text:
    THOMPSON v. FIELD.
    (Court of Civil Appeals of Texas. Dallas.
    March 14, 1914.)
    L Justices of the Peace (§ 162) — Prope-dure in Civil Cases — Amendment of Judgment.
    Under Rev. St. 1911, art. 2373, making the rules governing the county and district courts respecting judgments applicable to justices’ courts, article 2015, authorizing the judge of a district or county court to amend the record of a judgment to correct any mistake therein, and article 2016, authorizing the correction of misrecitals in term time or vacation, a justice of the peace could amend the entry of a judgment so as to show the disposition that was made of the cause as to two parties not mentioned therein, though an appeal was pending in the county court.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 600, 603, 605; Dec. Dig. § 162.]
    2. Justices of the Peace (§ 164) — Appeal —Amendment of Transcript.
    A justice of the peace, in amending the entry of a judgment pending an appeal to show the way the cause was actually disposed of, had the right to certify an amended transcript to the county court, which properly refused to strike it out, or dismiss the appeal, because no final judgment was shown.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 607-636; Dec. Dig. § 164.]
    3. Indemnity (§ 13) — Liability fob Negligence.
    In an action for negligently running over a surveyor’s transit, defendant could not recover over against plaintiff’s servant in charge of the instrument, on the ground of his negligence, since, if the servant’s negligence contributed to the injury, plaintiff could not recover, and a judgment for plaintiff would negative negligence on the part of his servant.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 29-35; Dec. Dig. § 13.]
    4. Damages (§ 113) — Measure of Damages— Injuries to Property — Personal Property.
    The measure of damages for injuring a surveyor’s transit was the difference in its fair cash market value at the place of injury immediately before the injury and after it was repaired, together with the reasonable cost of repairing the same, since compensation should be allowed for expenses incurred in good faith to preserve the property, and thereby reduce the liability.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 279, 280; Dec. Dig. § 113.]
    5. Damages- (§ 40) — Measure of Damages— Injuries to Property — Loss of Use of Property.
    In an action for injuring a surveyor’s transit, damages resulting from the loss of its use while being repaired were not too remote, and, having alleged' and proved the same, plaintiff was entitled to recover therefor.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 72-S8; Dec. Dig. § 40.]
    Appeal from Grayson County Court; J. Q. Adamson, Judge.
    Action by J. C. Field against D. I-C Thompson. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. H. Randell, of Denison, for appellant. ■R. W. Stoddard, of Denison, and Jones & Hassell, of Sherman, for appellee.

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

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

   RASBURY, J.

Appellee sued appellant in the justice court of Grayson county for $122.-65, for damages for injury to a transit caused by the alleged negligence of appellant’s servant, Fred Montgomery, in driving a wagon against the instrument, where it stood in the center of one of the streets of Denison, placed there by an assistant of appellee, Fred Bennett, in the performance of his duty of establishing the grade of the street for the city of Denison. Upon the initiative of appellant, Montgomery, his servant, and Bennett, appellee’s assistant, were made parties to the suit on the ground that they were jointly and severally liable for any damages resulting as alleged by appellee. October 23, 1912, all issues were submitted to the justice of the peace, who entered upon his docket a judgment against appellant for $122.65. The following day appellee remitted $47.65 of the judgment, whereupon final judgment against appellant- was entered for $75. No disposition of the case against either Montgomery or Bennett was made by the justice of the peace in the entry of his judgment. Appeal to the county court was taken by appellant in the time and manner provided by law; the transcript from the justice court being filed with the county clerk November 30, 1912. Pending trial in the county court it was discovered that the judgment entry as stated made no disposition of Montgomery and Bennett. Thereupon motion was filed in the justice court seeking a correction of the judgment, and, after notice to all parties, was heard on December 27, 1912, and a nunc pro tunc entry made reciting, in addition to the first judgment, the fact that by consent the case was dismissed as to Montgomery, who was beyond jurisdiction of the court, and a judgment in favor of Bennett, with his costs. The amended judgment was the one actually rendered upon trial of the case; but, in entering same, the justice of the peace neglected to incorporate therein the disposition made of Montgomery and Bennett. After the correction, and on January 7, 1913, and after appeal, amended transcript was filed in county court showing the correction and amendment of the judgment as detailed. Upon trial in county court appellant moved to strike out the amended transcript; also to dismiss the appeal because the record disclosed there was no final judgment in the case. Both motions were overruled. Upon trial on the merits before jury there was verdict for appellee for $82.-05, followed by appropriate judgment, from which this appeal is taken.

The facts briefly stated are that appellee, a civil engineer, was engaged in establishing the grade of a public street in Denison; the work being actually done by his employe, Bennett, who had placed a tripod and transit in the center of the street, while he repaired to the curb a distance of 75 feet in the prosecution of his work. Appellant’s servant, Montgomery, while driving a wagon loaded with furniture for his master over the street, drove it against the instrument. No witness testified who saw the accident. There was nothing in the street to obscure Montgomery’s -vision. The driveway of the street was 60 feet wide. Bennett testified that Montgomery, while picking up the instrument, made the statement to him that he saw the instrument as -he approached it, and reined his horse away from it, turning immediately thereafter to look at his load of furniture, when his horse changed his course and ran against the instrument. The instrument was materially damaged, and is not as good as before the injury. The cost of repairing same was $29.50, and was a reasonable charge. Express charges to and from St. Bouis, the nearest place where it could be repaired, was $3.15. The value of the instrument before the injury was $195, and afterwards $75. Appellee was out the use of the instrument 10 or 12 days, and the reasonable value of the use of same for said period is $40.

The first assignment of error complains of the refusal of the trial court to dismiss the appeal, and of his refusal to strike out the amended transcript. There was no error in the court’s action in that respect, since it is well settled that a justice of the peace, upon motion and notice thereof, may at any time, either before or after adjournment of the term, amend or correct his record in order to make the written entry of what was actually done at trial speak the truth, and that, too, even though the case be on appeal to the county court; and included in the right to so amend and correct the evidence of his judgment is the further authority to certify to the county court an amended transcript showing such amendment and correction, as well as the right of the county judge to consider same on trial of such appeal. Articles 2373, 2015, 2016, R. S. 1911; Tex. & Pac. Ry. Co. v. Gill, 9 Tex. Civ. App. 139, 28 S. W. 911; Young v. Pfeiffer, 30 S. W. 94; Gray v. Chapman, 74 S. W. 564; Doty v. Caldwell, 38 S. W. 1025; Cowan v. Ross, 28 Tex. 227; Russell v. Miller, 40 Tex. 495; Chestnutt v. Pollard, 77 Tex. 87, 13 S. W. 852; Hurlbut v. Dang, 10 Tex. Civ. App. 168, 29 S. W. 1109; Johnston et ux. v. Arrendale, 71 S. W. 44. It is not disputed that the corrections or amendments made in judgment entry were not in compliance with what actually transpired, or did not speak the truth, or that any fact was found or' issue determined not litigated at the original trial.

The second and third assignments of error complain of that portion of the court’s charge wherein the jury was directed to return a verdict in favor of Bennett, appellee’s assistant, or employs, in any event. The point is that the accident primarily was the result of Bennett’s negligence, and appellant was entitled to recover against Bennett any judgment rendered against him. We thirds there was no error in this respect, since under the undisputed evidence Bennett was an employs of appellee, doing appellee’s work for him, and, if the accident was due to Bennett’s negligence, appellee would, of course, be precluded from recovering, since Bennett’s negligence would be his. Nor could appellant in any event recover over against Bennett for any judgment appellee might recover against him, since a judgment against appellant establishes negligence on his part, and precludes any on the part of Bennett. Besides, the court further directed the jury that, if they believed from the evidence that Bennett was negligent in leaving the instrument in the street at the time and in the manner he did, and that his conduct in that respect contributed tó the injury of the same, to find for appellant. The foregoing instruction correctly applied the law under the undisputed facts, and left it for the jury to determine whether the injury was due to the negligence of Montgomery, appellant’s servant, or that of Bennett, appellee’s assistant, by which appellant was afforded as much relief against the negligence of Bennett as he could have otherwise secured.

The fourth assignment of error complains of that portion of the charge that instructed the jury that appellee’s measure of damages was, in effect, the difference, if any, between the fair cash market value of the instrument at the place of injury immediately before it was injured and immediately after it was repaired, to which should be added the reasonable cost of repairing same. The rule stated by the court is the correct one in cases where the owner of the injured property has in good faith incurred expenses in order to protect and preserve the property, and thereby reduce the liability of the negligent one, since by such rule only in the class of cases under discussion could compensation be fairly allowed for the actual loss. Railway Co. v. Levi Bros., 59 Tex. 679; Hughes v. City of Austin, 12 Tex. Civ. App. 178, 33 S. W. 607; Star Mill & Elevator Co. v. Sale, 145 S. W. 1037; Cooper v. Knight, 147 S. W. 349; Arbuckle Bros. v. Everybody's Gin & Mill Co., 148 S. W. 1136.

The fifth assignment of error complains of the refusal of the court to withdraw from the consideration of' the jury appellee’s right to recover for loss of the use of the instrument. The point is that such damages are not recoverable because too remote. This item of damage was alleged and proven, and may be recovered. Powell v. Hill, 152 S. W. 1125. Further, the court did not submit to the jury said item of damage, but only the difference in value of the instrument immediately before the injury and immediately after it was repaired, plus the cost of any repairs thereon, which was, in effect, a withdrawal of the item. Further, the amount of the recovery was for exactly the alleged injury and the cost of repairs, indicating clearly that nothing was allowed for loss of pse of the instrument.

The remaining two assignments of error relate to matters of practice, and, because we are of opinion that the issues thereby raised are settled against appellant, and present no new or novel question, they are overruled, without discussion.

The judgment is affirmed.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    COLEMAN et al. v. LUETCKE et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 4, 1914.
    Rehearing Denied April 1, 1914.)
    1. Covenants (§ 108) — Breach — Assertion of Paramount Title — Invitation of Cov-enantee.
    Where a grantee under a warranty deed learned after the conveyance of the existence of an alleged superior title, the bringing of a suit by him to clear the title, without any collusion with the holder of the superior title, was not an invitation to assert the superior title which would defeat the grantee’s right to recover upon the warranty.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 175, 179-185; Dec. Dig. § 108.]
    2. Covenants (§ 102) — Actions for Breach — Conditions Precedent — Resistance to Superior Title.
    While the mere existence of a superior title will not support a recovery upon a warranty of title, where there is an assertion of a superior title, the grantee is not required to make a useless resistance thereto, but may resort to his warranty.
    FEd. Note. — For other cases, see Covenants, Cent. Dig. §§ 157-168; Dec. Dig. § 102.] '
    3. Limitation of Actions (§ 47) — Accrual of Right of Action — Breach of Cove- , NANT.
    Where the holder of a superior title made no assertion of title until after action was brought against him by the grantee under a warranty deed to clear his title, the right of action upon the warranty did not accrue until the assertion of the superior title by the filing of the answer, and the statute of limitations did not begin to run in favor of the warrantors before that time.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 254-258; Dec. Dig. § 47.]
    4. Covenants (§ 116) — Action for Breach-Scope of Proof — Matters Admitted bv Pleadings.
    Where the owners of land conveyed it by warranty deed to a corporation, which after-wards conveyed it to its president by warranty deed, and the original owners in an action by the last purchaser upon the warranty admitted the conveyance by the corporation, there was no necessity to offer proof as to such conveyance.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 209, 210; Dec. Dig. § 116.]
    5. TELAD (§ 101) — RECEPTION OF EVIDENCE— Objection — Necessity.
    A party who fails to object to a deed, when it is introduced in evidence, waives any objection to it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 254; Dec. Dig. § 101.]
    6. Cobpoeations (§ 432) — Conveyances— Peesumption of Authoeity.
    Where a deed from a corporation to its president recited that it was authorized by resolution of the board of directors, and it was signed by the president and attested by the secretary under the seal of the corporation, it will be presumed that the officers were acting under the authority of the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717,1718, 1724, 1726-1735, 1737, 1743, 1762; Dee. Dig. § 432.]
    7. Cobpoeations (§444)— Conveyances — 'Validity— Conveyance to Peesident.
    A deed executed by a corporation is not inadmissible in evidence because it was made by the president of the corporation to himself.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1779-1781; Dec. Dig. § 444.]
    8. Covenants (§ 39) — Actions foe Breach— Defenses — Knowledge of Defects in Title.
    The fact that a purchaser, before accepting the deed, could have ascertained the defects in a title, or even that he had knowledge thereof, is no defense to an action by him upon the covenant of warranty after eviction by a superior title.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 39, 40; Dec. Dig. § 39.]
    9. Covenants (§ 130) — Measure—Beeach of Covenant Waeeanting Title.
    In an action upon a warranty of title, the measure of damages is the price paid for the land, and plaintiff need not prove that the land was of the value he paid for it.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 245-253, 255, 256, 257; Dec. Dig. § 130.]
    Error from District Court, Bexar County; R. H. Ward, Judge.
    Action by Carl Lueteke and others against Atascosa County. T. A. Coleman, and others. Judgment for the plaintiffs against T. A. Coleman and others, and they bring error.
    Affirmed.
    C. C. Clamp and Douglas Cater, both of San Antonio, for plaintiffs in error. Scott & Dodson, of San Antonio, for defendants in error.

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

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

   FLY, C. J.

On October 5, 1911, Carl Luet-eke instituted a suit against Atascosa county, T. A. Coleman, Claude Keeran, and the Texas Land & Live Stock Company, setting up an action of trespass to try title to certain land in Webb county as against Atascosa county, and alleging that Coleman and Kee-ran sold the land to the Land & Live Stock Company, which sold it to Lueteke, each vendor giving a general warranty of the title. He prayed that he have judgment against Atascosa county for the land, and that if the county recovered the land that he recover damages in the sum of $5,000 against Coleman, Keeran, and the company. On January 29, 1912, Atascosa county answered that it was the owner in fee simple of the land, that it was granted to the county by the state of Texas for school purposes, that the claim of Lueteke was a cloud upon its title, and prayed for judgment for the land. On January 27, 1913, Lueteke filed an amended petition, in which he alleged, in addition to his action of trespass to try title against the county and his action on the warranties of the other parties, that on May 6, 1907, he had entered into possession of the land, and had been using and enjoying the same until January 29, 1912, when Atascosa county had through its answer claimed title to the same, that in the latter part of 1909 he was informed there was some question about the title to the land, that he went to the attorney of Coleman and Keeran and inquired about the title and was assured by the attorney that the title was all right, that he made inquiry of the county judge and commissioners of Atascosa county and was informed by them that the county did not claim the land, and that he had used all due diligence to ascertain if there was any claim to the land. He further alleged that Atascosa county had a valid title to the land, and that the other defendants had not made good their warranty of .the title. The Texas Land & Live Stock Company adopted the allegations of the petition, admitted the liability on its warranty, and asked for judgment against Coleman and Keeran on their warranty. After detailing in their answer the allegations in the petition and amended petition, Coleman and Keeran pleaded limitation of four years. The court rendered judgment in favor of Atascosa county for 420 acres of the land in controversy, in favor of Lueteke for 220 acres, and for $6,195 against the Texas Land & Live Stock Company on its warranty, and judgment was also rendered in favor of that company against T. A. Coleman and Claude A. Keeran for $1,575.50 on their warranty.

The evidence showed that Atascosa county had the superior title to the land adjudged to it by the court, that the Texas Land & Live Stock Company was indebted to Luet-eke on its warranty in the sum adjudged against it, and that T. A. Coleman and Claude A. Keeran were indebted to the Land & Live Stock Company on their warranty in the sum adjudged against them.

Plaintiffs in error urged exceptions to the petition of Lueteke and the cross-action of the Texas Land & Live Stock Company on the grounds that they had invited the assertion of the superior title of Atascosa county and could not recover on the warranty, and that the cause of action was barred by four years’ limitation, and through the first assignment claim error in the overruling of such exceptions. It is the well-established rule that the mere existence of a superior title will not support a recovery on a warranty of title; but, if there is a hostile assertion of a paramount title, the vendee is not called upon to make an unavailing and useless resistance, but may resort to his warranty for redress. Jones' Heirs v. Paul's Heirs, 59 Tex. 41; Land Co. v. North, 92 Tex. 72, 45 S. W. 994. In the latter case it is held that, if the vendee is evicted from the land by the holder of the superior title on his invitation, he would be debarred from his action on the covenant of warranty. It is said: “There can be no eviction or turning out unless and until a superior title has been without the invitation of the covenantee pressed upon him.” The case first cited is given as authority for-the proposition, but there is no expression in the Jones v. Paul Case that sustains that part of the ruling as to the eviction on the invitation of the vendee. In the case of Land Co. v. North, the question submitted to the Supreme Court was: “Where the vendee himself owns the superior title to the land conveyed to him by deed with general covenant of warranty ‘of the premises,’ is there a breach of the covenant of warranty, such as will support an action for the breach of the covenant by the convenantee or his vendee?” As such ven-dee could not well evict himself from his own land, there could be but one answer to the question.

When Luetcke filed his suit in October, 1911, there had been no assertion of paramount title by any one, although he had been annoyed by rumors that Atascosa county had title to the land, and acting on those rumors the action was brought. After the action was begun, Atascosa county answered setting up a cross-action to the land, and Luetcke then filed his amended petition in which he admitted that the paramount title was in the county. When the answer was filed, there was an assertion of paramount title, and the breach of the warranty at once occurred, and unless it can be held that the suit against the county was an invitation to it to claim the land, and that such invitation debars Luetcke from recovery from the Texas Land & Live Stock Company, the assignment of error must be overruled. We do not think a suit brought by a vendee to clear the title to land, without any collusion with the defendant, can be distorted into an invitation to assert a superior title to the land. All of the cases that have come to our notice on the subject of the covenantee inciting the holder of a paramount title to assert a hostile claim show collusion between the covenantee in the warranty and the hostile claimant. Hester v. Hunnicutt, 104 Ala. 282, 16 South. 162; Munford v. Keet, 154 Mo. 36, 55 S. W. 271. So, in the case of Land Co. v. North, herein cited. There is nothing in the allegations of the petition that indicates that Luetcke desired Atascosa county to claim the land, but he had been greatly disturbed about the title and had endeavored to get Coleman and Keeran to clear it up. Plaintiffs in error admit this in their answer, and also admit that they found that the land in controversy was in conflict with an older survey and promised to endeavor to get Atascosa county to yield its claim. They did not obtain such release from the county. The attorney of plaintiffs in error wrote Luetcke in January, 1910, that he was working to get Atascosa county to waive any right it had to the land. In that letter the attorney said: “I expect to go on and see if Atascosa will yield, as I have not taken the matter up yet officially with them.” At that time Luetcke, it seems from the letter, was afraid that plaintiffs in error would plead limitation to his claim on the warranty as they have done, although they also claim there was no breach of the warranty when the suit was brought. The pleadings and the evidence do not show that Luetcke in any manner induced or incited a hostile claim to the land by Atascosa county, but that he acted with the utmost fairness to plaintiffs in error and co-operated with them in endeavoring to obtain a release from the county. No case has been cited, or probably can be cited, in which it is held that the premature institution of an action on a warranty is an invitation to a claimant of land to assert his claim. Luetcke had the right to sue the county for the land, although it had not asserted its right to the land. He had the right to ascertain if the rumored claim of the county to the land had any foundation, and, after it set up its claim, he had the right to demand redress on the covenants of warranty. Moody v. Holcomb, 26 Tex. 714; Titus v. Johnson, 50 Tex. 224; Cattle Co. v. State, 68 Tex. 526, 4 S. W. 865.

No breach of the covenant of warranty occurred until the county filed its answer asserting its paramount title, and not until then did the right of action against the warrantors arise. This proposition is indorsed by plaintiffs in error when they wish to attack the suit on the ground that the paramount title was asserted at the instance of Luetcke, but it is denied when limitations of four years is insisted upon. Limitation does not figure in this case.

The second assignment of error assails the action of the court in not striking out the deed made by the Texas Land & Live Stock Company. The deed was admitted in evidence without objection upon the part of plaintiffs in error, and afterwards a motion was made to exclude it from consideration of the jury because it was executed by Luetcke as president of the corporation to himself, and no resolution of the directors and stockholders was shown. Plaintiffs in error alleged in their answer that the land was conveyed to Luetcke by the corporation, and consequently there was no issue on that point. That admission removed the necessity of proof of a conveyance from the corporation to Luetcke. Morris v. Runnells, 12 Tex. 175; Barrett v. Featherstone, 89 Tex. 567, 35 S. W. 11, 36 S. W. 245. Plaintiffs in error waived any objection they may have had to the deed by not objecting to it when it was introduced in evidence. Matlock v. Glover, 63 Tex. 231.

It was recited in the deed to which objection is urged that the deed was authorized by a resolution of the board of directors.on May 6, 1907, and was signed by the president and attested by the secretary under seal of the corporation, and it will be presumed that the officers were acting under authority of the corporation. Catlett v. Starr, 70 Tex. 485, 7 S. W. 844; Quinlan v. Railway Co., 89 Tex. 356, 34 S. W. 738. In the opinion in the last case cited, the following language from Thompson on Corporations, § 5016, is approvingly quoted: “Where the instrument is formally executed by the proper officers, generally the president and secretary, the seal of the corporation, formally affixed, carries with it prima facie evidence of an antecedent authorization.”

There is no force in an objection to a deed because made by the president of the corporation to himself. Jones v. Hanna, 24 Tex. Civ. App. 550, 60 S. W. 279.

The land was purchased by the corporation by the acre, in good faith, from Coleman and Keeran, and it was purchased from the corporation by Luetcke in the same way. He knew nothing of any conflict until after he had bought it. There is nothing to indicate that the purchasers were taking any chances on the title; but, on the other hand, the price of $15 paid by Luetcke shows that he thought the title all right. That the defects in the title could have been ascertained by Luetcke is no defense to a suit on a covenant of warranty. He did not actually know of the defects and took no risks thereon. Even if Luetcke had full knowledge of the defects in the title, it would not preclude him from a suit on the warranty. Railway v. Gentry, 69 Tex. 625, 8 S. W. 98. When a purchaser buys land knowing of defects in the title, he can be compelled to pay the purchase money; but it is equitable and just that, where there is a defect in the title, the warrantor should be held on his warranty, although the vendee may have known of the defect. Rawle on Covenants of Title, § 88. The following language from a Pennsylvania case (Funk v. Voneida, 11 Serg. & R. 112, 14 Am. Dec. 617) is found in a note to the text of the section cited: “It is no answer to the purchaser’s complaint to say it was his duty to search the record, and to have protected himself by some special covenant against this specific incumbrance. It was no part of his case that he had actual notice; but, it he had, it could make no difference. The purchaser covenanted against all incumbrances.” All the authorities coming to our notice sustain the language quoted. - No authority touching on the question under consideration has been cited by either of the parties.

The fourth assignment of error is overruled. The land was sold by the acre at a certain price, and the measure of damage would be the sum paid per acre under the contract of sale. It was not incumbent on defendants in error to prove that each acre lost was of the value that he paid for it. Roberts v. McFadden, 32 Tex. Civ. App. 47, 74 S. W. 105; Young v. Moore, 110 S. W. 548.

There was no allegation of collusion between the corporation and Luetcke, and why should the court have been influenced in his judgment by a matter not raised in the pleadings? The fifth' assignment of error is overruled.

The sixth, seventh, and eighth assignments are repetitions of matters herein disposed of and are overruled.

The judgment is affirmed.


author: JENKINS, J.

text:
    SULLIVAN v. STATE.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 28, 1914.
    On Motion for Rehearing, March 11, 1914.)
    1. Public Lands (§ 175)—Surveying—Re-surveying.
    Upon resurvey of a grant of public lands, it is not permissible to include other and different lands from those included in the original file and survey.
    [Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    2. Public Lands (§ 175)—Surveys—Errors.
    Where a surveyor, making an office survey of a patent of land, erroneously supposed the corner of a county, which was the starting point of the survey, to be about a mile and a half further north than it was in fact, such supposition could not control the boundary between the survey and other surveys of land, for the boundary must be determined by the calls, and not by the surveyor’s unexpressed supposition.
    [Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    3. Public Lands (§ 177)—Action to Cancel Patent — Jurisdiction of District Court.
    Any district court has jurisdiction of the subject-matter of a suit to cancel patents to public lands.
    [Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 576-578; Dec. Dig. § 177.]
    4. Venue (§ 17)—Action to Cancel Patent —District Court—Objections—Waiver.
    Unless objection is made in apt time, any district court has jurisdiction of a suit by the state to cancel patents to public lands, regardless of the defendant’s domicile or the location of the land.
    [Ed. Note.—For other cases, see Venue, Cent. Dig. §§ 28-31; Dee. Dig. § 17.]

      5. Public Lands .(§ 177) — Patents—Suits to Cancel.
    The state may maintain a suit to cancel patents to public lands on the ground that they were issued by mistake or obtained by fraud.
    [Ed. Note. — For other cases, see Public Lands, Ces¿. Dig. §§ 576-578; Dec. Dig. § 177.]
    6. Public Lands (§ 177) — Action to Cancel Patent — Necessary Parties — Joinder.
    In a suit by the state to cancel defendant’s patents, on the ground that they conflicted with an earlier patent, the owners of the earlier patent were not necessary parties, though they might be interested in the judgment, for no judgment could be recovered against them, and the cancellation of defendant’s patents would not affect the rights he might have acquired by adverse possession.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 576-578; Dec. Dig. § 177.]
    7. Appeal and Error (§ 230) — Objections at Trial — Nonjoinder — Waiver of Objections.
    Where defendant went to trial without objecting to nonjoinder^ of other parties, his plea in abatement not being filed until four days after the trial had begun, his right to object on appeal to the nonjoinder was waived.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 230.]
    Appeal from District Court, Travis County; Charles A. Wilcox, Judge.
    Action by the State of Texas against D. Sullivan. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Oeo. S. Walton, of Houston, for appellant John L. Terrell, of Dallas, B. F. Looney Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for the State. '

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

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

   Findings of Fact.

JENKINS, J.

This case was tried by the court without a jury, and the court made and filed the following findings of fact, which we adopt:

“First. That on the 18th day of April, 1882, the Commissioner of the General Land Office issued to the Austin & Northwestern Railway Company certain legal and valid land certificates, each certificate entitling said railroad to 640 acres of land, to be located upon any of the vacant and unappropriated public domain of the state.
“Second. On the 15th day of November, 1883, said railway company made an application to the county surveyor of Hidalgo county to locate said land certificates upon certain lands situated in the southern part of Hidalgo county, known as ‘porciones.’ Said applications were filed in the office of the surveyor on the 19th of November, 1883, and recorded on the same day. Across the face of the record of said applications in the surveyor’s office appears the following notation: ‘File lifted same day as recorded for good cause shown the surveyor William P. Dough-erty. County Surveyor H. C. T.’ It does not appear that any survey was actually made by virtue of said applications, and no record of same appears in the land office.
“Third. Leaving out of consideration the indorsement made across the face of the surveyor’s record, it does not sufficiently appear from the evidence in this case whether or not the porciones upon which said certificates were first filed were, at the time of such filing, appropriated lands.
“Fourth. On the 5th day of March, 1884, the county surveyor of Hidalgo county made surveys for the Austin & Northwestern Railway Company by virtue of the certificates heretofore mentioned, said surveys calling to begin at the northeast corner of Hidalgo county, and the northwest corner of Cameron county for starting and connecting point of survey, and said system of surveys so made for said railroad company all being located by course and distance from such beginning point, so as to make a connected system of surveys. The field notes of the surveys so made were recorded in the county survey- or’s office on the 12th day of Mlarch, 1884, and filed in the land office on the 9th day of April, 1884, and indorsed as ‘correct on the map of Hidalgo county June 2, 1884.’ These surveys so made in March, 1884, were not made upon the ground by the surveyor, but were what are commonly known as office surveys. The field notes so returned, if constructed according to their calls, would cover and include a considerable vacancy of land lying in the northeastern portion of Hidalgo county between Los Olmos creek and the southern boundary of Nueces county but would conflict in part on the east with survey 286 O. O. S. D. & R. G. R. R. Co., and in part on the west with survey 350, on the north with survey No. 539, Mrs. H. M. King, and on the south with the Santa Rosa de Ar-riba grant.
“Fifth. On the 24th day of June, 1884, the county surveyor of Hidalgo county, upon the request of the owner of said certificates, went upon the ground for the first time and surveyed a portion of the east line of Hidal-go county, and located a point north of the eighty-second-mile post, which point he supposed to be the northeast corner of Hidalgo county, but which point was in fact about two miles north of the true corner, and over some of the lines on the ground, and returned field notes calling for said eighty-second mile post as a connecting corner, said field notes purporting to have been made by virtue of the certificates issued to the Austin & Northwestern railway company. Said field notes were recorded in the office of the county surveyor on the 28th day of June, 1884, and filed in the land office on July 16, 1884. Said second system of surveys, if located according to their calls with reference to the eighty-second mile post; would be located about two miles north of their position if located course and distance from the northeast corner of Hidalgo county, as called for by the surveys made in March, 1884, and, if located’ from said eighty-second mile post, would only embrace about 208 acres of unappropriated land, and, if so located said surveys would lie almost wholly in Nueces county.
“Sixth. That on the 23d day of July, 1903, the land commissioner caused a classification and appraisement to be made of Austin & Northwestern Railway sections Nos. 2, 12, 14 and 20, and on April 13, 1903, said four sections were leased to Miss E. C. McCollum for one year.
“Seventh. In February, 1904, J. J. Cocke, deputy surveyor of Hidalgo county, Tex., acting under instructions from the land commissioner, for the purpose of locating and marking said surveys upon the ground, made an actual survey upon the ground of sections 2, 12, 14, and 20. Said field notes were filed in the land office March 28, 1904, and were designated as ‘corrected field notes.’ Said surveys, as made on the ground by Cocke, are located 184 varas south and 102.2 varas east of where their location would be if correctly surveyed by course and distance from the northeast corner of Hidalgo county.
“Eighth. That on the 10th day of May, 1904, Miss E. C. McCollum made application to purchase said sections Nos. 2, 12, and 14, said application being filed in the land office on the 16th day of May, 1904; and on the 9th day of June, 1904, she made application to purchase said section No. 20, which application was filed in the land office on the 18th day of June, 1904’ said lands being awarded to her. On the 12th day of July, 1904, Miss E. G. McCollum transferred all of said sections to G. T. and Mrs. A. C. Tindall, which was filed in the land office, and said Tindalls’ substitute applications and obligations were duly filed, and the land office issued to said Tindalls certificate of occupancy on the 10th day of June, 1907; Tindalls’ purchase is now in good standing in the land office.
“Ninth. That on the 15th day of June, 1885, D. R. Fant filed with the county surveyor of Hidalgo county, Tex., applications for survey of certain lands, by virtue of veteran donation land certificates issued to M. Farley and Samuel S. Hervey. Said county surveyor, by virtue of said applications, on the 15th day of November, 1885, made a survey of the lands described in the application, and returned field notes which were filed in the land office on the 17th day of June, 1886, which survey was found to be incorrect, and on the 15th day of December, 1896, corrected field notes were made for said two surveys, said field notes being filed in the land office on the 9th day of February, 1897, but were not approved by the land office, and are marked as ‘canceled by corrected field notes.’ On the 14th day of August, 1897, another set of field notes was filed in the land office covering said two surveys. On the 25th day of February, 1905, F. M. Maddox again made surveys of said land, and on the 5th day of September, 1905, said surveys, as described by the field notes returned by Maddox, were patented to D. R. Fant, as assignee of said M. Farley and Samuel S.. Hervey.
“Tenth. That in' 1905 surveys ' were made upon the application of Ramon Word, and upon the 24th day of November, 1905, patents issued to said Ramon Word for Word surveys Nos. 1, 2, and 3.
“Eleventh. The Ramon Word surveys Nos. 1 and 2, would be entirely embraced within the Austin & Northwestern surveys if said surveys were located either from the Cocke survey, or from the northeast corner of Hi-dalgo county.
“Twelfth. A portion of the land patented to D. R. Fant, assignee of M. Farley, is covered by portions of surveys Nos. 12, 19, 13, and 20, Austin & Northwestern Railway Company. And a portion of the R. Word survey No. 3 is covered by surveys Nos. 1 and 2, Austin & Northwestern Railway.
“Thirteenth. The land patented to D. R. Fant, assignee of S. S. Hervey, partially conflicts with surveys Nos. 12, 13, 11, 14, and 2, Austin & Northwestern Railway Company, as originally located.
“Fourteenth. Prior to the original survey of the Austin & Northwestern surveys in March, 1884, the east line of Hidalgo county and the south line of Nueces county had been surveyed and marked at intervals, but the actual point of intersection, which would be the northeast corner of Hidalgo county, had not been marked by any visible object on the ground, and has not been so marked'since that time.
“Fifteenth. The true position of the following surveys with reference to the true northeast corner of Hidalgo county, and the relation to each other, and the conflicts of said surveys with one 1 another, are correctly shown by the blueprint map made by F. M. Maddox and introduced in evidence, reference to which is here made for location of the following surveys: Austin & Northwestern Railway surveys as located from the northeast corner of Hidalgo county, and surveys Nos. 2, 12, 14, and 20 as made by Cocke, Ramon Word surveys Nos. 1, 2, and 3, the S. S. Hervey and the M. Farley surveys.
“Sixteenth. The defendant, D. Sullivan, is now the owner of the Farley, Hervey, and Word surveys, and the heirs of William N. Coler, Jr., own Austin & Northwestern surveys Nos. 1, 11, 13, and 19.
“Seventeenth. At a time more than three years before the trial of this case the defendant, D. Sullivan, erected a fence near the west boundary line of Austin & Northwestern survey No. 2, and across Austin & Northwestern survey No. 20, so as to embrace within said Sullivan pasture all of survey No. 2 and about 20 acres of survey No. 20, and has during said time used the land so inclosed, and has excluded his codefendants Tindall from the use of the same, the rental value of said lands being 22 cents per acre per annum.
“Eighteenth. At the time Austin & Northwestern surveys Nos. 2, 12, 14, and 20 were sold to Miss McCollum by the state, and at the time Tindall’s substitute obligations were filed, said surveys bad been located by Coclre upon tbe ground, and said sections were purchased and awards made to the purchasers with reference to the said Cocke field notes and surveys.
“Nineteenth. Since the original surveys made for the Austin & Northwestern Railway Company in March, 1884, the official maps of Hidalgo county in use by the land office have shown the said surveys to be located as beginning at the northeast corner of Hidalgo county, and as located by course and distance from such point
“Twentieth. I find that on December 10, 1912, one of the attorneys representing the defendant D. Sullivan, being engaged in the trial of another case, desiring to secure a postponement of this case, wired ■ the attorneys for the plaintiff that if they would grant a postponement of the case, they would try it regardless of additional parties, which offer was accepted by the attorneys representing the plaintiff, and the case was postponed.”

In addition to the foregoing we find:

Twenty-First. That the railway company to which said certificates were issued sold and transferred the same to-Pomeroy April 26, 1882, and was not the owner of said certificates when the file was made on the porciones November 15, 1883, and it does not appear that Hall, who made said file, had any authority from the owner of the certificates to make the same.

Opinion.

Appellee objects to the consideration of each and all of the assignments of error on the part of appellant, for the reason that they are in violation of the rules with reference to the filing of briefs in this court. There is scarcely an assignment in appellant’s brief which does not, in some respect, fail to conform to said rules; and, had a motion to strike out the brief been made in reasonable time, we would have sustained the same, but would have given appellant an opportunity to file another brief. But to sustain at this time appellee’s objections would, in effect, strike out the brief and affirm the judgment on appellee’s brief. The violations are not, in our opinion, sufficiently flagrant to justify so harsh a course, and as appellee supplies some of the defects in the brief of appellants, and assists us in understanding the issues herein, we still consider appellant’s brief and render a decision herein on the merits.

The rules prescribed by the Supreme Court, when complied with, facilitate the work of the Courts of Appeals by succinctly presenting the points of law in issue, and the material facts in reference thereto. Compliance with rules does not confer a personal favor on the individuals who compose these courts, for it is immaterial to them, as individuals, whether they work six months on one case or decide six cases in a day, but as courts they owe a duty to the people to dispatch business as rapidly as possible, and in this it is the duty of lawyers to aid these courts. They can discharge this duty by a strict compliance with the rules in the preparation of their briefs.

The controlling issue in this case is as to the true location of the original surveys and their alternate sections. On March 5, 1884, the surveyor of Hidalgo county made out -and recorded field notes for these surveys, in which section No. 1 called to begin at the northeast corner of Hidalgo county, and each of the other sections were tied onto this section by calls connecting back to the same. No other natural or artificial objects are called for. This survey was an office survey. In June of the same year the said surveyor made on the ground what purported to be corrected field notes of these surveys, in which he calls to begin section No. 1, 1,300 varas north of the northeast corner of Hidalgo county, and fixed the corner of said county as being 260 varas north of the eighty-second mile post between Cameron and Hidalgo counties. This mile post is in fact about a mile and a quarter north of the northeast corner of Hidalgo county, and the place where the surveyor began in his June survey is about two miles inside Nueces county, and the surveys as then made were almost entirely upon patented lands in said Nueces county. The northeast corner of Hidalgo county has never been marked upon the ground, but the evidence shows that there is no doubt as to its true location. The original field notes had been returned to the land office and marked correct on the map prior to the attempted resurvey by the surveyor of Hidalgo county. It is not permissible in a resurvey of land to include other and different lands from those included in the original file and survey. Adams v. Railway Co., 70 Tex. 252, 7 S. W. 729; Railway Co. v. Thompson, 65 Tex. 186.

It is the contention of appellant that the office survey should begin at a point 200 va-ras north of the eighty-second mile post, for the reason that the surveyor who made this survey believed at that time that the true northeast corner of Hidalgo county was at this point, as is evidenced by the fact that in his resurvey in the June following he so located that corner of Hidalgo county. There is nothing in the evidence to show that the surveyor had any definite idea as to where the northeast corner of Hidalgo county was at the time he made his office survey. When he made his survey in the June following, he found the eighty-second mile post by beginning at a mile post several miles south, and measuring course and distance north. This eighty-second mile post had been set up by a county surveyor of Hidalgo county some years before in running a line between Hidal-go and Cameron counties, and he marked the point where he ended his survey 200 varas north of the eighty-second mile post, but he did not establish the northeast corner of Hi-dalgo county for the reason that said corner was on the south line of Nueces county, and he did not know where said south line was. He expected the county surveyor of Nueces county to run this line and meet him at the point of intersection of the east line of Hi-dalgo with the south line of Nueces, but, the county surveyor of Nueces county failing to do. so, the northeast corner of Hidalgo county was not established at that time; and, as above stated, has never been officially marked on the ground at any time.

Even had the surveyor who made the original office survey supposed that the northeast corner of Hidalgo county was, as contended by appellant, about a mile and a half further north than it is in fact, such supposition cannot control the location of the sections in controversy, for the reason that the true location of a survey must be ascertained from its calls, and not by the unexpressed intention of the surveyor making the same. Ratliff v. Burleson, 7 Tex. Civ. App. 621, 25 S. W. 983, 26 S. W. 1004. It would not have been permissible for the surveyor to testify as to his intention which was not expressed in the field notes. Blackwell v. Coleman County, 94 Tex. 216, 59 S. W. 530. In the absence of anything in the field notes to .indicate the contrary, it must be conclusively presumed that the call to begin at the northeast corner of Hidalgo county means the true corner of such county. Had the original survey been made upon the ground, it would be permissible to show at what point the surveyor actually began, though subh evidence might show that this point was not in fact the northeast comer of Hidalgo cojmty. In such case it would be made to appear that the call for, the northeast corner of Hidalgo county was a mistake; but nothing in this case calls for this application of the rules of law with reference to boundary. If the survey be begun at the northeast corner of Hidalgo county, and all the railroad surveys be run out according to the calls in their field notes, they will cover the ground adjudged to them in the judgment of the court herein.

Appellant claims under subsequent surveys made upon the theory that the railroad surveys began some' two miles north of the northeast corner of Hidalgo county. A resurvey of the alternate sections was made under the direction of the commissioner of the land office in 1904, and this survey conflicts to a limited extent with one of the surveys under which appellant claims, made in 1885. The judgment of the court recognizes the superior claim of appellant to the strip of land thus in conflict.

There is no merit in appellant’s contention that the district court of Travis county had no jurisdiction to try this case. This was a suit to cancel patents, and any district court in Texas had jurisdiction of the subject-matter. Appellant in his argument relies upon the case of the State of Texas v. Dayton Lumber Co., 164 S. W. 48, recently decided by this court, in which it was held that the state was not a proper party, and this decision was affirmed by the Supreme Court. That was a case of trespass to try title, in which the state sought to recover the title and possession of land which it had sold, and .therefore did not have title, and was not entitled to possession'. There was a plea in abatement, setting up these facts. This case is not one of trespass to try title, and there was no plea of privilege in the court below, and no objection in any form, either in the original pleadings or in the motion for new trial, to the jurisdiction of the court. If objection is not made in proper time and manner, the state can maintain suit in any court having jurisdiction of the subject-matter. State v. Snyder, 66 Tex. 687, 18 S. W. 106.

The state seeks to cancel patents to the two surveys owned by appellant, for the reason that they were issued by mistake, and that one of them was obtained by fraud and collusion with appellant. In the case of State v. Thompson, 64 Tex. 690, it was said that the right of the state to sue for the cancellation of a patent cannot be questioned in the absence of a statute prohibiting such suit. No one but the state, or some one having a prior equity, can maintain a suit to cancel a patent. Martin v. Brown, 62 Tex. 485; Frontroy v. Atkinson, 45 Tex. Civ. App. 324, 100 S. W. 1023; Decourt v. Sproul, 66 Tex. 368, 1 S. W. 337. “A patent may be attacked on the ground that its issuance was procured by fraud, misrepresentation, or imposition, or was the result of mistake, inadvertence, or error of law, or because in issuing the patent the land office acted without authority of law, as where the land conveyed had been previously sold to another person, where a person other than the patentee was equitably entitled to the land.” 32 Cyc. 1053, 1054.

Appellant’s contention that the Collier heirs, who owned the odd sections, should have been made parties must be overruled for the reasons: (1) That no judgment was sought or obtained against them, and the fact that they may be interested in establishing the boundary between the even and odd sections does not concern appellant. In so far as appellant may have any defense against them on the ground of limitation, he is not concluded by the judgment in this case; and hence the Collier heirs were not necessary parties to this suit. (2) For the reason, as found by the court, that appellant agreed to go to trial without the necessity of making additional parties. The plea in abatement for lack of making the Collier heirs parties was not filed in this case until after the trial had proceeded for four days; and, except as to the finding of the court as set forth in the twentieth finding of fact, it does not appear that the court’s attention was ever called to said plea in abatement, nor that any ruling was made thereon.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

■Appellant in his motion for a rehearing calls attention to the fact that the field notes of section No. 2, as corrected by Ooclse in 1904, conflicts with the Farley survey owned by appellant 184 varas on the north boundary of said Farley survey, and that the field notes of section No. 2 as set out in the judgment excludes from said section the strip of land so in conflict, the same being 184 varas wide and 1,474 varas long; that the south lines of the Cocke surveys Nos. 2, 11, and 12 is a continuous line, and that the field notes of section 12, as set out in the judgment, does not give the appellant the benefit of this conflict. As we see it, the error was in allowing the appellant the benefit of the conflict with section No. 2, of which, however, the appellees do not complain. The railroad surveys, as originally made, embraced all of the lands included within their field notes, beginning at the northeast corner of Hidalgo county, and, except in so far as they conflicted with older surveys, appropriated said land. As thus surveyed, sections 2, 3, 11, 14, 12, and 13 included all of the land in the Hervey survey 496, and a part of the Farley survey on the west of and adjoining the Her-vey. When these sections were resurveyed by Cocke, they still covered said surveys, the only difference being that the Cocke survey, by moving these sections 184 varas south of their original location, placed that much more of the Hervey and Farley surveys in sections 2, 11, and 12, instead of in sections 3, 14, and 13.

We have carefully examined appellant’s motion for a rehearing, and have reached the conclusion that the same should be overruled.

Overruled.


author: RASBURY, J.

text:
    STEPHENSON v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 28, 1914.
    On Rehearing, March 28, 1914.)
    1.Railroads (§ 303) — Crossings—Maintenance-Character of Road.
    Rev. St. 1911, art. 6494, makes it the duty of every railroad to keep that portion of its right of way over which any public road may run in proper condition for use of the traveling public, and article 6485 declares, that railroads may construct their roads across, along, or on any highway which its road shall intersect, provided the corporation shall restore the road, etc., to its former state, and keep the crossing in repair. Meld, that the absolute duty imposed on railroad companies by both articles to keep highway crossings in repair was limited to public highways established by the county authorities, and did not apply to a crossing of a road not so established, as to which the railroad company was only required to exercise ordinary care.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 959-963, 966, 967; Dee. Di§. § 303.]
    2. Railroads (§ 303) — Crossings—Defects— Knowledge.
    Where plaintiff was injured by a defective railroad crossing not at the intersection of a public county road or one where the railroad company was absolutely bound to keep t&e crossing in repair, its duty being only to exercise reasonable care in that regard, the cojjr.t properly submitted to the jury the question of the railroad company’s want of knowledge of the alleged defect as an element of its alleged negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 959-963, 966, 967; Dec. Dife. § 303.]
    3. Railroads (§ 350) — Crossing Accident-Defective Character of Crossing — Contributory Negligence.
    Where, in an action for injuries to plaintiff by a defect in a railroad crossing, it was undisputed that the lumber with which plaintiff’s wagon was loaded slid forward onto the team when the front wheels dropped from an elevation in the road onto the crossing, and .defendant pleaded-that plaintiff was negligent in loading the wagon so that the lumber could slip or slide, plaintiff’s contributory negligente in that regard was properly submitted to the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Action by R. A. Stephenson against the St.' Louis Southwestern Railway Company of Texas. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Yates, Sherrill & Starnes, of Greenville, for appellant. E. B. Perkins, of Dallas, and Crosby, Hamilton & Harrell, of Greenville, for appellee.

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

   RASBURY, J.

Appellant sued appellee for damages for personal injuries, alleging sajnfe resulted from a defective crossing maintained by appellee at a point in Hunt county where its line of railway crosses a public county road, or, if not a public county road, One, nevertheless, which had for many years been used by the public as a highway, and over and upon which appellee had constructed and maintained a crossing for the use of the public. The negligence alleged to be the proximate cause of the injuries sued for was in permitting earth to. pile up and accumulate just south of its south rail (appellant’s line of railway running east and west,- and the county road north and south), one and One-half feet above the rail, making a sheer drop that distance for vehicles when pássing over the railway, and rendering same extremely dangerous. Appellant further alleged that, while driving on said road, going north, and in' -the exercise of due care, and without knowledge of the defective condition of the .crossing, he undertook ‘ to cross appellee’s track, but that, when the front wheels of his vehicle reached said pile or accumulation of earth, same dropped therefrom with such force as to displace the lumber contained on his wagon, causing same to slip forward < and strike his horses, frightening them and causing them to run, and, in turn, throwing appellant from his said wagon, seriously and permanently injuring him.

)' Appellee, in addition to general and special exceptions, and the general issue, alleged appellant to be guilty of contributory negligence, in that he was driving a wagon without a-brake, heavily loaded with lumber, which had been loaded and placed thereon in such manner as' to permit same to slip and move about. Other special defenses were interposed by appellee, and testimony offered upon trial in support thereof, but, since no issue thereupon arises in any manner, it will not be necessary to detail same. There was a trial by jury. Verdict was for appellee, followed by judgment, from which this appeal is taken.

Neither appellant nor appellee have included within their brief a general statement of the esséntial facts developed by them upon trial, of the case, and we shall not attempt to do so, but, instead, will refer to such facts as are considered necessary in disposing of the various assignments of error.

\ The " first and second assignment of error attack the correctness of a portion of the court’s charge, and will be considered together. After certain preliminary, definitions of ordinary care and proximate cause, and after referring to the jury for their determination whether the crossing was in the condition' claimed, and, if so, whether such condition was defective and dangerous to travelers, the court instructed the jury, “and, if you further believe that its defective condition, if it was defective, ,was known to the defendant, or by the exercise of ordinary hare could have been known to the defendant i>r its servants charged with the duty of keeping the crossing in repair,” etc., to find for appellant. In the succeeding paragraph of his charge, the court affirmatively presented negatively the issues raised by appellant’s Evidence, instructing the jury, among other things; to find for appellees, if they believed tlie 'Condition of the crossing “was not known to' defendant nor its servants charged with the duty of keeping .the cro’ssing in repair, and by the use of ordinary care would not have been known.” The criticism of the portions of the charge quoted is that the same imposed upon appellant the burden of proving facts which the law charges appellee with knowledge of, since it was appellee’s absolute duty to keep such crossing in repair, áhd a failure to do so was negligence per se. '“ Appellee asserts, in answer to the criticism of .the charge, that, the evidence showing without controversy that the road which crosses its line of railway at the point of accident was not a “public county road,” ap-pellee owed those using the crossing no greater duty than the exercise of ordinary care to keep it i : a reasonably safe condition, and to repair such defects of which it had notice, or, in the exercise of ordinary care, ought to have known. Thus the issue is sharply drawn; appellant basing his claim that it was appellee’s absolute duty to keep the crossing in repair upon certain statutory provisions hereinafter referred to, and appellee basing its claim of being required to exercise only ordinary care, etc., upon the fact that the said statutory provisions are not applicable, since, at most, they apply only to public county road crossings while the road over which appellant was traveling was not such a road. The testimony concerning the character and use and establishment of the dirt road is meager, but does show that ap-pellee’s line of railway traversed the county at this point as much as five years before the road was established, and that, until about one year prior to the trial of this case, another crossing about 100 to 150 yards west was used mainly by those traveling the road when the crossing was changed for the reason that the new crossing was more convenient, and was made possible by the fence being torn down which at that time inclosed the land over which the road now runs just before it reaches the crossing. It does appear that the county “road hands” did “work” the road, but it was not shown that any overseer was appointed therefor by the commissioners’ court, or that the road was laid out or maintained by said court. The record contains no evidence tending to show that the land constituting the road was ever dedicated to the public by the owner or owners thereof, or any facts tending to show that the public had acquired same by prescriptive use. The most shown in the latter respect was. by the appellant, who deposed that the road had been used for a period of nine years, except that portion which turned east from the old road about two years ago, and at the crossing of which over appellee’s, line of railway the accident occurred.

Under the foregoing facts, appellant cites, in support of his contention that it was appellee’s statutory duty to absolutely keep the crossing in repair, article 6494; R, S. 1911,. which provides that:' “It shall be the duty of every railroad in this state to place and.keep that portion' of its roadbed and right of way, over or across which any public county road may run, in proper condition for the use of the traveling public.” The article also provides for penalties for failure to do so, recoverable by the county. Preliminary to a discussion of the article quoted, it may be said that it is immaterial, so far as relates to the duty of the railway to maintain the road in proper condition, whether the road was established prior or subsequent to the building of the railroad, as counsel for appellee seem to think. G., C. & S. F. Ry. Co. v. Milam County, 90 Tex. 355, 38 S. W. 747. We do not believe however, that the evidence in the record shows that the road which crosses appellee’s line of railway at the place of accident was the character of road contemplated by the article cited and relied upon by appellant. The use of the words “public county road,” is entitled to such significance as the words themselves ordinarily import, in addition to any legal significance reasonably to be attached thereto. Interpreted free of legal significance, the term, we think, obviously refers to roads established by the counties of the state under the general laws, since, had it been the intention of the Legislature to include every species of public road, they would have omitted the use of the word “county.” Interpreted in the light of the legal significance to be attached to the words, we think such construction cannot be intelligently denied. To the county authorities is reserved the right to lay out, establish, and maintain public roads, notwithstanding there may be public roads neither laid out nor maintained by the county, as, for instance, by dedication or prescriptive use, and the use of the term “public county road” in the article seems to us to have peculiar reference to roads maintained and established by the county authorities. Again, it may be said that such was the intention of the Legislature when it is considered that there are many “public” roads acquired by dedication or prescriptive use, as suggested, over which the travel is so scant and limited as not to justify, as a matter of public policy, making it negligence per se for railroads to fail to keep their crossings over such roads in proper condition, but in such cases to only hold them to the exercise of ordinary care in that respect.

Appellant further contends, however, that, by the provisions of article 6485, R. ,S. 1911, it was negligence per se for appellee to fail to keep said crossing‘in a proper condition, By said article it is provided that corporations authorized to operate railroads “shall have the right to construct its road across, along, or upon any * ' * * highway, plank road, [or] turnpike, which its road shall intersect or touch,” provided such corporation shall restore such highway,- road, etc., to its former state, “and shall keep such crossing in repair.” In the ease of T., B. & H. Ry. Co. v. Warner, 88 Tex. 642, 32 S. W. 868, our Supreme Court, in construing said article, gave to it, in effect, the same construction we have placed upon article 6494, notwithstanding article 6485 does not, in particular terms, designate the highways, roads, and turnpikes mentioned therein as “public county” highways, roads, etc., which incidentally affords another reason in support of our construction of article 6494. The right to recover damages received at a crossing of the railroad and a dirt road claimed in the Warner Case was bottomed upon the failure of the railway to make and maintain a proper crossing at its juncture with a public highway, averred to be statutory negligence by the terms, of said article 6485. The Supreme Court say in that case that the evidence developed on trial did not prove the dirt road was a public one, within the meaning of article 4170, now article 6485, since it was neither laid out and maintained under order of the county court, nor established as such by dedication and use. There was evidence that this road had been used by the public for 10 or 12 years, but there was no evidence of dedication by the owner of the land to the use of the public as a public highway. It will be noticed that the facts in the case just cited are nearly, if not exactly, similar with the facts in the instant case. To the same effect in principle is G., C. & S. F. Ry. Co. v. Montgomery, 85 Tex. 64, 19 S. W. 1015.

We have therefore in accordance with what we have said, reached the conclusion that there was no error in the court’s charge holding appellee, under the evidence in the record, only to the exercise of ordinary care, for the reason that, under the construction placed upon article 6485 by the Supreme Court, the road appellant was traveling did not come within that act, and because, in our opinion, article 6494 hás peculiar reference to roads designated and maintained by' the several counties of the state. In connection with our conclusions herein, we call attention to the fact that the case of St. L. S. W. Ry. Co. v. Smith, 49 Tex. Civ. App. 1, 107 S. W. 638, relied upon by appellant as sustaining his position, is entirely dissimilar in the facts. In that case Associate Justice Talbot, speaking for' the court, does say, in effect, that the liability' to the public is the same under both provisions of the statute, which is obviously correct, in view of the construction placed upon the one article by the Supreme Court, and the wording of the other. The statement used by this court in the Smith Case, however, was in reference to a state of facts showing “a public county road” over which the railroad had failed to maintain proper crossing, and, that fact being undisputed, the duty was, of course, statutory, as the opinion recites. Of course we do not intend to be understood as holding that there is no liability for injuries resulting at crossings such as shown by the facts in this case. The facts in the record would have sustained a finding by the jury that appellant was using a crossing over appellee’s railroad commonly and habitually used by the public with the knowledge and acquiescence of appellant, and that appellee had failed to exercise ordinary care to maintain the same in a reasonably safe condition', etc. The following cases directly and by analogy define appellee’s liability under the fácts proven upon trial of the instant case: I. & G. N. Ry. Co. v. Douglas, 7 Tex. Civ. App. 554, 27 S. W. 793; Texas, etc., Ry. Co. v. Neill, 30 S. W. 369; Hall v. Railway Co., 35 S. W. 321; S. A. & A. P. Ry. Co. v. Belt, 24 Tex. Civ. App. 281, 59 S. W. 607; Cowans v. Railway Co., 40 Tex. Civ. App. 539, 89 S. W. 1116; M., K. & T. Ry. Co. v. Hollan, 49 Tex. Civ. App. 55, 107 S. W. 642.

In addition to the issues we have just discussed, appellant asserts by his third assignment of error that the charge of the court was erroneous in submitting to the jury appellee’s want of knowledge of the alleged condition of the crossing, because that issue was raised neither by the pleading nor the evidence. We are of opinion that the charge correctly submitted the only rule by which appellee could be held liable. The crossing was not at the intersection of a public county road, or such road as is contemplated by article 6485 as construed by the Supreme Court, and ordinarily there would have been no duty upon appellee to maintain the same in a safe condition. But, as we have said, the evidence shows that the crossing was commonly and habitually used by the public, and the rule in such cases is that the appellee would be liable for any damages resulting from any defect in the condition of the crossing due to its negligence, if it knew of such defect, or could have known of same in the exercise of ordinary care, and it was the duty of appellant to adduce testimony complying with such rule before he was entitled to recover. M., K. & T. Ry. Co. v. Hollan, 49 Tex. Civ. App. 55, 107 S. W. 642. In the absence of any statute fixing the degree of care to be used, appellee could only be held liable for injuries resulting from defects in the crossing of which it had knowledge, or. of which, in the exercise of ordinary care, it ought to have known.

The sixth assignment of error asserts that the court should not have submitted to the jury whether or not the manner or method in which the lumber was loaded upon appellant’s wagon contributed to his injury, for the reason that the testimony was insufficient in that behalf. Contributory negligence in the respect indicated was plead, as shown in our statement of the case, and, in our opinion, an examination of the evidence does not authorize us in saying it was not sufficient to take that question to the jury for their determination. It' is undisputed by the record that the lumber did slide or slip forward to such extent as to strike appellant’s horses, and it was for the jury, after hearing the witness detail how the lumber was loaded, to determine whether the slipping or sliding was due to the manner of loading, or because of the drop of the wagon.

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

On Rehearing.

Counsel for appellant earnestly insist that, in affirming'the judgment of the lower court, we erred in our conclusions of fact. We adhere to the conclusions deduced from the facts as contained in our original opinion, but, in order that no injustice may be done appellant, and because the evidence upon the question of the character of the dirt road which crosses appellee’s railroad at the place of accident is brief, we herewith by this method incorporate same in the opinion:

J. L. Webb testified: “I lived in that community before the railroad was built there. I could not say exactly the number of years the railroad was built before this town was built in this particular place, but, in my judgment, it was more than five years. The whole community there was originally called Massey, from J. M. Massey. The public road before the railroad was built was the north and south road from Floyd to Oaddo Mills, and was west of where the accident happened. There is a crossing further west down there, and that one was known as the Cow-skin-Greenville road. This crossing is about 200 yards west of where the accident happened. There was no dirt road here at all before the railroad was built; that was in a farm. After the town was platted and the streets made, then the railroad company built a section house, and the crossing took place. That has been used as a public crossing ever since the road was put in there. The county wqrks it and grades it. It’was graded about two weeks ago by the county.”

W. T. Edgar testified: “That road that runs between the stores and crosses the track there at that point, we call it a public road; I don’t know any name for it. It runs from Caddo Mills to Floyd. The commissioners put grades there, and the commissioners and all of them worked it over. I have always considered it a public road worked by the hands.”

Appellant testified: “I had been living in that neighborhood most of the time for about nine years. I guess that road that runs between the stores and across the railroad track has- been there ever since I have been there. It was used by the public. Right here for the last year or so it has been used more so than it was before. This here big gin lot — this road goes right through a gin lot, and up until a year or so ago this gin lot was fenced, and, if you went that road, you had to go right down the railroad between this fence and the railroad. While that gin lot fence was up, the road crossed from the south and turned right down on the north side of the track; it has been about two years, since they tore the fence down. For the last two years there has been more travel over that road than before that. As far as I know the road was generally used by the public. It was a plain road right between the stores on out north; that road run right north. Leaving the stores where I had stopped, X drove on north. I drove down to the railroad and drove off across the railroad. In going from home to Caddo Mills the morning of this accident, I crossed this railroad at, I think they call it, the lower crossing; there is a crossing right opposite the store, and then there is one down below that always was called the lower crossing. Those crossings are 100 yards or 150 or 140, or somewhere along there apart. I had frequently passed over this crossing. I knew about where the gin lot was and how the road went down the railroad. It seems to me that this road had been opened up through the gin lot about two years. They had opened the gin lot so they could drive across there, and after that this crossing was used more frequently than before. Q. This lower crossing, which was about 150 yards west of this, had been used continuously all the time; that was the most prominent and public, was it? A. I guess it was used some more than this before this. Q'. Especially before this was opened up it was used a good deal more than this — before they opened the gin lot? A. Might have been used some more; yes, sir. After you get out from between the stores you can take either course, or you can go straight ahead and go by the gin íot. I had crossed the lower crossing several yards west of this one that morning; my wife and my little girl were with me. No, sir; there is not a lane on the north side of the railroad north of this lower crossing going north that you enter or go out of going south down by the schoolhouse. Going north from the schoolhouse you do not strike a lane there anywhere. There is a lane on the south side of the railroad after you get past the right of way going south; there is none on the north side at all. Well, now, speaking about that lane, there is a lane, but it don’t run up to the railroad; it is a lane both roads converge and enter; both roads come together about the time you get to it. The road that goes by the lower crossing west and the one I was traveling at the time the áccident happened come together just before you get to that lane going north. The mouth of that lane is right due north of this road I was traveling in going with my wagon that morning. When I came from Caddo Mills, I would come up here (indicating) — there’s the stores on the east side and this is the stores on the west side — now, I could turn this way and come on down here and cross down there and go north and then to my house, or I could go straight across, and go on either side of this gin, and come up here going diagonally across the lot, and strike the Floyd road (the same road) down here.”


text:
    GALVESTON, H. & S. A. RY. CO. v. BELL et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 11, 1914.
    On Motion for Rehearing, April 8, 1914.)
    1. Trial (§ 260) — Requested Chaege — Repetition.
    A trial court need not give a requested charge which was substantially given in another special charge, as well as in the main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.)
    2. Trial (§ 252) — Instructions Not Based on Evidence.
    .In an action by a passenger for injuries caused by a stray bullet fired by another passenger at a drunken passenger who was making an assault upon him, where all the evidence tended to show a clear case of self-defense, _ it was proper for the trial court to refuse to inject into the case the question of justification for the shooting.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    3. Carriers (§ 284) — Injury to Passenger-Act oe Fellow Passenger — Negligence of Carrier.
    Where a passenger was injured by a stray bullet fired by another passenger in self-defense at a drunken passenger, concerning whom the passenger who fired the shot had made complaint to the conductor, the act of the conductor in dragging the drunken passenger through the car until he came near the place where the complaining passenger was standing, and then leaving the car, was negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1125, 1127-1135, 1173, 1222; Dec. Dig. § 284.]
    On Motion for Rehearing.
    4. Carriers (§ 305) — Injury to Passenger-Act of Fellow Passenger — Proximate Cause.
    Where a passenger was injured by a stray bullet fired by another passenger in self-defense at a drunken passenger, whom the conductor had negligently allowed to remain in the car after complaint had been made, the firing of the shot was an innocent and not a wrongful, act, and the fact that it was fired by another, and not by the drunken passenger, does not prevent the negligence of the conductor from being the proximate cause of the injury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1132, 1136-1139, 1245, 1246; Dee. Dig. § 305.]
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Action by Billie Bell and another against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for the plaintiffs, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Emil Mosheim, of Seguin, for appellant. James Greenwood and H. E. Short, both of Seguin, for appellees.

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

   FLY, C. J.

This is a suit for damages arising from injuries inflicted by a gunshot wound on Eliza Bell while a passenger on a train of appellant instituted by Eliza Bell, joined by her husband, Billie Bell, against appellant. It was alleged by appellees that one Louis Willis was permitted in the car in which Eliza Bell was riding while he was in a drunken condition, and that he provoked a difficulty with one Banks, during which the said Louis Willis was killed, and Eliza Bell shot through one of her legs. The cause was tried by jury, and resulted 'in a verdict and judgment for appellees in the sum of $1,500.

The facts show that while in an intoxicated condition Louis Willis, a negro, at Marion, Tex., entered a car reserved for ne-groes, and in which Eliza Bell was riding, on her way from Seguin to San Antonio, and acted in such way as to become very offensive to a young woman with whom one Willie Banks was traveling, and the latter requested Willis to desist; but he seated himself upon the arm of her seat, and used profane language to her, and sat in her lap. Banks informed the conductor of the conduct of Willis, and he went to him and told him to desist; After the conductor passed, he began his offensive conduct again, and the conductor was called on again. He led Willis to a point in the car near where Banks was standing, and there left him and went out. As soon as he left Willis began a quarrel with Banks, and approached him in an angry and threatening manner. Banks backed to the end of the ear, and while Willis was approaching he (Banks) fired three shots, two of which entered the body of Willis, and the other went wild and struck Eliza Bell in the leg, seriously and permanently injuring her. Willis was the aggressor, and forced the necessity of shooting upon Banks, who was much smaller than Willis.

The petition was not subject to a general demurrer or the special exceptions. The wound received hy Eliza Bell was the direct and proximate result of a difficulty that was raised by a drunken passenger who had been negligently permitted to remain in a crowded car where he had been engaged in profanity and other outrageous conduct towards a female passenger. The shot from the pistol of Banks was as much the result of the drunkenness of Willis as though it had been fired by Willis himself. Appellant should have anticipated that the drunken man, who had persisted in insulting the young woman, and who knew that Banks had invoked the aid of the conductor to restrain him, would, raise a difficulty, and that fighting would probably occur, and might result in injury to a passenger. It was not necessary that appellant should or could have foreseen the occurrence as it really happened. “If a drunken and disorderly man,is on the carrier’s vehicle,, it will not do to say, after a passenger has been subjected to insult or injury, that the carrier’s servants did not know or could not have foreseen that the particular individual who was insulted or injured was in danger of such insult or injury, if they were apprised, or with proper care could have known of circumstances which indicated that some one would be injured, unless the disorderly passenger or stranger were ejected or controlled.” Hutchinson, Carr. § 984; Railway v. McEwan (Ky.) 51 S. W. 619; Railway v. Flake, 114 Tenn. 671, 88 S. W. 326. The injuries to Eliza Bell were brought about by the negligence of appellant, and, as was said by Justice Williams in Railway v. Williams, 20 Tex. Civ. App. 587, 50 S. W. 732: “The material facts are that appellant’s negligence was operating at the time, and that the injury to plaintiff was one which ought to have, been foreseen. Appellant is not held responsible for the negligence of the other passenger, which it had. not opportunity to anticipate and prevent, but for its own negligence, from the effects of which it is not relieved by the act of the other.” There is nothing in the case of Railway v. Long, 13 Tex. Civ. App. 664, 36 S. W. 485, that supports the contention of appellant. The drunken man in that case had not been rude and insulting, and there was no circumstance to put the railway company on notice that he might drop a pistol and hurt some one. No complaint was made to the conductor as in this case. This disposes of the first, second, and third assignments of error.

The fourth assignment of error is overruled. The rejected charge was substantially given by the court in another special charge requested by appellant, as well as in the main charge, and there is no ground for complaint.

There was no evidence tending to show that Banks was not justified in shooting Willis; but all the evidence tended to show a clear case of self-defense, and the court very properly refused to inject the question of the justification of Banks in shooting into the case. Banks swore that Willis started an altercation, applied a vile epithet to him, and said he was going .to kill Banks. Placing his hand as though to draw a pistol, Willis advanced upon Banks, striking at him as he retreated. Banks was never indicted for killing Willis. The fifth assignment of error is overruled, and the sixth assignment of error is disposed of by our conclusions of fact, and what has been written in connection with the first, second, and third assignments. In this connection it may be stated that the act of the conductor in dragging the drunken negro along the car until he reached the point where the man was standing who had sought to have him removed from the car had the appearance of an invitation to a conflict between them, and was rank negligence. Not only the conductor, blit the negro porter, abandoned the car, and turned it over to the drunken negro. The conductor took the negro only a few feet from his' position, sitting almost on top of the woman, and, when he refused to go farther, left the scene, seemingly intimidated by him. The connection between the drunkenness and boisterous, rude, and insulting conduct and the firing of the shots and consequent injury to Eliza Bell was unbroken. The conductor, not only should have anticipated trouble, but evidently did, and sought other quarters on the train in order to escape it, as did the porter apparently.

The judgment is affirmed.

On Motion for Rehearing.

Appellant attempts to draw a fine distinction between -the acts of the drunken man and the acts of another brought about by the unlawful conduct of the former, and insists that appellant is not liable, because the shot that injured Eliza Bell was not fired by the drunken passenger, but by one he was attacking at the time. As said by Shear-man & Redfleld, in their excellent work on the law of Negligence, § 25: “One is liable for all the injurious consequences naturally and proximately caused by his negligence. If he has committed a breach of duty, wrongfully put into operation a force likely to injure others, he is liable for its natural and proximate effects, which may be immediate and direct, or through the media of natural forces or other innocent causes or conditions. Time, distance, and the number and variety of the media are immaterial, except as they afford increased opportunity for the assertion of other intervening responsible causes.” On the same subject, Judge Cooley, in his work on Torts, p. 69, says: “If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, tlie injury shall be referred to the wrongful passing by those which were innocent. But, if the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause.” That language covers' the facts of this case “as the waters cover the sea.” Appellant knew that a drunken passenger was in its coach set apart to negroes, and knew that he was insulting the passengers, and yet allowed him to remain, and every employé, through fear or indifference, absented himself from the car. The drunken passenger got into a difficulty with another passenger, and a shot wife fired that injured Eliza Bell, another passenger. It does not matter whether the pistol was fired by the innocent passenger or his drunken assailant. The original failure to eject the drunken, quarrelsome passenger from the car would naturally prove injurious to other passengers, according to the ordinary course of events, and did result in such injury through the intervention of another cause not wrongful, and the injury should be referred to the wrongful cause, passing by that which was innocent.

In the ease of Flint v. Norwich Tr. Co., 34 Conn. 554, Fed. Cas. No. 4,873, cited by Shearman & Redfield in a note to paragraph 512, it was held that the steamship company was liable to a passenger for a shot fired from a gun dropped on the floor by two soldiers struggling with each other.

Where fighting took place in a railroad car, without interference by the conductor, and a passenger not involved in the difficulty had an eye injured by a missile, the court said:

“The plaintiff lost his eye through the quarrel of a couple of drunken men, who should not have been permitted aboard the cars, or, if so permitted, should have been so guarded or separated from the sober and orderly part of the passengers that no injury could have resulted from their brawls.” Railroad Co. v. Pillow, 76 Pa. 510, 18 Am. Rep. 424.

In the case of Railway v. McEwan (Ky.) 51 S. W. 619, it was held that railway company was liable to a passenger for an injury from a shot fired by drunken negroes on its train; the shot accidentally hitting the passenger.

So in the case of Railway v. Flake, 114 Tenn. 671, 88 S. W. 326, certain drunken men boarded a train, with the knowledge of the carrier, and an accidental Shot fired by one of them injured the plaintiff, and the court held the railway company liable. See, also, eases of Packet Co. v. White, 99 Tenn. 256, 41 S. W. 583, 38 L. R. A. 427, and Railway v. Jefferson, 89 Ga. 554, 16 S. E. 69, 17 L. R. A. 571, 32 Am. St. Rep. 87.

There is no merit in the contention that appellant would be liable if the drunken passenger had fired the shot, but is not liable for injury accidentally inflicted by a passenger while defending himself against an assault by the drunken man.

The motion for rehearing is overruled.


text:
    RIEGLER ICE CREAM CO. v. THOMAS et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 4, 1914.
    Rehearing Denied April 8, 1914.)
    1. Municipal Corporations (§ 706) — Collision in Streets — Sufficiency op Evidence-Negligence.
    In an action for injuries caused by the pole of defendant’s wagon coming in contact with plaintiff’s leg while plaintiff was on horseback, evidence held not to show negligence by defendant’s driver.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.]
    '2. Municipal Cobpokations (§ 706) — Collision in Street — Evidence — Contributory Negligence.
    In an action for injuries by the pole of defendant’s wagon coming in contact with plaintiff’s leg while hq was on horseback, evidence held to show that plaintiff was guilty of contributory negligence.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.]
    Appeal from District Court, Bexar County ; R. B. Minor, Judge.
    Action by Arthur Thomas and another ’ against the Riegler Ice Cream Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and rendered.
    Huntress & Keller, of San Antonio, for appellant. Scott & Dodson, of San Antonio, for appellees.

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

   FLY, C. J.

This is a suit for damages, resulting from personal injuries, instituted by Julia Iludley for herself and in behalf of her minor son, Arthur Thomas, the injured party, against appellant. It was alleged, in substance, that Arthur was riding a pony south on South Flores street, San Antonio, Tex., and, when he reached a point just north of Nueva street, a wagon, belonging to appellant, to which two horses were attached, and which had been standing near the curb, suddenly and without warning turned to the left, and the pole of the wagon came in contact with the leg of Arthur Thomas and broke it. Appellant pleaded contributory negligence on the part of Arthur Thomas. The cause was submitted to the court, and a judgment was rendered in ' favor of Arthur Thomas for $300, and in favor of Julia Hudley for $50.

The only witness for appellees as to the manner in which Arthur was injured was himself; the only other witness being the driver of the wagon, who testified for appellant. The boy testified that he was going at a fast gallop down South Flores street, and saw a wagon standing near the curb on the right side of the street, facing south; that, when he got within “5 steps,” he saw the wagon turn abruptly to the left into the street, but he “di'd not stop galloping then.” He stated that he tried to stop the horse, but, although the wagon hit him, the horse went “20 steps” before he could be stopped. This is the case of appellees, so far as the facts directly connected with the accident are concerned, but another witness testified that he owned the pony, and that could not go faster than 5 or 6 miles an hour, although the boy testified that he was going at a “fast gallop,” and there was uncontradicted testimony which showed that a horse cannot gallop less than 10 miles an hour. The un-contradicted testimony showed that the driver of the wagon looked up the street before he started the wagon and saw no one until the boy ran against the pole or tongue. The boy admits that he was going fast. The collision could not have occurred except by the horse runing into the wagon, as the horse was moving rapidly and the wagon very slowly.

The testimony to the effect that a horse going in a “fast gallop” would not go more than five or six miles an hour is so opposed to reason, common sense, and general experience as to be utterly absurd. The boy admitted that he was moving at a “fast gallop,” and the fact that he ran “20 steps” before he could be stopped shows that he must have been moving very rapidly. All the circumstances indicate that the boy was riding at an immoderate speed along a street in violation of an ordinance of the city, and that such immoderate and reckless riding was the direct and proximate cause of the accident. If, as Arthur Thomas swore, the wagon was being turned directly across the street in order to turn around, it was being turned within the terms of the ordinance which requires a vehicle when it turns to the left to pass over to the right of and beyond the center of the street.

The evidence not only utterly fails to show negligence upon the part of appellant, but clearly shows contributory negligence upon the part of the boy.

The judgment is reversed, and judgment here rendered in favor of appellant.