text:
    TEXAS & P. RY. CO. v. BURSEY.
    (No. 1736.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 14, 1917.
    Rehearing Denied March 1, 1917.)
    1. Master and Servant <§=>150(1) — Injuries to Servant — Duty to Warn.
    Where the servant solicits employment in a particular calling, the master has the right to assume, in the absence of information to the contrary, that he is qualified for that particular work, and the duty of cautioning and instructing him other than as to latent or extraordinary dangers arises only from facts brought to the master’s notice.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 297, 300.]
    2. Master and Servant <§=>150(1) — Injuries to Servant — Duty to Warn.
    Where a servant took a job “to keep up the blocks on one side of a flat car so as to hold it steady when a steam shovel was working,” he did not so hold himself out as competent to do mechanical work on the crane of the steam shovel as to absolve the master from warning him of the danger of standing on cogwheels which were started without warning, mangling his foot
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 297, 300.]
    3. Master and Servant <&wkey;155(l) — Injuries to Servant — Duty to Warn.
    Where a servant employed at other business was ordered by the foreman to climb the crane of a steam shovel and tighten nuts on a U-bolt, and in doing so he stood upon cogwheels, there being no other place to stand, when a servant started the machinery, causing injuries, the fact that the injured servant was of mature years or that the danger was obvious did not preclude recovery, where the evidence showed that he was totally unfamiliar with machinery and was not warned of the danger.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 310.]
    4. Evidence <&wkey;588 — Questions eor Jury-Credibility oe Witnesses.
    Though a witness is contradicted, the jury has the right to pass on his credibility and accept his version to the exclusion of conflicting evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2437; Witnesses, Cent. Dig. § 1164.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by Walter Bursey against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. H. Prendergast, of Marshall, for appellant. P. O. Beard and T. W. Davidson, both of Marshall, for appellee.
   HODGES, J.

This appeal is from a judgment in favor of the appellee against the appellant for damages resulting from personal injuries. The evidence shows that at the time of the injury the appellee was in the service of the appellant and was engaged in an effort to adjust some nuts on a steam shovel. According to his testimony, he had been in the service of the appellant six days prior to the injury, and his “regular job was to keep up the blocks on one side of the flat car so as to hold it steady when it worked.” The steam shovel was on a flat car, which could be moved from place to place as required. A new dipper had been put on, but for some reason the machinery did not operate satisfactorily. The appellee and another ■employé were directed to ascend the boom and adjust some nuts on a U-bolt. Below the shaft where they were at work was a group of cogwheels that revolved as the levers were moved. In taking his position to turn the nuts the appellee placed one of his feet upon or near those cogwheels, and while attempting to manipulate the wrench the cogwheels begun to turn and mashed his foot. 'The original petition charged negligence on ike part of the appellant in starting the machinery while the appellee was in that position, and also in failing to warn him of the dangers to which he exposed himself in performing that kind of work.

The court gave the following as a part of his general charge.

“(4) Now, if you believe from the preponderance of the evidence that the plaintiff, Walter Bursey, was engaged in fastening or tightening a nut upon the steam shovel of the defendant about the 6th day of December, 1915, and while so engaged the defendant’s agents and servants in charge of said steam shovel caused the machinery to move, and that the act of moving the machinery, if it was moved, was negligence, and that said negligence caused plaintiff’s foot to be injured as alleged in his petition, then you will find for the plaintiff, unless you find for the defendant under other portions of this charge.
“(5) Or, if you believe that the plaintiff, Walter Bursey, was not familiar with the work that he was performing, and jlid not understand the danger of his position, iirany, and that the loosening of the nut on the U-bolt, if it was loosened, caused the machinery to move, thereby injuring him, and that the plaintiff had not been warned of the danger, if any, and that the defendant was negligent in not having warned him under the circumstances, then in that event you will find for the plaintiff.”

In its first assigned error the appellant complains that the second of the above-quoted paragraphs was erroneous: First, because the danger to Bursey from placing his foot on a part of the machinery that turned was obvious and could readily have been seen by him; and, second, because, Bursey being a man of mature years, it did not devolve upon the appellant to warn him concerning the danger to which he was exposed.

While it is true the evidence does show that Bursey was a man of mature years, he also testified that he was unaccustomed to that character, of work and was ignorant of the danger of placing his foot in the position in which it was when injured. The rule seems to be that, where the servant solicits employment in a particular calling, the master has the right to assume, in the absence of information to the contrary, that the servant is qualified for that particular work, and the duty of cautioning and instructing the servant other than as to latent or extraordinary dangers arising only from facts brought to the master’s notice of the disqualification of the servant to safely encounter dangers known to him. 1 Bailey on Personal Injuries, p. 646; 3 Labatt on Master and Servant (2d Ed.) § 1148. That rule is apparently the one invoked in this instance; hut we think it has no application, for the reason that it is not shown that Bursey was employed to do that particular character of work. The evidence is sufficient to justify the conclusion that he was entirely ignorant of the dangers to which he became exposed, and that this was known to the appellant. There is nothing in the evidence to indicate that he induced his employers to believe that he was fitted for that character of work or knew the dangers incident to its performance. The author last referred to says:

“The question whether the master at the time of engaging the servant, or afterwards, ought to have inquired whether he was experienced or not, or should have taken notice, under all the facts, of the probability that he_ was not, nothing being said on the subject by either party, is a question for the jury.”

The court not only required the jury to find that Bursey was ignorant and was not warned, but that the appellant was negligent in not having warned him under the particular circumstances. We do not think the charge is subject to the objections made.

At the instance of the appellant the court gave the following special charge. The jury are charged:

“That, if you believe in this case that Bursey put his foot on a part of the machine which was caused to move and mash his foot on the bolt, and you also find that there was room to have placed his foot on a portion of the boom that was not moved when the machinery was operated, and which place would have been safe for him to place his foot [upon], then you cannot find for the plaintiff. In such case you will return a verdict for the defendant, provided you believe from the evidence that plaintiff Bursey knew, or by the exercise of ordinary care could have known, that the place where he did put his foot was not safe.”

Bursey testified:

“One of my feet was on the running board, and I was straddle of the crane. My right foot is the one that got mashed. When the thing is in operation the piece that I had my foot on turns over. I don’t know where the thing was that caught my foot. I was tightening the bolt when I got hurt, not loosening it. Two of us were pulling at it with a wrench three feet long.”

The foreman of appellant testified:

“There was nothing to stand on on the right side except the stick of timber there, one-h-alf of the boom, about six inches wide, which is about half raised.”

It is finally contended that the evidence was insufficient to support the verdict. In addition to the evidence relied upon to show negligence in a failure to warn Bursey, one of his witnesses testified that he saw the man in charge of the engine turn on the steam and start the machinery. While this witness was contradicted by other testimony, the jury had a right to pass upon his credibility and accept his version to the exclusion of the conflicting evidence.

The judgment of the district court will therefore be affirmed.
      <§=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

       ®c»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DEVY, J.

license: Public Domain

text:
    MERCHANTS’ & BANKERS’ FIRE UNDERWRITERS v. FOSTER.
    (No. 1672.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 20, 1916.
    Rehearing Denied March 1, 1917.)
    Insurance &wkey;>335(4) — Fire Insurance — Conditions in Policy — Breach — “Open for Business.”
    A fire policy provided that assured should, when store was not “actually open for business,” keep his books in a safe or other place secure from fire, and that in case of loss unless books were produced policy would be void. While assured was home for dinner, and while the store was locked, it and the books which were not in safe were burned. A doctor and storekeeper close by, who had keys for store, had agreed to open store for customers while assured was home. Held, that assured’s failure to place his books in a secure place avoided policy, since at time store ivas burned it was not “actually open for business.”

      [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 853.
    For other definitions, see Words and Phrases, First and Second Series, Open for Business.]
    Levy, J., dissenting.
    Error from Fannin County Court.
    Action by K. B. Foster against the Merchants’ & Bankers’ Fire Uriderwriters. Judgment for plaintiff, and defendant brings error.
    Reversed.
    .Thompson, Knight, Baker & Harris and Will C. Thompson, all of Dallas, for plaintiff in error. Cunningham & McMahon and L. C. Fuller, all of Bonham, fpr defendant in error.
   DEVY, J.

The action is by defendant in error upon a policy of fire insurance issued and 'delivered by plaintiff in error covering a stock of drugs which were destroyed by fire on November 20, 1914. The defendant specially pleaded a breach of the record warranty clause contained in the policy sued on. The record warranty clause pleaded stipulates that the assured shall keep a set of books, and shall keep and preserve all inventories taken of the stock, and provides:

“The books and inventories and each of the same, as called for above, shall be by the assured kept securely locked in a fireproof safe at night, and at all times when the building mentioned in the policy is not actually open for business, or, failing in this, the assured shall keep such books and inventories, and each of them, in some secure place not exposed to a fire-which would destroy said building; and in event of a loss or damage insured against to the personal property mentioned herein, said books and inventories, and each of the same, must be by the assured delivered to the company for examination or this entire policy shall be null and void, and no suit or action shall be maintained hereon for any such loss.”

A trial was had before the court without a jury, and a judgment was entered for the plaintiff. The court’s findings of fact and conclusions of law follow.

“Findings of Fact.
“(1) That defendant, Merchants’ & Bankers’' Fire Underwriters of San Antonio, Tex., is an unincorporated insurance concern.
“(2) That on the 5th day of May, 1914, said-Merchants’ & Bankers’ Fire Underwriters, for a valuable consideration paid it by plaintiff, issued and delivered to plaintiff its policy of insurance insuring plaintiff against loss by fire for $500-on his stock of drugs, patent medicines, toilet articles, etc., while contained in a building in Lamasco, Tex.
“(3) That on November 20, 1914, while said' policy of insurance was in full force and effect, said stock of drugs, patent medicines, toilet articles, etc., were totally consumed by fire, as were plaintiff’s invoices, books of account, etc.
“(4) That plaintiff prepared and delivered to-•defendant proofs of loss as required by the policy and within the time prescribed in policy.
“(5) That the fire occurred about noon of November 20, 1914. The plaintiff had gone to his dinner at his home, about one mile from the store. The store was locked, but plaintiff had made arrangements for his customers to get into the store while he was gone to dinner, and for that purpose Dr. Williams and E. P. Smith had a key. .Dr. Williams lived about 200 yards from the store, and Smith’s store was about 30 feet from plaintiff’s. If a customer had come to the store while plaintiff was gone Dr. Williams or E. P. Smith would have let him in and sold him the things he wanted. Williams and Smith had agreed to let people in for plaintiff at any time. The plaintiff left his store at 11:30 or a quarter to 12, and the store was burning ■when plaintiff returned from his dinner. Plaintiff had no other insurance. The value of the goods burned and covered by the policy of insurance was more than $700. The books, accounts, invoices, etc., required by the policy were kept by plaintiff, and prior to the fire were kept by plaintiff at his residence and away from the store whenever the store was not open for business. The plaintiff ha<j taken the inventories required by the policy, and had done all the things according to the requirements of the policy to make the insurance valid; that plaintiff’s books of account, records, inventories and invoices, etc., required by the policy were all consumed by the fire which burned his stock of goods.
“Conclusions of Law.
“(1) I conclude that the store in which plaintiff’s stock of drugs, patent medicines, toilet articles, etc., covered by the policy of insurance herein were kept was, within the meaning of the policy, actually open for business at the time of the fire.
“(2) I conclude that plaintiff is entitled to a judgment against the defendant, Merchants’ & Bankers’ Eire Underwriters of San Antonio, Tex., for the sum of $427.50.”

Opinion.

The appellant by its assignment of error makes the point that the findings of fact by the trial court conclusively show that the building in' question was “not actually open for business” within the meaning of the provision of the policy in that respect, and that the legal effect attaching to such fact is failure of compliance with the provision pleaded in the answer, which rendered the policy by its terms void. The precise findings of the trial court, and to which he attached the legal effect of a compliance with the terms of the provision of the policy in question, are as follows:

“That the fire occurred about noon of November 20, 1914. The plaintiff had gone to his dinner at his home about one mile from the store. The store was locked, but plaintiff had made arrangements for his customers to get into the store while he was gone to dinner, and for that purpose Dr. Williams and E. P. Smith had a key. Dr. Williams lived about 200 yards from the store, and Smith’s store was about 30 feet from plaintiff’s. If a customer had come to the store while plaintiff was gone Dr. Williams or E‘. P. Smith would have let him in and sold him the things Jie wanted. Williams and Smith had agreed to let people in for plaintiff at any time. The plaintiff left his store at 11:30 or a quarter to 12, and the store was burning when plaintiff returned from his dinner.”

The state of facts found by the trial court necessarily requires, as determined by a majority of this court, the legal conclusion that the building in question was “not actually open for business” within the meaning of the provision of the policy. And the following authorities discussing the question in point are referred to and here cited: Joffe & Mankowitz v. Niagara Ins. Co., 116 Md. 155, 81 Atl. 281; Penis v. Insurance Co., 106 Miss. 145, 63 South. 346; Insurance Co. v. Parker, 61 Ark. 207, 32 S. W. 507.

There being shown a failure of compliance with the provision of the policy in question, the judgment of the trial court in favor of appellee is not supported and is erroneous. Eor that reason it is concluded that the judgment should be reversed and here rendered in favor of appellant, and it is accordingly so ordered.

The writer, though, does not agree.to the conclusion reached by the majority of the court, and enters a dissent. Upon the facts found by the court it may properly be concluded, I believe, that the fire in question occurred during a time in the day when the drug store was still “actually open for business.” The words “not actually open for business,” as used in the provision of the policy,, have the same meaning as if expressed thus, “not really open for the sale of merchandise therein.” An'd in the facts found by the court the proprietor of the drug store not only had the intention to not suspend ‘business during his dinner hour, but actually arranged with two persons immediately accessible, and furnished them with a key to the door, to attend to the business, which persons were ready, able,' and willing to admit customers and to sell them the goods wanted. These facts, it is believed, place ap-pellee within the scope of the stipulation, and there is not an avoidance of the policy under its terms. Major v. Insurance Co., 112 Mo. App. 235, 86 S. W. 883; Insurance Co. v. Jones, 54 Ark. 376, 15 S. W. 1034. There is a distinguíshment in the state of facts between the case of Insurance Co. v. Jones, supra, and the case of Insurance Co. v. Parker, 61 Ark. 207, 32 S. W. 507, supra.
      É=»Fot other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WOOD.
    (No. 1729.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 15, 1917.
    Rehearing Denied March 1, 1917.)
    1. Railboads <&wkey;482(2) — Pibes — Actions— Evidence — Sufficiency.
    In an action for damages for destruction by fire of defendant’s sawmill plant and lumber, evidence held to sustain a finding that the fire which destroyed the plant escaped from one of defendant’s locomotives.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1731, 1732.]

      2 Raileoads <&wkey;480(3) — Fires — Actions— Evidence — Burden of Proof.
    In an action for damages for destruction by fire of defendant’s sawmill plant and lumber, where the fire was shown to have escaped from one of defendant’s locomotives, the burden was on defendant to show that its communication to plaintiff’s property was not the result of lack of care on the part of its employés in charge of the locomotive.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1711.]
    3. Railroads &wkey;>482(4) — Fires — Actions — Evidence — Sufficiency.
    Evidence held to sustain a finding that the fire was communicated to plaintiff’s plant as a result of the failure of defendant’s employés in charge of its locomotive to use ordinary care in operating it.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1735.]
    4. Railroads <&wkey;>481(4) — Fires — Actions— Evidence — Admissibility.
    In an action for damages for destruction by fire of defendant’s sawmill plant and lumber, where the evidence did not identify the locomotive, but tended to show that it was one of two owned by defendant, evidence of other, fires set on defendant’s right of way was admissible to rebut the testimony of defendant’s master mechanic that all the locomotives used by defendant were properly constructed with proper appliances to prevent the escape of fire therefrom, and that as so equipped fire could not escape.
    [Ed. Note. — For -other cases, see Railroads, Cent. Dig. § 1721.]
    5. Trial <&wkey;61 — Discretion of Court — Reception of Evidence.
    It was within the discretion of the trial court to admit such testimony before the master mechanic had testified, in anticipation of such testimony to support the allegations in the answer that all of its locomotives had been properly constructed with best appliances to prevent the escape of fire therefrom.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 146, 147.]
    6. Railroads &wkey;481(4) — Fires — Actions— Discretion of Court — Reception of Evidence. .
    In an action for damages for destruction by fire of defendant’s sawmill plant and lumber, evidence that a day or two before the fire in question occurred a live cinder from one of defendant’s locomotives then passing the mill fell on the floor thereof was. admissible to prove that locomotives equipped as defendant’s were did emit fire, and at times threw same as far as ap-pellee’s mill was situated from its main line track, over which its locomotives passed the night 'the fife occurred.
    [Ed. Note. — For other cases, see- Railroads, Cent. Dig. § 1721.]
    Appeal from District Court, Upshur County; R. M. Smith, Judge.
    Action by J. R.-Wood against the St Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    This appeal is from a judgment (so far as it is material.to state it) in favor of ap-pellee agaihst appellant for $3,507.49 as the damages (and interest thereon) suffered by him because of the- destruction by fire of a sawmill plant, including a planer and certain lumber owned by him. Appellee alleged that fire was communicated to his property as the result of negligence on the part of employés of appellant in charge of one of its locomotives. The judgment in his favor was based on findings made by a jury on special issues submitted to them: (1) That the fire which destroyed his said .plant escaped from one of appellant’s locomotives; (2) as a result of the failure of appellant’s employés in charge thereof to use ordinary care in operating it; and (3) that the .value of the property so destroyed was ?3,346.97.
    Marsh & Mcllwaine, of Tyler, E. B. Perkins, of Dallas, Dan Upthegrove, of St. Louis, Mo., and Sanders & Florence, of Gilmer, for appellant. Warren & Briggs, of Gilmer, for appellee.
   WILLSON, C. J.

(after stating the facts as above). The finding of the jury that appellee’s property was destroyed by fire which escaped from one of appellant’s locomotives is attacked as unauthorized because it appeared, it is insisted, “from the great weight and preponderance of the evidence,”- that the property was not so destroyed, but was destroyed by fire otherwise communicated to it. If there was any testimony whatever tending to show that the fire was communicated to appellee’s property from some other source than one of appellant’s locomotives, appellant has failed to point it out in its briefs, and -we have been unable to find it in the record. Assuming there was no such testimony, the first, second, and third assignments should be overruled, if there was testimony’ the jury reasonably might have regarded as sufficient to show that the fire was set out from one of appellant’s locomotives. Appellee’s mill was discovered to be burning at about 2 o’clock of the morning of October 15, 1915. It was shown that appellant’s locomotive No. 564 passed appellee’s mill at about 12:10 o’clock of that morning, and that its locomotive No. 550 passed at about 1 o’clock of said morning. It was shown that the fire in the furnace at the mill was “flooded out with water” when appellee ceased to operate the mill about 5 o’clock of the afternoon of October 14th, and that there was no- fire' on the premises at 10:30 o’clock of the night the fire occurred. The witness Glenn, who passed near the mill about 45 minutes before it was discovered to be burning, testified that he looked toward the mill as he passed it, and would have seen it if fire had been burning there, but saw none. He further testified that a short time after he passed the mill he saw one of appellant’s trains moving toward the mill, and that the locomotive of the train was “throwing sparks.” it was shown by other testimony that both locomotive No. 564 and locomotive No. ■ 550 were burning coal and -were emitting sparks freely while moving near’ appellee’s mill. It •was further shown that all the locomotives used by appellant were equipped with the same kind of spark arresters. And it was further shown that a day or two before the fire occurred a live cinder from one of appellant’s locomotives passing the mill was thrown to the floor thereof. It seems to us the jury might reasonably have concluded from the testimony showing that locomotives Nos. 564 and 550 on the night of tbe fire passed within 25 or 30 feet of appellee’s property, that they were emitting sparks, and that one of them, or a locomotive equipped as they were, a day or two before had thrown a live spark or cinder to the floor of the mill, and from the absence of testimony suggesting that the fire might have been communicated to appellee’s property from some other source, that same was set out by either locomotive No. 564 or Ño. 550. Therefore we conclude that the contention made that the finding that the fire which destroyed appellee’s property was set out by one of- appellants locomotives was without support . in the testimony should not be sustained. It follows, the jury having found that appellant did not' discharge the burden which rested upon it to show that the fire was not communicated to the property as the result of lack of care on the part of .its employes in charge of the locomotive from which, the fire escaped,, that the judgment establishing liability on the part of appellant to appellee for damages suffered by him because of the fire was not unauthorized.

Appellant complains, because the court, over its objection,. permitted appellee to prove by his witness Barber that at 6 or 7 o’clock of the morning .when appellee’s property was destroyed fire was. burning on appellant’s right of way on both sides of its track, at a point near the Sabine river and on the south side thereof from appellee’s mill, arid. by the witness Lowery that at about the same hour of the same morning another fire set out during the- night on appellant’s right .of way at a point on the north side. of ,ss,id riyer about two miles from appellee^ mill had spread to and was burning over the witness’s pasture, which was adjacent to said right -of way. The grounds of the objection to the testimony were that it was irrelevant and immaterial because it did .not appear that the fires referred to by the witnesses were set out by its locomotives, and because, if it did . so appear, it did not appear'tfiat .the locomotives which set same out were locomotives which set out fire which destroyed appellee’s mill. As supporting its contention appellant cites Nussbaum v. Railway Co., 149 S. W. 1083, and other cases like it, holding it not error, where the locomotive which set out the fire, in; question is identified, to exclude evidence of fires set out by other or unidentified locomotives.. But we think the - testimony was admissible in rebuttal of. testimony like that of-the witness Kilfoyle offered by appellant. Kilfoyle testified that he was appellant’s master mechanic ; that all the - locomotives used by it were properly constructed; that all of them were equipped with proper appliances to. prevent the escape of fife therefrom; and that as so equipped fire could not escape from them. The testimony objected to, showing as it did that the fires the witnesses referred to were set out on appellant’s right of way the night appellee’s mill was burned, tended, we think, to prove that those fires were set out by appellant’s locomotives, and to rebut the testimony of Kilfoyle that locomotives equipped as those which passed appellee’s mill that night were could not set out fire. The fact that it was admitted before Kilfoyle testified, and not in the order of testimony in rebuttal, is not a reason for sustaining the assignments. It was within the discretion of the trial court to admit it when he did, in anticipation of testimony like Kilfoyle’s to 'support the allegations in appellant’s answer; that all its locomotives had been properly constructed and were equipped with the best appliances for the prevention of the escape of fire therefrom. 33 Oyc. 1354, and authorities there cited; Railway Co. v. Brune, 181 S. W. 547.

Appellant also complains because the court, over its objection, permitted appellee to prove by his witness Baker that a day or two before the fire in question occurred a live cinder front one of appellant’s locomotives then passing the mill fell on the floor thereof. • We think the testimony was - admissible to prove that locomotives equipped as appellant’s were did emit fire and at times threw same as far as appellee’s mill was situated .from its main line track, over which its locomotives passed the night in question. Railway Co. v. McIntosh, 59 Tex. Civ. App. 570, 126 S. W. 692.

Other assighments not in effect disposed of by what has been said are believed to be without merit, and are also overruled.

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

      ©=jFor other «ases see-same topic and KEY-NUMBER-inedl Key-Numbered Digests and-Indexes


author: GAINES, Special

text:
    STATE v. BRATTON et al.
    (No. 5695.)
    (Court of Civil Appeals of Texas.
    Jan. 17, 1917.
    Rehearing Denied Feb. 14, 1917.)
    1. District and' Prosecuting Attorneys <&wkey; 5(2) — County Attorney — Goldection Fees.
    Under Rev. St. 1911, art. 363, a county attorney is entitled to the commission therein-specified for money collected by him in a suit against- a county tax collector for shortage in his account with the state. . ■
    [Ed. Note. — For other cases, see District and Prosecuting Attorneys, Cent. Dig. § 20.]
    2. District and Prosecuting Attorneys &wkey;> 9 — County Attorney — Representation of State — Power. .
    Under Rev. St. 1911, art. 366, providing that when a county attorney has knowledge-that any officer in' his county,' intrusted with c'ollectioh or safe-keeping of any public funds, is failing -to 'discharge his' duties, -etc., he shall ini-stitute proceedings, etc., a county., attorney, has authority to represent the state,_and.prosecute-an action in its name for collection of a shortage of a county tax collector in his accounts with state, and article 4419, giving like authority to Attorney General, does not deprive him of this right.
    [Ed. Note. — Eor other eases, see District and Prosecuting Attorneys, Cent. Dig. §§ 36, 37.]
    3. District and Prosecuting Attorneys <&wkey; 9 — Prosecution of Civil Actions — Implied Repeal of Statutes.
    Although Rev. St. 1911, art. 366, giving county attorney power to prosecute cases for collection of state funds misappropriated by county officers, was passed before article 4419, conferring like authority on Attorney General, but having no repealing clause, the former statute is not repealed by the latter, under the rule that, when statutes are in pari materia, they must be so construed that both may stand, if possible.
    [Ed. Note. — Eor other cases, see District and Prosecuting Attorneys, Cent. Dig. §§ 36, 37.]
    Appeal from District -Court, Travis County; George Calhoun, Judge.
    Action by the State against C. W. Bratton and others. Judgment for defendants, and state appeals.
    Affirmed.
    B. F. Looney, Atty. Gen., and C. A. Sweet-on and G. B. Smedley, Asst. Attys. Gen., for the State. T. B. Bartlett and Oltorf & Ol-torf, all of Marlin, for appellees.
   GAINES, Special

Judge. Prior to April 25, 1914, the commissioners’ court of Palls county caused to be'made an audit of the books and records of C. W. Bratton, at that time tax collector of Falls county. As a result of this audit, notice was officially brought to Frank Oltorf, at that time county attorney of Falls county, that said tax collector was short in his accounts to the state in various sums for the years 1910 to 1913, both inclusive, amounting to a total of $26,-339.75. On April 25, 1914, the county attorney filed suit ini the name of the state of Texas, in the district court of Falls county, against Bratton and his sureties for the above sum, and on the 15th day of February, 1915, judgment was rendered against, said Bratton and his sureties for the above-named sum. On the same day the sureties of Bratton paid said sum to T. B. Bartlett, who had been elected and qualified as county attorney, and appeared in the ease, and he issued his receipt for that amount. Subsequently T. B. Bartlett, as county attorney, paid into the treasury of the state of Texas all of said money, except $1,368.41, which he retained as his commission. The suit was begun in Falls county, without the knowledge or consent of the Attorney General, but he had actual knowledge of its pendency prior to the. June term of the district court in 1914; and a short time before the rendition of the judgment Bratton and his sureties, as well as the county attorney, suggested his participation in the case. The Attorney General, however, in no way participated in the Falls county suit.

On January-13, 1915-, the.1 Attorney'General instituted this suit in- the district court of Travis county, in the name of the state of Texas, agáinst the' said Bratton and his sureties for the, said sum of $26,339.75, and it was agreed in the court below that the suit in Falls county and this suit are based upon the same cause of action, and are substantially identical in all respects. Bratton and his sureties having answered by pleading the judgment and satisfaction thereof in the district court of Falls county, the state, through the Attorney General, filed an amended petition on June 11, 1915, following the original petition in so far as it affected Bratton and his sureties, but making T. B. Bartlett and the sureties on his bond parties. defendant, and asking for a judgment against all of said defendants for the total shortage of the tax collector, on the ground that the suit in Falls county was' alleged to. be without lawful authority, and that the satisfaction of the judgment therein did not discharge any of the parties defendant. It was agreed, however, in the .court below, that, inasmuch as the state had received all except the amount claimed by the county attorney as his commission, the' same being $1,368.41, that sum only is in controversy in this suit. The court below rendered" judgment that the state take nothing by its suit, and from this judgment the state has appealed. ’

By virtue of article 363' of the Revised Statutes of 1911, the county 'attorney is entitled to retain, as his commission, on all moneys properly ‘ collected, by him for the state, the sum of 10'per cent, on the first thousand, and 5 per cent, on the balance of any collection in any one case. The sum reJ tained by the county attorney in this case is in accord with the percentage allowed by the above statute. Therefore the question in the case is: Did the county attorney of Falls county have the right and power’ to sue for and collect the money due the state of Texas by the tax collector and his sureties? The statutes bearing upon the' question are articles 4419 and 366 of the Revised Statutes of 1911. Article 4419 reads as follows:

“He [the Attorney General] shall at least once a month inspect the accounts in the offices of the state treasurer and the comptroller of public accounts, of all officers, and of individuals charged with the collection or custody of funds belonging to the state, and shall proceed immediately' to institute, or cause ‘to be instituted, against any such officer or individual, who is in default or arrears, suit for the recovery of funds in his hands; and he shall also institute immediately criminal proceedings against all officers or persons who have violated the laws by misapplying, or retaining in their hands, funds belonging to the state.”

Article 366 reads as follows:

“When it shall come to the knowledge of any district or county attorney that any officer in his district or county, intrusted with the collection or safe-keeping of any public funds, is in any manner whatsoever neglecting or abusing the trust confided in him, or is in any way failing to discharge' Ms duties under the law, he shall institute such proceedings as are necessary to compel the performance of such duties by such officer, and to preserve and protect the public interest's.”

It seems to be conceded by both parties that the issue in the case involves a construction of the statutes above quoted, rather than of those sections of the Constitution prescribing the respective duties of the Attorney General and of the county attorney. We hold, however, that under section 21 of article 5 of the Constitution the Legislature could confer upon the county and district attorneys all the powers and duties imposed by article 366 of the Revised Statutes of 1911. Does article 366 confer upon county attorneys the authority to sue for and collect such money due the state as that involved in the Palls county suit?

In the ease of Terrell v. Greene, 88 Tex. 539, 31 S. W. 631, the commissioners’ court had employed private counsel to represent the county in a suit against the county treasurer and his sureties, for the recovery of funds lost through the failure of. the City National Bank of Pt. Worth, where the treasurer had deposited the funds. The county attorney, being denied the right to represent the county by the district judge, sought, by an original proceeding for mandamus in the Supreme Court, to compel the district judge to recognize this right. After quoting article 260, now article 366, of the Revised Statutes, the Supreme Court says:

“TMs- article not only confers the power, but imposes a duty, upon the county attorney to perform the acts therein specified. In substance, it requires the county attorney that, in case it shall come to his knowledge that any officer intrusted with the safe-keeping of any public funds is in any manner neglecting or abusing his trust, or failing to discharge his duties under the law, it shall be the duty of the county attorney to institute such proceedings as 'are necessary to preserve and protect the public interests. This language embraces every act which was required' to be performed in order to preserve the funds of the county in this instance. The. admitted facts show that Thomas B. Collins was the treasurer of Tar-rant county, and by law was charged with the custody and safe-keeping of its funds; that he failed to discharge his duty in safely keeping and accounting for such funds; and upon these facts it became necessary that a suit should be filed jn order to preserve and' protect the public interests — that is, the money in his hands belonging to the County. It is difficult to make an argument to show that this plain language embraces the duty on the part- of the county attorney to- bring. .a> suit for this purpose.. It is clear, comprehensive, and unambiguous,, and requires no argument or reasoning to apply it to the facts of this case.”

We regard this holding of our Supreme Court as settling the question that the county attorney has authority to institute suit and represent the state in precisely this character of case. It is true that in the above case the suit appears to have been in the name of the county, and was possibly for county funds only, while in the present case the suit is in the name of the state, and purports to be for state funds only; but the same statute and section of the Constitution that gave the county attorney authority to represent the county give him power to represent the state. In fact, the Constitution carries express power to represent the state, and the statute covers “any public funds.”

Article 366 was passed in 1876, whereas article 4419 was passed in 1879, and, being a later act covering apparently the same duties, the Attorney General contends that this amounted to a repeal of article 366. There is no repealing clause whatever in the act whereby article 4419 was enacted, and the law does not favor repeals by implication. There is no question that the duties growing out of the facts of this case are imposed upon the Attorney General by article 4419, and upon the county attorney by article 366; but it is als'o a well-established rule of construction that, when statutes are in pari materia, they must be read together, and so construed together that both may stand, if possible. The Legislature, in passing a later act, is presumed to have known of the former, and the absence of a repealing clause implies that a harmonious construction was intended. Applying this rule to the statutes under discussion, it should be held that the duty to institute suit under such facts ’ as those of the present case is imposed upon either the Attorney General or the district or county attorneys, but not exclusively upon either. Moreover, such an application of the rule appears to accord with the history and intent of all legislation upon the subject,, both statutory and constitutional.

The county attorney of Falls county having first entered upon and fully performed this duty, he had the right and the power so to do, and was therefore entitled to the statutory commission in such case provided. The judgment of the district court is affirmed*

Affirmed.

RIGE, J'., disqualified.
      (Sn^Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      iSsjFor other oases see same topic and KEY-NUMBER, in ail Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. STATE.
    (No. 2802.)
    (Supreme Court of Texas.
    March 14, 1917.)
    1. Cottkts &wkey;97(3) — Rules of Decision — Decision of United States Couet — Taxation of Interstate Commerce.
    The question whether a tax upon ari interstate carrier measured by its gross earnings, including interstate earnings, is one upon interstate commerce so as to be beyond the power of the state to impose, is controlled by the decisions of the United States Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 331.]
    2. Commerce <&wkey;>70 — Regulation — Taxation — Validity.
    The occupation tax levied by Rev. St. 1911, art. 7384, upon railways measured by their gross receipts, a substantial part of which are derived from interstate commerce, which tax is additional to the ad valorem _ tax assessed against its property and its franchise tax, cannot be sustained as an attempt to tax the railway’s value as a going concern in addition to the value of its separate properties, but is a burden of interstate commerce, and therefore invalid.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 114.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by the State against the Houston Belt & Terminal Railway Company to recover- unpaid taxes. A judgment for defendant was reversed by the Court of Appeals, and judgment there rendered for the plaintiff (166 S. W. 83), and defendant brings error.
    Judgment of the Circuit Court of Appeals reversed, and that of the District Court affirmed.
    Andrews, Streetman, Burns & Logue, Frank Andrews and Robert H. I-Celley, all of Houston, for plaintiff in error. B. F. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State.
   PHILLIPS, C. J.

The suit was by the State to recover of the Houston Belt & Terminal Railway Company taxes measured by its gross receipts from April 1, 1908, to April 1, 1913, under section 16 of the Act of 1907 (General Laws of 1907, Chapter 18, pages 479-89), Article 7384, Revised Statutes of 1911. The receipts of the defendant were in substantial measure derived from the carriage of interstate and foreign commerce. It had paid for the same period all of the State, County and City ad valorem taxes assessed against its property, and also its franchise tax.

In the District Court, it was held that the tax levied by the Act of 1907 and so sought to be recovered was unconstitutional and void as a burden upon interstate and foreign commerce. Judgment was there rendered for the defendant. In the Court of Civil Appeals, 166 S. W. 83, this judgment was reversed, and judgment was rendered for the State.

Whether the tax in question is one upon interstate and foreign commerce and hence beyond the power of the State to impose, or is a tax which the State may lawfully exact, is a question controlled by the decisions of the Supreme Court of the United States. The present inquiry resolves itself, therefore, simply into the ascertainment of that court’s rule of decision upon the subject.

The Act of 1905 (Acts 29th Leg. c. 146), levying a tax upon the gross receipts of railroad corporations, which this court had occasion to review in State v. Galveston, Harrisburg & San Antonio Railway Company, 100 Tex. 153, 97 S. W. 71, and was later passed upon by the United States Supreme Court, (210 U. S. 217, 28 Sup. Ct. 638, 52 L. Ed. 1031), levied the same per centum upon the gross receipts of such corporations, and in substantially the identical terms, as does the Act of 1907. It is provided in the Act of 1907, as it was in the Act of 1905, that the tax shall be in addition to all other taxes levied by law. It is also declared in the Act of 1907, as it was, in effect, in the Act of 1905, that those to whom the tax applies shall be exempted from the payment of the intangible assets tax imposed by other laws. As to the subject of the tax, its measurement, and the operation of the law in respect to relieving against the payment of other taxes, there is no difference between the two acts. The only dissimilarity whatever between them is that the Act of 1905 did not designate the character of the tax, whereas the Act of 1907 defines it as an occupation tax.

While the nature of the tax levied by the Act of 1905 was thus undefined in terms, this court held it to be an occupation tax; and, relying upon the decision of the United States Supreme Court in Maine v. Grand Trunk Railway Company, 142 U. S. 217, 12 Sup. Ct. 121, 163, 35 L. Ed. 994, — wherein it was affirmed that a State could lawfully lay an excise tax upon railroad corporations exercising their franchises within its borders, consisting of a stated per centum upon their gross receipts derived in part from interstate commerce, — sustained the Act. Maine v. Grand Trunk Railway Company is apparently the authority upon which the Court of Civil Appeals rested its decision in the present case.

The Supreme Court of the United States, however, in its determination of State v. Galveston, Harrisburg & San Antonio Railway Company refused to apply the doctrine broadly announced in Maine v. Grand Trunk Railway Company. It there held that the tax levied by the Act of 1905, whatever its name or form, amounted to a tax upon the interstate business of the corporations subject to it, and declared the Act invalid.

The holding in the Main Case that a State could adopt a given per centum of the gross receipts of the corporation arising in part from interstate commerce as the measure of a state excise tax, was without qualification, and without regard, therefore, to whether the property of the corporation was, under other laws of the State, fully taxed. The opinion does not intimate that the ruling was to any extent influenced by the possibility that the property of the corporation was not so taxed. In refusing to apply the ruling made in the Maine Case, the court therefore necessarily held that a State cannot, unqualifiedly, levy an occupation tax measured by a given per centum of gross receipts derived in part from interstate commerce. This is conclusively shown by the manner in which the holding in the Main Case was explained and distinguished in the opinion delivered in the Galveston Case, which was as follows: Affirming the full power of a State to tax the property of a corporation situated within its borders, though used in interstate commerce, and to tax it at its full value as a going concern, it was stated that the buildings of the railroad company before the court in the Maine Case, and its lands and fixtures outside of its right of way, were, by the laws of Maine, taxed locally. But, it was added, “the local tax was not expected to include the additional value gained hy the property hemg part of a going concern." It was then explained that the excise tax imposed by the Maine statute “was an attempt to reach that additional value,” and for this reason it was in that case sustained. In other words, the explanation given by the court for its previous decision affirming that a state excise tax, measured by a given per centum of gross receipts derived in part from interstate commerce, could be lawfully imposed, was that the particular tax applied to a value of the property which was not otherwise taxed under the laws of the State, namely, its value as a going concern.

Emphasizing this distinction the court then announced that the tax levied by the Act of 1905, though held by this court to be an occupation tax, not differing in character from an excise tax, and though measured in the same manner as was the excise tax under the Maine statute, could not be sustained upon the ground which, according to the court’s explanation, supported the holding in the Maine Case, that is, as reaching a value possessed by the railroad company’s property not by the State otherwise taxed, since it appeared that the property, under other laws of the State, was fully taxed as of a going concern.

This is equally true of the taxation of the property of the plaintiff in error. It. had paid all ad valorem taxes assessed against its property for the period for which it was sought to recover the tax upon its gross receipts, and its franchise taxes, in addition. The assessment of its property for ad va-lorem taxation under the general laws included the value which it had as property of a going concern. Article 7504, Revised Statutes; State v. G., H. & S. A. Ry. Co., 100 Tex. 153, 97 S. W. 71. This being the condition in respect to other taxation of the plaintiff in error’s property, the decision of the United States Supreme Court in State v. Galveston, Harrisburg & San Antonio Railway Company, which is still adhered to by that court, is conclusive of the case.

The correctness of our interpretation of that decision is established by the application made of it in Oklahoma v. Wells Fargo & Company, 223 U. S. 298, 32 Sup. Ct. 218, 56 L. Ed. 445, and its re-statement in United States Express Company v. Minnesota, 223 U. S. 335, 32 Sup. Ct. 211, 56 L. Ed. 459. In the former, there was under review an act of the State of Oklahoma (Laws 1910, e. 44, § 2) levying a tax upon certain corporations measured by a stated per centum of their gross receipts, including receipts arising from interstate commerce, which tax, it was provided by the act, should be “in addition to the taxes levied and collected upon an ad valorem basis.” Directing attention to the fact that the property of the corporations to which the act applied was thus subject to ad valorem taxation under other laws of the State, in holding that its decision in the Galveston Case controlled the question before it, the court said this of the tax levied by the act: |

“Therefore this tax cannot be an attempt to reach the value of what is by the law to be' valued and taxed in a different way. It would be difficult to apply to a> tax levied in these days the explanation of Maine v. Grand Trunk Ry. Co., 142 U. S. 217 [12 Sup. Ct. 121, 163, 35 L. Ed. 994], given in Galveston, Harrisburg & San Antonio Ry. Co. v. Texas, 210 U. S. 217, 226 [28 Sup. Ct. 638, 52 L. Ed. 1031]; Flint v. Stone Tracy Co., 220 U. S. 107, 162-165 [31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312], and to suppose it intended to reach only the additional value given by its being part of a going concern to property already taxed in its separate items. There is nothing sufficient to indicate such a limitation, and for the reasons given above on the authority of Fargo v. Hart, 193 U. S. 490 [24 Sup. Ct. 498, 48 L. Ed. 761], it is plain that the gross receipts from all sources could not have been used as a means for estimating the going value of the property in the State.”

United States Express Company v. Minnesota, supra, also involved a State statute levying a tax measured by gross receipts, which, it was provided, should be in lieu of all taxes upon the property of the corporations subject to it. Though it applied to receipts from interstate commerce, the tax was held valid because of its being levied in lieu of all other taxes. For this reason the tax was distinguished from that condemned by the court in the Galveston Case. In speaking of the decision in that case this was said:

“In that case the statute of Texas was condemned, because it appeared to the court to be an attempt to reach the receipts from interstate commerce by a tax of one per cent., or what was equal to the same thing, on gross receipts arising from such commerce, when it appeared from the judgment of the state court and the argument on 'behalf of the State that another tax on the property had already been levied, covering its full value as a going concern.”

Tested, by the decisions of the United States Supreme Court the tax here sought to be recovered was invalid. The judgment of the Court of Civil Appeals is therefore reversed and that of the District Court is affirmed.
      É=Nor ether eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: XANTIS, J.

text:
    GULF, C. & S. F. RY. CO. et al. v. NELSON.
    (No. 2416.)
    (Supreme Court of Texas.
    March 14, 1917.)
    1. Carriers <§=»177(3) — Bill of Lading — Liability of Initial Carrier — Carmack Amendment — Delay.
    The Carmack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 595 [U. S. Comp. St. 1913, § 8592]) to the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, § 20, pars. 11, 12, 24 Stat. 386), providing that any common carrier receiving property for interstate transportation shall issue a bill of lading therefor; and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any subsequent connecting carrier, and that no contract, receipt, rule, or regulation shall except such common carrier from the liability thereby imposed, applies to damage to the shipment resulting from delay in transportation as well as to damage resulting from injury to the property, and therefore a clause in a bill of lading relieving the initial carrier from liability for delay not occurring on its own line is void.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 779-789.]
    2. Carriers <&wkey;177(l) — Bill of Lading — Liability of Initial Cabbibe — Common-Law Liability.
    At common law the breach of a joint contract between two railroad companies for through transportation of freight renders both liable for the damages which result on either road unless there is a valid provision limiting the liability of each to injury occurring on its own line.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775, 778.]
    3. Coubts <&wkey;97(5) — Rules of Decision — Decision of United States Court — Construction of Federal Statute.
    The decision of the United States Supreme Court construing the Carmack Amendment to apply to damages caused by delay in transportation is controlling on the state courts.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 332.]
    4. Carriers &wkey;177(4) — Connecting Carriers — Liability—Oral Contract.
    An intermediate connecting carrier which made an oral contract for a through shipment of goods is liable thereunder for damages to such shipment occurring on a connecting line, where it had notice when it accepted the shipment that the special damages pleaded would result from delay in shipping.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 791-803.]
    5. Appeal and Error <&wkey;1094(l) — Review— Weight of Evidence — Power of Supreme Court.
    The Supreme Court on writ of error to the Court of Appeals, though it can decide whether there was any evidence to sustain the judgment, cannot pass on the weight of the evidence as to which the decision of the Court of Civil Appeals is final.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4322.]
    6. Carriers <&wkey;184 — Action Against Cabbie® — Petition—Oral Contract.
    A petition against connecting carriers for damage resulting from delay in transportation which alleged that the shipper, at the request of the consignee, informed the carrier of the damage which would result from delay in transportation, that the shipper agreed in consideration of the carrier establishing a lower through rate to ship all the materials needed over that line, that thereafter the shipper, acting for the consignee, delivered to the carrier such material for transportation, and that shipments were delayed for an unreasonable length of time, declares upon a breach of the original oral contract for shipment, not upon the bills of lading subsequently issued.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 832-834.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by J. P. Nelson against the Gulf, Colorado & Santa Fé Railway Company and another. Judgment for the plaintiff was affirmed by the Court of Civil Appeals (139 S. W, 81), and defendants bring error.
    Affirmed.
    Terry, Oavin & Mills, of Galveston, Houston, Boyle, Storey & Davis, of San Antonio, and Williams & Stedman, of Austin, for plaintiffs in error. 'Denman, Franklin & Mc-Gown, of San Antonio, for defendant in error.
   XANTIS, J.

Suit was instituted in the district court of Bexar county, Tex., by J. P. Nelson, the defendant in error, against the Gulf, Colorado & Santa FS Railway Company and the Atchison, Topeka & Santa Fé Railway Company, plaintiffs in error, to recover damages for delay in the shipment of a large quantity of material from points in Texas to Selden, N. M. Nelson had contracted with the United States Government to construct a dam across the Rio Grande river and other work, including a canal near Las Cruces, N. M. His government contract was made November 5, 1906. The work, according to the contract, was to be begun on November 20, 1906, and completed within five months thereafter. The .contract price was $143,-078.95. It was alleged by Nelson that the date of completion, April 20, 1907, was so fixed that the dam might be completed before high water in the river set in, which was usually about the 1st of May, and which would interfere with and make the work more expensive if done after the high water came; that as soon as the contract was made with, the United States .government he organized an outfit at a cost of $36,000, and immediately made arrangements for the work to be performed; that, among other things, he made out a bill of lumber and material, which he purchased from the Spencer Lumber Company, and directed it to ship the same to him at Selden, N. M., in the order in which it would be needed; that he fully advised said lumber company of said contract with the United States Government, and that the material ordered was to be used in the fulfillment of the said contract for the construction of said dam and the other work which he had contracted to do, and advised the Spencer Lumber Company that he was to complete the work by the 20th of April, 1907, and that there would be high water after April, 1907, which would retard the work and make it more expensive if he did not finish before the high water set in; that he reguested said lumber company to notify the railway companies of all of said facts, and of the necessity by reason thereof for the prompt shipment of the material; that said Spencer Lumber Company advised the plaintiffs in error of the purposes for which the material was to be shipped, and of the danger of high water in the Rio Grande river, and its damaging effect on the work, and to the defendant in error if the work should not be performed before the high water period in the river; that at the time the plaintiffs in error accepted the material for shipment they knew that said river rose every year about the middle of April, and that high water therein would retard the work and damage the defendant in error in the performance of his contract; that the Spencer Lumber Company ascertained in its negotiations with the plaintiffs in error that the then existing freight rate on lumber from initial points to El Paso was 18 cents per hundred pounds, and that the rate from El Paso to Las Cruces, a point 16 miles further distant than Selden, was 16 cents per hundred, and this was a more direct and quicker route for shipments, and requested the shipments to be made via the Southern Pacific and then over the Atchison, Topeka & Santa Fé Railway to Selden for the aggregate rate of 84 cents, but that the railway companies refused to make a 34-cent rate via El Paso, but insisted on hauling all. the material over their own rails, involving a much longer haul,, and the plaintiffs in error refused to make the 34-cent rate requested, except on condition that they be permitted to haul all of said material over their own roads; that this was agreed to by Spencer for and in behalf of the defendant in error, Nelson, and it was agreed between them that the plaintiffs in error would haul all of the material at the rate of 34 cents per hundred from initial points in Texas to Selden, N. M.; that all of said material should be shipped over the plaintiffs in error’s roads, except that it was agreed that as to such cars as were shipped in November and December the defendant in error, Nelson, would pay the regular rate for transportation of material shipped in said two months, it being ascertained that they could not get the consent of the Interstate Commerce Commission to make the 34-cent rate and put it into effect prior to January 1, 1907; that thereafter the Spencer Lumber Company, acting for Nelson, delivered to the plaintiffs in error' such material for transportation from points in Texas for the defendant in error, J. P. Nelson, at Selden, N. M.; that said shipments were delayed for an unreasonable length of time, resulting in the completion of the work being delayed 11 months after April 20, 1907, which was the date fixed in his contract with the United States government for the completion of the work;that he would have been able to complete the work within the time so specified in the contract, except for the unreasonable delay on the part of the plaintiffs In error in the shipment of his material; that, had he received his material in time to do so, his profit in the contract would have been $51,000; that by reason of the delays in shipment of the plaintiffs in error the actual cost of performing the work was increased $21,500, which amount he had lost by reason of the delay in shipment; that he was forced to give 11 months of his time to the work in excess of the original contract, and that his time was worth $500 per month, amounting to $5,500; that by reason of the delay in the transportation of the material the defendant in error was forced to employ a man to travel over the plaintiffs in error’s roads to locate said material at places where it had been stored for an indefinite time, and who, after locating said material, succeeded in inducing the plaintiffs in error’s agents to forward the same to the defendant in error, and paid to this person the sum of $225; that he was entitled to 6 per cent, interest on the sum of $36,000, which was the cost of his construction outfit, or $1,980.

There was a trial by jury, which resulted in a verdict in favor of Nelson, the defendant in error. The case was appealed by the railroad companies, plaintiffs in error here, to the Fourth Court of Civil Appeals at San Antonio, where the judgment of the district court was affirmed in a very elaborate and carefully considered opinion by the late Chief Justice James of that court. (Civ. App.) 139 S. W. 81. The cause came to this court by petition for writ of error for both the railroads on July 3, 1911. The writ was refused, but later, acting on a motion for rehearing by the plaintiffs in error, on January 25, 1912, a writ of error was granted, this court then inclining to the view that the evidence failed to show that the Gulf, Colorado & Santa Fé Railway Company was liable for the negligence of the Atchison, Topeka & Santa Fé Railway Company.

The undisputed evidence shows that no delay occurred in the shipment of material on the lines of the Gulf, Colorado & Santa Fé Railway Company, and that all the delay which did occur was upon the lines of the Atchison, Topeka & Santa Fé Railway Company. When the writ was granted in this case, what is known as the Carmack Amendment of the Interstate Commerce Act of June 29, 1906, was in effect, but it was then believed not to authorize damages against the initial carrier for delay in the transportation of property, but that damages could only be recovered against the initial carrier for injury to the property itself. In this case there is no contention that the property itself was injured in shipment. The contention is that the plaintiffs in error are liable for special damages which resulted to Nelson, the defendant in error, by reason of delay only in shipment. Said Carmack Amendment provides as follows:

“That any common carrier * * * receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier * * * to which such property may be delivered or over whose line or lines such property may pass, and no contract,, receipt, rule, or regulation shall exempt such common carrier * * * from the liability hereby imposed.”

On January 24, 1916, the United States Supreme Court construed the Carmack Amendment in the case of New York, Philadelphia & Norfolk Railroad Company, Plaintiff in Error, v. Peninsula Produce Exchange of Maryland, holding that special damages resulting from unreasonable delay in the transportation of property occurring anywhere en route, though not on the line of the initial carrier, but its connecting line; are comprehended by the provisions of the Carmack Amendment above quoted, and that the initial carrier is liable for such damages resulting from delay even where there is no injury to the property itself. 240 U. S. 34, 36 Sup. Ct. 230, 60 L. Ed. 511. Mr. Justice Hughes, rendering the opinion, said:

“We need not review at length the considerations which led to the adoption of this amendment. These were stated in Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 199-203, 31 Sup. Ct. 164, 55 L. Ed. 167, 179-181, 31 L. R. A. (N. S.) 7. It was there pointed out that along with singleness of rate and continuity. of carriage in through shipments there had grown up the practice of requiring specific stipulations limiting the liability of each separate company to its own part of the through route, and, as a result, the shipper could look to the initial carrier for recompense only ‘for Joss, damage, or delay’ occurring on its own line. This burdensome situation’ was ‘the matter which Congress undertook to regulate.’ And it was concluded that the requirement that interstate carriers holding themselves out as receiving packages for destinations beyond their own terminal should be compelled ‘as a condition of continuing in that traffic to obligate themselves to carry to the point of destination, using the lines of connecting carriers as their own agencies,’ was within the power of Congress. The rule, said- the court, in defining the purpose of the Carmack amendment, ‘is adapted to secure the rights of the shipper by securing unity of'transportation .with unity of responsibility.’ And again we said in Adams Exp. Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 67 L. Ed. 314, 44 L. R. A. (N. S.) 257, that this legislation embraces ‘the subject of the liability of the carrier under a bill of lading which he must issue.’ ‘The duty to issue a bill of lading and the liability thereby assumed are covered in full, and though there is no reference to the - effect upon state regulation, it is evident that Congress intended to adopt a uniform rule and relieve such contracts from the diverse regulation to which they had been theretofore subject.’ Id. [226 U. S.] p. 506 [33 Sup. Ct. 152, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257].
“It is now insisted that Congress failed to accomplish this paramount object; that, while unity of responsibility was secured if the goods were injured in the course of transportation or were not delivered, the statute did not reach the case of a failure to transport with reasonable dispatch. In such case it is said that, although there is a through shipment, the shipper must still look to the particular carrier whose neglect caused the delay. We do not think that the language of the amendment has the inadequacy attributed to it. The words ‘any loss, damage, or injury to such property’ caused by the initial carrier or by any connecting carrier are comprehensive enough to embrace all damages resulting from any failure to discharge a carrier’s duty with respect to any part of the transportation to the agreed destination. It is not necessary, nor is it natural in view of the general purpose of the statute, to take the words ‘to the property’ as limiting the word ‘damage’ as well as the word ‘injury,’ and thus as rendering the former wholly superfluous. It is said that there is a different responsibility on the part of the carrier with respect to delay from that which exists where there is a failure to carry safely. But the difference is with respect to the measure of the carrier’s obligation; the duty to transport with reasonable dispatch is none the less an integral part of the normal undertaking of the carrier. And we can gather no intent to unify only a portion of the carrier’s responsibility. Further, it is urged that the amendment provides that the initial carrier may recover from the connecting carrier ‘on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property’; and this, it is said, shows that the ‘loss, damage, or injury’ described is that which may be localized as having occurred on the line of one of the carriers, and therefore should be limited to physical loss or injury. But we find no difficulty in this, as the damages required to be paid by the initial carrier are manifestly regarded as resulting from some breach of duty, and the purpose is simply to provide for a recovery against the connecting carrier if the latter, as to its part of the transportation, is found to be guilty of that breach. The view we have expressed finds support in the explicit terms of the act of January 20, 1914 (chapter 11, 38 Stat. at L. 278), which provides ‘that no suit brought in any state court of competent jurisdiction against a railroad company * * * to recover damages for delay, loss of, or injury to property received for transportation by such common carrier under section twenty of the act to regulate commerce * * * shall be removed to any court of the United States where the matter in controversy does not exceed, exclusive of interest and costs, the sum or value of $3,060.’ If the language of section 20 can be regarded as ambiguous, this legislative interpretation of it as conferring a right of action for delay, as well as for loss or injury to the property in the course of transportation, is entitled to great weight.”

We feel constrained to the observance of the rule of liability as affecting the initial carrier in the construction of the Carmack Amendment to the Hepburn Act made by the United States Supreme Court in said case. We therefore hold that the provisions in the bills of lading which were issued by the Gulf, Colorado & Sante Fé Railway Company when it accepted the material for shipment, limiting its liability to such damage as occurred on its own line, ’are void.

It is well settled at common law that, when a joint contract between two railroad companies for through transportation of freight is breached by either of such companies, both are liable for the damage which results on either road if it were in contemplation of the parties at the time such contract was made that such damage might follow the breach of such contract, unless there is a valid provision limiting the liability of each company to the injury occurring on its own line. In the oral contract sued upon there is no such limitation, and hence each company would be liable for the damage which occurred on either line since it was a contract for through shipment. But it is here contended that, even admitting such a joint contract was made at the beginning, still the fact that the evidence showed bills of lading were subsequently issued for most all the cars of freight at the time it was accepted for shipment, which did limit the liability of the Gulf, Colorado & 'Santa Fé Railway Company to the damages occurring on its own line, the issuance and acceptance of such bills of lading would constitute a modification of the original contract which would release the Gulf, Colorado & Santa Fé Railway Company from liability resulting from the negligent delay in the shipment of the material which occurred on the line of the Atchison, Topeka & Santa Fé Railway Company; and as all the delay occurred on such line, and no delay occurred on the line of the Gulf, Colorado & Santa Fé Railway Company, the latter would be absolved from liability because of such modification of the original joint contract by the bills of lading limiting its liability to injury which occurred on its own line.

There is much force and plausibility in the contention.. But, since the Carmack Amendment of the Hepburn Act of Congress makes stipulations in all contracts by the initial carrier which limit liability to injury occurring on its own line void, and since said act of Congress requires such initial carrier to be liable for any injury occurring on its own line, or on the lines of its connecting carriers, we are unable to discern how such modification of the original contract by the bills of lading is of any virtue towards upholding the contention that the Gulf, Colorado & Santa Fé Railway Company would not be liable for damages occurring beyond its own line as to the ears of which it was the initial carrier. Under the Carmack Amendment the stipulation relied upon by the Gulf, Colorado & Santa Fé Railway Company limiting liability to injury occurring on its own line was void, which leaves the original contract in full force and effect, to be controlled by the common-law rule, under which each company would be liable, it being a contract for through shipment, for any injury 'occurring on either line as a natural result from the negligent delay in shipment.

The United States Supreme Court’s holding in the case quoted from is controlling upon us on that question; • so that the Gulf, Colorado & Santa Fé Railway Company is liable under the original' contract sued on for all the damage which occurred on the line of the Atchison, Topeka & Santa Fé Railway Company, as to such cars to which it stood in the relation of an initial carrier, and is liable under the original contract for through shipment as to all cars which were delivered to it by the Gulf, Beaumont & Kansas City Railway Company, where it had notice when it accepted said cars from the Gulf, Beaumont & Kansas City Railway Company, the initial carrier, that it was a part of the Nelson shipment for the construction of the dam at Selden, N. M., and that the special damages pleaded would result from a delay in shipment.

It is strenuously insisted that the evidence is insufficient to show, and that there is no evidence to show, that Hersliey, the general freight agent of the Gulf, Colorado & 'Santa Fé Railway Company, had authority to act as agent for the Atchison, Topeka & Santa Fé Railway Company in making the contract sued on, and that there is no evidence that such company was a party to such contract, or that it had any notice at the time the material was accepted for transportation of the probability that special damages would result from a negligent delay in the shipment. These questions are presented in the 58 assignments of error contained in the petition for writ of error in numerous and varied ways. We have no authority in law to pass upon the sufficiency of the evidence. That authority is final in the Court of Civil Appeals. We have authority to decide whether there was no evidence to sustain said propositions, and we have examined each question critically. Without discussing all of such questions separately, we hold that all of them which assert that there is no evidence that Hershey acted in making the contract sued on as the agent of the Atchison, Topeka & Santa Fé Railway Company, and that there is no evidence that said company was a party to said oral contract, and that there is no evidence of notice to each of the companies sued of the special damage which would result from delay in shipment of all the cars handled, should be overruled. We think there is evidence tending to support such allegations of the defendant in error.

The contention is made that the petition upon which the case was tried did not declare upon an oral contract for through shipment, but that it was grounded upon the bills of lading which were issued when the material was accepted for shipment. We overrule this contention. We think the petition plainly and clearly bases the cause of action upon an oral contract for through shipment.

We have carefully examined each and all of the other questions presented, but we find no such error as would require a reversal of this ease.

The judgments of the district court and the Court of Civil Appeals are in all things affirmed.
      ficaFor other cases see same topic and KEY-NUMBEB in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    PATTON v. DALLAS GAS CO.
    (No. 2459.)
    (Supreme Court of Texas.
    March 21, 1917.)
    1. Master and Servant <&wkey;217(l) — Assumption op Risk — Master’s Negligence.
    Although a servant need not investigate to determine whether the master has discharged his duty of furnishing a safe place to work, yet he assumes the risk of injuries resulting from conditions he knew, or must have known, although caused by the master’s negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 574.]
    2. Master and Servant <&wkey;280 — Assumption op Risk— Sufficiency op Evidence.
    Evidence held to show that defendant’s servant who fell down a hole while attempting to pass between it and a pile of cinders assumed the risk, since he must necessarily have seen the condition had he looked.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 981-986.]
    3. Trial <&wkey;420 — Waiving Right to Review —Requested Instruction.
    Defendant employer does not waive its right to have refusal of a requested peremptory instruction reviewed by subsequently requesting specific instructions upon plaintiff’s assumption of risk.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 983.]
    Error to Court of Civil Appeals, Fifth Supreme Judicial District.
    Action by Will D. Patton against the Dallas Gas Company. A judgment for plaintiff was reversed and one rendered for defendant by the' Court of Civil Appeals (147 S. W. 313), and plaintiff brings error.
    Affirmed.
    George W. Donalson, Wood & Wood, and Carden, Starling, Carden, Hemphill & Wallace, all of Dallas, for plaintiff in error. Burgess, Burgess & Chrestmen, Cockrell, Gray & Thomasi and W. J. J. Smith, all of Dallas, for defendant in error.
   YANTIS, J.

This suit was for personal injuries sustained by the plaintiff in error, Will D. Patton, in falling through an opening in the floor of the Dallas Gas Company’s main building into the basement thereof. The opening through which he fell had no guard rail around it, but was entirely unguarded and unprotected against accidents such as the one .which happened in this case. The opening in the floor was in the room of the gas company’s building known as the “stoking room.” At its side a stairway went from the stoking room to the basement. This stairway was customarily used by the em-. ployés of the defendant in error, the Dallas Gas Company, in going from the ground floor of the building to the basement. The plaintiff in error, Patton, had been in the employ of the defendant in error for several years prior to the accident, and in the discharge of his duties as such he had often used this stairway and worked around this opening in the floor. He was entirely familiar with the opening and the danger of being injured should he fall in. Just prior to the accident the plaintiff in error had for several weeks taken a vacation from his work on account of illness. Prior to his vacation it had been the custom for employés in the basement to throw cinders therefrom through said hole and on the floor in front of said opening, but it had not been customary to leave them there, but the rule had been to remove them. But for a few days prior to the accident the superintendent, M. N. Dial, had directed that they be not removed, he .wishing to use them in doing certain cement work. On the afternoon of June 28, 1909, which was the day previous to the accident, the plaintiff in error went to the basement, in obedience to the directions of Superintendent Dial, following the superintendent down said stairway at the side of the opening. The pile of cinders in front of the opening in the floor had ac-cummulated until it was 4 or 5 feet deep, and covered a space of perhaps 10 feet in diameter. The pile of cinders was in a cone shape, slanting down towards the opening of the hole. On the afternoon of the day prior to the injury, when the plaintiff in error followed the superintendent, Dial, to the basement, he passed between said pile of cinders and said unguarded hole in the floor. There was at that time a plain pathway between the cinders and the hole, 15 or 18 inches wide, in which there were no cinders. The purpose of their going to the basement on the afternoon before the injury was for the plaintiff in error, at the request of Superintendent Dial, to do some gas fittings in the basement of the building. Patton did not complete the work assigned to him in the basement on the day he was directed to do the work, and the next morning, after doing some of his regular work with the engine and pump, he secured some tools and a pipe on the outside of the main building for the purpose of returning to the unfinished work .which had' been 'the day before assigned to him in connection with the gas fittings in the basement. ' With his tools, weighing 12 or 14 pounds, in his hands he entered the stoking room, and at the place where he entered, the heap of cinders was between him and the opening in the floor through which he after-wards fell, so that he could not see said opening when he entered the building with his tools, but he was perfectly familiar with its existence, and knew it was there. He started to the basement, and in going he passed around the pile of cinders, starting to the stairway which led to the basement. During the night the pathway which was between the opening in the floor and the cinders, and which had been unobstructed, had been obliterated by some of the servants filling it with cinders during the night until the pile of cinders sloped down to a thin edge to said opening, completely destroying the pathway. This changed condition was unknown to Patton when he started on the morning of the accident to return to his work in the basement. It left no clear or safe way to cross in front of the hole and to reach the stairway, which was on the opposite side of the opening from the place where said Patton reached the opening. As Patton approached the opening at the side opposite the stairway he stepped on the cinders near the opening and, according to his statement, he could not stop, so he attempted to step over the recess in the opening which projected into the floor from the opening 2 feet, and was 4 feet wide, to the opposite side, and in doing so fell in, from which fall the injuries resulted for which the recovery in this case is sought.

The petition of the plaintiff in error alleged that his injuries were caused by the negligence of the defendant in error in leaving the cinders in the passway in front of the opening, which rendered it unsafe and dangerous to the plaintiff in error. The trial was by jury. A verdict was rendered by it in favor of the plaintiff in error. Appeal was taken by the defendant in error, the Dallas Gas Company, to the honorable court of Civil Appeals for the Fifth District, where the judgment of the district court was reversed and rendered in favor of' the defendant in error, the Court of Civil Appeals holding that the trial court erred in refusing to instruct a verdict for the defendant in error, as was requested by it in writing. 147 S. W. 313. The special charge requested was as follows: “In this case you will render a verdict for the defendant.”

The finding of fact by the Court of Civil Appeals was to the effect that the testimony conclusively showed that the plaintiff in error was perfectly familiar with the construction of the stoking room and the recess or opening in the floor, having worked around it and used the stairsteps which led down into the basement frequently; that the stoking room was sufficiently lighted for the pile of cinders to be .seen; that the plaintiff in error, when he received his injuries, was paying no attention, and that had he looked he could have seen the cinders and ashes on which he slipped; that he knew he was close to the hole, or ought to have known it; and that he pursued his way without using any care whatever, and in doing so he assumed the risk of falling into the hole, for which reason the defendant in error was not liable in damages. This finding of fact, in our opinion, is abundantly sustained by the undisputed testimony of the plaintiff in error himself. He testified that he came into the stoking room and went due west until he struck the edge of the cinders, and then he followed the cinders in a circle, around the edge of them to a point north of the recess hole, and there he turned straight to the south, and, taking one step, after he turned, he “lit on the ashes,” which were an inch or two deep near the opening in the floor, and that the ashes slipped under him, and that to keep from falling he undertook to step across the recess hole or opening, and not succeeding, he fell in and was injured. He further testified that he did not look to see if there were any cinders there; that he knew the hole was there with no railing around it, and that if he did not take care of himself he might fall in; that there was nothing to prevent him seeing the margin of the hole all around; that before he took the last three or four steps he could see the big hole; that he did not see the ashes until he made the step'; that if he had “looked down there and stopped and looked,” he, of course, could have seen them; that he could have seen the conditions if he had looked for them; that if he had been looking down he could have seen the cinders; that his mind was on his work; that he was not looking at the ceiling; that he did not know why he did not see the cinders; that he did not know what his eyes were looking at when he reached the point where he turned; and that he did not see the cinders until he stepped on them.

It is the duty of the master to exerercise ordinary care to provide his servant with a safe place to work, and the servant need not make any inspection to ascertain whether the master has discharged this duty. He may presume as much, and rely upon it that the master has done so. But while this duty to furnish a safe place may be presumed by the servant to have been faithfully discharged by the master, it does not go to the extent that the master becomes an insurer of the safety of his servant. When the master has with care discharged this duty, there often yet remain many risks of injury to the servant that are ordinarily incident to the employment, which the master is not liable for, and because thereof the servant is required in his work to exercise ordinary care for his own safety. In the exercise of ordinary care for his own safety to protect himself from injury by reason of the dangers attending the servant for which the master is not made responsible, there are often some defects arising from the negligence of the master, of which the servant may actually have knowledge, or which he must necessarily discover, without making any inspection to do so, and hence the servant is held to the rule that he is bound by the defects of which he knows, and those of which he must necessarily know; and this rule applies to defects arising from the negligence of the master as well as those defects which arise without any negligence on his part. It is true that, as a general rule, the servant does not assume the risk of injury resulting from the negligence of the master. This general rule would not he questioned. But it is equally well settled, as exceptions to the general rule, that the servant does assume the risk of injury resulting from the negligence of the master when it is actually known to him, or must necessarily have been known to him. He cannot close his eyes and refuse to see a danger which is open and obvious to him, and which he would necessarily see, without attempting to make an inspection. He cannot refuse to look and to see the danger which is obvious and in such plain view as that he would be compelled to see it if he exercised his sense of sight, and be acquitted of the assumption of the risk upon the ground that he' did not know of the danger. In such a case he must be held to have known that which he must necessarily have known, had he looked. In the case of Railway v. Hynson, 101 Tex. 546, 109 S. W. 930, this court, speaking through Mr. Justice Brown, said:

“The decisions of this court have established the law to be that ‘the servant owes no duty of inspection. He assumes the risks of a danger of which he has actual knowledge, and of such hazards as he would have learned by the exercise of that ordinary circumspection which a prudent man would have used in the particular employment. Since, in the absence of knowledge to the contrary, he may rely upon the as.-sumption that the master will do his duty, he' is under no obligation to look out for the master’s negligence; but he cannot shut his eyes to dangers that are obvious to an ordinary man, or to an experienced man if ho be experienced.’ Bonnet v. Galveston, H. & S. A. Ry. Co., 89 Tex. 76 [33 S. W. 335], Hynson was an experienced man in the work in which he was engaged ; therefore, must be held in law to have known what he would have discovered in the exercise of ‘that circumspection that a prudent man would use in the particular employment.’ The danger consists in the failure of the railroad company to block the guard rails in its yard, which was obvious to a casual observation of the guard rail, and if Hynson had looked at it he would have seen that it was unblocked, and would have known that there was danger of getting his foot caught if he walked over it. His own testimony shows that he did not think of the condition of the guard rail, nor look to see if it was blocked. His failure to exercise the diligence of thinking about his work and about the dangers that he was encountering cannot excuse him from the liability of having assumed the risk of the defect which existed in the guard rails. As stated in the quotation above, one who is engaged in a dangerous service of this kind cannot ‘shut his eyes’ to those things that would be obvious to a man who is ordinarily vigilant in protecting himself from injury. It would be impossible for the railroad company to guard a man against dangers who neither thought of nor looked when he was in the presence of danger; nobody could tbink for Hyn-son except himself. We conclude that Hynson assumed the risk of injury in performing his service in this yard. If the railroad company was negligent in not blocking the guard rails, still the risk of damage was assumed by Hyn-son, and he- cannot recover on that account.”

We think the undisputed evidence shows that Patton must necessarily have seen the cinders had he looked. This being the state of the evidence, we are of the opinion that the special charge by the defendant in error, requesting the court to direct a verdict for the defendant in error, should have been granted.

It is contended, however, if there was error in refusing said special charge, it was invited by the defendant in error by its request to give certain other special charges which it requested to be submitted, leaving the question of assumed risk to the jury as a question of fact. The record shows that the written request for a peremptory instruction in favor of the defendant in error was made and refused by the court before the special charges were requested which it is claimed invited the error of submitting the question of assumed risk to the jury. But it is contended that as the requested instruction for a peremptory charge favorable to the defendant in error was couched in general terms, and did not indicate to the trial court that it was intended to be considered upon the issue of assumed risk, there was room for the trial judge in passing upon it not to take into ‘ account the question of assumed risk, but to have only taken into account the question of contributory negligence, and the other issues in the case. We do not think this contention should be sustained. When the charge requesting a verdict for the defendant in error was requested, it necessarily brought into review by the trial court every issue upon which such a charge should be given, including the issue of assumed risk. Under such a charge it was the duty of the trial court to scrutinize each issue involved in the case, and to give the charge if the proof on any of the issues entitled the defendant in error, as a matter of law, to a verdict. The court, then, in passing upon the charge necessarily did consider the question of assumed risk, and refused to direct a verdict in favor of the defendant in error on said issue. The trial court, therefore, having fully determined not to direct a verdict in favor of the defendant in error on the issue of assumed risk, and to leave that issue to the jury, the defendant in error would not be held to have invited, and thereby to have induced, the error of submitting the issue to the jury by requesting special charges on the issue, in an attempt to have the issue correctly submitted. Invited error rests upon the doctrine of estoppel. One will not be permitted to induce the trial court to adopt and pursue a certain course of action in the trial, and, after the court has done so, to then complain that the court committed error thereby. But it is conclusively shown here that the defendant in error in. its special charges did not induce the trial court to submit to the jury the issue of assumed risk. The trial court had fully determined to do this before the special charges were requested, as shown by his refusal to direct a verdict for tile defendant in error.

We think the plaintiff in error assumed the risk of injury, and that the judgment of the district court should be reversed and rendered in favor of the defendant in error. This being the judgment rendered by the Court of Civil Appeals, it is in all things affirmed.
      <&=»For other oases see same tocio and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    Ex parte WEBSTER.
    (No. 4399.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Habeas Corpus <&wkey;113(12) — Appeal—Denial op Bail.
    On appeal from order in habeas corpus proceedings denying bail, it is not the court’s custom to discuss the evidence.
    [Ed. Note. — Por other cases, see Habeas Corpus, Cent. Dig. § 114; Appeal and Error, Cent. Dig. § 3400.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Writ of habeas corpus by L. D. Webster to secure release on bail. Prom an order denying him bail, he appeals.
    Affirmed.
    Jno. D. Robinson, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a denial of bail by the court below on a hearing under a writ of habeas corpus after indictment found.

It is the custom of this court not to discuss the evidence in cases of this kind. We have carefully considered the evidence, and in our opinion as the record is presented we must affirm the judgment of the trial court denying bail.

The judgment is therefore affirmed.


text:
    FULPS v. STATE.
    (No. 4375.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Criminal Law &wkey;>1090(1) — Appeal—Absence oe Statement of Pacts and Bill of Exceptions.
    In the absence of a statement of facts or bill of exceptions, there is nothing to review on appeal from a conviction of crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2805-2807.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Toby Pulps was convicted of arson, and he appeals.
    Judgment affirmed.-
    E. B. Hendricks; Asst. Atty. Gen., for 1¿he State.
   PRENDERGAST, J.

This is an appeal from a conviction for arson with the lowest penalty assessed.

There is no statement of facts, nor any bill of exceptions, and nothing to review.

The judgment is therefore affirmed.