author: RAINEY, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. SEEGER.
    (No. 7269.)
    (Court of Civil Appeals of Texas. Dallas.
    April 3, 1915.)
    1. Railroads <&wkey;73 — Traffic Contracts — Contract to Deliver over Spur Track.
    Where plaintiff’s lessor had the right to the use of a spur track under a contract with defendant railroad, plaintiff, a dealer in wood, coal, gravel, etc., had all privileges pertaining to such use for carrying on the business in which he was engaged, whether to receive goods ever the track, which he owned, or goods which he ivas to hold for the owners merely as bailee, whether or not he was paid for his services.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 179-182; Dec. Dig. &wkey;>73.]
    2. Carriers <&wkey; 18 — Discrimination — Statute.
    Under Rev. St. art. 6670, defining and prohibiting unjust discrimination on the part of any railroad, where defendant road refused to deliver to plaintiff, who dealt in wood, coal and building materials, all shipments consigned to him, whether or not he was owner thereof, a distinction not drawn in the case of others similarly situated on a spur track, the road was guilty of an unjust discrimination, and, pending a final determination of plaintiff’s right, he was entitled to have a temporary injunction ordering the road to extend to him the same privileges as were given to others.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 13, 16-18, 20, 24; Dee. Dig. <5&wkey; 18.1
    3. Carriers &wkey;>18 — Discrimination — Statute.
    Under Rev. St. art. 6670, defining and prohibiting unjust discrimination on the part of any railroad, a road, by refusing to deliver to one doing business on its spur track shipments from localities or persons not served by its own line, but by connecting lines works an unlawful discrimination against such localities or persons that may be enjoined.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 13, 16-18, 20, 24; Dec. Dig. <&wkey;> 18.]
    4. Carriers &wkey;>18 — Contract to Deliver on Spur Track — Enforcement.
    By the lease of the premises used in his business, plaintiff had the right to receive deliveries over a spur track of the defendant railroad, a contract between the defendant road, the city, and plaintiff’s lessor for the construction of such track, embodied in a city ordinance granting a franchise for 20 years, having nearly that period of time to remain in effect. Held that, when full use of such track was denied to plaintiff by the road, a mandatory injunction compelling the road during the pendency of the suit to deliver upon such track all cars of material consigned to the plaintiff was proper, though not limited to the time that plaintiff might operate the track.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 13, 16-18, 20, 24; Dec. Dig. <i&wkey;18.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by J. B. Seeger against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    C. C. Huff and J. M. Chambers, both of Dallas, for appellant. Etheridge, McCormick & Bromberg, of Dallas, for appellee.
   RAINEY, C. J.

“This is an action by appellee for a temporary writ of mandatory injunction to require appellant to deliver upon a certain industry track in the city of Dallas all cars of wood, coal, and building material consigned to appellee or J. B. Seeger & Co., which may be placed upon the interchange track of appellant at Dallas by other lines of railway entering said city. Upon a hearing had. after notice the court, on June 27, 1914, granted the petition and caused to be issued the temporary writ of injunction, whereby appellant is enjoined from failing to switch and transport from the intersection of its line of railway with all other lines entering Dallas to the Moberly spur track and stop thereon all cars of wood, coal, and building material consigned to appellee or J. B. Seeger & Co., from which judgment of the court appellant perfected its appeal.” Ap-pellee’s petition in substance—

“alleges that he is engaged in the business of dealing in wood, coal, gravel, and building material in the city of Dallas, which he purchases at various points outside of the city upon lines of railways other than of appellant; that he is the owner, as lessee, of a certain switch track in the city of Dallas, which connects with appellant’s line of road, and with no other road in said city, which is known as the ‘Moberly City Switch,’ and owns land adjacent to said switch, upon which is located his bins and offices used in connection with his said business. He alleges it to be the duty of appellant, upon the payment of proper charges, to deliver to him upon said switch all cars of such wood, coal, gravel, and building material consigned to him from points on other lines of road outside of Dallas which may be tendered to appellant upon its exchange track by such other lines over which such material reaches Dallas, and that a certain car of gravel which reached Dallas over the St. Louis, San Francisco & Texas Railway Company, and placed upon the exchange track of said last-named company and appellant, had not been delivered to him upon said Moberly city switch by appellant, though due notice thereof had been given appellant, and a request made for its delivery upon said switch, and further alleges that defendant had threatened to continue to refuse to transport and set over to said Moberly spur track such cars of material as reached Dallas over the lines of other railway companies, alleging such refusal to arise out of a personal animosity of J. L. West, appellant’s traffic manager, toward appellee. He further alleges such failure to deliver such cars to be an injury to his business, causing him irreparable damage not measurable according to the rules of the common law, and that there exists an immediate necessity for the delivery of said car of gravel, and of all other cars ordered and to be ordered by appellee and tendered to appellant for delivery upon said spur track, and alleges, further, that appellant has heretofore recognized appellee’s right to have such cars shipped to said spur track by customarily switching same thereto, and prays for a temporary writ of injunction as above stated. After the filing of said petition, and notice thereof to appellant, and before the hearing, appellant filed its reply thereto, denying that it had ever failed to extend to appellee all such service as he was legally entitled to receive in connection with the said Moberly spur track, and denied that it has ever refused, or was then refusing, to make such deliveries upon said spur track as appellee was entitled to have made, and alleged that said track was an industry track built upon the land of A. F.. Moberly under a contract, by the terms of which said Moberly was to have all the rights and privileges in the use of said track as pertain to private industry tracks, except a certain use granted to the city of Dallas. It further alleged that appellee was demanding that he be permitted to use said industry track as a team track for the unloading of cars of gravel and other building material belonging to other people having no rights to the use of such industry track, which appellee has caused to be consigned to him, so as to enable him to procure the delivery thereof upon said industry track, and for which use of said track by such third parties ap-pellee charged and received from them a certain price per car, and that such material was not to be used by appellee in connection with his business, but to be unloaded upon wagons from the cars by the owners of such material, and appellant further alleged that the said industry track was not a part of its switch yards of the city of Dallas, and was not suitable for or intended as a team track, except as to material for improvements consigned to the city of Dallas. By a supplemental answer filed, pending the hearing of said application, and after appellee had testified in reference to the car of gravel, appellant conceded his right to have the specific car of gravel mentioned in his petition delivered to him upon said spur track, upon the showing made by him that the same was to be unloaded at his place of business, and not upon wagons for hauling from the car, and by said supplemental answer appellant consented to deliver the car of gravel upon said industry track as soon as same was placed upon its transfer track by the said St. Louis, San F'rancisco & Texas Railway Company, over whose line said car reached the city of Dallas.’’

Appellee claims his right in the use of the spur track in question under the contract made by A. F. Moberly with appellant, dated April 13, 1909, appellee being the lessee of Moberly. Said contract recites in substance:

“That said Moberly, desiring the railway company to construct and operate a switch or spur track over and across his tract of land, and in consideration of the conditions to be performed, leases to the said railway company a strip of land 20 feet in width, or 10 feet on each side of the center line of the spur track previously constructed by appellant on said premises, which are fully described in said contract; the contract reciting that the lease is ‘for such length of time as the party of the first part shall maintain and operate said switch and spur track.’ The appellant is named in the contract as the party of the first part. In paragraph 3 of the contract it is provided: ‘The party of the first part hereby agrees to construct, maintain, and operate upon said land the switch or spur track above mentioned, giving to the party of the second part in connection therewith all the rights and privileges as to the use of the track that pertain to private industry tracks, except as herein stated; but the material used in the construction and maintenance of said track shall be and remain the property of the party of the first part.’ The track is to remain the property of appellant, but said Moberly is to have ‘all the rights and privileges as to the use of the track that pertain to private industry tracks, except as stated in said contract, which gives to the city of Dallas the right to use the first 200 feet from the east line of the Cedar Springs street for loading and unloading material for the city.’ ”

This spur is situated, about 1% miles from the main yards and freight depot of appellant. Appellee was a dealer in wood, coal, gravel, and building material, and his place of business was situated on said spur. Most of the goods consigned to him at said place of business were owned by him, but some of them he did not own, but was bailee, in that he received the goods from the appellant for the owner, paid freights that were to be paid at destination, looked after the reception and unloading of the car, had it unloaded to teams if desired by the owner, or, if the owner desired, stored it on appellee’s premises until such time as the owner saw fit to move it away. Appellee’s business ran along smoothly until a controversy arose between appellant’s general freight agent, J. L. West, and appellee, concerning the removal of an office which appellee had situated on or near the right of way. This engendered such a feeling on the part of Mr. West that he stated to appellee: “Well, if I had the power, I would run you off the system.” 'After this appellee had considerable trouble getting goods delivered to him on said spur that arrived over lines at Dallas, Mr. West instructing local agents not to deliver at such switch to appellee freight consigned to him, unless appellee could first satisfy them that the said freight would not be unloaded from the car into wagons for hauling from the premises. At that time appellant was permitting any freight which arrived over other roads to be unloaded there. There arrived at Dallas a car of gravel over the Frisco road consigned, to appellee, which was intended for his own use, and not intended to be unloaded to teams. This was made known to appellant’s agents, but they refused to deliver it. When appellee threatened to bring suit,' the agent said to him:

“Bring it and be damned; that he was not going to switch guy brick, or anything else up there_, for me, except coal and wood; that I was in that business; that I could handle that, but that they were not going to switch brick and gravel, or anything else, up there.”

J. L. West, for appellant, testified:

“That he was traffic manager of the Missouri, Kansas & Texas Railway Company of Texas; that there is a difference made in the use of industry tracks as to shipments coming over the line which owns the industry track and shipments that- cornetín over other lines into the city or town where such industry is located; that it is the custom upon all railroads in Texas and other states to Switch for each other on a reciprocal basis for industries, but that there is a distinction made as between industry tracks and team tracks; that it is not customary anywhere for one railroad to switch to its team track freight which reached the town over the line of some other road; that a team track is regarded as an individual facility just as a freight house, and that freight houses, are not used in delivering or receiving freight received from some other line, and that team tracks are not so used; that industry tracks are treated differently for the reason that the industry located on such track has engaged the use of that track, and usually pays something for such use; that in consideration of such payment there is a reciprocal arrangement between railroads by which they .switch for each other traffic to and from industry tracks, making a distinction as between industry tracks and team tracks; that for material coming over appellant’s line, consigned to appellee there would be no objection to his using the industry track as a team track, but, if reaching Dallas over foreign lines, appellant would object to such freight being unloaded to teams from this industry track, or using it for the benefit of such other lines as a team track; that industry tracks are not used as team tracks for freight coming in over other lines; that appellant treats the owners of other industries haying industry tracks in the same way that it treats appellee, and if instances occur in which other industry tracks are more favorably treated it is because of some mistake.”

Mr. West further testified;

“It is a fact, as I have stated, that if this gravel had come in over our own line from the point of origin, or if it had originated on the line of another company and we had gotten a part of the haul over and above the switching charge, we would have set it up there for Mr. Seeger; that is the custom; and it would have been unloaded with teams or any other way; that is the custom. The gravel having come into Dallas over another road, we would not switch it out there, because it is not customary to do so in such eases. I will haul wood and coal to him out there on our competitors’ line in car loads, and switch it. If he unloads gravel in his industry there, if that is the commodity that he is dealing in, and he unloads it in the yards, we will switch it. I do not say, if he unloads any part of it in his yard; I said, if he unloads the whole car. We do not do switching on public delivery tracks for connecting lines. If there is a private industry on it, we do it for connecting lines only for that industry. If there is a warehouse there, that would be included in the term ‘industry.’ Yes; I think ‘industry’ or ‘warehouse,’ in the language óf the circular here, synonymous in the sense we are discussing. * * * Yes; I say thát Mr. Seeger has not got any industry or warehouse up there, or, if he has, it is only the coal or wood. If I am wrong with that, our position falls with it; he will have to show us, or show the court.”

Under the first assignment of error appellant presents the proposition that:

“Appellee having no right to any use of said industry track, or to any service in connection therewith, except as provided by said contract, which, by its terms, secures to him only such rights and privileges as pertain to private industry tracks, and the evidence, without conflict, showing that the right to have material reaching Dallas over the lines of other railway companies, placed upon such track for unloading on wagons for hauling away, and not to be unloaded at or used in connection with some industry track, the court erred in so making its order as to compel appellant to deliver to appellee on said track, on his order, all cars of wood, coal, or building material which may be consigned to appellee, or J. B. Seeger & Co., reaching Dallas over other lines, and placed upon the interchange track of appellant, and such other lines of railroad in the city of Dallas without limitation as to the ownership of the material or the use to be made of it, or whether to be unloaded on wagons or used in connection with appellee’s business or industry.”

It is true appellee only claimed the right in the use of the spur track under a contract made by A. F. Moberly with appellant, but under that contract he had all the rights and privileges that pertain to that use, which was Cor the carrying on of the business in which he was engaged. That business included, as well, the reception of commodities as bailee; as 'the reception of commodities he owned, and the appellant had no right to distinguish between the two — that is, the commodities he owned and those conveyed to him as bailee. The right of appellant to make inquiry into the ownership of the commodities consigned to appellee before it determines whether or not it will perform the switching service is not contemplated by law. We are of the opinion that appellant under the law is bound to deliver all car loads consigned to appellee which properly belong to his industry and goods consigned to him for the purpose of his doing something in connection therewith, such as receiving them, paying the freight thereon, supervising the unloading thereof, and, if necessary, storing in his bin's, constitutes a part of his business. That he makes charges for these services should not concern the appellant.

Again, we think, under the evidence, that there was an unjust discrimination, in violation of article 6670, R. S., against appellee, as argued by his counsel, viz.:

“It' is apparent from the testimony that the appellant had opened up the Moberly city switch to the use of persons connected with other industries on that track than appellee, by habitually permitting commodities arriving in Dallas over competitive lines to be unloaded there to teams. The testimony shows that this has been permitted to the contractors of the city of Dallas, and to shippers of wood and brick other than appellee, and also to appellee, until the ill feeling arose between him and the general freight agent of the appellant. Having granted these privileges to others, and to ap-pellee, the appellant is not in position to withdraw them from appellee only, and the court below correctly ruled that, pending the final hearing, the appellee should have the privileges which others were enjoying, and to which he was accustomed, and on the faith of which he established his business on said switch track. But, even if this were not true, the appellant cannot discriminate in the use of the track against localities not on its own line, nor against persons, using other lines, by refusing to them the same facilities it affords to shippers over its own lines.”

The only other assignment of error we think necessary to notice is the fourth, which reads:

“The court erred in that the order compels appellant to deliver upon said spur track all cars of material consigned to appellee and tendered to appellant by a connecting line in Dallas until the final trial of this action, without limiting the effect of such order to such period offtime as the said industry track may be operated by appellant.”

While the contract made by appellant with Moberly contained a provision that the lease is “for such length of time as the party of the first part shall maintain and operate said switch and spur track,” said contract was entered into on condition that Moberly secured the right from the city of Dallas to cross a street, which Moberly did, and the said city passed an ordinance granting a franchise for 20 years from the year 1908, for that purpose, which was accepted by appellant ; also the further provision that Moberly should pay appellant $10 each year for such construction, of which there is no question of its being paid. The order of the court limited the temporary injunction until the “final hearing of this cause,” and the appellant has no right to discontinue the use of the spur track before the expiration of the franchise or the consent of the appellee and the city of Dallas.

The judgment is affirmed.
      <§^s>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    HUBBS v. MARSHALL.
    (No. 8109.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 20, 1915.
    On Motions for Rehearing and to Certify, March 27, 1915.)
    1. Trial <&wkey;365 — Special Issues to Jury— Judgment.
    In an action for rescission of a contract of sale of a horse, special findings of a jury, in answer to special questions, that defendant stated that the horse was well broke, double and single, and suitable for a woman to drive, which statement plaintiff relied on, and that he discovered that the horse was not gentle and well broke after several attempts to drive it, and that plaintiff tendered back the horse four weeks after the sale, compels a judgment for plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 871-874; Dec. Dig. &wkey;>365.]
    2. Sales <&wkey;404^Fraud — Remedies—Rescission — Damages.
    One, induced to purchase property by fraudulent representations as to quality, may, by acting promptly after discovery of the fraud, tender back the property and rescind the contract; the purchaser being allowed to recover the price, if paid, with special damages, or he may waive the fraud, keep the property, and sue for his damages.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1146; Dec. Dig. &wkey;404.]
    3. Sales <&wkey;>121 — Fraud—Rescission — Delay IN TENDERING BACK PROPERTY.
    Under the rule that, in the absence of any reason why it would be inequitable to grant relief by way of a rescission of the contract, there must be such a delay in asserting the purchaser’s rights, or such act in relation to the property after discovering the fraud, as warrants the conclusion that the purchaser intended not to rely on his right of rescission, the fact that the purchaser of a horse, after discovery of the fraud in its sale, attempted to sell or trade the horse, or attempted to use it, would not destroy the right of rescission.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 296-301; Dec. Dig. cg==>l21J
    On Motion for Rehearing.
    4. Fraud <&wkey;35 — Damages — Loss of Right to Rescind.
    While retention and use of a horse, after discovery of the fraud by which the sale was induced, precludes a rescission, it does not prevent a recovery of damages resulting therefrom.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 30; Dec. Dig. <&wkey;>85.]
    5. Sales &wkey;>404^-FRAUD — Damages—Waived by Election.
    Where a petition for fraud prays in one count for rescission of a contract of sale, and in another prays damages, the election to stand on the count for rescission, compelled by the court, would not in equity waive the plea of damages.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1146; Dec. Dig. <&wkey;404J
    Appeal from Tarrant County Court; Chas. T. Prewitt, Judge.
    Action by Joe Hubbs against O. L. Marshall. From a judgment for defendant, after a trial de novo on appeal from a justice court, plaintiff appeals. Reversed and rendered.
    Motion to certify case denied.
    A. C. Heath, of Ft. Worth, for appellant. Harris & Young, of Ft. Worth, for appellee.
   CONNER, C. J.

In the county court, on appeal from a justice court, a trial de novo was had upon appellant’s claim that he had been defrauded by appellee in the purchase of a horse. The case was submitted upon special issues, and judgment was rendered for appellee on the answers of the jury given thereto. The issues and verdict are as follows:

“Gentlemen of the Jury: In this cause you are instructed to answer the following questions :
“First question: Did the defendant represent the horse to be well broke, double and single, and suitable for a woman to drive? Answer yes or no.
“Second question: Did plaintiff rely upon the statements as to the horse being gentle and well broke, in buying said horse? Answer yes or no.
“Third question: If you answer the first question in the affirmative, then when did plaintiff first discover that the horse was not as represented, and not gentle and well broke?
“Fourth question: Did plaintiff, at any time before suit was filed, tender back the horse to th’e defendant and demand the return of his money; and, if so, what date?
“Fifth question: Did plaintiff, or any person with his permission, use or work the horse after he discovered that the horse was not gentle and well broke?
“Sixth question: Did plaintiff offer to sell or trade said horse after he discovered that he was not gentle and well broke? , If you answer ‘Yes,’ then you will state at about what time he offered to sell or trade said horse.
“Sixth question: No. 2: Did plaintiff use or permit the horse to be used after he tendered the horse back, if you find that he was tendered back ?
“Seventh question: Did the defendant knowingly make any false representations to the plaintiff about the horse, which were relied upon by the plaintiff?
“Eighth question: What is the reasonable value of the feed and attention of the horse since the time he was first tendered back, if at all?
“Ninth question: .What is the value, if any, of the use of the horse during the above time?
“Tenth question: Did the defendant agree with the plaintiff if the horse was not as represented by the defendant, as being well broke and suitable for a woman to drive, he should bring him back at any time? Answer yes or no.
“You are the exclusive judges of the credibility of the witnesses, and of the weight of the evidence, and of the facts proved.”

To these special issues the jury returned their verdict as follows:

“We, the jury, make the following answers to the special issues submitted to us:
“To the first question we answer: Yes.
“No. 2: Yes.
“No. 3: After several attempts to drive the said horse within a period of four or five weeks.
“No. 4: Yes; about four weeks after buying the horse.
“No. 5: Yes.
“No. 6: Yes; about two months after getting horse.
“No. 7: Yes.
“No. 8: Five dollars per month from time horse was tendered back to date.
“Ño. 9: Ñone.
“No. 10: Tes.
“J. S. Fielder, Foreman.”

We think the judgment should have been the reverse of that awarded by the court. It is obvious that the special findings establish every material fact necessary to entitle the plaintiff to the rescission sought, unless the answers of the jury to the fifth and sixth special issues establish a waiver of that remedy, and we do not think they do.

There was no exception in the county court to the plea for a rescission, and no objection to any of the evidence offered in its support. The only defense, aside from a denial in both answer and evidence, was, in effect, that the plaintiff’s cause of action for rescission had been waived by using the horse and by offering to trade or sell him after discovery of the alleged fraud. As before indicated, there are but two bases for the judgment in appellee’s favor. The most substantial, under the evidence, is the finding that the plaintiff offered “to sell or trade” the horse in controversy “after he discovered that he was not gentle and well broke.”

It is well established in the authorities that one who has been induced to purchase property by means of fraudulent representations as to its quality may, by acting promptly after the discovery of the fraud, tender a return of the property and rescind the contract of sale altogether, in such cases the purchaser being allowed to recover the purchase price, if already paid, with such special damages, if any, as could have been reasonably contemplated as a result of the fraud; or the purchaser may waive the fraud, keep the property, and sue for his damages. See Wintz v. Morrison, 17 Tex. 373, 67 Am. Dec. 658; Blythe v. Speake, 23 Tex, 429; Aultman v. York, 71 Tex. 261, 9 S. W. 127; Piano Co. v. Nolan, 38 Tex. Civ. App. 395, 85 S. W. 821. But, having once waived the fraud, the purchaser can only pursue his remedy for damages. Hallwood Cash Reg. Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857; Houston Motor Car Co. v. Brashear, 158 S. W. 233. It is not every omission or act of the purchaser in relation to the property, however, that will constitute a waiver. In the absence of any reason why it would be inequitable to grant relief by way of a rescission of the contract, there must be such delay in asserting his right, or such act in relation to the property after the discovery of the fraud, as warrants the conclusion that the purchaser intended not to rely on his right of rescission. In discussing the subject, Mr. Justice Book-hout, in the case of M., K. & T. Ry. Co. v. Hendricks, 49 Tex. Civ. App. 314, 108 S. W. 745, said:

“A waiver is the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right. A waiver, so called, is the result of an intentional relinquishment of a known right 29 Am. & Eng. Enc. Law (2d Ed.) p. 1091. It has been held that a waiver never occurs unless intended, or where the act relied on ought in equity to estop the party from denying it. The existence of an intent to waive is a question of fact, which may be determined by the language and conduct of the parties.”

Must it, then, be said that the affirmative finding of the sixth special issue warrants the judgment against appellant on the issue of rescission? We think not. A mere “offer to sell or trade” the horse in question is not of itself a renouncement of the right to rescind. At most it is but evidence tending to establish the necessary fact, and unaided is altogether too inclusive to afford a proper basis for appellee’s judgment. This is the more apparent when we go to the evidence. This shows without dispute that the otter to trade or sell relied upon was after appellant had tendered the horse back to appellee and after appellee’s refusal to receive him in return. The evidence is to the effect that, after repeated failures to make the horse work as represented, appellant took the horse to appellee and offered to return him, even at a less price .than appellant paid for him; but appellee declined, and said he did not want him at any price, A subsequent sale and disposition of the horse, had there been one, would not amount to the waiver appellee pleads. Such a course might even be required in the exercise of ordinary care to lessen damage to appellee in the way of feed or otherwise. See Edgeworth v. Talerico, 95 S. W. 677. In event of such subsequent sale, of course, the purchaser would be required, in an action to recover the price, to account for any amount actually received for the property so sold. But such considerations are immaterial here, as there has been no final disposition of the horse in question. In brief, when appellant tendered the horse to ap-pellee in return, he then elected to rescind. 1-Iis right then became fixed, and his subsequent offer or sale did not destroy such right. See Heinze v. Marx, 4 Tex. Civ. App. 599, 23 S. W. 704; Raby v. Sweetzer, 12 Tex. Civ. App. 380, 34 S. W. 779.

What we have already said applies, in part, at least, to the finding in answer to the fifth question. The evidence is clear that the use made of the horse after appellant’s discovery of the fraud as found by the jury preceded the offer to return, and amounts to no more than additional trials or extra efforts to induce the horse to work, The efforts were consistent with a desire on appellant’s part to make the best of a bad bargain if he could, but by no means were such as to warrant the conclusion that he waived a right to rescind.

We conclude that the special findings of the jury in answer to the fifth and sixth special issues submitted to them are, when standing alone, too inconclusive to support the judgment in appellee’s favor; and when considered together with the undisputed evidence they cannot control the effect of the other findings, which fully support appellant’s suit to rescind. The court below should therefore have entered judgment for appellant, rather than appellee; and it is accordingly ordered that the judgment below be reversed, and here rendered for appellant for the recovery of the purchase price paid, with interest thereon at the legal rate, together with the cost of feed and attention, as found by the jury to the eighth question.

On Motion for Rehearing.

We have examined the decisions cited in behalf of appellee in the motion for rehearing and think they are distinguishable from the case before us, and yet believe, under the circumstances of this case, that we reached the proper conclusion on the original hearing. Moreover, we think substantial justice was reached by our original conclusion.

It is clear from the findings and from the undisputed testimony that appellant, if not entitled to a rescission, was at least entitled to damages, which equals the amount of the judgment awarded by us. If so, the judgment was right (Cash Register Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 85), unless possibly it should be said that appellee waived his plea for damages by an election at the trial to rely upon the count in his petition praying for a rescission. But in equity this conclusion can scarcely be justified, it appearing that the election was compelled by the trial court.

The motion for rehearing will accordingly be overruled.

On Motion to Certify..

We are of the opinion that, as applied to the findings and circumstances in this case, there is no real conflict in our conclusions herein with the eases cited to that end in behalf of appellee, and hence, our judgment being final, we think the motion to certify must be overruled. See Cole v. State (Sup.) 170 S. W. 1036.
      <S=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    MURRAY CO. et al. v. DEAL.
    (No. 6765.)
    (Court of Civil Appeals of Texas. Galveston
    March 18, 1915.)
    1. Chattel Mortgages <§=»150 — Record as Constructive Notice.
    From the time a chattel mortgage is deposited for registration, as required by statute, it becomes constructive notice of the lien, unaffected by failure of the clerk to properly index the names of the parties.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 246-252; Dec. Dig. <&wkey;> 150.]
    2. Appeal and Error &wkey;>837 — Review — Facts Not Pleaded.
    Facts shown by the evidence, but not pleaded, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274-3277, 3289; Dec. Dig. &wkey;837.]
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.
    Suit by D. C. Deal against the Murray Company and another. From a judgment for plaintiff, defendants appeal.
    Reversed, and judgment rendered for defendants.
    W. C. Carpenter, of Bay City, and J. J. Eckford, of Dallas, for appellants. E. E. Bateman and Gordon Lawson, both of Palacios, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellee against the appellant, the Murray Company, to enjoin it from selling property consisting of land and the improvements thereon, owned by appellee, and situate in the town of Palacios, in Matagorda county, under a mortgage with power of sale executed by Clyde Randolph, a former owner of said property. The petition alleges that plaintiff purchased the property from Randolph on November 1, 1910, and said property was conveyed to him by Randolph by warranty deed, and that “petitioner had a certificate of title to said lands made which showed said lands and premises to be free and clear of all incumbrances, save and except one lien in favor of Wm. Williamson for the sum of $5,500.” The petition proceeds as follows:

“That thereafter, on the 1st day of October, A. D. 1912, your petitioner transferred said property hereinbefore described by general warranty deed to W. J. Gover, who now holds said lands and premises in fee simple. Petitioner further represents: That on or about the 7th day of April, 1913, your petitioner received a letter from the Murray Company, stating that they held a lien on the above-described lands and premises for sum of $300, with interest, and desired to collect the amount, and further that this amount was secured by a lien in the form of chattel mortgage, on the above-described land and premises, and further that said lien was duly recorded in the Lien Records of Mata-gorda county, Tex. Your petitioner would further represent that said lien was improperly indexed in the Chattel Mortgage Records of Mata-gorda county; that is to say, the mortgagor and mortgagee were reversed, and the said Clyde Randolph was placed in the position of mortgagee, and the said Murray Company was placed in the position of mortgagor, as such mortgagor and mortgagee are indicated in the Lien Records of Matagorda county. And that he was an innocent purchaser without notice of the aforesaid claim or lien of the Murray Company, and that W. J. Gover, who now holds said lands and premises in fee simple, has failed and refused to prosecute this suit, looking only to your petitioner for any damage that he may sustain by reason of said claim or lien, under the terms of the general warranty clause of the deed from your petitioner to him as satisfaction for the amount of the said claim or lien of the Murray Company. Hence your petitioner brings this suit. Wherefore, premises considered, your petitioner prays that the defendant be cited to appear and answer this petition and for a writ of injunction restraining the Murray Company and any of their agents or attorneys from selling the lands or tenements hereinabove described, pending this suit, and that, on the final hearing hereof, the said chattel mortgage or lien be declared null and void in so far as it pertains to the properties herein-before described, and for such other and further relief, special and general, in law and equity, that he may be justly entitled to, and plaintiff in duty bound will ever pray.”

After filing this petition the plaintiff made application to the judge of said court for a temporary injunction restraining the defendant and appellant R. H. Nevitt, the trustee named in said' mortgage, from selling the property pending a final hearing of plaintiff’s suit. This injunction was granted.

The answer of defendants, in addition to a general demurrer, contains the following:

“These defendants aver: That Clyde Randolph executed and delivered to R. H. Nevitt, trustee, his certain chattel mortgage dated the 27th day of July, A. D. 1908, and duly acknowledged by him on the 30th day of July, 1908, a true copy of which said chattel mortgage was filed on the 6th day of August, 1908, at 2 o’clock p. m. in the county clerk’s office of Ma-tagorda county, Tex., after having been by said county clerk carefully compared with the original and found to be a true copy thereof; and said copy was duly deposited among the chattel mortgages in said clerk’s . office. By the terms of said chattel mortgage, Clyde. Randolph conveyed certain gin machinery therein described to said R. H. Nevitt, trustee, to secure the Murray Company in the payment of the indebtedness described in said chattel mortgage, amounting in the principal sum of $1,050, which was the purchase money of said machinery, and that there is now due on said purchase money the note for $400, maturing December 1, 1909, less a credit of $100 on the principal thereof and interest which was paid to September 16, 1912. That said machinery, at the time of the execution of said chattel mortgage, was at I’alacios in the cars and was to be and is located at or near Palacios, Matagorda county, Tex. That said chattel mortgage, among other things, provided that said machinery was to be so located and to remain personalty, however and wheresoever located. Said chattel mortgage, among other things, provided that any sale, mortgage, or lien voluntarily created or attempted to be created on such property before the payment of these notes, or the removal of any of the above property, or any part thereof, from the above-named county, without first obtaining the written consent of the Murray Company, shall make all the said notes due, and give said trustee or the Murray Company or other holder full power to take possession of said property. Now, if said promissory notes are paid according to their face and tenor as stipulated, then in that event this instrument is to become void; but in case said notes or either of them, or any interest thereon, is not paid as stipulated as they respectively become due, then and in that event the Murray Company, the holder of said notes, or either of them, may declare all of said notes then due and payable at Dallas, whether same so appear upon their face or not, and the said trustee, or substitute trustee, is hereby authorized and empowered to proceed in the city and county of Dallas, to advertise said property for sale, by posting thereof, for ten days, on the bulletin board at the llallas county courthouse, and sell the aforesaid property in front of the courthouse thereof, with or without first taking possession thereof, or having said property present at said sale, and make due and proper conveyances, of the same to the purchaser or purchasers thereof; the trustee acting first deducting the cost and commissions allowed by law to sheriffs. "We do, for our heirs, executors, and administrators, covenant that in case of a sale of said property by said trustee, or substitute trustee, all the recitals in the conveyance of the same shall be conclusive evidence of each and of all the facts essential to the validity of the sale. In case of the death or inability or refusal to act of the said R. IT. Nevitt, or of his removal from Dallas county, Tex., then in that event the Murray Company, or other holder of said notes., shall have the power to appoint, by written instrument reciting the necessity, a substitute for the said R. H. Nevitt, who shall then have and possess all the powers conferred on the said R. H. Nevitt.
“These defendants aver that in said chattel mortgage the said R. IT. Nevitt, trustee, or any substitute trustee appointed by the Murray Company, if necessary, had a right to sell said property under said chattel mortgage, but these defendants deny, as alleged in paragraph 2 of said petition, that the said R. H. Nevitt was about to sell said property under the terms of the said chattel mortgage, but, on the contrary, no such intention or purpose ever existed-.
“These defendants aver that some time in the summer of 1913 the counsel for the Murray Company prepared a petition, thinking at the time that suit could be brought in Dallas county ; but in order to make the subsequent purchasers of this property parties, who were the plaintiff, D. C. Deal, and W. J. Gover, both of whom resided in Matagorda county, the said Clyde Randolph being a nonresident, the attorney for the Murray Company decided that the district court of Matagorda county alone had jurisdiction of the subsequent purchasers; therefore defendants determined to file a suit against Clyde Randolph, the maker of said note and mortgage, and subsequent purchasers, in Mata-gorda county, and did so as soon as they found out this injunction did not prevent said action.
“These defendants aver that the petitioner, D. C. Deal, purchased said property, among other property, from Clyde Randolph, by deed dated November 1, 1910, more than two years after said chattel mortgage from Clyde Randolph to R. H. Nevitt, trustee, was filed for record in the county clerk’s office of Matagorda county, Tex., and said D. C. Deal was charged by law with notice of the Murray Company lien upon said property, and his only remedy against same is the equity of redemption. And said chattel mortgage is a valid lien ag^jnst said machinery as against said Deal.
“These defendants further aver that the failure to index said chattel mortgage, if such be a fact, does not in any wise impair the effect of the filing thereof and the constructive notice due to said filing, because there is no law requiring said chattel mortgage to be properly indexed in order to give notice.
“Wherefore, defendants pray to be hence discharged, with their proper costs in this behalf incurred.”

The trial in the court below with ut a jury resulted, in a judgment in favor of plaintiff, perpetuating the injunction restraining the sale by defendants under said mortgage of plaintiff’s lots or the improvements thereon, and decreeing that said mortgage “be and the same is hereby found null and void, and is so declared.”

From the foregoing statement of the pleadings it is shown that. the only lion claimed by appellants is under a chattel mortgage upon machinery sold by appellant, the Murray Company, to Randolph, and which he had installed in a building upon the property subsequently sold by him to appellee. The undisputed evidence shows that the mortgage was executed, and a true copy thereof duly filed in the office of the county clerk of Matagorda county, as alleged by ap pellant, and that a portion of said purchase money, evidenced by a note executed by Randolph, is still unpaid. The validity of this mortgage is not questioned by appellee, and his petition only seeks to have said mortgage declared void as to him and appellants enjoined from enforcing it on the ground that it was not properly indexed, and that he had no notice of said lien at the time he purchased the property. It is well settled that, when a chattel mortgage has been deposited with the clerk for registration, the failure of the clerk to make the proper entries will not deprive the mortgagee of any of the benefits which his compliance with the statute confers upon him. Prom the time the mortgage is so deposited for registration, it becomes constructive notice of the mortgagee’s lien, and the sufficiency of this notice is not affected by the failure of the clerk to properly enter the names of the parties upon the mortgage index. Freiberg et al. v. Magale, 70 Tex. 118, 7 S. W. 684; Ames Iron Works v. Chinn, 15 Tex. Civ. App. 88, 38 S. W. 247; Cleveland v. Empire Mills, 6 Tex. Civ. App. 479, 25 S. W. 1055.

There is evidence tending to show that, at the time appellee purchased the premises from Randolph, a portion of the machinery covered by the mortgage ivas so placed in the gin house upon said premises as to have become a permanent fixture, and appellee, having no actual knowledge of the mortgage lien, might, under these facts, have acquired title to said machinery as an innocent purchaser of the realty; but these facts, not having been pleaded, cannot be considered.

The undisputed evidence shows that appellants have never asserted any lien upon plaintiff’s land; and, plaintiff being charged with notice of the chattel mortgage upon the machinery, the judgment of the court below, canceling said mortgage and enjoining appellants from enforcing their rights thereunder, is without evidence to support it. It follows that the judgment should be reversed, and judgment here rendered for appellants; and it has been so ordered.

Reversed and rendered.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    FT. WORTH & R. G. R. CO. v. PAXTON.
    (No. 1452.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 8, 1915.)
    Appeal and Ebeok <&wkey;549 — Bills op Exceptions — Necessity poR Review.
    Where the record contains no bills of exceptions as expressly required by the statute as a prerequisite to consideration of objections to the charge and refusals to charge, the assignments of error relating thereto are not reviewable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2441-2451; Dec. Dig. &wkey;> 549.] •
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by Hill Paxton, by next friend, Mrs. Ira E. Harris, against the Ft. Worth & Rio Grande Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Andrews, Streetman, Burns & Logue, of Houston, and Brooks & Worsham, of Dallas,, for appellant. Carden, Starling, Carden, Hemphill & Wallace and E. Sewell, all of Dallas, for appellee.
   HODGES, J.

Hill Paxton, by his next friend, Mrs. Ira E. Harris, recovered a judgment in the court below against the appellant for the sum of $600 for personal injuries resulting from the alleged negligence of the appellant’s servants in directing him to get out of a freight.car in which Paxton had been riding. The facts show that Paxton was a boy about 13% years of age and of average intelligence; that he was at Stephensville, some distance west of Ft. Worth, and desired to go to Dallas; that, instead of taking passage on one of the appellant’s regular passenger trains, he entered into a contract with a brakeman by which he was to ride to Ft. Worth upon the payment of 75 cents to the brakeman. The money was paid. Paxton rode with an older companion in the-car until they reached the railway yards in the city of Ft. Worth. Paxton testifies that some one came to the car door, opened it, and told him to get out; that this party was a railway employé. He did not know whether it was the same brakeman to whom he had paid the' money or not. He states that the place where he was required to alight was on an embankment over a culvert; and that, after he got out of the car, by reason of stepping on some cinders he was caused to slide or fall down the embankment, and sustained a break of the leg. There was considerable conflict in the testimony as to whether or not the injury occurred just as detailed by Paxton. There was evidence tending to show that the agreement with the brakeman was a collusion between the latter and Paxton to perpetrate a fraud upon the railroad company. While Paxton admitted that he knew the regular fare from Stephens-ville to Ft. Worth was something over $2, he testified that he did not know that it was wrong to ride in the freight car under the circumstances existing in this case. The contention is made that he was too young to appreciate and understand the moral character of his agreement with the brakeman.

There are several assignments of error, all of which complain of different portions of the court’s charge and of the refusal of the court to give special charges. The record contains no bills of exception, as is required by the Acts of the Thirty-Third Legislature, as a prerequisite to the consideration of such, objections in this court. There is in the record an instrument purporting to embody the objections made in the court below to the charge given and exceptions to the refusal to give the special charges requested; but this instrument is not authenticated in the manner necessary to entitle it to be considered as a bill of exception. Railway Co. v. Wadsack, 166 S. W. 42; Ford Motor Co. v. Freeman, 168 S. W. 80; Railway Co. v. Culver, 168 S. W. 514.

We have examined the record, and fail to discover any fundamental errors which would require a reversal of the judgment; and it is accordingly affirmed.
      ©<=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    GULF, C. & S. F. RY. CO. v. LOYD.
    (No. 8086.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 27, 1915.)
    1. Negligence <©=>141 — Instructions—Contributory Negligence.
    Where an automobile in which plaintiff was riding was struck by defendant’s train, it was error to charge that the driver’s negligence, though the sole proximate cause of the accident, was not a defense, unless plaintiff could have prevented such negligence by the exercise of ordinary care.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 382-399; Dee. Dig. <©=>141.]
    2. Trial <©=3-296 — Instructions—Cure of Error.
    Such error was not cured by a contradictory charge as to plaintiff’s contributory negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718 ;• Dec. Dig. <©=> 296.]
    3. Negligence <®=>141 — Instructions—Contributory Negligence.
    In a suit for injuries to one riding in a vehicle struck by defendant’s train, defendant, having pleaded the driver’s negligence as a defense, was entitled to a charge that plaintiff could not recover if such negligence was the sole proximate cause of the accident, though the charge given required a finding of negligence as the proximate cause of the injury.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. <©=>141.]
    4. Witnesses <©=>270 — Cross-Examination.
    A question on cross-examination as to how many people the witness had run over was incompetent and calculated to prejudice the jury against his testimony as to whether another was a careful driver.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 926, 955-957; Dec. Dig. <@=>270.]
    5. Trial <©=>29 — Remarks oe Court.
    It is error for the court to reprimand a witness without a proper basis therefor.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 80-83, 508; Dec. Dig. <©=>29.]
    6. Evidence <@=547 — Opinion Evidence-Examination.
    The opinion of a medical expert witness as to pain suffered by plaintiff in a suit for personal injuries must be predicated on the evidence introduced.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2364; Dee. Dig. <©=>547.]
    7. Pleading <©=>409 — Objections—Waiver-Want of Denial of Special Deeense.
    Plaintiff’s failure to deny a special defense, as required by the statute, is waived; defendant not calling the court’s attention thereto, and assigning no reasons in the bill of exceptions to the refusal of a charge as to such defense.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1375-1383, 1386; Dec. Dig. <©=>
    8. Trial <©=>253 — Instruction Excluding Issues.
    A charge that the burden of proving contributory negligence by a preponderance of the evidence is on defendant is objectionable as likely to exclude the consideration of plaintiff’s testimony tending to show such negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. <©=>253.]
    9. Appeal and Error <©=>499 — Bill of Exceptions — Assignment of Errors.
    An assignment of error cannot be predicated on the refusal of a peremptory instruction, where no reason for the objections to such refusal is assigned in the bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <©=>499.]
    Appeal from District Court, Tarrant County; J. W. Swayne, Judge.
    Action by Alice Loyd against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Lee & Lomax and W. D. Smith, all of Ft. Worth, and Terry, Cavin & Mills, of Galveston, for appellant. Slay & Simon and Theodore Black, all of Ft. Worth, for appellee.
   DUNKLIN, J.

About 9 o’clock on the evening of January 4, 1913, an automobile, in which Alice Loyd was riding, collided with a locomotive of the Gulf, Colorado & Santa Fé Railway Company at the intersection of the railway of that company with Jennings avenue, in the city of Ft. Worth. At the place where the accident happened, the street mentioned runs practically north and south, and the railway line runs slightly southwest and northeast. Just prior to the accident, the automobile was traveling north on Jennings avenue, and the train to which the locomotive was attached was going out of Ft. Worth in a southwesterly direction. As a result of the collision, Alice Loyd sustained personal injuries, and D. E. Loyd instituted this suit, as her next friend, against the railway company, to recover damages for such injuries; she being a minor at the time of the institution of the suit.

The automobile was driven by Edward Gambrell, a boy about 15 years old, who, together with two other companions, invited Alice Loyd and two other girls to seats in the automobile, promising to take them home, and Alice Loyd occupied a position upon the rear seat of the car. Instead of proceeding directly to the homes of the invited guests, a trip was taken to what is known as the south side, over Hemphill street, across the track of the defendant railway company, thence in a' westerly direction to-Jennings avenue, where the car turned north. Plaintiff alleged that the place of the accident was in a populous portion of the city, much used by pedestrians and private vehicles ; that the defendant’s employés operating the train negligently failed to give any warning signals of the approach of the train to the street crossing, as required by an ordinance of the city, negligently operated the train at a very high and dangerous rate of speed, to wit, more than six miles an hour, in violation of another ordinance of the city, and without any headlight upon the engine, or that, if there was such a headlight, it was too dim to be seen at any appreciable distance; that the defendant negligently and carelessly failed to maintain a light signal at the crossing, as required by other ordinances of the city; and that plaintiff’s injury was the proximate result of each and all of said acts of negligence.

In addition to a denial of each and all of such charges of negligence, the defendant, among other special defenses, pleaded that the accident was . occasioned solely by the negligence of Edward Gambrell, the boy who drove the automobile, in recklessly attempting to pass the crossing after he saw the train approaching, or in failing to keep a proper lookout for a train upon the track while driving the automobile at a dangerous and negligent rate of speed and in violation of the ordinance of the city limiting the speed of automobiles.

It was further alleged that plaintiff herself was guilty of negligence proximately contributing to her injury in failing to look and listen for the approach of the train, which she could have seen and heard in time to enable her to avert the accident by calling the attention of the driver thereto, and in remaining in the car with full knowledge of the fact that it was being driven at a reckless and dangerous rate of speed, during which' time the occupants of the car were engaged in laughing and talking to such an extent as to divert the attention of the driver from his duty to keep a proper look out to avoid accidents.

From a judgment in favor of the plaintiff, the defendant has appealed.

Evidence was introduced tending to support the allegations of negligence on the part of the defendant referred to above; but testimony offered by the defendant tended strongly to controvert each and all of the charges, and also to show that Edward Gam-brell was guilty of negligence in driving the automobile at a high rate of speed without keeping a proper lookout for the approach of the train which he could have seen in time to avoid the collision, and that such negligence was the sole’, proximate cause of the accident.

The case was tried before a jury, to whom was submitted the following special instruction requested by the plaintiff:

“You are instructed that even though you believe from the evidence that Edward Gambrell who was operating the automobile on the occasion in question, was himself guilty of negligence, such negligence, if any, would not be imputable to this plaintiff, and plaintiff would not be precluded from recovery on account of such negligence, if any, on the part of said Edward Gambrell, unless you believe from the evidence that such negligence on the part of the said Edward Gambrell, if any, could have been prevented by the plaintiff by the exercise of ordinary care.”

While Edward Gambrell’s negligence would not be imputable to the plaintiff, and she would be entitled to a recovery if the defendant was guilty of negligence which, together with Gambrell’s negligence, was the proximate cause of the injury, nevertheless if Gambrell was guilty of negligence, which was the sole proximate cause of the injury, then plaintiff could not recover. In that event, she would be denied a recovery, not because Gambrell’s negligence was attributable to her, but because her injury was not due to any negligence on the part of defendant. The special instruction, in effect, was that plaintiff would not be precluded from a recovery on account of the negligence of Gambrell, even though the same was the sole proximate cause of the injury, unless the jury should find that his negligence could have been prevented by the plaintiff by the exercise of ordinary care. Clearly this was erroneous, and for this error the judgment must be reversed.

The appellee calls attention to the fact that two other' instructions requested by defendant were given to the jury, which renders harmless any possible error in the charge now under discussion, one of which was, in effect, that if, when approaching the crossing, Gambrell was driving the car at a rate of speed in excess of 18 miles per hour, the limit of speed fixed by the city ordinance, and if the operation of the automobile at that rate of speed was the proximate cause of plaintiff’s injury, and if plaintiff, in the exercise of ordinary care, could have known that the automobile was being so operated, then a verdict should be rendered in favor of the defendant. The other instruction requested by the defendant and given was, in effect, that, even though the jury should find the defendant guilty of negligence, still plaintiff could not recover if she, by the exercise of ordinary care, could have discovered the approach of the train in time to have avoided the accident. Both of these instructions were upon the issue of contributory negligence on the part of plaintiff, and did not cure the error in the instruction given at the plaintiff’s request and quoted above. Even if those instructions had been the converse of the instruction requested by the plaintiff, and quoted above, it would not have cured the error. S. K. Ry. Co. v. Sage, 98 Tex. 438, 84 S. W. 814.

In view of another trial we will discuss some of the other questions presented in appellant’s brief. Appellant’s requested charge No. 14, the refusal of which is made the basis of another assignment of error, was substantially that if Gambrell was guilty of negligence in failing to discover the approach of the train, and that such negligence was the proximate cause of the accident, a verdict should be returned in the defendant’s favor without reference to any other issue in the case. Perhaps this instruction is subject to the criticism that it might have misled the jury in omitting the requirement that, under such circumstances, Gambrell’s negligence must have been the sole proximate cause of the injury. If the instruction had embodied that feature, it would have been a correct statement of the law, and should have been given either in the main charge or in compliance with defendant’s request therefor. The observation just made disposes of another assignment to the court’s failure to embrace substantially that instruction in his main charge. The fact that in the main charge the jury were told that plaintiff could not recover in the absence of a finding of negligence, which was the proximate cause of plaintiff’s injury, thus impliedly excluding every other theory of a recovery, is not a sufficient answer to the assignments discussed above, as defendant had a right to an affirmative presentation of its contention that Gambrell’s negligence was the sole proximate cause of plaintiff’s injury. M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058 ; Pettithory v. Clarke & Courts, 139 S. W. 989; F. W. & D. C. Ry. Co. v. Taylor, 153 S. W. 355; Jones v. M., K. & T. Ry. Co., 157 S. W. 213.

Another assignment is presented to the charge of the court which allowed a recovery by plaintiff “for the injuries alleged in her petition.” It is insisted that there was no proof to show some of the injuries alleged in the petition, and that the court erred in telling the jury that, in the event of a verdict in favor of the plaintiff, she should be allowed compensation for such injuries. The appellee calls attention to the fact that no such objection was urged to the charge upon the trial of the cause, and this objection seems to be tenable. In the reply to this assignment, appellee has not controverted the statement made therein that there was no proof of some of the injuries alleged, but has rested upon the objection mentioned to a consideration of the assignment, and we do not undertake to say that appellant is correct in its contention relative to the proof. But we have deemed it proper to call attention to this assignment to the end that the criticism of the charge now under discussion may be avoided upon another trial.

The same criticism is made of the instruction in submitting to the jury for its determination whether or not the defendant used ordinary care “in the operation of said passenger train in any of the particulars alleged in plaintiff’s petition”; the contention presented being that some of the charges of negligence alleged in the petition are wholly unsupported by the evidence. The observations already made are applicable to this instruction. The fact that, by another instruction given at the defendant’s request, the jury were limited to certain issues of negligence alleged in the petition, and in effect were charged that, if those allegations were not sustained, a verdict should be returned in favor of the defendant; would present a case of conflicting charges, but would not avoid the force of this criticism of the main charge. Railway v. Sage, supra.

Hart Beard, a witness for the defendant, was questioned by defendant’s counsel relative to whether or not Edward Gambrell was a careful or reckless driver of an automobile. Plaintiff’s objection to that question was sustained by the trial court. Thereupon plaintiff’s counsel propounded to the witness the following question:

“Talking about Edward Gambrell’s driving, you have got some reputation as a bad driver, haven’t you? How many people have you run over?”

To which the witness answered:

“I don’t know that I have a bad reputation especially as a bad driver. Some people might call it that. I have never killed anybody by running over them.”

To this question and answer defendant objected on the ground that it was improper and incompetent for any purpose and calculated to prejudice the jury against the testimony of the witness, and the objection was overruled. We think the objection should have been sustained for the reasons urged.

The fireman, A. Y. Clarke, upon defendant’s train on the occasion in controversy, was a material witness for the defendant upon practically all the issues of negligence relied on by the plaintiff. It appears that the court himself interrogated that witness relative to how many persons were at the scene of the accident when he first reached there. The witness testified that he left the engine as soon as he could place it in a condition safe to leave and walked up to the crossing where the accident occurred, about 1% minutes after the train stopped, and he detailed a conversation between persons, who apparently were occupants of the car, relative to the cause of the accident, which was material to the defense. After the witness testified that there were quite a number of people there when he reached the crossing, the following proceedings were had ; the questions to the witness being propounded by the court:

“Q. How many were there? Do you know whether there were 500 there or not? A. I hardly think there was that many. Q. Do you know whether there were 499? A. I didn’t count any of them. Q. Do you know whether that is a fact or not — whether there were 499? Wexe there 400 there? Do you know that? A. I told you I didn’t think there was that many. Q. Well, were there as many as 100? A. I would judge when I got back— The Court: You had just as well answer that now as any other time, because you will have to answer that if I have to send you to jail. Witness: Just positively how many there were there when I first got hack I don’t know. There were a dozen people on the street.”

To the reprimand, so administered defendant objected on the ground that the same was not justified by the attitude of, or the answers made by, the witness, and upon the further ground that the court’s remarks amounted to a comment on the weight of the testimony given by this witness, and tended to place the witness in an improper light before the jury and to discredit his testimony generally, all of which objections were by the court overruled.

Appellee, in reply to the assignment to this ruling, has cited us to the entire testimony of the witness appearing in the statement-of facts to show that the witness was recalcitrant, obstinate, and refractory, and insists that the remarks of the court complained of were justified on that account. No particular portions of the testimony of the witness are cited by the appellee to sustain that contention, and we would be justified in declining to read his whole testimony to discover whether or not the contention is well founded. However, we have read a considerable portion of the testimony of the witness, and have failed to discover any evidence of such conduct as appears to us a sufficient basis for the reprimand administered. In the absence of a proper basis therefor, the remarks of the court would likely be construed by the jury as a reflection upon the credibility of the witness; and, under the circumstances, we think that the assignment of error now under discussion should be sustained.

Another assignment is addressed to the testimony given by Dr. Trigg, a witness for the plaintiff, in effect, that in his opinion the pains of which plaintiff complained were caused by the accident. The objection to the testimony was based upon the contention that it was predicated in part upon information obtained from the plaintiff and from other sources, and which information was not shown by the evidence taken upon the trial. The bill of exception to the testimony details several different questions and answers of the witness, and it is a little difficult to determine the full merits of the objection. In view of another trial, it is sufficient to suggest that any opinion given by Dr. Trigg, relative to any pains suffered by the plaintiff, should have a proper predicate in the evidence introduced.

Appellant complains of the refusal of a requested instruction, in effect, that the ordinance of the city, limiting the speed of defendant’s train within the city limits to six miles per hour, was unreasonable, and that proof of such ordinance for any purpose should be entirely disregarded. Defendant had pleaded that the ordinance was unreasonable and unenforceable by reason of the fact that the crossing in question was in a remote and thinly settled portion of the city, where few people traveled, and where it was impossible for the defendant to comply therewith in the operation of its trains. It seems that this paragraph of the answer was not denied by plaintiff in her supplemental petition, and the absence of any denial is made the basis of the assignment to the refusal of the requested instructions. In the bill of exception taken to the refusal of this instruction, no reason was assigned, nor does it appear from the record that the court’s attention was at any time called to the failure of plaintiff to deny the allegation relative to the unenforceableness of the ordinance, as should have been done if appellant desired to take advantage of the statute invoked. Under the circumstances, the assignment now under discussion must be overruled. T. & P. Ry. Co. v. Tomlinson, 169 S. W. 217; Southwestern Tel. Co. v. Andrews, 169 S. W. 218; Memphis Cotton Oil Co. v. Tolbert, 171 S. W. 309.

Error has been assigned to the following instruction:

“The burden of proof is on the defendant to 'make out its plea of contributory neglig'ence by a preponderance of the evidence; and, unless you find it has done so, you will find for the plaintiff on that issue.”

The error pointed out in this charge is that the jury were likely to understand therefrom that they could look only to the evidence of defendant for proof of -plaintiff’s contributory negligence. We are inclined to the view suggested in appellant’s brief that the testimony introduced by the plaintiff tended to raise the issue of contributory negligence on her part, and that the charge given is probably subject to the criticism presented. In many cases such charges, given under similar circumstances, have been condemned. See T. & P. Ry. Co. v. Reed, 88 Tex. 439, 31 S. W. 1058; St. L. S. W. Ry. Co. v. Groves, 44 Tex. Civ. App. 63, 97 S. W. 1084; G., C. & S. F. Ry. Co. v. Hill, 95 Tex. 629, 69 S. W. 136. We suggest that a better instruction would be that, if the pled of contributory negligence has not been sustained by a preponderance of the evidence, then the jury should find against the plea.

Another assignment of error is addressed to the refusal of the court to give to the jury a peremptory instruction to find in favor of the defendant, which was requested by the defendant. In the bill of exceptions taken by the defendant to the refusal of this charge, no reason is assigned for the objection, as we think should have been done, under the present practice statutes. The trial judge was left to surmise what was in the mind of the defendant’s counsel, and there was nothing to indicate upon what theory the defendant insisted that the instruction should be given, whether for lack of sufficient pleadings by plaintiff, or for the lack of sufficient evidence to make out a case of negligence on the part of the defendant, as is now insisted in appellant’s brief, or whether it was upon the theory that the negligence of the driver of the automobile was the sole, proximate cause of the injury, as suggested by another assignment. In the absence of any reason assigned for the objections to the refusal of the instruction, there is no sufficient predicate for the assignment now under discussion, and it is accordingly overruled. Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991; Stephenville, North & South Tex. Ry. Co. v. Wheat (No. 8015) 173 S. W. 974, by this court, not yet officially published; P. & N. T. Ry. v. Grundy, 171 S. W. 318; Steele v. Dover, 170 S. W. 809.

For the reasons noted, the judgment is reversed, and the cause remanded.
      <@=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BAUGH v. BAUGH et al.
    (No. 1417.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 4, 1915.
    On Rehearing, April 10, 1915.)
    1. Appeal and Error &wkey;>544 — Questions Presenter poe Review — Bills of Exception and Statement op Facts.
    Assignments of error to the manner in which the cause was submitted to the jury on special issues cannot be considered, where there are no bills of exception or statement of facts in the record and no showing of fundamental error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. &wkey;544J
    2. Appeal and Ekboe &wkey;?544 — Questions Peesented poe Review — Bills op Exception and Statement op Facts.
    In the absence of any bills of exception or statement of facts in the record, the denial'of an extension of time for filing bills of exception .and statement of facts cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. &wkey;544.1 On Rehearing.
    3. Process <&wkey;24 — Citation—File Number.
    The statute, requiring the citation to contain the file number of the case, is satisfied if the number is indorsed on the back thereof, though not in the body, and such citation will .support a judgment by default.
    [Ed. Note. — For other cases, see Process, Cent. Dig. §§ 9, 19; Dec. Dig. <&wkey;24.]
    4. Appeaeanoe <&wkey;24 — Effect — Waivee op Defects in Process.
    Where a defendant, who filed no answer, appeared at the trial and requested the submission of special issues to the jury, he waived any defect in the citation.
    [Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. &wkey;24.]
    5. Appeal and Error <&wkey;670 — Record—Correction — Affidavit.
    A record, showing that a defendant who filed no answer requested the submission of special issues, cannot be changed by an affidavit of plaintiff’s counsel, stating that those issues were submitted by plaintiff and not by defendant, which was first called to the attention of the Court of Appeals on motion for rehearing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2865, 2866; Dee. Dig. &wkey;670.]
    6. Judgment i&wkey;525 — Recitals — Appearance.
    A judgment, which recites that one of the defendants failed to appear and answer, and that after the trial and verdict rendered against that defendant, judgment was entered against him, does not show on its face that that defendant did not appear at the trial, notwithstanding his failure to answer as the record shows he did, since it shows that the judgment against him was not interlocutory on default, but on the verdict of the jury.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 568, 968, 98214; Dec. Dig. <§=> 525.]
    Error from Panola County Court; Geo. I-Harkrider, Judge.
    Action by C. V. Baugh against M. S. Baugh and R. S. Scoggins. Judgment for the plaintiff against the defendant M. S. Baugh and for the defendant Scoggins against the plaintiff, and both plaintiff and defendant M. S. Baugh bring error.
    Affirmed, and motion of M. S. Baugh for rehearing overruled.
    H. N. Nelson, of Carthage, for plaintiffs in error. W. G. Banks and Brooke & Woolworth, all of Carthage, for defendant in error.
   HODGES, J.

C. V. Baugh filed this suit against R. S. Scoggins and M. S. Baugh to recover the sum of $220, together with interest and attorney’s fees due upon a promissory note. He also sought the foreclosure of a lien on a land note for $300, which had been deposited' with him by Scoggins as collateral security for the payment of the note sued on. M. S. Baugh made no answer in the court below. Scoggins answered, admitting the execution of the note, and that he had deposited the land note referred to as collateral security; but he further alleged that subsequent to the execution of the note sued on there had been an agreement between all the parties that M. S. Baugh alone was to be held responsible for the amount due on the note, and that he (Scoggins) was to be released and his vendor’s lien note returned to him. In addition to the prayer to be discharged with his costs, he also sought to have a recovery of the note deposited as collateral security. Upon a trial before a jury verdict and judgment were rendered in favor of O. V. Baugh against only M. S. Baugh for the amount of the note sued on, together with interest and attorney’s fees. Judgment was also rendered in favor of Scoggins, exonerating him from liability and awarding him a recovery of the note held by C. V. Baugh as collateral security.

Both M. S. Baugh and C. V. Baugh appeal, and separately assign errors to the manner in which the case was submitted to the jury on special issues. There is neither a statement of facts nor any bills of exception in the record, and we are unable to say that the court committed any error. It appears from the briefs that practically the only issue about which there was any contest was the agreement set up by Scoggins, in which he claimed a release from any further liability on the $220 note. We cannot say that the manner in which this was submitted by the court was fundamentally wrong.

It is also complained by G. V. Baugh that the court erroneously denied him a further extension of time in which to file his bills of exception and the statement of facts. In the present state of the record that ruling cannot be reviewed.

The judgment of the county court is affirmed.

On Rehearing.

The plaintiff in error, M. S. Baugh, has filed a motion for a rehearing, in which it is contended that the citation issued in this case and served upon him was defective and insufficient to support a judgment by default. The defect pointed out in the motion, and the same as that relied upon in the original presentation of the appeal, is the absence of the file number of the suit from, the body of the citation. An examination of the writ incorporated in the record shows that the place where the file number was intended to appear was left blank. It is also shown that the clerk in issuing the citation had made the usual indorsements of the names of the parties to the suit, together with the file number, on the back of the citation. It has been held by two of the Courts of Civil Appeals, following a previous decision by our Supreme Court, that the failure of the citation to include the file number is a fundamental defect, and that the service of such a writ does not authorize the rendition of a judgment by default. Crenshaw v. Hempel, 130 S. W. 731; Duke v. Spiller, 61 Tex. Civ. App. 237, 111 S. W. 787. In the case first cited above it was also held that the fact that the clerk had indorsed the file number on the back of the citation did not cure the defect. We are not disposed to follow the latter ruling. The statute provides that the citation shall contain the file number of the. case. The evident purpose of this requirement is to have the writ which is to notify the defendant that he had been sued and the nature of the plaintiff’s demand also furnish the defendant the means of identifying the particular case in which he is required to answer. It is a matter of common knowledge that the clerks of the different courts have, for many years, adopted the practice of indorsing the names of the parties and the file number of the suit on the backs of the citations issued by them. It is equally a matter of common knowledge that lawyers and litigants, in determining the identity of suits, generally, if not in every case, look to the back of the writ in order to ascertain the file number. In view of that established custom, to hold that the writ did not furnish that information when the file number appeared upon the back would be dignifying a technical requirement beyond reason. We rather incline to the view that in such an instance there has been a substantial compliance with the requirements of the statute.

But we are not required to place our disposition of this motion upon that ground. As stated in the original opinion, the record shows that the suit in the court below was by C. V. Baugh against M. S. Baugh and R. S. Scoggins. Each of these defendants had signed a promissory note payable to C. V. Baugh. In his answer Scoggins admitted the execution of the note, but claimed a release by virtue of an agreement to which he, M. S. Baugh, and C. V. Baugh were parties, and in which it is alleged M. S. Baugh assumed the entire obligation of paying the note at maturity and releasing Scoggins. The record shows that on the trial of the case M. S. Baugh requested that the following special issues be submitted to the jury:

(1) Did R S. Scoggins pay all of the indebtedness of the firm of Baugh & Scoggins?
(2) Did plaintiff agree to look to M. S. Baugh alone for the debt, and release R S. Scoggins?

Both of these special issues were refused. If M. S. Baugh appeared at the trial, as he had a right to do, notwithstanding his failure to file an answer, and requested the submission of the foregoing special issues, he thereby waived whatever defect there might have been in the citation served upon him.

It is now insisted for the first time that this part of the record is erroneous; that the special issues referred to were not in fact presented and requested by M. S. Baugh, but by the attorney representing C. V. Baugh in the trial below; that the name of M. S. Baugh as the author of these issues was used by mistake by the attorney for C. y. Baugh. As evidence of that fact we are referred to an affidavit to that effect by the attorney representing C. y. Baugh on that occasion, which appears among the papers. This affidavit, however, is not accompanied by any motion or any form of effort to correct the record, and was never before called to our attention. In determining what took place in the court below we must look to the transcript. The record cannot be impeached in this manner. Eaton v. Klein, 174 S. W. 331; W. U. Tel. Co. v. Christensen, 78 S. W. 744, and cases there cited.

Counsel for M. S. Baugh, however, insists that the judgment rendered by the court shows upon its face that M. S. Baugh had made default and was not present in court, and therefore could not have requested the submission of the special issues attributed to him. The material portions of the judgment rendered in this case are as follows:

“On this the 18th day of August, 1914, this cause was called for trial. The plaintiff appeared in person and by attorneys and announced ready. The defendant R. S. Scoggins appeared and announced ready for trial. The defendant M. S. Baugh, though duly cited in the manner and for the length of time required by law, failed to appear and answer in this behalf. A jury not being waived, but demanded,” etc.

Then follow the names of the jurors and the special issues submitted by the court, together with the verdict of the jury. The judgment then proceeds l

“And it appearing to the court from the verdict of the jury that the defendant R. S. Scog-gins is not indebted to the plaintiff O. Y. Baugh in any amount on the note sued on herein, and it further appearing to the court that the defendant M. S. Baugh is due the plaintiff C. Y. Baugh the full amount of said note, principal and interest and attorney’s fees, it is therefore ordered, adjudged, and decreed,” etc.

It will thus be seen that the court did not render an interlocutory judgment by default against M. S. Baugh and then proceed to a trial between C. Y. Baugh and Scoggins, but he held the entire controversy open till after the jury had rendered a verdict. M. S. Baugh was not therefore precluded from appearing, notwithstanding his failure to file an answer and take some part in the proceedings. He might have cross-examined the witnesses touching the alleged agreement by which he assumed the entire obligation to pay the joint note, or he might have requested the submission of appropriate questions concerning that issue, as the record shows he did. A default upon which a judgment may be rendered is the failure to answer to the merits of the suit. A judgment such as the one rendered in this case does not necessarily mean that the defendant M. S. Baugh was not present at the trial and took no part in the proceedings.

We, therefore, conclude that as the record now stands, the plaintiff in error cannot insist upon a defect in the citation, and the motion is overruled.
      i&wkey;>For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    MARSHALL TRACTION CO. v. YOUNG.
    (No. 1441.)

    (Court of Civil Appeals of Texas. Texarkana.
    April 6, 1915.
    Rehearing Denied April 15, 1915.)
    Street Railroads <&wkey;114 — Collision with Horse — Negligence—Evidence.
    Evidence in an action for injury of plaintiff by collision of a street car with the horse which he was riding held to warrant the conclusion that without fault of plaintiff, his horse being uncontrollable, the motorman negligently caused the injury by not stopping the car after seeing the situation, whether the horse was struck by the side or end of the car.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 239-250; Dec. Dig. <&wkey;> 114.)
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by N. C. Young against the Marshall Traction Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The suit was by appellee against appellant for damages for injury to his person, caused by negligence on the part of employés of appellant operating one of its street cars on East Austin street in the city of Marshall. Appellee in the nighttime was riding horseback, going west on said street, and the street car was west of him, moving east. His account of the accident, testifying as a witness, was as follows:
    “My horse was in a fox trot as the car came'in on the other block about 100 yards, or 75 or 80 yards. They were coming pretty fast and making a good deal of noise, lighted ail ovei-. The horse stopped 'all at once; threw up his head; stiffened himself all over. The car kept coming, and I spurred the horse to move him up; but he didn’t move, but rah backward. I tightened my reins to try to get away from where I was. I was about a third of the way coming into that block, and was right on the street car track in the middle of the street. The horse stopped, and I could not do anything with him. I tightened the reins, and the car kept on coming. I had to do something pretty quick, as it did not look like they were going to stop the car. There is an opening there between Mr. Toone’s and Mr. Davis’ residences, where they drive in and out between the two yards, 15 or 20 feet west of where I was, and my first thought was to make that place, and go in there, and get out of the way of the car. I could not do it, as I had to go 15 or 20 feet to get to that place, and I couldn’t turn round or go forward, and couldn’t do anything. I held my lines the best I could as the car came closer, and as the car came closer the horse went down where he was, either struck or fell down; but in the scramble the car was in on top of me and the horse both. * * * The only thing the horse would do was to run backward and forward and keep his head toward the car. * * * There was a headlight on the car, and the track seemed to be in bad shape, which caused the light to bounce up and down. The car didn’t hold up, nor stop. When it ran against me and the horse, it kept on going. It was going about as fast as I ever saw a car go anywhere on the street. I would say it was going 20 miles an hour, but that would be merely guesswork, as I don’t know how fast they run. * * * I think my horse at one time got over north of the street ear track. He then got back on the south side of the street car track, and was on the south side when he fell against the car, or the car hit him. * * * He reared and wheeled and pitched as the car kept coming. * * * Don’t know whether the car tripped him, or -he fell himself. Don’t know whether the front of the car hit him or not. I don’t know whether he fell against the side of the car or not. My foot hit the running board on the side of the car, but don’t know what hit the horse.”
    Haynes, the motorman operating the car, testified as follows:
    “The first I noticed Mr. Young, I was 15 or 20 feet from him. * * * His horse was to the right of the track on the north side of the track, and became frightened and ran backward — I suppose back to the curb on the north side, far enough for the street car, in passing, not to hit him. I thought that the horse would be frightened, but that the street car would get by; but the horse lunged and crossed right in front of the car on the track. What frightened me was the horse trying to cross. The horse went to the curb on the south side of the track after he crossed. At the same time the rider was holding the horse’s head towards the car, and the horse was trying to get away from it. By that time, while the horse was at the curb on the south side of the track, my car passed by him at least two-thirds of the way. Then the horse began to run back. I could have speeded up and got away, but.I didn’t. I was afraid the car would run into the horse. * * * The front end of the car did not hit the horse. * * * Qi]je car was coasting down hill to the east. I was running about 5 miles an hour. At that rate of speed, I could stop at a very short distance. It would require 4 or 5 feet to stop, and I could stop in that distance. I pulled down on the car, slacking its speed, but didn’t stop it still. I was going about 5 miles an hour, and pulled down the speed to about one-half that speed. The car was going about 2% miles an hour when it hit him. As soon as I saw the horse was clear of the ear I increased its speed. I didn’t think the car hit him. The way I saw it, the car didn’t hit the horse. I thought he was hurt by reason of his horse falling on him. When the horse fell, he was 2 or 3 feet south of the car. I didn’t feel the street car hit the horse, though I was looking for it.”
    The appeal is from a judgment in favor of appellee for $1,800.
    John W. Scott and E. H. Prendergast, both of Marshall, for appellant. Beard & Davidson, of Marshall, for appellee.

       Writ o£ error pending in Supreme Court.

   WILLSON, O. J.

(after stating the facts as above). We do not agree with appellant that the verdict was without support in the testimony. On the contrary, we think (and find) it warranted the conclusion reached by the jury that appellee, without fault on his part, was injured as the result of negligence on the part of the motorman, as charged. The jury had a right to believe that appellee told the truth when he testified that his horse was uncontrollable, and therefore that he was not to blame because he did not get the horse away from the car as it approached. They had a right to conclude, from the testimony set out in the statement above, that the motorman saw the horse, and discovered that he was not manageable, when the car was at least 15 or 20 feet from him, and that the motorman could have stopped the car before it got nearer than 10 or 15 feet to the horse. They had a right to further conclude that, if the motorman had stopped the car as soon as he could after he discovered that the horse was not manageable, injury to appellee would have been avoided, and that a reasonably prudent person operating the car under the circumstances would have so stopped the car, as it was the motorman’s duty, when he saw that the horse was frightened and uncontrollable to do what he reasonably could in the management of the car to avoid injury to appellee, the jury, from facts they had a right to find as stated, were warranted in concluding that the motorman had not discharged that duty, and therefore was guilty of negligence. 2 Joyce on Electric Law, § 577; 2 Thomp. on Neg. §§ 1420, 1421; 3 Elliott on Railroads, § 1096; Railway Co. v. Hair, 32 S. W. 1050; Ellis v. Railway Co., 160 Mass. 341, 35 N. E. 1127; Railway Co. v. Page, 10 Kan. App. 362, 59 Pac. 690; Railway Co. v. Hodnett, 101 Va. 361, 43 S. E. 606; Railway Co. v. Lowe, 12 Ind. App. 47, 39 N. E. 165; Traction Co. v. Mullins, 111 Tenn. 329, 76 S. W. 890; Parkinson v. Railway Co., 71 N. H. 28, 51 Atl. 268; McVean v. Railway Co., 138 Mich. 263, 101 N. W. 527; Dabbs v. Railway Co., 8 Ga. App. 350, 69 S. E. 38; Railway Co. v. Thomas, 164 Ala. 191, 51 South. 418; Cameron v. Railway Co., 70 N. J. Law, 633, 57 Atl. 417; Railway Co. v. Cleveland (Ky.) 100 S. W. 283, 11 L. R. A. (N. S.) 853; Railway Co. v. Wall, 142 Ky. 86, 133 S. W. 1145. It was immaterial, we think, whether the horse was struck by the front end or by the side of the car. He would not have been struck at all, but for the negligence of the motorman.

It is insisted that the verdict was excessive, but we do not think we should sáy it is.

There is no error in the judgment, and it is affirmed.
      <§r^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes