was substantially the same as the witness McCoy. He did not hear the noise of the train, but heard the report of a gun and train whistle blowing. He said:

“I heard the report of the gun before I heard the train whistle blow. After hearing the gun, 1 hoard two short blasts of the locomotive whistle. * * * I did not hear the train blow before the two short blasts.”

This testimony, wre think, conflicts with the testimony of appellant’s engineer and fireman, and was amply sufficient to raise an issue of fact as to whether or not the whistle of the locomotive was sounded as required by statute as the train approached the crossing. It'is not purely of a negative character as was the testimony in Railway Co. v. Kutac, 76 Tex. 473, 13 S. W. 327, and Railway Co. v. Anderson, 126 S. W. 928, and a decision of the question is not governed by those eases. Its probative force is at least equal to that of the testimony touching a similar question in the case of Southern Traction Co. v. Owens, 198 S. W. 150, and in that case a writ of error was denied. So far as the ringing of the bell is concerned, the testimony of the engineer and fireman, the only witnesses who testified on that issue, is in conflict, and the testimony of the engineer clearly warrants the conclusion that the' bell was not continuously rung from a distance of at least 80 rods from the crossing as the train approached it, but that it was not started to ringing until the locomotive wag. in a much less distance from the crossing. Whether the failure to give these signals was the proximate cause of the injury and' death of B. E. Luten was a question for the-jury. Clearly we would not be authorized to say as a matter of law it was not.

The next contention of appellant is that the testimony conclusively shows that, after-appellant’s servants in charge of the train-discovered the peril of the deceased, they did all in their power to stop the train and avoid injuring the deceased, but were unable-to do so; therefore the issue of discovered peril was not in the case, and that issue-should not have been submitted to the jury. We are not prepared to say the testimony is. of that conclusive character upon this question claimed for it by appellant. Whether-the operatives of appellant’s train discharged the duty imposed upon them by law, after discovering the peril of the deceased, to avoid striking and injuring him, was, in our-opinion, a question for the jury. The testimony of the engineer is that the locomotive-was about 150 or 200 yards from the deceased when he discovered that the deceased was a man; that he then blew the stock alarm whistle, and the deceased veered to the right, and he thought he was going to get off' the track, but that he did not do so; that the train was running at the rate of 40 miles an hour; that he did not know how far the-train ran, after he blew the whistle and saw the deceased was not going to get .off the-track, until he put on the brakes; that he supposed he ran 200 or 300 feet from the time he blew the whistle until he put on the emergency brakes; and that the only brakes he put on were the emergency brakes. The fireman said that, when they first saw Mr. Luten on the track, the engineer made an application of air, and not until they got within about 250 feet of the deceased did' he apply the emergency brakes and open the sand pipes. The engineer also testified, as we have shown, that the deceased was 200 or 300-feet north of the road crossing when struck, and that when he saw the object on the track and blew the whistle the first time he must have been just south of the crossing a few-yards; that it was either a short way south of the crossing, or about at -the crossing; that he kept his eyes on the deceased all' the time after he discovered him on the track, and at no time did he see the deceased look around. So that whether, under all the facts and- circumstances ishown, the operatives of the train exercised that degree of care- and diligence required by law to stop the-train and avoid striking the deceased was an. issue of fact, and not one of law.

"While appellant could not be charged with negligence until its servants in charge of the train actually discovered the peril of the-deceased, “still it would be liable if, after such discovery,” they “failed to use the greatest precaution to avoid injuring” Mm. Sanches v. Railway Co., 88 Tex. 117, 30 S. W. 431. Whether the engineer was justified, especially since the deceased failed to give evidence of knowledge of the approaching train by looking in its direction, in concluding, from the mere stepping of the deceased to near the east rail, that he was going to leave the track, and the consequent delay in applying the emergency brakes and opening the sand pipes, were pertinent and legitimate matters for the consideration of the jury upon the issue. Again, the testimony authorizes, as we have held, that the deceased was at the crossing when struck, and, if he was, the emergency brakes and sand, according to the testimony of the engineer, were not used until the locomotive approached within a few yards of the crossing. We would not be justified in saying as a matter of law that the issue of discovered peril was not raised by the evidence. .

The second assignment of error complains of the refusal of the court to give a special charge, requested by appellant, that, unless the jury believed that E. E. Luten was struck while upon the road crossing, they could in no event find in favor of the appellees. There was no error in refusing this charge, for the reason that it ignored the issue of discovered peril, and required a finding absolutely in favor of appellant, unless the deceased was at the road crossing when struck by the locomotive. Besides, the issue of whether or not the deceased was struck at the crossing was submitted in the court’s general charge. Nor did the court materially err in refusing to give appellant’s special charge on the question of contributory negligence. It may be doubted that contributory negligence was an issue in the case; but, if it was, the court’s charge upon the subject was very slightly less general than the requested special charge. Practically the only difference in the special charge and the general charge, in submitting the question, is that the special charge imposed upon the deceased, which the general charge did not in terms do, the duty of exercising ordinary care “to ascertain the presence or approach of a train to avoid striking him.” The general charge did define ordinary care and contributory negligence, and told the jury in effect that, if the deceased went upon appellant’s railroad track without using the care and caution which would have , been used by an ordinarily prudent person under similar circumstances, and such failure proximately contributed to his injury, he could not recover.

The court’s general charge upon the issue of discovered peril was also sufficient, we believe, to protect the rights of the appellant, and the refusal of the special charge requested by appellant in relation thereto affords no sufficient ground for a reversal of the case. Besides, the court gave a special charge requested by appellant upon the issue, and the refusal of another requested charge upon the same issue is not reversible error. The special charge given, however, presented the theory of the one refused.

The court charged the jury as follows:

“Bearing in mind the foregoing definition, you are further instructed that the law requires those in charge of railway engines and trains to use great care and prudence in operating them, so as to avoid injury to the persons of other people. And if, by the want of such care or prudence, injury is inflicted upon others, without the fault of themselves, such company would be liable for such injury and damage.”

Appellant complains of this charge, and cites Railway Co. v. Smith, 87 Tex. 348, 28 S. W. 520. The charge in question is almost literally the same as that given in Railway Co. v. Matula, 79 Tex. 577, 15 S. W. 573, which under the facts of that case was approved by the Supreme Court. In the later case, however, of Railway Co. v. Smith, supra, the Matula Case was discussed and limited as to the degree of care required of railway companies at public crossings to prevent injury to persons upon such crossings, and the rule announced to be that such companies must use ordinary care to discover the presence of persons at such crossings and to avoid inflicting injury upon them, and that in the exercise of that degree of care they must use such an amount of vigilance and caution as a man of ordinary prudence would use under like circumstances. But in view of the facts in Railway Co. v. Matula, and another charge given therein, to the effect that, if the jury should find “that the injuries complained of were inflicted by the defendant, by the negligence and want of due and proper care on the part Of its employe's,” to find for the plaintiff, the affirmance of the case was held to be proper, notwithstanding the giving of the incorrect charge. For similar and as strong or stronger reasons, we think it may be said that the like charge here complained of should not require a reversal of this case. There was no application in the present case, as there was in the Smith Case, of the charge to the facts of the case, and it was in no way referred to in any paragraph of the charge in which the facts are grouped and the conditions upon which a verdict for the appellees was authorized. On the contrary, negligence and ordinary care were properly defined in the first and second paragraphs of the court’s general charge, and in the paragraphs thereof enumerating the facts which the jury was required to find, in order to return a verdict in favor of appellees, the care imposed upon the appellant was ordinary care as defined in the second paragraph of the charge, and the .negligence therein referred to was the negligence defined in the first paragraph of the charge. So, as was similarly said in Railway v. Smith, supra, we may say here that, considering the whole •charge, the jury must have understood that •the degree of care incumbent upon appellant •was ordinary care, and that by the charge •complained of the jury must have understood that the appellant, under the circumstances of the case, was required to exercise a great amount of vigilance. At any rate it is not •probable, in view of the entire charge, that the jury, by the charge under consideration, was misled to the prejudice of appellant. 'The fifth assignment of error is therefore overruled.

The eleventh assignment of error asserts that the twelfth paragraph of the court’s charge is upon the weight of the evidence, in that it assumes that deceased was struck upon a crossing, whereas the uncontroverted evidence shows that he was struck on defendant’s track at a private place where the night of way was fenced. We do not so construe this paragraph of the charge. It distinctly submits, in our opinion, for the decision of the jury, the issue whether or not ■•the deceased. was at or upon the crossing.

There are a number of other assignments • of error, but the several questions presented .by them have been discussed and disposed of against appellant by what we have said in ■our consideration and treatment of the first .assignment of error.

Believing the record discloses no reversible ■error, the judgment of the district court is affirmed.
      ig^xoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    FEDERAL INS. CO. v. MUNDEN.
    (No. 7921.)
    (Court of Civil Appeals of Texas. Dallas.
    May 18, 1918.)
    1. Evidence <§=>183(3) — Documentary Evidence — Proof of Loss of Original.
    Proof of delivery of the original invoice to another than the party seeking to introduce a copy thereof did not prove its loss nor raise a presumption in that respect, thus laying proper predicate for the admission of the copy.
    ■2. Sales <§=>52(o) — Evidence—“Invoice.”
    Though an “invoice” might be an incident to a sale of personalty, standing alone it did not evidence that fact, being a mere detailed statement of the nature, quantity, and cost or price of the things invoiced, and as appropriate to a bailment as to a sale.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Invoice.]
    . 3. Appeal and Error <§=>1056(2) — Exclusion ' of Unnecessary Evidence.
    Exclusion of documentary evidence favorable to plaintiff on an issue not disputed, as to which plaintiff’s witness testified, was not error.
    4. Evidence <§=>471(2) — Conclusion of Witness — Theft.
    In suit by the insurer of an automobile against theft to recover a car as the car for loss of which it had paid insured, the statement by insured as a witness for the insurer that his car “was stolen,” particularly in view of the statutory definition of theft in Pen. Code 1911, .art. 1329, was inadmissible as purely a conclusion ; for a witness should give the facts and leave to the judge or jury the function of reasoning from them.
    5. Evidence <§=>472(1) — Conclusion of Witness.
    The conclusion, inference, or judgment of a witness is admissible when it relates to a fact which is collateral or relatively unimportant, and is rejected when the fact sought to be es- ' tablished is either in issue or so material as to involve substantial rights.
    6. Evidence <§=>471(2) — Conclusion of Witness — Circumstantial Value.
    In suit by the insurer of an automobile against theft to recover a car as the car for loss of which it had paid insured, rejection of testimony of the treasurer of the insurer that the ' loss was paid because of “theft,” as being the conclusion of the witness, was proper as against the contention that it was admissible as a circumstance tending to show theft, since the witness was not detailing facts and circumstances from which the jury might infer or reason to the commission of a theft.
    7. Sales <§=>233 (3) — Title to Property — Burden of Proof.
    Where defendant was in possession of an automobile by purchase from a third person, it was the duty of an insurer of an automobile against theft, claiming the car as that for loss of which it had reimbursed insured, to prove a better title than' the prima facie title of defendant.
    ' Error from District Court, Ellis County; 1 W. L. Harding, Special Judge.
    Suit by the' Federal Insurance Company against U. Munden. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Crane & Crane, of Dallas, for plaintiff in error. Farrar & McRea, of Waxahachie, for defendant in error.
   RASBURY, J.

Plaintiff in error sued defendant in error to determine the ownership of an automobile, which at the commencement of the suit was in possession of the latter. Plaintiff in error alleged that it insured the automobile against loss by theft, while owned by and in the possession of Everett S. Jones of Boston, Mass., subsequent to which the automobile was stolen, upon proof of which plaintiff in error paid Jones $1,700. whereupon, by the express provisions of said contract of insurance and by operation of law independently thereof plaintiff in error became subrogated to Jones’ right to recover said automobile, and which right was confirmed by said Jones in writing, and that defendant in error’s possession of said automobile was wrongful, but that he had on demand refused to surrender same. Prayer was for possession of the automobile, for its depreciation in value, and for other alternate-relief, etc., unnecessary to detail. In aid of the suit writ of sequestration was issued, by authority of which the sheriff seized the automobile, whereupon defendant in error presented said officer statutory replevin bond and retained possession thereof. The defendant in error by appropriate pleading in substance denied the material allegations of plaintiff in error’s petition. Trial was by jury, who at the conclusion of the evidence were peremptorily directed to return verdict for defendant in error, which was followed by similar Judgment, from which this appeal is taken.

Tlie only facts necessary to he stated, are that plaintiff in error insured a 1912 model Cadillac automobile motor and engine No. 61174, owned by Everett S. Jones,'of Boston, Mass., against loss by theft. Thereafter proof of loss satisfactory to plaintiif in error was made, showing said automobile had been stolen and whereupon it paid Jones $1,700 under its policy. By the insurance contract plaintiff in error was subrogated to Jones’ right to recover said automobile when stolen, and when the plaintiff in error paid the loss. Defendant in error, who resided in the vicinity of Midlothian, Tex., at the time the suit was filed, was in possession of a 1912 model Cadillac automobile motor and engine No. 61174 by purchase from one Dees of the same locality.

The first ground of error assigned is the refusal of the court to permit plaintiff in error to introduce in evidence a copy of the invoice issued by the Cadillac Automobile Company to Jones covering the automobile and certain accessories and charges. As predicate for the introduction of the copy of the invoice plaintiff in error proved by the treasurer of the Cadillac Automobile Company of Boston, from whom Jones purchased the car, that said company sold to Jones a 1912 Cadil-' lac automobile of the same motor and engine number as the one in controversy, for which no bill of sale was executed. The bill of lading was delivered to the railway company, and the original invoice for which was delivered to Jones. In connection with the foregoing Jones testified that he bought from the Cadillac Automobile Company of Boston a car of the model and engine and motor number identical with the one in controversy, paying therefor approximately $1,795, the amount shown in the copy of invoice excluded, and for the loss of which plaintiff in error paid him $1,700. It is urged by plaintiff: in error that the copy should have been admitted, since it appears from the foregoing facts that the original had been lost. The purpose for which the invoice was tendered is not stated, but obviously it was only competent to establish that Jones bought the car, and as a consequence was the owner, and paid therefor the price indicated by the invoice.

It may first be said that the proof failed to show that the original invoice had been lost, and hence no proper predicate for admission of the copy lai,d, since the substance of the testimony of McGregor was not that it was lost, but that it had been delivered to Jones. The delivery to Jones neither proves the loss of the invoice nor raises a presumption in that respect.

It may also be said that, while an invoice might be an incident to a sale of personalty, standing alone it did not evidence that fact. An invoice “is a mez-e detailed statement of the nature, quantity, and cost or price of the things invoiced, and it is as appropriate to a bailment as it is to a sale. It does not, of itself, necessarily indicate to whom the things are sent, or even that they have been sent at all.” Dows v. Nat. Ex. Bank, 91 U. S. 618, 23 L. Ed. 214.

Finally, it may be said that every fact which could be deduced from the invoice was' testified to by Jones, and that his purchase of the car and the price he paid for it was not a disputed issue.

For the reasons stated the action of the court in the respect stated does not constitute error.

As we have shown, it was in evidence that the Cadillac Automobile Company of Boston had sold to Jones a ear of similar model and engine and motor number as the car in controversy, and that plaintiff in error had insured same against and paid a loss thereon for theft, and was entitled by the insurance contract to be subrogated to Jones’ right of recovery. Jones’ deposition was taken, wherein he testified substantially to the facts recited. In said deposition he was asked, “What became of said automobile?” to which he replied, “It was stolen.” He was also asked, “What was the cause of said company having to pay your loss on said automobile?” to which he replied, “The automobile having been stolen, the Federal Insurance Company paid me the indemnity upon proof of claim. Amount paid $1,700.” Upon objection of defendant in error the statement, “It was stolen,” in the first answer and the words, “the automobile having been stolen,” in the second answer were, over objections of plaintiff in error, excluded from consideration by the jury, on the ground that the 'answers were legal conclusions. In that connection, in order for plaintiff in error to recover the automobile and receive the other relief sought, it was necessary to show that the car in controversy was stolen, since its right of subrogation was based on theft of the car. Hence the purpose and importance of the testimony is obvious. The statement by the witness was, in our opinion, inadmissible because purely a conclusion. To say that theft has been committed is obviously the conclusion of the one makihg the statement. Whether the crime of theft has been committed is to be determined by the facts 'attending the taking of the property. While the plaintiff! in error had paid the insurance as for theft upon the showing made by Jones, the conclusion of the latter, however conscientious and however correct in basis, cannot be the standard for establishing that fact in court. The facts upon which the witness bases a conclusion, and not his conclusion upon undisclosed facts, is the standard, since to admit his conclusion or inference from the facts is but to determine a given issue upon the reasoning of the witness, while the rule is for the witness to give the facts and leave to the judge or jury the function of reasoning from facts furnished. Such, it seems to us, is basically correct. It is particularly so in tire light of tire statutory definition of theft, to constitute which there must concur by competent evidence a fraudulent taking of corporeal personal property belonging to another from his possession or that of some one holding same for him, without the consent of either, with intent both to deprive the owner of the value tlrerof and to appropriate same to the use and benent of the person taking same. Article 1320, P. 0. Under such requirements it is difficult to argue that the statement of the witiress was improperly excluded. It is argued by counsel, however, that the statement of the witness was admissible under the holdings in O'Farrell v. O’Farrell, 56 Tex. Civ. App. 51, 110 S. W. 903; Schauer v. Von Schauer, 138 S. W. 145, and Campbell v. Peacock, 176 S. W. 777. The general rule upon which tire cases cited proceed, and the rule to be applied to the issue here presented, is that the conclusion, inference, or judgment of the witness is accepted “when it relates to a fact which is collateral or relatively unimportant, and is rejected where the fact sought to be established is either in issue or so material thereto as to involve the substantial rights of the parties.” 27 Cyc. 27. The case first cited was a proceeding for divorce, and the cancellation of a deed taken in the name of the husband, on the ground that the land was purchased with the separate funds of his wife. On trial it developed that the land was paid for in part with proceeds derived from notes. The wife was permitted to say she “owned” the notes, which was objected to on the ground that the statement was the conclusion of the witness. In reviewing the objection and holding the evidence proper the court say:

“Ownership of property is a fact to which a witness may always testify, except when the whole issue of the case turns upon it.”

While it cannot be said that the ownership of the notes, which in part paid for the land in controversy, was unimportant, it was nevertheless a collateral issue such as is contemplated by the rule, and one upon which the case did not turn. In the second case cited the witness was permitted to say that his father gave him the note sued on, and that lie was the owner thereof. There also the ownership of the note was a collateral issue, the real issue being the defendant’s liability on the note. Without any discussion of the rule the court say the evidence was competent, adding that, if mistaken in that respect, sufficient was in the record to establish that fact. In tlie third case cited one property owner sought to enjoin another from leasing or using property adjacent to the property of plaintiff for a bawdy house. Ownership of the property was proven by showing that defendant rendered same for taxation, collected the rents thereon, and admitted she owned it. There, also, ownership was obviously both a collateral and relatively unimportant issue, .and is within the rule cited. It thus appears that the cases relied upon only concern matters collateral to the main issue, one of which expressly and the others inferentially disaf-firmed the right to establish the very issue upon which the case turns by such evidence. The cases cited below fully sustain the proposition that statements of the character under discussion in the present ease are inadmissible when the purpose is to establish the issue upon which the case turns. Half v. Curtis, 68 Tex. 640, 5 S. W. 452; Gilbert v. Odum, 69 Tex. 670, 7 S. W. 510; Schmick v. Noll, 72 Tex. 1, 8 S. W. 83; Cullers v. Gray, 57 S. W. 305; Rea v. P. E. Schow & Bros., 42 Tex. Civ. App. 600, 93 S. W. 706; Bank v. Ricketts, 152 S. W. 646; Magee v. Paul, 159 S. W. 325; Bank v. Cooper, 170 S. W. 295.

Sidney Chubb, having qualified in that respect, testified by deposition that plaintiff in error, insured an automobile for Everett S. Jones of the same make, model, engine, and motor number as the one in controversy, whereupon he was asked:

“ ‘Did you have any further transaction with Everett S. Jones about this autombile? If so state the nature of the same,’ to which he replied, ‘Yes.’ In March, 1913, the Federal Insurance Company, of which I am treasurer, paid Everett S. Jones for total loss by theft of the said car the sum of $1,700.”

On objection the statement that the loss was paid because of “theft” was rejected because the conclusion of the witness. It is contended that the statement of the witness was admissible as a circumstance tending to show theft. For reasons already stated we conclude that the opinion of the witness, gathered from facts out of which he has reasoned his opinion, has no more force to circumstantially prove theft than it has to prove it directly. The difficulty lies in the fact that the witness is not detailing facts and circumstances from which the jury might infer or reason the commission of a theft. On the contrary, he is stating the inferences he has deduced from the facts. The payment of the money by the insurance company, it may correctly he said, evidences the fact that the plaintiff in error believed the car had been stolen. The opinion of the plaintiff in error that the car was stolen would not, however, be admissible to prove in this proceeding that it in fact was stolen, since in the final analysis it would be to deduce from one inference another, and hence too remote to have probative force or value. Crosby v. Ardoin, 145 S. W. 709.

Plaintiff in error tendered in evidence the affidavit of Everett S. Jones, reciting, in substance, that he purchased an automobile of the make, model, and engine and motor number similar with the one in controversy, which was insured by plaintiff in error, and which was subsequently stolen, and on account of which plaintiff in error paid as for a total loss, and by reason of which plaintiff in error was the owner of said car. The affidavit was on objection excluded. 'The proposition is that it was admissible as a bill of sale to show plaintiff in error’s ownership of the car. While we think the affidavit was inadmissible for reasons already fully stated, it was further objectionable because it in no respect tended to establish the necessary and controlling issue of theft. Conceding the affidavit to constitute an informal bill of sale, it would be inadmissible to establish' theft for the reasons already stated.

Finally it is contended that the court erred is peremptorily directing verdict for defendant in error. The only contention presented on that issue not discussed in this opinion is, in substance, that plaintiff in error was entitled to recover the automobile on the showing made, in the absence of any evidence tending to show that defendant in error was the rightful owner. Defendant in error was in possession of the automobile by purchase from Dees, and it, of course, was the duty of plaintiff in error to prove a better title than the prima facie title of defendant in error.

Finding no reversible error, the judgment is affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    ESPEJO LAND & IRRIGATION CO. v. URBAHN.
    (No. 6031.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 15, 1918.)
    1. Easements <&wkey;36(3) — Roadways—Permissive Use — Evidence.
    Evidence held to show that roadway over defendant’s land was used with his permission, and that use was not exclusive, nor adverse, nor reasonably necessary.
    2. Dedication <&wkey;44 — Highways <&wkey;17 — Evidence.
    Evidence held insufficient to show that alleged road was a public way, or was ever dedicated or accepted by the county.
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Suit by the Espejo Land & Irrigation- Company against Albert Urbahn. Injunction refused, and plaintiff appeals.
    Affirmed.
    Barrett, Eskridge & Barrett, of San Antonio, for appellant. Hicks, Hicks, Dickson & Bobbitt and S. T. Phelps, all of San Antonio, and John A. Vails, of Laredo, for ap-pellee.
   SWEARINGEN, J.

By this suit the Espe-jo Land & Irrigation Company, appellant, sought by injunction to restrain Albert Ur-bahn, the appellee, frpm obstructing a roadway, hereinafter called the “contested road,” which extended in a southwesterly direction for a mile or more from the Laredo public road to the land belonging to Dario Sanchez over appellee’s Santa Rosa ranch, of about 12,000 acres. Upon the trial the court, without a jury, refused the injunction.

The first amended petition alleges that ap-pellee was the owner of both the Santa Rosa and the Espejo ranches, the one containing about 12,000 acres of land, and the other about 18,000 acres ;• that in 1910 appellant purchased from appellee the Espejo ranch; that at the time appellant bought the Espejo ranch from appellee there was a well-defined roadway extending from the western end of the Espejo in a northeasterly direction, one end of which was on the Santa Rosa ranch; that, when the Espejo ranch was the property of appellee, this obvious, open, and continuous roadway over the Santa Rosa was made by appellee a servitude on the Santa Rosa for the benefit of the Espejo. It was alleged that this servitude was one of the appurtenances of the Espejo lands, included in the conveyance from appellee. It was alleged that the open roadway over the Santa Rosa was granted by implication, because it was a way of necessity, that appellee had requested permisión from appellant in 1913 to change the location of the roadway over the Stmta Rosa, which request appellant had granted, and that therefore appellee was estopped from obstructing the roadway; again, it was alleged that persons attending the public school and church at Espejo had customarily used this open and obvious roadway for so many years that such persons, as well as appellant, had acquired the right to the use of the roadway by prescription; and, finally, it was alleged that the roadway had been dedicated to the public use and accepted by the county as a public road. The dominant and servient lands were described, and the location of the roadway before and alter changes in its location were indicated, by a map made a part of the petition. This map disclosed that the Espejo and Santa Rosa ranch had no common boundary, but that they were separated by the width of the Dario Sanchez land, which was 1,000 varas wide. This map further discloses that the same public road to Laredo, into which the contested roadway leads, also runs through the Espejo ranch, and forms the eastern boundary of the western portion of’ the Espejo, which portion is claimed to have the servitude of the roadway over the Santa Rosa.

Appellee admitted that there was a road-" way as described by appellant, but alleged that it was made and maintained by him for his own convenience in passing from one of his properties to the other; that appel- ■ hint’s use of the roadway was by his permission, requested and granted; that this permission was conditioned upon appellant’s keeping the gates of ingress and egress closed, but this condition had never been complied with by appellant ;■ that the public Laredo road was as conveniently reached over appellant's own land as by the roadway over the ■lands of appellee and Dario Sanchez.

The undisputed facts are that appellee owned both ranches, and, while the owner of both, in 1910 conveyed the Espejo ranch to appellant, retaining the Santa Rosa. During the period of unity of ownership, there was an open, obvious, used and continuous roadway, located' about a mile east of the Rio Grande river and extending from Zapata county, thence in a northerly course about parallel with the meanders of the river, crossing in its course the western end of the lands of the Espejo ranch, and the lands of Dario Sanchez and of the Santa Rosa, finally terminating in the Laredo road, which is a public road of the first class. At the time of the purchase by appellant there was an obvious roadway, which we shall denominate the “tank road,” about midway between and parallel with the north and south boundary lines of the Espejo, extending from the road last above described, a distance of two miles, to the same Laredo public road above mentioned. This Laredo road divides the Espejo ranch into two tracts, and is the eastern boundary of the river end of the Espejo, which contains 3,830 acres of land; and the Laredo road is, of course, the western boundary of eastern parcel of the Espejo. The tank road is as passable a road and in every way as convenient a road for the Espejo ranch to Laredo as the contested road, except that it makes the route from the improvements on the Espejo to Laredo approximately a mile longer.

In 1913 appellee had that portion of the contested road which was on the Santa Rosa discontinued, but made a road for his convenience about a half mile further east and in a parallel course with the contested road. Permission to use this new road was expressly given to the appellant. Both the Santa Rosa and the Espejo were inclosed with fences, with gates where the old contested road and the new one crossed the fences. The Dario Sanchez 2,500 acres, lying between the Santa Rosa and the Espejo, over which the contested road ran for more than a half mile, was not inclosed with fences at the ■time appellant bought the Espejo.-

In deference to the judgment of the trial court, we find that the weight of the evidence establishes as a fact that appellant ■used the passageway over the Santa Rosa by permission of appellee, and that the use was not exclusive nor adverse, and that the use of the Santa Rosa for a roadway was not reasonably necessary. We further find as a fact that the said contested road never became a public way, and was never dedicated nor accepted by the county. Howell v. Estes, 71 Tex. 690, 12 S. W. 62; Williams v. Kuykendall, 151 S. W. 629; Callan v. Walters, 190 S. W. 832; Bowington v. Williams, 160 S. W. 719; Sassman v. Collins, 53 Tex. Civ. App. 71, 115 S. W. 337; Hall v. City of Austin, 20 Tex. Civ. App. 63, 48 S. W. 53; Alley v. Carleton, 29 Tex. 74, 94 Am. Dec. 260; Gilder v. City of Brenham, 67 Tex. 345, 3 S. W. 309; Jones on Easements (1898) § 317, and sections 25, 257, and 262.

There was no express nor implied grant, no way of necessity, none by prescription, nor by estoppel.

The judgment of the trial court is affirmed.
      <§=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes