author: SWEARINGEN, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. BUTTS.
    (No. 6138.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 29, 1919.
    Rehearing Denied Eeb. 26, 1919.)
    1. Master and Servant @=>265(9) — Injury to Servant — Negligence — Burden op Pro op.
    In action for injuries sustained by plaintiff switch tender when thrown under a moving train, because of his stumbling over a pipe left by defendant in such position as to partially obstruct a path along the track, the burden was upon plaintiff to show that defendant was guilty of negligence that proximately caused the injury.
    2. Master and Servant @=>286(15) — Injury to Servant — Negligence—Question por Jury.
    In action for injuries sustained by plaintiff switch tender when thrown under a moving train, because of his stumbling over a pipe left by defendant in such position as to partially obstruct a path along the track, question of negligence held, under the evidence, for the jury.
    3. Master and Servant @=>265(13) — Assumption op Risk — Burden op Proop. .
    In action for injuries sustained by plaintiff switch tender when thrown under a moving train, because of his stumbling over a pipe left by defendant in such position as to partially obstruct a path along the track, the burden was upon defendant to prove that plaintiff knew of the obstruction and realized the danger.
    4. Master and Servant @=>288(2) — Injury to Servant — Assumption of Risk — Question por Jury.
    In action for injuries sustained by plaintiff switch tender when thrown under a moving train, because of his stumbling over a pipe left by defendant in such position as to partially obstruct a path along the track, whether plaintiff assumed the risk held, under the evidence, for the jury.
    5. Master and Servant @=>265(14) — Injury to Servant — Contributory Negligence-Burden of Proof.
    In action for injuries sustained by plaintiff switch tender when thrown under a moving train, because of his stumbling over a pipe left by defendant in such position as to partially obstruct a path along the track, defendant had the burden of showing that no prudent person would have used the path in question at night when there was a clear path on the other side of the track.
    6. Master and Servant @=>289(15) — Injury to Servant — Contributory Negligence-Question por Jury.
    In action for injuries sustained by plaintiff switch tender when thrown under a moving train, because of his stumbling over a pipe left by defendant in such position as to partially obstruct a path along the track, held that issue of contributory negligence was properly submitted to the jury.
    7. Master and Servant @=>217(5), 234(4)— Injury to Servant — Knowledge of Danger-Presumption.
    As regards assumption of risk and contributory negligence, knowledge is presumed where the danger is so obvious that an ordinarily prudent person would have appreciated that it endangered his safety.
    8. Damages @=>134(3) — Personal Injuries— Excessive Damages.
    Eor injuries consisting of the crushing of a foot necessitating amputation of three toes arid a part of the foot, impairment of eyesight, shock to nervous system, and impairment of general health, rendering plaintiff apparently unfit for work, a verdict for $18,500 is not so excessive as to show passion, prejudice, or other improper motives and influences, plaintiff being 27 years old, and earning $65 per month at the time of the injury.
    9. Damages @=208(1) — Determination of Amount — Province of Jury.
    The amount of pain and suffering, the diminished capacity to labor, the probable permanency of suffering, the permanency of diminished capacity to labor, the efficiency of plaintiff shown by his long service, and the probable reward for such efficiency usually manifested by increased compensation, as well as his life expectancy, were all questions for the determination of the jury.
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Clarence W. Butts against the Galveston, Harrisburg & San Antonio Rail'way Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden and Ed. W. Smith, all of San Antonio, for appellant.
    Perry J. Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellee.
   SWEARINGEN, J.

This is a suit by the appelleé, Clarence W. Butts, against the Galveston, Harrisburg & San Antonio Railway Company to recover'damages for personal injuries suffered by him through the alleged negligence of appellant, which answered by general and special exceptions, a general denial, and special defenses.

A verdict was found by a jury in answer to special issues, upon which judgment was rendered for appellee for $18,500.

We adopt appellant’s statement of the issues .made by the pleadings:

Plaintiff was employed by defendant as switch tender, and in the discharge of his duties as such was walking in a path alongside the track furnished by defendant for the use of its employes in doing their work, and stumbled over a large metal pipe negligently placed and left in this path by defendant, and was thrown under a passing train and injured. It was defendant’s duty to furnish plaintiff a safe place to do his work in, but, in disregard of this duty, defendant negligently placed and left the pipe so close to its track as to endanger its employes walking beside the track in the space used for such purpose, and while using this space in doing his work plaintiff stumbled orer the pipe. The act of negligence, complained of by plaintiff on which he based his cause of action was stated by him as follows:

“The plaintiff says that he was in the discharge of his duty, and that the defendant’s said negligence. in causing or permitting said pipe to be so close to the track on which its train was moving, as aforesaid, directly caused the serious injuries hereinafter set out, without any fault,on the plaintiff’s part.”

Plaintiff alleged his injuries to consist of the crushing and mangling of his right foot, necessitating the amputation of three of his toes and a part of the foot, impairing the use thereof, and the condition of the foot necessitating a second operation to remove additional bone, flesh, and nerve; that plaintiff fell with great violence, injuring his back and spine; that as a result of the injuries plaintiff has suffocating spells and sleeplessness, and his eyesight has become impaired, his nervous system shocked and injured; that he is very tremulous, and his general health and strength greatly impaired; that his injuries are permanent, and have caused plaintiff to suffer great mental and physical pain, and will so constantly afflict him for the balance of his life; that prior to the accident plaintiff was a strong, healthy young man, with an average earning capacity of about $75 per month, which he reasonably expected to increase in the future, but that since his injuries he has been unable to work, and will be a cripple and invalid for the balance of his life, to his damage $30,000.

In addition to general and special exception^ and general denial, defendant pleaded—

“(1) Contributory negligence; that is, that some weeks prior to the accident it placed a load of pipe alongside and near its track, to be used in relaying its oil pipe line, which was a proper and necessary work and improvement, and that this pipe was placed north of, and about parallel with, the track, and at irregular distances therefrom, on each side of plaintiff’s shanty where he was stationed, and that plaintiff knew where the pipe lay, and knew the whole situation, and of the danger to him (if any) incident to the situation; that defendant had no reason to anticipate injury to plaintiff by reason of the pipe being there so long as plaintiff exercised ordinary care in the discharge of his duties; (2) that defendant was engaged and plaintiff was employed by it in interstate commerce, and that plaintiff as- ' sumed the risk; (3) that if plaintiff was suffering or had suffered with any of the ailments complained of other than injuries to the foot, same were not caused by injuries received in the accident, but were due to disease and other causes beyond the control of defendant.”

The material facts are: Appellee was an employé of the appellant, and at the time that he was injured he was performing the duties of his employment. These duties were those required of a switch tender. His work began at 6 p. m. and ended the following morning at 6 a. m. At 9 o’clock on the night of February 28, 1917, this injury occurred. As the first eight assignments depend upon the proposition that the evidence establishes as a matter of law that the appellant was not guilty of negligence, or, if so, that appellee assumed the risk or was guilty of contributory negligence that was the proximate cause of the injury, it will be sufficient to state only so much of the evidence as may sustain the findings of the jury upon each of those issues, all of which were submitted to the jury. We will therefore state the testimony of appellee himself, a part of the testimony of the day switch tender, that of the end switchman to whom ap-pellee called that the road was clear immediately preceding the injury, and the testimony of the section foreman who placed the obstructing pipe in the north pathway, as well as the testimony of the material engineer, who gave exact measurements showing that the line of pipe was arranged with the object in view of leaving a clear path on the north side of the track. This witness shows that the length of pipe over which appellee fell was intended to connect the line of pipe over a wooden bridge. It was not on the bridge at the time, but this piece was laid alongside another piece of pipe on the east of the bridge. Thus there were two pieces of pipe instead of one at the place of injury. The east end of this extra length of pipe projected towards the track, leaving 39 inches of clear space between it and the track.

The appellee, after stating that the switch engine with a string of coaches came to the switch tracks where he worked every night at 9 o’clock, testified:

“I went back to my shanty, and when they whistled I looked to see if the block system was clear before I could let them out, and I looked and seen that the light on the block system was out, and I could not tell whether there was a train coming or not, and, of course, I had to walk down to see whether it was clear, and after I got close to it I could see that it was clear, and I gave them a signal to come on. They were running east and I was going west, I was going back to the shanty to throw another switch after they got into the clear; they were supposed to go back down the main line with these cars. The cars approached me first —there were a number of cars in the train, and the engine was on the end opposite from me. The cars were backing toward me, and the train was coming east. Therefore I had to get off the track in order to allow it to pass, and I continued on my course up the side of the track. When I stepped off the track I hollered to the switchman on the car, ‘All right,’ and that the block was out, but it was clear, and I continued walking on past back to my switch. I was in a hurry about that work; there was a Katy passenger due there, and I wanted to get this string of cars out of the way to let the Katy out, and I went on then for the purpose of throwing my switch to let this train out. This was a Galveston, Harrisburg & San Antonio Bailway Company train. In walking fast I stumbled over a pipe, and fell very hard and got hurt. I was walking in the path between the pipe and this string of coaches that were passing. There was a lot of pipe on the edge of the embankment. Those pipe had been there for several days. The pipe that caught me was not one of the general lino of pipes on the edge of the embankment; it was one that was thrown right in the path, and that was the pipe that caught me. That pipe was a twelve to fifteen-inch pipe — it was a very large pipe. When I fell, I fell on this pipe face down, and rolled off on my left side and over on my back, and in rolling over I suppose that my leg flopped over and the wheel caught it — my foot was caught under the wheels.
“I was on the north side of the track, going west. I had a green light which I used to signal trains with me, and when I fell the light was broken. These cars came on out, and one of the switchmen lined up the switch, and they started back down the main line.”

On cross-examination lie testified:

“I always worked at nights. * * * Mr. Pearson worked in the daytime when I got hurt —before the accident. He was on from 6 in the morning until 6 in the evening, and I was on from 6 in the evening until 6 in the morning. When I went on duty at that time of the year it was just about sundown.
“Yes, sir; I had, seen these pipe before the time of the accident. I just noticed them there about four or five days. I had noticed them only theTast four or five days. * * ⅝
“This string of cars were in the yards, and when I went back they were coming out of the yards — coming out of the yards towards me-*they had just whistled for that. The engine was on the far end. They had about fifteen or seventeen cars — something like that. This same move was practically made every night. That was equipment for trains coming down to the San Antonio depot every night. And when I saw the block was clear, this string of cars was coming back towards me, and I gave them a signal as soon as I saw the block was clear, and then turned around back west towards the shanty. The semaphore is on the south side of the track. I was going back to line another switch up for them — the main-line switch. The main-line switch was located west of my shanty on the South side of the track, and it was my purpose to go back there and throw that switch to let that string of cars go back towards the depot. I was to get back there as quick as I could. It was my duty to throw that switch, and I always threw it.
“If the necessity arose to throw the switch, and I should be somewhere else in the yard — for instance, down at the Katy main — the'switch-men would throw it in my absence; and I had to throw another switch farther down for the Katy passenger, to let them get out from San Antonio and go on north. That Switch was farther west on the south side of the track. The semaphore and those two switches that I expected to throw were all on the south side of the track. ⅜ * *
“In going down to the semaphore I walked down the center of the track, and saw it was clear, and started back, and walked back and met this train of cars coming east towards me, and I got off the track onto the north side for the purpose of letting this train of cars pass me. When I got off the track onto the north side, then I intended walking west towards the shanty. I expected to throw this switch to let these cars go back down into the yards. * * * That switch that let that string of cars go back down into the yards was on the south side, and the semaphore is on the south side.
“As to why I did not come back up on the south side of the train then,' I seen that this switchman on the back end was on that side of the car — on the north side — and I wanted to holler to him that the block was clear, and, naturally, stepped to the right side. * * *
“I had been noticing those pipe there four or five days. ⅜ * ⅜ They were scattered along the inner edge of the bank, and left a path there to walk on. * * ⅜ I always used the center of the track. I didn’t pay any attention to what was on either side. I knew, however, that there was a string of pipe on the north side there. I hadn’t seen any pipe on the south side there. * *
“This was a very dark night. * * »
“I was going back up from the semaphore toward the shanty to throw the main line switch to let this, string of coaches back to the depot. That switch is located just opposite and across the track from my shanty. And if I had gotten back up there I would have had to cross back from the north to the south side, to throw that switch. And then I expected to go on farther weát to throw the switch to let the Katy passenger train out. It was due out at 9, and come out past this in about eight minutes. Yes, sir; they had showed up at this time — I seen the headlight and recognized that as the Katy train .coming up.
“Yes, sir; I expected this switch crew to hold this string of cars until I came from the sema-phoi'e back up to that switch. * * ⅜
“At the time of the accident the train was moving east. It had not stopped for the purpose of -moving back into the yards; it. was still moving" east. They wasn’t going very fast. I was walking very fast; I was not running. I had a green lantern with me. That doesn’t throw, much light — does not throw enough light to see where you are stepping or to locate a switch with. It is purely and solely for the purpose of signaling trains.
“During the preceding years, except for that seven months I laid off sick with this attack and the time. I went down in the country to visit my sister, I was working steadily all the time. * * *
“* * * I had three main-line switches to take care of. Beginning on the east, there was a switch connected with the east main line, and the other switch connected with the west main line and lead switch, and the other switch with the Katy. The first two were the east and west main line, which were west of the bridge and my shanty, and west of where the accident happened, and the Katy switch I spoke of was down east of the shanty about a city block— about three hundred feet. My shanty was just west of the bridge oyer Menger creek. The west main switch was right across from that switch, X suppose.
“I fell a short distance east of the bridge— about thirty feet east of the east end of the bridge. * '* *
“My duties lie mostly west of the shanty, on the opposite side of the track. I was running up and down there nearly all the time. X had no other duties to perform besides attending those switches and answering the telephone. In letting in a train or letting out a train, I would show the hour it passed and direction it was going, and throw the switches for them, and answering the telephone. That consisted of my duties as switch tender. I had been in that employment close to seven years, except for those two periods that I have mentioned.”

Redirect examination:

“I said that ordinarily in doing my work I used the center of the track, and it was only when the trains would push me to one side that I would take the one side; we always used the center of the track, and it was very seldom we got caught with a train passing.
“This pipe that I spoke of, it seemed as though the end of my shoe caught the pipe— into the hollow part of it. In doing my work up there it had to be done quickly; you had to move very quickly to keep from delaying any of these passenger trains.
“It was not my duty to watch the sides of the track to see about pipes that might be put along there. 'This pipe that I struck was right in the pathway, and it was between the line of pipes that was on the edge arid the railroad track. I had never noticed this pipe lying there until after I stumbled on it. ⅜ ⅜ * I don’t know how long those pipes had been there — I kept no account of that — but I know that I had noticed a line of pipes there lined up on the edge of that embankment.”

Redirect examination on rebuttal:

“The situation of those switches that I had charge of, there is one west of the shanty about sixty feet from the one opposite the shanty. Those are two main line switches, and then you go east about a hundred yards or such matter and you strike the third switch. ‘That is the Katy switch, and that stands up by the block signal, just the other side of the block signal. * * ⅜
“ * * * When I discovered that the block was clear, I signaled the train to come on, and then I started walking back to the shanty. The train was still coming east in response to my signal. I was going back to line up another switch after they got out far enough to go back into the main line. I had my switches lined up so that they could get out, and I had to go back and change them. The train was then, leaving the vicinity of my shanty and going in the direction of the block signal, and it was then my duty to go back and throw those two switches. The first one I would get to was opposite the shanty. I would attend to that one first — I would throw that for the coach drag to go back to the depot on the main line; in other words, just as soon as they pulled up there, then they would go right on down to the depot. Then the farther switch that was west of my shanty about sixty feet, I had to line that up for the Katy passenger, which was in sight then; I saw the reflection of the light. Then after I had lined up that switch for the Katy to come out, I had to line up the one right opposite the shanty there, for the main line. My next move then was to go down to the Katy switch, about a hundred yards, quickly, and throw it so that the Katy train would come right through and not stop. That was the movement that I had to make there. * ⅞ ⅜
“I said that both sides of the track there on that dump, and the track itself, was used by employes in walking to and fro, in attending to their business. At the time I was hurt the center of the track was the best walking at night, because a man was in danger of falling down the banks all the time, and I used the center of the track.
“The switchmen give their signals to the engineer on the south side of the track. Switch-men do get over on the north side of the track when there is no signal to be given; switchmen do all their work on the south side of the track —the engineer is always on the south side; but we are not switchmen — our engineers going west are on the north side, and we have trains coming off the Katy, and the engineer is on the north side, and trains going east the engineer would be on the south side.
“Trains stop there and are delayed at that point very often; and trains going west, the trainmen get off lots of times, and give signal work, and walk up and down both sides of that track in the discharge of their duty. * * ⅜
“When I came to meet that train, the train was backing east and I was walking west, and as I saw the train coming I seen the light of the switchman on the back end, and it appeared to be held on the north side of the track. In stepping to the north side of the track, I turned to my right, and as the train passed me I hollered to him the condition of the block. As to any other reason for my being on the north side of the track, we have a Katy track that branches 'off to the north, and if I had been on the south side of this string of cars I couldn’t tell whether there was a Katy train coming in or not. And there was a Katy train going out then, and the Katy train would have to come in this way, and it would meet this train that was just going out. And being on the north side, I could see whether or not the Katy train was coming in there — I could see the reflection of the headlights; and if I had gotten across altogether, I couldn’t have seen that. The block system did not work off the Katy — they have no block system. No, sir; it wasn’t exactly my duty to see that there was no trains coming from the opposite direction before I let this train go out; lots of times they wait there for trains coming in. If I saw a train coming, the train going out would have waited to have orders; if I saw a train coming in, I wouldn’t have lined up my switches for the passenger train going out.”

Cross-examination:

“Katy trains are coming in there all hours of the night, and I would go down and throw the Katy switch. They would always wait for me to throw that switch before they would come in on the G., H. & S. A. Generally I would go down the center of the track.
“Yes, sir; I had a slight recollection of haying seen these pipes being lined up on the edge of the embankment on the north side of the track before the accident. I had not walked over there since the pipe had been there; I always used the center of the track. I had not walked on the other side for some time. We are always ahead of the train.
“I was going back at this moment for the specific purpose of throwing those switches west of the bridge, on the south side. * ⅜ ⅜
“Q. For instance, this crew operating there that night, if they reached the switch and you were absent for any reason, they would not.just sit there and wait until you came up and threw the switch? A. Well, if the man wasn’t busy they would.
“They wouldn’t always wait until I come back and threw the switch; they have throwed it several times, and they threw it this night in my absence. That switch is on the south side. As that train shoved back towards me as I was down by the semaphore. I testified that I couldn’t see the switchman standing in the center of the rear coach — I saw his light. I did not testify 'that he was over on the left-hand or north side of the train. I said his light showed more on that side. I could not tell whether his light was sitting down or who was holding it. Anyhow, it appeared a little more to the north than to the right, and I assume that he was standing in the center of the train having [leaning] over that rail that crosses the end of a coach; and I was walking back at the time of this accident for the purpose of throwing those two switches west of the bridge, both of which are located on the south side of the train. The engineer was located on the south side of the train that night, and usually was. Switch engines usually face east.
“I had been working for the G., H. & S. A. at the time that this accident happened, close to. seven years, off and on. I don’t remember when I began work for the G., H. & S. A.' The only position I ever held was switch tender, and I put in most of the time I put in out there at Menger creek. * * ⅜
“If I know any train is coming in from the north, I first line up the switches on the west of the bridge, and then go down and line up the Katy switch; that is always true. You can see the reflections of those Katy headlights from the switches west of the bridge. We generally have a list of what is coming. When a Katy train is coming in, and I have a tip it is^goming in, when I see the headlight, or for any reason I expect it in and go throwing switches, the first thing I do is to line up the switches west of the bridge before I go down to the Katy switch and let the Katy train in. You have got to see whether the block is in danger or not. The block is not on the Katy, but you can’t let a Katy train through a road block; in other words, until the G., H. & S. A. block says ‘Heady’ the Katy train has to wait. But then if the block is clear, and I am getting ready to let the Katy train in, I always • line up the switches west of the bridge before I go down and let the Katy train in on the G., H. & S. A. track, so that when they come in on. the G., H. & S. A. track they have a straight shot to the depot. That is not the invariable rule. If there are a lot of other engines switching around there, you are going to wait until they get out of the way, and there is no exception to that rule. * * *
“As to the number of times I went down to that switch from the time I went on in the evening until I quit work, sometimes I went down there a dozen or more times, and sometimes more. I might say I went down there at least a dozen times every day I worked. I don’t know whether I passed there seven hundred and twenty times or not; I never figured it. I had been down there a good many times.”

Redirect examination:

“I was going toward those switches that had to be thrown when I was hurt, and the train was going away from me — so that I was to .mind about the switches. The train crew was leaving the switches and I was going to them, so it was clearly my duty to throw them. If I had not attended to letting in that Katy that was coming in there, the train would have to stop. Those trains are supposed to go right on through; and I was going to throw the switch to let out the string of switch cars to the main line, and was closer to that switch than any of the crew, and-T had to throw the switches unless that train would stop.”

Reeross-examination:

“I was looking for the Katy to come out from San Antonio, going north. Along there it would be practically east — the track along there runs east and west; and I was going west to throw those two switches west of the bridge. I was going along on the north side of the track, and there was a train between me and the south side of the track. The switches were on the south side of the track. Yes, sir; I had duties to perform on the north side of the track before I finished that job I was going to work on right then. I was in a hurry to throw those switches — get back up there; but I had hollered at the switch-man that the light was out and the block was clear, so that he wouldn’t stop. I had to throw those two switches on the south side of the track before the Katy train could come up. In order to throw the switches I would have to cross from the north side of the track to the south side of the track.
“The pipe was scattered along the north side of the track. I suppose the walk or pathway on the south side of the track was clear. Prior to that occasion that was the first time I happened to get on the north side of a train in several months, I suppose.”

The day switch tender, J. A. Pearson, testified:

“* * * There was a beaten path right along both sides; it was filled up nicely for the switch tender to travel on, and both sides were used by trainmen and switchmen in the discharge of their duty. The only reason that I hadn’t used the north side'was because the pipe had absolutely taken up the place of the public; that’s about right, it destroyed that path, in my estimation, and I took the good side of the track. Those pipes were lying pretty close to the ties— I don’t know exactly — possibly a foot or two from the ties, approximately, on the path. They weren’t lined up in perfect straight order on the crown of the dump. Possibly it is so that there was one place there where there was two pipes, just about the bridge. I don’t know;_ I didn’t notice that there were two pipes lying there on top of each other, sideways or any other way.”

W. T. Baird, the switchman on the east end of the train at the time of the injury, testified:

“These switch tenders, it was their privilege and they would have a right to walk on the track, middle of the track, or either side of the track, I guess. * * *
“I say that Mr. Butts was walking west, and our train was backing up in the opposite direction going. No, sir; he wasn’t walking in the middle of the track when I first saw him; he was walking on the north side of the track. And when X passed him he told me that it was clear; says, ‘The light’s out, but the semaphore is all right.’ And I was standing then on the back of the train just about the middle of the platform — just like there is a gate there. You have seen those tail gates on a sleeper; I was leaning on that looking right down the track. Yes, sir; I had a lantern, and my lantern was lit. * * *”

The defendant’s section foreman unloaded the pipe from a moving car onto the north side of the track, and, after unloading, this witness went hack and rolled the pipe out of the north path out to the north edge of the embankment, which left a clear path of about six feet between the line of pipe and the north rail of the track. He further testified:

“I distributed pipe from the oil tank back west to the roundhouse. That was either along about the last of December, 1916, or the first of January, 1917.”

Cross-examination:

* * * The pipe was there in January and Eebruary. It was taken away the next day after it was unloaded. It lay there during January and February. * ⅜ ⅜ I didn’t lay any on the bridge. * * * While dropping it off of the car it may have broken that plank sidewalk on the bridge. I laid a double line west of the bridge, and there was ahjo a few pipe east of the bridge. When it was constructed it was a straight line. There was a double line east and west of the bridge. I guess that pipe laid there before the construction; it might have been probably thirty or sixty days before they began construction of the pipe line.
“Q. When was it used in the construction? Don’t you know it was taken away' the day after Mr. Butts was hurt? A. Well, it was not taken away; it was just rolled away from where it was unloaded. * * *
“It was moved before he got hurt — it was just rolled intq the clear at the Crown of the hill. * * *
“There were two pipes at the point where he got hurt; one of them was over at the edge of the fill, and the other was right against it. I put them there myself — had it put there. On the particular night he was hurt it didn’t seem to have been moved from where I placed it. I found it there the next day. I heard about the accident; they told me about him getting hurt upon this pipe, and I went back there and saw where this pipe was, and it was right up against the other pipe. I knew that a man had stumbled on it and been hurt, and I did not move it — left it right there. Somebody else could not come along and be hurt in the same way — not where the pipe was lying. The crown of the dump is four feet six inches. That dump has not been added to since he got hurt. From the north rail the dump is about six feet. I will swear to as much as six feet; yes, it could have been more feet. It is a standard distance all the way along there. Yes, sir; I have measured it.
“A passenger car projects over the rail about eighteen inches to two feet. These pipe were about eight-inch pipe, and there was two of them lying right together at the point where Mr. Butts was hurt. The space here by the side of these tracks was leveled up, and it was for the use of trainmen and employes to walk on; they had been using it. I know that men have to do work on a certain side of the track in switching, and the reason the dump was made, or so made, the men could work on each side of the train.
“I put these pipe and left them there for about two inonths. I put them there so the pipe line could be constructed. Yes, sir; you have to lay down pipes right in the pathway where the trainmen might have to work at least two months before we used that material.”

D. E. Moursund, who had charge of material on construction jobs, testified:

“With reference to the two’ pipe lying just east of the bridge, over one of which plaintiff claims to have stumbled, that .the west end of the pipe next to the north rail is thirty-two inches from the north rail, and the east end (over which the evidence showed plaintiff stumbled) is thirty-nine inches from the north rail, and that it is three inches from the end of that pipe to the next pipe east, that it is thirty-nine inches from the east end of that first pipe to the , north rail, and forty-one inches from the west end of the pipe next to it to the north rail. The east end of the pipe next to it, two inches closer. * * * x made this map; I took the measurements myself. I am working in the engineering department. I went out there at 2 o’clock the day after the happening. Mr. Worth-ington, the superintendent, sent me out, and told me to take these measurements — the exact location of that pipe. I don’t know that he informed mo which pipe he stumbled over; he just said to got the location of the pipe. After I got the location of the pipe, no changes whatever were made. They were not allowed to lay right in the same position they did before the man was hurt — they moved them back a little bit — just straightened them up, that was all. I couldn’t say why they made that change; just naturally moved them, that was all. I did not order that done; I don’t know who ordered it moved; I just know it was moved. * * *
“I stated that the inside pipe where those two doubled next to the bridge was the closest to the north rail — the west end of the inside pipe is closest to the north rail — that is, the end of that pipe next to the bridge. The west end of the inside pipe is thirty-two inches from the north rail, and the east end of the same pipe (in the hollow of which plaintiff’s foot caught) is thirty-nine inches from the north rail. There are quite a few other pipes closer to the north rail than the east end of that pipe; there are seven ends of pipes closer than that to the north rail. The second pipe east of the pipe I spoke of is forty-one inches; that is the next one to it. The next one is thirty-five and thirty-three — the east end is thirty-three and the west end is thirty-five inches from the north rail. The third pipe from the west inside pipe is thirty-six inches at both ends. The fourth pipe from the west inside pipe is thirty-five inches on the west end and forty inches on the east end. The fifth pipe from the west inside pipe is sixty-six inches on the west end and forty-seven inches on the east end; the sixth pipe is thirty-four inches on the west end and thirty-seven inches on the east end. Both ends of that pipe are nearer to the rail than the east end of the inside west pipe.”

It thus appears that there was a path between the rails, and also a path on each side of the track for the use of employés in the performance of duties for the appellant. These pathways were customarily used by the appellant’s employés, and had been during the seven years that appellee had been employed as switch tender for the company at and near the place he was.injured. The path on each side of the track had been kept •clear of obstructions during all the seven years, except that beginning December 23, 1916, and ending January 1, 1917, the appellant threw 10-inch iron pipe on the north side of its tracks, with which to construct an oil-pipe line for its own use. This pipe was arranged parallel with the north track, and arranged in a line so as to leave a clear path between the line of pipe and the north rail of the track. For at least seven years the width of this path on the north side had been about six or eight feet. The line of pipe was somewhat irregular, but was a general line, leaving a clear path for employés. However, immediately east of a wooden bridge a second length of the pipe was inside of the line. This extra length of pipe inside of the general line of pipe was so situated that a person following the general line of the pipe would naturally strike this inside length of pipe. At the time of the injury this line of pipe and the extra length of pipe inside the line had obstructed the path for several weeks. Appellee knew in a general way that the pipe had been placed along the north side of the track in such way as to leave a clear path. Appellee did not know that this extra length of pipe was laid inside the general line of pipe. It was over this extra Length of pipe immediately east of the bridge that appellee stumbled and was injured by the moving train.

The first eight assignments assail various rulings of the court, for the reason urged that the evidence established as a matter of law that appellant was not guilty of negligence, that appellee assumed the risk, and was himself guilty of contributory'negligence that proximately caused his injuries.

The rules of law applicable to these facts furnish an issue that is presented to us with marked ability.

The contention of appellee is that it was the master’s duty to furnish the appellee with a safe place to work, and that it was not his duty to inspect the path; that appellant made the place dangerous by placing obstructions in the path which appellee was to use hurriedly at night.

Appellant admits that the master owed ap-pellee the duty to furnish him a safe place to work, and that it was not the duty of ap-pellee to inspect, but contends that the pathway on the south side of the track was clear of obstructions, and because it provided ap-pellee with this clear path it performed its. whole duty to appellee, and was not negligent in placing obstructions in the path on the north side. Appellant also contends that, even if it were negligent in placing obstructions in an old and previously safe path, yet that appellee knew of the obstructions and the danger incident thereto, and his voluntary election to use the obstructed path instead of the clear path on the south, side was an assumption by him of the hazard. Appellant insists that appellee was engaged in an interstate shipment when injured, for which reason the federal law, and not the Texas statute concerning assumed risk, governs.

The third contention made by appellant is that no ordinarily prudent person would, under the circumstances of this case, have attempted to use the path on the north side, knowing that it was obstructed, and that the path on the south side was clear.

The burden of proof was upon the appellee to maintain that appellant was guilty of negligence that proximately caused the injury, by partially obstructing the north path, even though the south path was left clear. The test here was from the evidence to determine whether or not an ordinarily prudent person, under all the circumstances, would have obstructed the north path as appellant did. In considering this issue it is proper to determine the result of only partially obstructing the habitually used north path instead of completely closing it It is not necessary to detail the testimony, for it is certain that the situation was such that reasonable minds could draw different conclusions from it, thus conclusively showing that the question of the appellant’s negli» gence was a question of fact for the jury to determine, and not a question of law. This isáue was submitted to the jury, which found that appellant was guilty of negligence.

But conceding that the company was negligent, appellant insists that appellee knew the exact situation and appreciated the risk, and with this knowledge undertook to use the dangerous path instead of the safe one. There is no evidence to conclusively charge appellee with appreciation of the danger from the obstructions. The company’s foreman testified that he endeavored to so arrange the line of pipe as to leave a clear path between the pipe and the north track, and his evidence will support the inference that he believed that the path on the north side was safe for use after he had arranged it with that end in view. This witness knew the exact width of the embankment, the track in the middle, and the passways on each side. He also knew the width of the cars. Appellee himself testified that he knew in a general way, that a line of pipe was placed along the edge of the embankment; but as he rarely used either side of the track, and then only at night, without a light, he did not realize the danger of the obstructions, and he testified that he did not know of the obstruction caused by the extra length of pipe out of its line over which he stumbled.

The burden was upon the appellant to prove that appellee knew the obstruction was in the path, and that he realized the danger thereof. The only proof was that appellee knew, in a general way, that the line of pipe was laid beyond the path. There is much evidence introduced to prove that he ought to have known. For instance, that he passed within a few feet of the line of pipe repeatedly from 6 p. m. until 6 a. m.; that others noticed the line of pipe, and that appellee was an experienced employé.

The most that can be said for the evidence upon this issue is that it was sufficient to be considered by the jury as it was. The evidence does not establish as a 'matter of law either that appellee did assume the risk or that he did not.

The burden was also upon appellant to prove that, conceding its own negligence, yet that no ordinarily prudent person would have used the north pathway with its obstructions at night alongside of a moving train, when there was a clear path on the south side much more convenient for appel-lee in the performance of his duties. As stated by Mr. Justice Hawkins in his dissenting opinion in the case of Ry. v. Petty, 211 S. W. — , it is easy to determine after the injury which was the safer way. But the question to be determined was, would a reasonably prudent person in appellee’s situation, with his knowledge of the condition of the two paths, have acted as he did prior to the injury? Omitting the knowledge acquired from the injury itself, the evidence does not conclusively show that no prudent person would have attempted the north path. As on the f issue of assumed risk, the evidence was such that; reasonable minds might differ upon the conclusion to be drawn therefrom. The path was habitually used and had been for at least seven years. A path had been left between the north rail and the line of pipe which, in the opinion of the foreman, was wide enough. Appellee did not know of the extra length of pipe out of the line, and with such actual knowledge as he is proven to have had may have relied upon his master’s maintaining the path furnished in a safe condition.

The issue of contributory negligence was properly submitted to the jury. As stated in the beginning of this discussion, there is no difference between these parties as to the general rules of the law of master and servant. The difference is that appellant believes that the evidence establishes as a matter of law that it was not guilty of negligence, but that, conceding it was, still the evidence established as a matter of law that appellee assumed the risk or was guilty of contributory negligence that was the proximate cause of the injury, either or both of which would absolve the appellant from liability. Appellee, on the other hand, contends that there was evidence upon all three issues that required the verdict of a jury. A careful consideration of the cases cited by appellant sustains appellee’s views of this case. The case cited by appellant which is most similar in its facts to the case at bar' is that of Railway v. Mathis, 101 Tex. 342, 107 S. W. 530. The negligence there alleged was that the path was dangerous because there was no light furnished by which the turntable could be discovered and avoided. The employé in that case admitted that he knew the location of the turntable, and knew that it was dark, when he essayed the hazardous route. The darkness permitted by the master in that case is the negligence charged. In this case the negligence is that appellant placed partial obstructions, and permitted them to remain in the path habitually used by its employés while performing their duties. It cannot be said that the evidence in the case at bar shows that appellee knew of the obstruction or apprehended the danger therefrom, or that he must be necessarily charged with knowledge of either the obstruction or the danger thereof. The evidence made the question one of fact. All decisions hold that knowledge of the danger is necessary both for assumption of the risk and for contributory negligence.

Of course knowledge is presumed when the danger is so obvious that an ordinarily prudent person, under the circumstances, would have apprehended that it endangered his safety. The cases relied upon by appellant are: Patton v. Gas Co., 108 Tex. 321, 192 S. W. 1060; Ry. v; Mathis, 101 Tex. 342, 107 S. W. 530; .Ry. v. Hynson, 101 Tex. 543, 109 S. W. 929; Rogers v. Ry., 76 Tes. 503, 13 S. W. 540; Ry. v. Bradford, 66 Tes. 732, 2 S. W. 595, 59 Am. Rep. 639; Ry. v. McCarthy, 64 Tes. 632; Webb v. Ry., 27 Tes. Civ. App. 75, 65 S. W. 684; Ry. v. Lempe, 59 Tes. 22; Ry. v. Lewis, 133 S. W. 1086; Crawford v. Ry., 89 Tes. 89, 33 S. W. 534; Holt v. Railway, 160 S. W. 327.

Some of the decisions holding that it is the master’s duty to maintain a. clear path are: Railway v. Toliver, 37 Tes. Civ. App. 437, 84 S. W. 375; Ry. v. Miller, 191 S. W. 374.

Some of the decisions holding that a general knowledge of the location of obstructions does not necessarily prove that the employé apprehended the danger either in fact or as a presumption are: San Antonio & Aransas Pass Ry. Co. v. Engelhorn, 24 Tes. Civ. App. 324, 62 S. W. 561, 65 S. W. 68; G., C. & S. Ry. Co. v. Darby, 28 Tex. Civ. App. 413, 67 S. W. 446; Orange Lumber Co. v. Ellis, 105 Tes. 363, 150 S. W. 582; T. & P. Ry. Co. v. Swearingen, 122 Fed. 193, 59 C. C. A. 31; T. & P. Ry. Co. v. Swearingen, 196 U. S. 51, 25 Sup. Ct. 164, 49 L. Ed. 382.

The ninth assignment is that “the verdict of the jury in favor of plaintiff for $18,-500 is so grossly eseessive as to manifest that it was the result of passion, prejudice, or other improper motives and influences, and there is ho basis, in fact or law, for such verdict.”

The appellee, while walking rapidly, stumbled and fell hard, was frightened, his cheek was bruised, his foot was crushed by a moving train. He was unable to get up. His fellow servants, coming to his rescue, found him trembling like he had a chill. Appellant’s employés carried him to a hospital, where he was given medical attention. The bruise on the cheek disappeared after a week. The great toe and the two next to it on the injured foot were amputated on the night of the injury, February 28, 1917. The appellee remained in the hospital under treatment of physicians selected by the defendant for about one month, a part of the time in bed, most of the time in an invalid’s chair.1 The foot failing to heal, in June, 1917, the same physicians deemed it necessary to perform a second operation, when it was found that the broken bones of his toes had worked out through the flesh at the bottom of the foot, and required the amputation of all the three injured toes back to the first joint. ..The wound healed slowly. After this second operation, in June, 1917, the trembling of the hands and body was as severe as at the time of the injury. A haze seemed to be over his left eye, while his right eye was almost sightless. For this eye trouble appellee was treated by an eye specialist selected by the defendant. Appellee’s head and back constantly ached. The leaders of his right leg became cramped, causing pain and suffering. This condition continued unchanged up to the day that appellee testified in this case, more than a year after the injury. The condition of appellee at the time of the trial is described by one of appellant’s expert witnesses in the following language: “He is apparently utterly unfit for work in the condition he is in now.”

The only evidence that tends to contradict this description of appellee’s serious condition at the time of the trial was the somewhat dramatic apostrophe of appellant’s chief surgeon: “That he never saw plaintiff look any better than he does now; he certainly looks good now — certainly has his weight.” The jury did not accept this optimistic version.

. All of the ailments, except the amputation of the foot, may, for convenience, be referred to as neurasthenia, a term suggested by the physicians who testified as expert witnesses. There was ample evidence for the jury to find that appellee was suffering from this neurasthenia at tire time of the trial as he had been since the injury. There was testimony that “this neurasthenia really incapacitates him more than his actual injury to the foot.” 'The evidence makes a sharp issue as to the cause of this neurasthenia. The testimony offered by appellant tended to show that appellee had the syphilis, which caused the neurasthenia. .For instance, appellant’s evidence was that appellee was paralyzed for several months during the latter part of 1915 and early part of 1916, which showed syphilis; that all the symptoms described as neurasthenia are also the symptoms of syphilis; that these symptoms were exhibited by appel-lee before his injury; and, finally, that Dr. Moore made a Wassermann test of appellee’s blood in July, 1917, which showed syphilis.

On the other hand, there was testimony for appellee that he never had syphilis; that his paralysis was caused by traumatism, of which he was pronounced cured by the physicians selected by appellant. In behalf of appellee there was testimony that he was strong and well when injured; that he showed no symptoms of neurasthenia until his foot was crushed; that there were no swollen glands nor bony formation along the shins, nor any syphilitic mark of any kind apparent upon him; and, finally, that two Wassermann tests, one made by Dr. Stout, at the request of appellant, the other by Dr. Hull, at the request of appellee, showed no trace of syphilis. The evidence upon this issue of fact was sufficient to sustain a finding either way, and was determined by the jury in favor of appellee.

The amount of the pain and suffering, the diminished capacity to labor, the probable permanency of the suffering, and the permanency of the diminished capacity to labor, were all questions peculiarly within the province of the jury to determine from the evidence which was before them. The facts show that appellee was 27 years of age at the time of the trial; had worked as switch tender for appellant for seven consecutive years, for which he was paid $65 a month. The efficiency of appellee shown by this long service for one master, arid the probable reward for such efficiency usually manifested by increased compensation, as well as his life expectancy, were all alike questions for the determination of the jury.

Erom the testimony we cannot say as a matter of law that the amount awarded was the result of passion and prejudice. Freeman v. Harrison, 143 S. W. 686; Union Pac. Ry. Co. v. Jones, 49 Fed. 346,1 C. C. A. 282; Griffith v. B. & O. Ry. Co. (C.C.) 44 Fed. 580.

We overrule the ninth assignment

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


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    J. C. ENGLEMAN LAND CO. et al. v. DONNA IRR. DIST. NO. 1 et al.
    (No. 6216.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 5, 1919.
    Rehearing Denied Feb. 26, 1919.)
    1. Waters and Water Courses <&wkey;224L-lR-bigation District — Nature—Dissolution —“Public Corporation.”
    In view of Rev. St. 1911, art. 1118, and articles 4991-5011, an irrigation district is a “public corporation,” which cannot be dissolved or have its powers destroyed at the suit of any one except the state.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Public Corporation.]
    2. Waters and Water Courses <&wkey;224 — Irrigation Districts — Receivers.
    A receiver cannot be appointed at the instigation of creditors to take charge of the affairs ■of an irrigation district, and consequently no restraining orders against its directors can be issued.
    ■3. Waters and Water Courses <&wkey;227 — Irrigation Districts — District Oeeioers — How Removed.
    A director of an irrigation district can be removed only in a proceeding conducted in the name of the state, as prescribed in Rev. St. 1911, arts. 6030, 6042, 6398.
    Appeal from District Court, Hidalgo County; V. W. Taylor, Judge.
    Suit by the J. C. Engleman Land Company ■and others against the Donna Irrigation District No. 1 and others. Petition for appointment of a receiver and restraining orders denied, and petitioners appeal.
    Affirmed.
    Jas. A. Graham, of Brownsville, for appellants.
    F. W. Seabury, of Brownsville, and Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellees.
   FLY, C. J.

This is an appeal from an or■der of a district judge, made in .vacation, denying the appointment of a receiver, and ■denying restraining orders as against the directors, agents, attorneys, and employes of the corporation, to prevent them from interfering with the receiver, and to deliver all property belonging to it. The suit was instituted by the Engleman Land Company against the irrigation district and G. B. Mer-riwether, F. G. Eppright, H. P. Jones, A. F. Hester, and A. T. Elliott, its directors, for a debt of $11,755.28, and in a subsequent petition the appointment of a receiver and a restraining order against the directors was sought, and in the alternative it was sought to remove the directors from office and restrain them from interfering with the management and control of the corporation. Nat Wetzel, claiming to be a voter in and resident of the district, intervened in the suit, adopting the pleadings of the plaintiff.

The Donna Irrigation District is a public corporation, organized uhder the statutes of Texas. Article 1118, and title 73, c. 2, Rev. St. It was created for a public purpose, and receives all its powers from the ■legislative act which created it, and cannot be dissolved, or have its powers destroyed, at the suit of any one except the state, from which it received its vitality. Kenney, Irr. and Water Rights,’ § 1404; Farnharu, Waters and Water Rights, § 617, p. 1942; 15 R. C. L. § 46, p. 495. As said by the Supreme Court of California, in People v. Irrigation Dist., 98 Cal. 206, 32 Pac. 1047:

“The defendant is a public corporation, organized under a general law of the state, enacted by the Legislature for the purpose of promoting the general welfare.”

The statute creating irrigation districts places their'management and control in the hands of the board of directors, and there is no provision for dissolving such corporations, or the appointment of receivers at the instance of creditors. As said in the California case, herein cited, irrigation districts are not clothed with all the powers of municipal corporations, and yet all their powers and duties are public, and a receivership could with equal propriety be granted to take charge of the affairs of a city or county as of an irrigation district. Being created for public purposes by the state, the state alone can dissolve such corporations or take charge of its affairs. Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369.

The statute gives the irrigation districts the authority to appoint boards of equalization to fix the value of taxable property, to receive the taxes when collected, to bring suits for taxes apd perform other functions which can be performed only by public corporations. A receiver could not be invested with any such powers, and to appoint one for a public corporation would be to indirectly dissolve it. The state alone can dissolve a public corporation. High on Receivers, § 403a; Thompson v. Allen County, 115 U. S. 550, 6 Sup. Ct. 140, 29 L. Ed. 472; Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197; Preston v. Sturgis, 183 Fed. 1, 105 O. C. A. 293, 32 L. R. A. (N. S.) 1020.

It follows that, if a receiver cannot be appointed for a public corporation, its directors cannot be restrained from performing the duties enjoined upon them by law. Indeed, under the pleadings of appellants, the restraint of the directors is made contingent-upon the appointment of a receiver.

There are no matters set out in the petition entitling appellants to an injunction. The supreme object of the proceedings was to place the property of the drainage district in the hands of a receiver, and the allegations were made with that end in view. If the receivership was properly denied, all restraining orders were properly denied.

Appellants have no right to demand the removal of a director of a public corporation. He is an officer elected by the voters •of his district, and can be removed only in a proceeding “conducted in the name of the ‘state of Texas,’ upon the relation of the person filing the same.” Rev. St. arts. 6030 and 6042; Hendricks v. State, 20 Tex. Civ. App. 178, 49 S. W. 705. In the case cited it was held that a school trustee was a county •officer, and subject to the rules laid down as to the removal of county officers, and undoubtedly a director of an irrigation district would also be a county officer, within the •purview of the statute. The board of directors of irrigation districts have extraordinary powers conferred upon them, and can •be removed only as other county officers are .removed.

If, by any act of his, any director has forfeited his office, he can be removed from office only in the name of the state of Texas, -as prescribed by statute. Rev. St. art. 6398.

The judgment is affirmed.
      (&wkey;>For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    TANTON v. TANTON.
    (No. 909.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 6, 1919.
    Rehearing Denied March 6, 1919.)
    1. Marriage <©=>40(6) — 'Validity—Presumption.
    That persons were married and for several years thereafter lived together is sufficient prima facie to raise a presumption of fact that the prior marriage relation of one of them with another had been dissolved.
    2. Divorce <©=>54 — Cruelty — Recrimination.
    Accusations, recrimination, and conduct of wife towards husband must be considered as against her claim for divorce for cruelty.
    3. Divorce <©=>186 — Appeal—Reversal—In- , sufficient Evidence.
    There not being in the opinion of the appellate court the full and satisfactory evidence required by Rev. St. art. 4633, for divorce, it has the .duty and authority to set aside the decree and reverse.
    4. Husband and Wipe <S=>47(3) — Conveyance — Consideration — Resumption op Marital Relations.
    Resumption of marriage relation by wife after separation is not a valid consideration for deed from him to her.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by Mary H. Tanton against Nathan W. Tanton, for divorce. Decree for plaintiff, and defendant appeals.
    Reversed and remanded.
    M. W. Stanton, of El Paso, for appellant.
    W. W. Bridgers, of El Paso, for appellee.
   HIGGINS, J.

Mary H. Tanton, appellee, sued her husband, Nathan W. Tanton, for a divorce, alleging that he had been guilty of excesses, cruel treatment, and outrages of such nature as to render their living together insupportable; and for partition of an undivided one-half interest in a tract of land which she claimed as her separate property. The undivided one-half interest in this land was conveyed to Mrs. Tanton by Mr. Tanton while they were husband and wife. There had been a previous separation of the parties, prior to the separation out of which the present divorce suit originated. Upon the previous separation a reconciliation had been effected, and the deed by Tanton to his wife was made and delivered at that time. Appellant vigorously contested the suit for divorce, and by cross-action sought to have the deed mentioned set aside and canceled.

• Upon trial before a jury the case was submitted upon special issues, all of which were answered in Mrs. Tanton’s favor. Judgment was rendered for a divorce with recovery and partition of an undivided one-half interest in said land. Partition .of the community estate was also ordered.

We shall not attempt to follow the specifications of error as they are presented in the brief. Under the view of the case which we have, it is sufficient to indicate our holding upon the salient and controlling features of the case.

1. The record discloses that Mrs. Tan-ton, formerly Gavin, was married in Austin, Tex., .on December 21, 1909, to one Charles Schaeffer. On November 17, 1910, she was married to Mr. Tanton in El Paso, Tex. ■ There was no direct evidence offered to show that she had been divorced from Schaeffer prior to her marriage to Tanton. On the trial, appeílant requested the submission of instructions, which, in effect, were peremptory instructions to find against Mrs. Tanton upon her right to divorce. These charges were requested upon the theory that she had not shown a valid marriage to Mr. Tanton because at the date of her marriage she vas not divorced from Schaeffer. Since the record discloses that Mr. and Mrs. Tanton were of full age on November 17, 1910, and upon that date a marriage ceremony between them was performed; that for several years thereafter they lived together as husband and wife, it would have been improper to have given a peremptory instruction based upon the assumption that the marriage relation between Mrs. Tanton and Schaeffer had not been dissolved at the time she married Tan-ton. In the absence of any direct evidence upon the subject, the facts stated were sufficient prima facie to raise a presumption of fact that prior to November 17, 1910, the marriage relation between Mrs. Tanton and Schaeffer had been dissolved. Nixon v. Wichita L. & Co., 84 Tex. 408, 19 S. W. 560; Cuneo v. De Cuneo, 24 Tex. Civ. App. 436, 59 S. W. 284; Kinney v. Telephone Co., 201 S. W. 1180; Wingo v. Rudder, 120 S. W. 1073; Harvey v. Carroll, 72 Tex. 63, 10 S. W. 334; Hammond v. Hammond, 43 Tex. Civ. App. 284, 94 S. W. 1067.

2. Those assignments are sustained which complain of the sufficiency of the evidence to sustain the decree of divorce. To detail the incidents which resulted in the separation of the parties and institution of this suit would serve no useful purpose. Since its publication is not required to illustrate the principles upon which this holding is based, and in view of the fact that much of the evidence is of an indecent nature, we refrain from quoting it. It is sufficient to say that the evidence abundantly and conclusively . shows such recrimination on the part of Mrs. Tanton' as to require reversal of the judgment rendered in her favor. The undisputed testimony of her neighbors and friends who visited the home of the parties show accusations made by her against her husband and conduct on her part towards him which must be considered in determining her right to a divorce arising out of the matters complained of by her. The marriage relation is a sacred matter. It is not to be lightly assumed nor lightly dissolved. It imposes mutual obligations of kindness and forbearance to each other. The view of our courts upon this subject have been repeatedly stated. Among the many cases where recrimination has been held to bar suit for divorce, see Hale v. Hale, 47 Tex. 342, 26 Am. Rep. 294; Jones v. Jones, 60 Tex. 451; Bohan v. Bohan, 56 S. W. 959. As to the duty and authority of this court to set aside the decree and reverse on the evidence, see article 4633, R. S.; . De Fierros v. Fierros, 154 S. W. 1007; Moore v. Moore, 22 Tex. 240; Paulson v. Paulson, 21 S. W. 778; Dickinson v. Dickinson, 138 S. W. 205; Lohmuller v. Lohmuller, 135 S. W. 751; Grisham v. Grisham, 185 S. W. 959.

3. The present separation took place in 1917. There had been a previous separation and reconciliation. Appellant contends that his deed to Mrs. Tanton was invalid, and should be set aside because it was executed upon consideration of Mrs. Tanton resuming the marital relation. Our views upon the validity of a deed executed upon such consideration are stated in McKay v. McKay, 189 S. W. 520. Under the twenty-second and twenty-third assignments, appellant complains of the refusal to submit to the jury the issues of fact upon his contention in this respect. Upon retrial, if raised by the pleading and evidence, a properly framed charge upon this phase of the ease should be given.

Reversed and remanded.
      <©=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    NORTHERN ASSUR. CO. et al. v. LAWRENCE.
    (No. 1476.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 12, 1919.
    Rehearing Denied March 5, 1919.)
    1. Insurance <©=>389 (2) — Eire Policies— Waiver op Conditions.
    Conditions of forfeiture, because insured was not the unconditional owner, are waived where agents of insurer knew, at time of issuance of policy, that insured was not the unconditional owner.
    2. Insurance <©=143(7) — Eire Policies — Description.
    If by mutual mistake or fraud property was omitted from the policy, the insured, to recover, must set up facts which would authorize reformation of the policy and seek recovery as if it were reformed.
    3. Insurance <©=163(5) — Fire Policies — Description.
    Eire policies, describing goods as a stock consisting of display woolens and clothing, do not include clothing belonging to customers of the insured, a tailor, which was in his hands for repairing or pressing.
    4. Insurance <©=648(2) — Eire Policy — Action — Evidence.
    In an action on a fire policy, which insured claimed covered clothing of customers in his possession for cleaning and pressing, where insured's predecessor, to whom the original policy, of which the one involved was a renewal, was issued, testified he told the agents he wanted the policy to cover such clothing, the agents may testify that insured’s predecessor was told such clothing could not be insured.
    5. Insurance @=648(2) — Eire Policy — Action — Evidence.
    Statements by agents who wrote a fire policy, made after loss, as to their opinion of the meaning of the description, are not admissible, unless they be an expression of the understanding of the terms of the policy had at .the ■time of issuance.
    6. Evidence @=>244(13) — Fire Policy — Action.
    The statements of an agent, construing a fire policy after loss, are not admissible against the insurer to show the property included.
    Appeal from Potter County Court; T. W. McBride, Judge.
    Actions by J. W. Lawrence against the Northern Assurance Company and against ■the Commercial Union Eire Insurance Company, which were consolidated by agreement.
    Prom judgments for plaintiff, defendants appeal. Reversed and remanded.
    Locke & Locke, of Dallas, and Yeale & Lumpkin, of Amarillo, for appellants.
    L. C. Barrett and J. N. Browning, both of Amarillo, for appellee.
   BOYCE, J.

Appellee, Lawrence, brought two suits, one against the Northern Assurance Company and one against the Commercial Union Pire Insurance Company, on policies of fire insurance issued by said respective companies. The policies were alleged to insure the same goods alleged to have been destroyed by fire, and the suits were consolidated by agreement. A trial resulted in judgment for appellee on said respective policies.

Appellee was conducting a tailor shop, and ■the goods destroyed by fire, for the loss of which the suit was instituted, consisted of ■clothing belonging to his customers and in his possession for cleaning, pressing, and repair, and the principal defense relied upon •by appellants was that the policies did not ■cover these goods. The policy of the Northern Assurance Company was issued in the name of Brooks & Haley, the trade-name under which the appellee was doing business, •and the goods insured thereby were describ■ed in a form attached to the policy, entitled “Mercantile Stock Form,” as follows:

“$250.00 on their pressing machine. $250.00 on their stock, consisting of display woolens and clothing.”

The policy of the Commercial Union Fire Insurance Company was issued to J. C. Haley, who at the time of its issuance owned and conducted the tailor shop, and who later sold to appellee, Lawrence, the policy being ■transferred to him, and the property was described in a form attached to the policy and likewise entitled “Mercantile Stock Form,” as follows:

“$400.00 on his stock of merchandise, consisting principally of display woolens. $400.00 on his store and office furniture and fixtures, etc. $300.00 on clothing, while contained in the above-described building.”

Each of the policies provided that it should be void “if the interest of the insured in the property be other than unconditional ownership,” and that the company should not be liable, “unless liability is specifically assumed hereon for loss to property held on storage or for repairs.” In reply to the pleadings of the defendant setting up these matters, the appellee pleaded that it was the mutual intention of the parties to the insurance contracts that they should include the character of property destroyed, and that, if the policies did not by their terms do so, the failure to properly describe the property intended to be insured was the result of mutual mistake.

He also pleaded that the agents of the insurance companies knew, at the time of writing the insurance, that the clothing in the building was of the character stated and that by accepting the insurance and issuing the policies with such knowledge, any forfeiture on account of the fact that plaintiff was not the owner of the goods was thereby waived, and that the defendants were estopped from denying that the said goods were so insured.

The theory of mistake seems to have been abandoned, and the case tried on the pleadings of waiver and estoppel.

If the description in the policies are sufficient to identify and include the property burned then the conditions of forfeiture, on account of the insured not being the sole and unconditional owner thereof, would be waived if the agents knew at the time of the issuance of the policies that the insured was not the owner of the goods. Wagner v. West-chester Fire Insurance Co., 92 Tex. 549, 50 S. W. 569, and many other authorities to the same effect; 10 Michie’s Digest, p. 619. If, however, the property destroyed does not come within the description of the goods sured by the terms of the policy, then have no insurance contract evidenced policy, and the theory of waiver of forfeituUSs as established by the decisions referred to, is not properly applicable. If it was the intention of the parties to contract for the insurance of the goods and this intention, by mutual mistake, or mistake on the part of ap-pellee and fraud or inequitable conduct on the part of appellants, was not expressed in the policies, then appellee, in order to recover, must set up such facts as would authorize a reformatipn of the policy, and seek recovery thereon as if it were reformed to express the terms of the contract intended. Ætna Insurance Co. v. Brannon, 99 Tex, 391, 89 S. W. 1057, 2 L. R. A. (N. S.) 548, 13 Ann. Cas. 1020; Delaware Insurance Co. v. Hill, 127 S. W. 286, 288; Conn v. Hagan, 93 Tex. 334, 55 S. W. 325; Pomeroy’s Equity Jurisprudence (3d Ed.) § 1376.

We do not think that the policies describe the clothing that was burned. The description contained in the filled-in portion of the policy of the Northern Insurance Company, “stock, consisting of display woolens and clothing,” occurring in 'a form entitled “Mercantile Stock Form,” clearly does not embrace the character of goods burned. They could not, with any propriety, be classed “stock,” “mercantile stock,” or “stock in trade.” There might be some ambiguity on the face of the description in the form attached to the policy of the Commercial Union Eire Insurance Company, but in both policies the provision that there was to be no liability for goods held on storage or for repair would make it evident that it was not the intention of the policy to apply to the character of goods burned. If recovery is to be had on these policies, then it must be under allegations and proof of facts that would authorize the reformation of the contracts as above stated. The case was submitted to the Jury on a wrong theory of the law, and while the issues of fact submitted in the charge were relevant to a decision as .to the right of appellant to recover, not all the facts necessary to such right were submitted, so that we must sustain the objections to the charge of the court.

It was error for the court to exclude the evidence of W. A. Askew as to the conversation had with J. C. Haley, prior to the issuance of the first policy written by the Commercial Union Eire Insurance Company. Appellee had introduced the testimony of J. C. Haley, from which it -would appear that prior to taking out insurance he told Askew that he wanted the insurance to cover everything in the building, the clothing of his customers held for cleaning, etc., as well as his own clothing, and that he trusted the insurance agents to see that the policy covered everything intended to be insured, and from which testimony and that of plaintiff it would appear that the acts and conduct of the insurance agents, Askew, and Saunders, his partner, were such as to indicate either that it was their intention to cover such goods by the terms of the policies issued by them, or that a denial that such was their intention could not be in good faith asserted. It was offered to be proven in this connection that the policy sued upon was a renewal of a previous policy, issued to the said J. ’ C. Haley, under the circumstances stated; in fact, it would appear from plaintiff’s own testimony that such was a fact. Surely, then, Askew’s evidence, in contradiction of the testimony of Haley, offered by appellee, to the effect that he explained to Haley that the clothing held for cleaning and repairs could not be insured, would be admissible.

No statements made by- the insurance agents, Ordway, Bird, Saunders, or Askew, after the fire, as) to the liability of the company, and their opinion as to what the description of the policy meant, would be admissible, except where it might reasonably be concluded, from the circumstances of the making of the statement, that it was an expression of an understanding of the terms of the policy, had at the time of the issuance thereof, in which event the testimony would, in our opinion, be admissible for the purpose-of showing a continuing mistake under which such parties were as to the terms of the policy, as expressing the intention of the parties. The statements made by Saunders,, taken alone, referred to in the seventh assignment, do not appear to be admissible under the conditions stated. The testimony of' appellee and of Mrs. Whorton, as to statements made by Askew in their presence after the fire, was not admissible. It appears that these statements were made after an examination of the policy, and the conclusion then, stated as to the meaning thereof was different' from what he thought before such examination, as he appears to have stated at. the time that he did not think — that is, before' the examination — that the policy covered, these goods. The insurance company could not be bound by the agent’s interpretation of the contract after the fire, and as the statements contradict the idea that it had been his understanding at the time the policies-were written that they included these goods, we do not think they are admissible. The-insurance agent, Bird, did not appear to have-had anything to do with the writing of the policies, and his statements in regard to liability are not admissible. Neither do we think the statements of the adjuster were admissible.

Eor the reasons stated, the judgment is. reversed, and the cause remanded.
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text:
    WOODBURY et al. v. GALVESTON, H. & S. A. RY. CO.
    (No. 902.)
    (Court of Civil Appeals of Texas. El Pasoi.
    Eeb. 6, 1919.
    Rehearing Denied Feb. 27, 1919.)
    1. Commerce ⅞=^>47 — Interstate Commerce. — Round-Trip Ticket from Foreign Country.
    As regards law governing limiting of liability for loss, in the United States, of baggage of a passenger being transported under a ticket bought in Canada for a trip to Texas and return, act of Congress regulating commerce does-not apply; there being neither interstate nor foreign commerce.

      2. Commerce @=o47 — Passengers — Foreign -Country — Loss of Baggage — Law Governing.
    The law of Canada governs as to right of carrier to limit liability in case of loss in United States of baggage of passenger traveling on a ticket for transportation from Canada to Texas and return.
    3. Evidence <®=o81 — Presumption — Law of Canada.
    In the absence of evidence, it will be presumed that, like the laws of Texas, the laws of Canada do not permit a carrier to limit its common-law liability for loss of baggage.
    Error from District Court, El Paso County; P. B. Price, Judge.
    Action by Mrs. L. H. Woodbury and husband against the Galveston, I-Iarrisburg & San Antonio Bailway Company. Plaintiffs had judgment for less than claimed,' and bring error.
    Reversed and rendered.
    Rufus B. Daniel, of El Paso, for plaintiffs in error.
    Beall, Kemp & Nagle, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for defendant in error.
   Statement of Case.

HIGGINS, J.

On January 25, 1917, Mrs. Woodbury purchased from the Tfemiskaming & Northern Ontario Railroad Company, at Timmins, in the Province of Ontario, Dominion of Canada, a coupon ticket good for transportation from Timmins to El Paso, Tex., and return. At San Antonio, Tex., she boarded a train of appellee for passage to El Paso, traveling upon said ticket. At San Antonio she checked her trunk to El Paso, and it was transported upon the same train as that upon which she was traveling. The baggagemaster at San Antonio issued to her an ordinary baggage check for the trunk. It contained no limitation of liability. The baggage was checked and transported free of charge upon the ticket Mrs. Woodbury was traveling upon. The ticket was not offered in evidence, and the record is silent as to whether or not it contained any limitation of liability. The train carrying Mrs. Woodbury and her trunk was wrecked between San Antonio and El Paso, and the trunk was destroyed by fire originating from the wreck. She brought this suit against appellee to recover the sum of $555.75, the alleged value of the trunk and its contents.

The following special plea was interposed by defendant:

“Further answering, defendant says that, if plaintiff’s trunk and contents were lost or destroyed or not delivered to plaintiff, the same occurred during the year 1917, to wit, during the month of March, 1917, and that at the time the plaintiff L. H. Woodbury was traveling on an interstate or international ticket, purchased by her during the year 1917, from some point in Canada and over a route extending through the various states of the United States into and through the state of Texas, and that said trunk and baggage whs cheeked from San Antonio, Tex., to Ei Paso, Tex., on said interstate or international ticket, and was and is interstate commerce, and the said plaintiff was then and there traveling on said- ticket as a part of her trip which she was then and there making from the Dominion of Canada, through the various states of the Union, into and through the state of Texas, and was and is governed by the laws of the United 'States and the rules and regulations of Interstate Commerce Commission, and the said ticket was purchased during the year 1917, and that at the time bf the purchase of said ticket and at the time of checking of said baggage, the defendant, Galveston, Harrisburg & San Antonio Railway Company, had duly promulgated and filed with the Interstate Commerce Commission its tariffs, rates, fares, and charges for transportation between different points on its lines, and of the amount of baggage checked on each ticket, and of the value of said baggage, and that under the terms of said tariffs, rates, and charges so filed with the Interstate Commerce Commission, and which had theretofore been approved by the Interstate Commerce Commission, and were then -and there in force, and had been duly posted, it was specially provided that the valuation of said baggage was limited to the sum of $109, unless a greater value was declared and paid for by the passenger, and that said tariffs, rates, and schedules contained provisions limiting the free transportation of baggage on the lines of the defendant company between San Antonio and El Paso and elsewhere to certain weight and the liability of the defendant company to $100, and which tariffs, rates, and schedules had a table of charges for excess weights and of excess values, which specially provided that for excess values in excess of $100, or fractional part thereof, an additional or special charge would be made, and defendant alleges that the said tariffs, rates, and schedules were then and there in full force and effect, and that plaintiff did not declare a greater value than $100, andv did not pay for any excess value over and above $100.
“Plaintiff alleges that, amongst other things, the said tariffs provided as follows: [Here is quoted regulations filed with the Interstate Commerce Commission hereinafter shown],
“And defendant alleges that the plaintiff did not, when she checked said baggage, or at any time, declare the value of the baggage so checked to be in excess of $100, and did not pay for any weight in excess of 150 pounds, or for any value in excess of $100.”

Upon, the trial, appellee proved the promulgation and filing with the Interstate Commerce Commission of its tariffs, rates, etc., as alleged and its approval by the commission. It was shown that a copy thereof was on file in the San Antonio office of defendant. It was also shown that there was hung in the depot waiting room at San Antonio over the ticket office, and also in the baggageroom, a sign which reads:

“Galveston, Harrisburg & San AntJnio Railway Company.
“Complete published files of this company’s tariffs are located at
“General Freight Office, Houston, Texas (for freight.)
“General Passenger Office, Houston, Texas (for passengers.)
“The rate and fare schedules applying from or at this station and indices of this company’s tariffs are on file in this office and may be inspected by any person upon application, and without the assignment of any reason for such desire.
“The agent, or other employs on duty in the office, will lend any assistance desired in securing information from or in interpreting such schedules.
“J. R. Christian, General Freight Agent.
“T. J. Anderson, 'General Passenger Agent.
“C. K. Dunlap, Traffic Manager.”

Mrs. Woodbury made no declaration to ap-pellee of any increased valuation of the trunk, and paid no additional charges in that connection; it appearing that the trunk was checked and transported upon the ticket purchased by Mrs. Woodbury as aforesaid. Mrs. Woodbury had no actual knowledge of the matter relied upon by defendant as limiting its liability for loss of baggage. No agent of defendant informed her at the time she checked her baggage of any limitation of liability if the same was lost.

The case was tried before a jury and submitted upon one special issue, viz.: What was the reasonable value of the trunk and its contents at the time of its loss? This was answered, “$500.00.” Upon this answer the court entered judgment in plaintiff’s favor for $100, from which she appeals, assigning as error the failure to enter judgment for the full value of the trunk and its contents as found by the jury. The correctness of the court’s action in this matter is the question presented for review.

Opinion.

It is the contention of appellant that since the contract of carriage was made in Canada, her rights are governed by the law of that Dominion; and since the record is silent as to the law of Canada, it will be presumed to be the same as the law of Texas, under which a common carrier is not permitted to limit its common-law liability.

On the other hand, appellee contends that the act of Congress regulating common carriers of interstate and foreign commerce, especially the so-called “Cummins Amendment” (Act of August 9th, 1916, c. 301, 39 Stat. 441 [Comp. St. §§’ 8592, 8604a]) is applicable, and under this law the limitation of liability is valid and binding upon Mrs. Woodbury. Since the record is silent as to the law of Canada, it will be presumed to be the same as that of the forum. Mrs. Woodbury is seeking to enforce her rights in the courts of Texas. If the facts show that the contract between the parties is governed by the Acts of Congress, then it would be the duty of the courts of Texas to- enforce those acts. And if the Acts of Congress are applicable, then* it would seem the correct judgment was rendered by the court below. Boston & Maine Railroad Co. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 D. Ed. 869, D. R. A. 1915D, 450, Ann. Cas. 1915D, 593.

The entire commerce of the United States, foreign and interstate, is subject to the provisions of the act of Congress. Texas & Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 16 Sup. Ct. 666, 40 L. Ed. 940. The case just cited and Texas & New Orleans Ry. Co. et al. v. Sabine Tram Co., 227 U. S. 111, 33 Sup. Ct. 229, 57 L. Ed. 442, are relied upon by appellee as bringing the shipment of the trunk within the provisions of the Interstate Commerce Law. Act Feb. 4, 1887, c. 104, 24 Stat. 379.

In the Texas & Pacific Railway Company Case, the court considered the validity of a regulation by the Interstate Commerce Commission of rates, to be charged in the United States for freight originating in a foreign country and transported upon through bill of lading to a point in the United States. While the particular regulation was not upheld, the power to regulate the rate was sustained.

/ In the Texas & New Orleans Railway Co. Case, it was held that a shipment destined by the purchaser for export, made by the seller -under a local bill of lading from an interior point in Texas to a Texas Gulf port, at which the lumber was unloaded without delay by the purchaser’s order into slips or docks in reach of ship’s tackle and was then loaded into chartered ships by which it was carried to a foreign port — such shipment not being an isolated one but typical of many others — constitutes foreign commerce, and, as such, was governed by the tariffs on file with the Interstate Commerce Commission, to the exclusion of the rights established by the state Railroad Commission, although the seller had no connection with the lumber after it reached the railway terminus and had no concern with its destination after it came into the hands of the purchaser, and no knowledge thereof, and although the lumber had no definite foreign destination at the time of the initial shipment.

These cases are not regarded as in point. In the first case, the freight originated in a foreign country and was transported upon through bill of lading to a point in the United States. In the second case, the freight originated and was shipped from an interior point in the United States to a foreign country. Mrs. Woodbury’s contract was not of that nature. The contract was made at Timmins, in Canada, and called for transportation from such point in Canada to a point -within the United States and return to the point in Canada. The trunk in question was being transported upon this ticket, and was lost upon one stage of the journey in the United States. An inspection of the “Cummins Amendment” approved August 9, 1916, will disclose that it in no wise relates to a contract made in a foreign country for transportation over the rails of common carriers, when such contract is to be begun and completed in such foreign country. In this connection, see recent decision of the Interstate Commerce Commission in Re Heated Car Service Regulations, I. & S. Docket No. 1155, decided July 23, 1918, reported in 50 Interst. Com. Com’n R. 620.

Neither do we think that the contract in question falls within the provisions of section 1 of the original act to regulate commerce and its amendments. Section 8563, U. S. Compiled Statutes 1918. This conclusion we think is supported by holdings to which we will now advert.

In the case of U. S. v. Philadelphia & Reading Ry. Co. (D. C.) 188 Ped. 488, it appears a cargo of sugar was shipped from Hamburg, Germany, destined to Philadelphia for transportation in bond to Raymond, in the province of Alberta, Dominion of Canada.. The Philadelphia & Reading Railway Company carried this shipment over a part of the route within the United States at a less rate than would have been lawful if the shipment had originated at Philadelphia. The charging of this rate was alleged by the United States to be a criminal offense. The court held that the act of Congress concerning interstate commerce did not apply to a cargo shipped from Hamburg, Germany, destined as stated in the bill of lading, to Philadelphia, for transportation in bond to Alberta, Canada, and taken to its destination by continuous and uninterrupted transportation, at the hands of successive carriers; there being no delivery or change of title, but the different carriers merely assisting in a continuous transportation from one foreign country to another.

In the matter of Canales v. G., H. & S. A. Ry. Co., 37 Interst. Com. Com’n R. 573, there was a shipment of sugar from Piedras Ne-. gras, Mexico, through Eagle Pass, Tex., destined to Agua Prieta, Mexico, and which was reconsigned at Eagle Pass to El Paso. The defendant waybilled the shipment in accordance with the terms of the original bill of lading to Douglas, Ariz., the point within the United .States nearest to Agua Prieta, Mexico, and the shipment moved from Eagle Pass, through El Paso, Tex., to Douglas, and five months later was shipped back to El Paso, through Hachita. Canales sought a refund of all charges paid in excess of those which would have accrued for the transportation from Eagle Pass to El Paso if the shipment had moved in accordance with the shipper’s instructions. The Interstate Commerce Commission, in passing upon the application, said:

“The overcharges in issue accrued within the United States on traffic moving from a point in Mexico td another point in Mexico. Such transportation is not embraced within the terms of the Act to Regulate Commerce. In U. S. v. P. & R. Ry. Co. (D. U.) 188 Fed. 484, it was held that the so-called Elkins Act is inapplicable to the continuous transportation of goods in bond from a foreign country through the United States to a foreign country. Following that case, in Seymour v. M. L. & T. R. R. & S. S. Co., 35 Interst. Com. Com’n R. 492, which involved alleged overcharges on shipments of sugar from Germany through New Orleans to Eagle Pass and El Paso, destined to points in Mexico, we said that — ‘The sugar was transported from a ’nonadjacent foreign country through the United States to destination in an adjacent foreign country.’ ”

Now, as shown by the facts in this case, Mrs. Woodbury was traveling upon a ticket purchased in Canada which called for transportation from a point in Canada to a point in the United States and return. She was traveling upon that contract, and her trunk was being transported by virtue thereof, when the trunk was lost in the United States by one of the carriers engaged in performing the contract. The contract called for transportation from a point in Canada through the United States and back to the point in Canada. Upon the two authorities last cited, it seems that the act of Congress regulating commerce does not apply to the transportation in question. This being true, the courts of Texas must apply the law of Texas. Under the law of this state, the attempted limitation of liability by a railroad company for lost baggage is invalid. Mexican & National Railroad Co. v. Ware, 60 S. W. 343; Railway Co. v. Maddox, 75 Tex. 300, 12 S. W. 815; Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834.

We are therefore of the opinion that the court below erred in limiting appellant’s recovery to $100. The judgment of that court is reversed, and here rendered in favor of appellant for the sum of $500.

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