author: TALBOT, J.

text:
    COUNTY GAS CO. v. TEMPLETON.
    (No. 7551.)
    (Court of Civil Appeals of Texas. Dallas.
    May 6, 1916.)
    Gas <&wkey;9 — Main Extension — Contract “on' Extension.
    Under a contract by a gas company that it would repay to a consumer on the cost of a main extension partly paid for by him $55 for each new consumer obtained “on said extension” within one year, the consumer so contracting is not entitled to any refund for new gas consumers whose residences are not on the street in which the extension is laid nor connected directly with the extension, but are on a street a block distant and served by another extension, although the second extension crossed and is connected with the first.
    [Ed. Note. — Eor other cases, see Gas, Cent. Dig. § 3; Dec. Dig.
    Eor other definitions, see Words and Phrases, Eirst and Second Series, ’On.]
    Appeal from Dkllas County Court; T. A. Work, Judge.
    Action by H. G. Templeton against the County Gas Company. Erom a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Smith, Robertson & Robertson, of Dallas, for appellant. W. W. Hagebush and Wood & Wood, all of Dallas, for appellee.
   TALBOT, J.

This suit was originally instituted by the appellee against the appellant in the justice court of Dallas county to recover the sum of $165 upon a contract in writing. Prom a judgment in favor of the appellee in that court, the appellant appealed to the county court of Dallas county at law, where judgment was again rendered in favor of appellee, and the appellant appealed to this court.

The pleading of the appellee, Templeton, in the justice court and in the county court at law was in the form of an account as follows:

“County Gas Company to H. G. Templeton, debtor .$165.00
“Amount due under contract executed between County Gas Co., by H. C. Morris, its general manager, and H. G. Templeton, September 4, 1913. Eor three extensions to 4 in. gas main on Tremont street, Dallas county, Texas.
“W. W. Hagebush, Attorney for Plaintiff.”

The contract referred to in the account and upon which the suit is founded is as follows:

“This agreement witnesseth that County Gas Company (hereinafter called ‘Company’) and II. G. Templeton of Dallas, Texas (hereinafter called ‘Applicant’) in consideration of these premises and of other valuable consideration hereby acknowledged agree as follows:
“(1) That Company (regardless of its franchises or other requirements relating to extensions) will, with all reasonable expedition, extend its 4 in. gas main on Tremont street from its present terminus near Eulton street to Russell avenue, a distance of 1,658 ft., at 55 cents per foot and amounting to $911.90, and will make an allowance for 800 ft., amounting to $440, when eight (8) residences along proposed extension signify their intention of using gas by signing the Company’s meter application, leaving a balance of $471.90, to be paid by Applicant (see Exhibit A attached).
“(2) The Applicant will pay to Company in advance of construction work, without claim or. repayment except as provided for in paragraph (3) 55 cents per foot for the remaining 4 m. pipe.
“(3) Eor each bona gas consumer obtained on said extension within a period of one year from date of completion thereof who shall in writing agree to use gas for not less than one year, the Company will refund to Applicant a sum equal to the average cost of one hundred (100) lineal feet of said extension, provided the aggregate of such refunds shall not exceed the amount paid by Applicant for said extension.
“(4) It is expressly agreed that title to said extension including its pipes and appurtenances with additions thereto and extensions thereof, together with the right to use and maintain the same, shall be and remain exclusively and unconditionally in Company.
“Dated and executed at Dallas, Texas, this 4th day of September, 1913.
“County Gas Company,
“By H. C. Morris, Gen. Mgr.
“H. G. Templeton, Applicant.”

The appellant in an answer in writing admitted the execution of -the contract sued on, but denied that it was liable to appellee in any sum. It alleged, in substance, that by paragraph 3 of the contract in question ap-pellee was only entitled to refunds for bona fide gas consumers obtained for the extension of its 4-inch gas pipe on Tremont street, that in this suit appellee is seeking to recover refunds for consumers on other streets, and on mains of appellant other than the main on Tremont street, and that under the contract sued on appellee is not entitled to any such refunds. The case was tried upon the following agreed statement of facts:

“(1) That the contract in writing herein sued on and attached hereto is the original contract executed by and between the parties to this suit and was drafted and written by County Gas Company.
“(2) That paragraphs 1 and 2 of said contract have been fully performed and executed by both parties to said contract as provided for in said paragraphs.
“(3) That within a period of one year from the date of the completion of the extension of the gas main provided for in paragraph 1 of said contract, four bona fide gas consumers were obtained on Tremont street, along said extension, who agreed in writing to use gas for not less than one year, and that the sum of $55 for each of the said four consumers was refunded to plaintiff as provided for in paragraph 3 of said contract.
“(4) That within a period of one year from the date of the completion of the extension of the gas main provided for in paragraph 1 of said contract, three bona fide gas consumers as hereinafter set out were obtained who agreed in writing to use gas not less than one year; that the three consumers last above mentioned were D. Sonnentheil, residing on the northwest corner-of Worth and Ridgeway streets, one block northwest of Tremont street, his residence facing Worth street, J. T. Stacey, residing on the northeast corner of Victor and Ridgeway streets, one block southeast of Tremont street, his residence facing Victor street, and H. P. Eller, residing on the southwest corner of Victor and Ridgeway streets, his residence facing Victor street, one Mocil east of Tremont street; that the gas service pipes running. to these three residences were not connected direct with the extension on Tremont street, but were connected to a 6-inch main laid on Ridgeway street direct from the rear of said residences for that purpose, which tapped and crossed the extension heretofore mentioned at the corner of Tre-mont and Ridgeway streets, extending 288 feet in the direction of Worth street and 2-18 feet in the direction of Victor street; that the flow of gas into this main and into three residences mentioned was obtained from the extension on Tremont street; and that defendant has refused to refund to plaintiff any sum on account of the connections to these three consumers.
“(5) The 6-inch main on Ridgeway street was constructed by County Gas Company at a cost of $428.80, no part of which cost was paid or advanced by plaintiff.
“(6) It is further agreed that the attached map marked Exhibit B correctly shows the location of the mains, distances, streets, and residences above referred to in this statement.”

The map referred to in the statement of facts shows by indorsements thereon that the 0-inch main laid in Ridgeway street, and which tapped and crossed at right angles the main laid in Tremont street at the corner of said streets, was laid several months after the completion of the extension of the 4-inch main along Tremont street.

Appellant, by appropriate assignment of error, contends that the trial court erred in entering judgment for the appellee for the reason that the uncontroverted evidence shows that appellee is not entitled to any recovery herein; that said judgment is wholly unsupported by the evidence introduced on the trial of the cause. The contract entered into between the appellant and appellee provided that appellant would extend its 4-inch gas main on Tremont street, running almost east and west, from its terminus near Fulton street to Russell avenue, a distance of 1,658 feet, and that for each bona fide gas consumer obtained by appellee “on said extension” within the period of one year from date of completion thereof, who should in writing agree to use gas for not less than one year, the appellant would refund to appellee a sum equal to the average cost of 100 lineal feet of said extension. The property of the consumers, D. Sonnentheil, H. P. Eller, and J. T. Stacey, mentioned in the evidence, did not abut on Tremont street, but on other and different streets, and the question is whether or not these parties are to be considered as consumers “on” the extension provided for in the contract between appellant and appellee. The appellant admits that if they are such consumers the judgment of the court below should be affirmed, but insists that if they are not such consumers as would fall within the provisions of said contract, then the case should be reversed and judgment rendered in this court for appellant.

We are of opinion that under no proper rule of construction can it be held that D. Sonnentheil, H. P. Eller, and J. T. Stacey are such consumers of gas as come within the terms of the contract sued on. It does not appear by the language of the contract itself or by any other evidence in the case that in the execution of said contract the parties contemplated that persons other than those whose residences abutted or fronted on Tre-mont street would be- solicited or obtained as consumers of appellant’s gas. On the contrary, it clearly appears from the language of the contract, which is entirely free from ambiguity, that appellee’s right to secure consumers of gas under the terms of the contract was limited to persons whose premises abutted Tremont street, and which could be supplied with gas by service pipes connected directly with the 4-inch extension main laid in that street. Under no possible interpretation of the contract could it be said that the residences of Sonnentheil, Eller, and Stacey were “on” the 4-inch extension on Tre-mont street. They were not “adjacent” or “contiguous” to said street, nor were they within the broadest meaning of the word “on,” “at,” or “near” said street. Each of them was practically a block distant from Tremont street, one fronting on Worth street and the other two on Victor street. The 6-inch main laid in Ridgeway street, running almost north and south, and with which the service pipes leading into the residences of Sonnentheil, Eller, and Stacey were connected, was laid by and at the cost of appellant alone, and, as shown by the map, made a part of the statement of facts, was not constructed until some months after the completion of the extension of the 4-inch main on Tremont street. The only extension mentioned or referred to in the contract sued on is the 4-inch main, and there is no evidence that the placing of the 6-inch pipe in Ridge-way street was contemplated or spoken of at the time said contract was executed. Manifestly, therefore, it was not intended that connections made with residences fronting any street other than Tremont street and by means of connection with the 6-inch pipe should be included. The mere fact that the 6-inch main crossed the 4-inch main on Tre-mont street and was connected with it by appellant does not authorize the conclusion that the residences of Sonnentheil, Eller, and Stacey, within the meaning or purview of the contract sued on, were “on” the 4-inch extension on Tremont street. The contract clearly limits the refund agreed to be made to gas consumers on the Tremont extension. Sonnentheil, Eller, and Stacey were not such consumers, according to the undisputed evidence in the case, and appellee was not entitled to recover. The case appears to have been fully developed, and to remand it for another trial would be useless. The judgment of the county court will therefore- be reversed, and judgment here rendered for appellant.

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


source: Caselaw Access Project

author: DUNKLIN, J. BUCK, J.

license: Public Domain

text:
    CRAIG et al. v. FT. WORTH & D. C. RY. CO. et al.
    (No. 8346.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 25, 1916.
    Rehearing Denied April 15, 1916.)
    1. Eminent Domain <&wkey;120 — Rights Acquired — Railroad Right oe Way — Fences.
    Erection of a fence along a building abutting land taken by a railroad for a track and foot passage to its depot is not an additional use, but a means adopted for its protection in the uses enumerated in the decree of condemnation.
    [Ed. Note. — For other eases, see Eminent Domain, Cent. Dig. §§ 315-319; Dee. Dig. <&wkey; 120.]
    2. RailRoads <&wkey;73(3) — Railroad Right oe Way — Fences—Right oe Public.
    As a matter of law, subjection of a railway right of way to uses as a highway or passway for the patrons of a restaurant or other place of business is inconsistent with its use for railway purposes, since it would largely increase hazard of accidents, so that erection of a fence by the railroad would conserve its rights and protect the public, and is lawful.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 181; Dec. Dig. &wkey;>73(3).]
    3. Appeal and Error <&wkey;265(l) — Scope o® Review — Preservation oe Exceptions— Findings Contrary to Law.
    A railroad having the right as a matter of law to fence its right of way is not bound by the finding of the trial judge that the fence was not necessary to the safe operation of its tracks, and was an additional servitude on land taken by eminent domain, although it failed to except to such finding.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1536, 1538, 1544-1551; Dec. Dig. <&wkey;>265(l).]
    4. Railroads &wkey;411(l) — Fencing Track-Statutes — Object.
    Rev. St. 1911, art. 6603, relating to railroads fencing their tracks, is enacted, not only for the protection of animals, but especially for the protection of human life from derailments caused by striking animals on the tracks. Dec. Dig. <&wkey;411'(l).]
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1409, 1415, 1419, 1420, 1423;
    5. Railroads <&wkey;73(l) — Right oe Way — Use —Right to Fence.
    The right to fence a railroad right of way in towns where necessary for the protection of persons who might otherwise go upon the track is incident to the right of way acquired.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 179; Dec. Dig. &wkey;73(l).]
    6. Railroads <&wkey;356(l) — Operation — Injuries to “Licensee” — Duties.
    If a railway company habitually permits the public to use its track as passways at places other than public crossings, such persons become licensees, to whom the railway owes a higher degree of care to avoid injury than it owes to a mere trespasser.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1228; Dec. Dig. <⅛^356(1).
    For other definitions, see Words and Phrases, First and Second Series, Licensee.]
    7. Railroads &wkey;>73(3) — Right o® Way — Use —Rights of Public.
    The owner of the fee has no right of passage over ground condemned by a railway, since he may use the public crossings, and a fortiori he cannot claim such right of passage to his place of business on adjoining land, in behalf of the public.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 181; Dec. Dig. <&wkey;73(3).]
    8. Appeal and Error <&wkey;934(2) — Presumptions — Findings.
    In a suit to restrain the maintenance of a fence along the right of way near a station, where judgment was for the railroad, every reasonable presumption must, on appeal, be indulged to support it, and, if the issue whether or not, in the absence of the fence, the railroad, in the operation of trains, would be required to exercise a higher degree of care for the protection of the public and its employés, be one of the pivotal issues in the case, as insisted by plaintiffs, it must be presumed that the court found that issue for the railroad.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3777; Dec. Dig. <&wkey;934(2).]
    9. Eminent Domain <&wkey;120 — Use Acquired —Additional Servitude — Necessity of Fence — Evidence.
    The probative force of the facts that the public was accustomed to pass over a railroad right of way acquired by eminent domain in order to reach plaintiffs’ place of business and that persons were accustomed to congregate and loiter there, tending to show that the maintenance of a fence to prevent such use was necessary, and not an additional servitude upon the land, is not destroyed by further evidence that there were places and similar businesses located closer to the right of way of the road not so fenced, especially where it did not appear that persons were accustomed to congregate and loiter about such places.
    [Ed. Note. — For other eases, see Eminent Domain, Cent. Dig. §§ 315-319; Dec. Dig. <&wkey;>
    10. Railroads <&wkey;359(l) — Operation — Duties as to Licensees.
    Persons loitering upon a railroad right of way and walking across it at other places than the necessary crossings necessarily impose upon a railroad an added burden to keep a lookout for them.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1238; Dec. Dig. <&wkey;359(l).]
    11. Railroads <&wkey;73(3) — Right of Way-Fences — Maintenance—Estoppel.
    A railroad is not estopped to maintain a fence along its right of way near a station, cutting off access to plaintiff’s business by the fact that it permitted him to cut entrances to his place of business to give access to the railroad right of way, since permissive use across unin-closcd land does not ripen into a right, however long existing.
    •[Ed. Note. — For other eases, see Railroads, Cent. Dig. § 181; Dee. Dig. <§¿>73(3).]
    12. Appeal and Error &wkey;>934(2) — Judgment —Implied Finding — Estoppel.
    A judgment of the trial court in favor of defendants after claim of estoppel was interposed by plaintiffs, though not specifically referring to the plea, implies a finding adverse to the plaintiffs thereon.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3777; Dec. Dig. <&wkey;934(2).]
    13. Railroads <&wkey;73(4) — Right of'Way-Right to Fence — Estoppel.
    If a railroad has the right to fence its track and permissive use does not ripen into a right on the part of the public to use such way as a passage, the railroad is not estopped by mere knowledge of another’s intended use of the property and of expenses incurred looking to such use and by its failure to object to erect the fence, in. the absence of willful desire to' mislead such party.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 182; Dec. Dig. &wkey;73(4).]
    14. Highways <&wkey;6(l) — Peescbiption—Time —Sufficiency.
    Use by the public as a passage of a railroad right of way for the period of three years is not sufficient to constitute a dedication of the highway by prescription.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. § 8; Dec. Dig. <S&wkey;6(l).]
    15. Raileoads <&wkey;73(3) — Right oe Way — Individual Rights — Extent.
    Even if the use by the public of a passageway over a railroad right of way for three years would constitute a dedication although that is not the law, still an abutting owner could thereby gain no rights different from those of the public, and could not maintain doorways giving ingress and egress to the right of way; that not being a public use.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 181; Dec. Dig. <3&wkey;73(3).]
    Buck, J., dissenting.
    Appeal from District Court, Wichita County; J. W. Akin, Judge.
    Injunction proceedings by John Craig and another against the Ft. Worth & Denver City Railway Company and others. From a judgment denying the injunction, plaintiffs appeal.
    Affirmed.
    See, also, 176 S. W, 827.
    T. R. Boone, of Wichita Falls, for appellants. Carrigan, Montgomery & Britain, of Wichita Falls, and Thompson & Barwise and G. W. Wharton, all of Ft. Worth, for appel-lees.
   DUNKLIN, J.

In the year 1911 the Ft. Worth & Denver City Railway Company, the Wichita Valley Railway Company, the Wichita Falls & Oklahoma Railway Company, and the Missouri, Kansas & Texas Railway Company filed condemnation proceedings to subject for their use a strip of land 24.48 feet wide from east to west and 100 feet long from north to south situated in the city of Wichita Falls, Tex., lying south of Seventh street, and bounded on the north by the south line of said street, the St. Charles Hotel Building lying west of and adjacent to said strip, and the right of way of the Ft. Worth & Denver City Railway Company being adjacent to said strip on its east line. The purpose of said condemnation, as shown in the petition therefor, was as follows:

“Your petitioners would represent and show to the court that it is necessary for said railway company to acquire the possession of said above-described property for the purpose of placing a brick sidewalk upon same to furnish ingress and egress to and from the Union De-" pot so to be constructed and now in the course of construction, and for the purpose of acquiring the ground upon which to lay one coach track and industrial track, and for' additional depot and station ground for said sidewalk as aforesaid.”

Upon that petition a decree of condemnation was awarded in which the following appears:

“It is further adjudged and decreed that the sum awarded by said commissioners herein as damages to the adjacent property belonging to said Mrs. Adeline Rucks and the other defendants is only for the construction and maintenance of the two railway tracks described in plaintiff’s original petition filed herein, which two tracks are described and to be located in said property taken, said tracks to be for one coach track and for one industrial track, said track to be laid on the eastern border and said industrial track to be located across said property between said coach track and the said St. Charles Hotel Building, the said property to be used also by said plaintiff as a brick walk thereon to furnish ingress and egress to the Union Depot, and that said sum does not compensate said defendants for any other damage for any other use of said property.”

On February 2, 1915, John Craig and Lee Downs, lessees of the St. Charles Hotel Building, instituted the present suit to restrain the railway companies from maintaining an iron fence which had theretofore been erected about 8 feet high within 6 or 8 inches of the east wall of the hotel building, and running the entire length of said building, and for a mandatory injunction requiring the railway company to remove said fence, and for damages to their business by reason of the erection of said fence; and from a judgment in favor of the defendants, the plaintiffs have appealed.

This case was before us on a former appeal and, our opinion then rendered appears in 176 S. W. 827. The case was tried by the court without the aid of a jury, and the trial judge filed findings of fact which included, among others, the facts recited above. Other findings by the court are as follows, omitting therefrom the unnecessary repetition of the expression “The court finds that,” with which nearly every paragraph of the findings begins, and so changing the language used as to state the findings in a narrative form, but without any other change:

“II. Plaintiffs went into possession of the premises occupied by them on the 5th day of September, 1914, and have since continued to occupy same as a hotel, saloon, and restaurant.
“III. Said restaurant was, and has since continued to be, a restaurant for negroes, while the saloon and hotel was principally for white people, with the negro trade in the rear portion of the saloon. * * *
“VI. The defendant companies at the time they condemned said premises on which this fence is erected began to use the western portion of said premises, being the portion lying next to the plaintiff’s business, as a public thoroughfare from Seventh street, in the city of Wichita Falls, Tex., to the Union Depot, on Eighth street, in the city of Wichita Falls, Tex.,’ and in order to make same passable and usable the defendants erected both on Seventh street and Eighth street cement sloping driveways, and then filled said passway in with cinders from Seventh street to Eighth street, and at the point where said passway crossed the Blair-I-Iughes track the defendant companies erected the usual crossing by placing large, heavy boards between the rails and on each side of the rails.
“VII. When the defendants herein condemned a tract of land 24.48 feet wide just east of the building occupied by plaintiffs, said property, in 1911, they erected and maintained a driveway between Seventh street and Eighth street and scattered cinders throughout the distance from Seventh street to Eighth street for the purpose of filling- up the holes, and for the purposes of making a public passway between said streets and to the Union Depot in the city of Wichita Falls, Tex., and the defendants herein erected and maintained a crossing over the Blair-Hughes house track, and near the end of the premises now occupied by these plaintiffs, which has been used as a public crossing for three years prior to the time plaintiffs entered into possession of said premises.
“VIII. These defendants have only put into use the southeast corner of the premises so condemned by these defendants by erecting the industrial track leading to the Blair-Hughes House, and the defendants so far have never used the remainder of said premises condemned by them in 1911 for the purposes set forth in the condemnation proceedings, except to erect and construct the industrial track which runs across the southeast corner of said premises, and by erecting and maintaining the passageway next to the building occupied by plaintiffs.
“IX. The passageway erected and constructed and maintained by these defendants between Seventh street and Eighth street where the Union Depot in the city of Wichita Palls,'Tex., is located has been maintained by these defendants for the use of the public, both for vehicles and foot passengers, continuously, and said passageway lies along and next to the building occupied by these plaintiffs, and along which these defendants erected the fence as heretofore stated.
“X. On September 5, 1914, and for throe years prior thereto, there had been maintained a passageway lying and being by the side of the brick building now occupied by these plaintiffs,
“XI. These plaintiffs at the time they entered into said contract for the lease of said premises, and at the time they made the improvements on these premises, thought and believed that said passageway between Seventh street and Eighth street was a public thoroughfare and passageway.
“XII. Plaintiffs relied upon said passageway being a public thoroughfare when they leased and improved said premises for the purpose of occupancy.
“XIII. Plaintiffs cut one door in the side of said building at the time they opened same, about September 5, 1914.
“XIV. Plaintiffs cut the second door in said premises, being the door in the rear of the saloon, about the 1st of November, 1914.
“XV. The expense of cutting these doors was about $12.50 for each door.
“XVI. The defendants and their agents at the time that plaintiffs entered into possession of said premises knew for what purpose they were using and intended to use said premises, and knew that these plaintiffs were expending money on these premises for the purpose of occupancy, and said nothing to these plaintiffs until after they had expended the sum of about $25 toward making openings leading on to this passageway from Seventh street to Eighth street, and which passway lay along and by the side of the building occupied by these plaintiffs, and which was extended from Seventh street to the Union Depot, on Eighth street, in the city of Wichita Falls, Tex.
“XVII. About the morning of January 7 (before 9 o’clock a. m.), A. D. 1915, the defendant companies erected an iron fence about 8 feet high and within 6 or 8 inches of the premises occupied by these plaintiffs, the entire length of said building, and thereby completely blockaded the door leading into the restaurant in the rear part of the premises occupied by these plaintiffs and the rear door of said saloon so maintained on these premises occupied by these plaintiffs.
“XVIII. This fence is erected and maintained by these defendants along the side of this passageway (from Seventh street to the Union Depot) and on the premises condemned by these' defendants in Hay, 1911.
“XIX. At the time these defendants erected and maintained said fence on January 7, 1915, they knew for what purpose these plaintiffs were at that time using said building and using these openings and had been using said openings prior thereto.
“XX. Neither the plaintiffs nor any one connected with the premises operated and controlled by these plaintiffs ever permitted or authorized the defendant companies to erect and maintain said fence, but did at the time resist, and have continued to resist, the maintenance of said fence by these defendant companies.
“XXI. The erection and maintenance of this fence by these defendants on the property condemned by them in 1911 is an additional use of said property than that set forth in the condemnation decree.
“XXII. There now exists in Wichita Falls, Tex., several other places where the defendants are operating their railways closer to saloons and restaurants and other businesses, and the defendants have never erected any fence or obstruction along their right of way obstructing the passage over said right of way of the defendants railway company from these other places;.
“XXIII. A few times there were seen as many as three or four people standing together by the side of the doors opening on to this passageway during the period from September 5, 1914, to January 7, 1915, and sitting upon beer kegs around said door; occasionally passengers from the trains stopping at the Union Station occasionally walked across the tracks of defendants and entered the back door of said saloon.
“XXIV. There is a distance between house track leading to Blair-Hughes and the door leading into the restaurant from the public passway of 17 feet and 4 inches.
“XXV. There is a distance between house track leading to Blair-Hughes and the door leading from the rear portion of the saloon on to this public passageway of 21 feet.
“XXVI. This industrial track is not used on an average more than four times a week.
“XXVlI. For the purpose of operating this industrial track it is not necessary for the safe operation of same for the defendant railway companies to have and maintain the fence so erected by the defendant companies.
“XXVÍII. It would not cost to. exceed $10 to remove the said fence so erected by these defendants.
“XXIX. Since the erection of said fence by these defendants there is no other opening into said restaurant other than going through the saloon.
“XXX. Since the erection of said fence there is no rear opening to the saloon in which these plaintiffs have been conducting their business.
“XXXI. By reason of the erection and maintenance of this fence from the morning of January 7, 1915, to the night of June 29, 1915, same deprived these plaintiffs of the sale of goods in their saloon to such an extent that the net profits to the plaintiffs arising therefrom would be $710, and by reason of the erection and maintenance of this fence same deprived these plaintiffs up to June 30, 1915, of the rent received by them for the restaurant in the rear portion of said building to the amount of $90.
“XXXII. If said fence had not been erected by these defendants, these plaintiffs would have by means of said restaurant being run, and by means of said doors being opened, have sold goods from said saloon to the extent that the net profits coming to these plaintiffs would have been between the morning of 7th of January, 1915, to the night of June 29, 1915, the sum of $710. If said fence had not been erected, plaintiffs would have been able to rent that portion of said building- used by said restaurant from January 7 to June 20, 1915, for $90 more than they were able to rent same.”

The following are the trial judge’s conclusions of law upon the facts so found:

“In deference to the decision of the Court of Civil Appeals heretofore rendered in this cause, I conclude that the plaintiffs are not entitled to an injunction herein as prayed for, and that the plaintiffs are entitled to no judgment for any damages by reason of the erection and maintenance of the fence by the defendants.”

Plaintiffs alleged that the erection of the fence was not authorized by the decree of condemnation, which was the only basis of the defendants’ claim of right to erect the fence; that the fence was not necessary for the operation of the defendants’ industrial track, or any other use by them of the property so condemned; that the maintenance of the fence was a use of the property additional to that authorized by the condemnation decree; and that it was erected by the defendants for the malicious purpose of annoying and injuring the plaintiffs. Plaintiffs further alleged damages to their business by reason of the erection of the fence such as found by the court.

In their answer the defendants specially denied each and every allegation set forth in the plaintiffs’ petition, and specially pleaded-that it was necessary for them to erect the fence in order to protect the public and their employés from injury resulting from the use of its track erected upon the strip of land condemned; that the plaintiffs were maintaining a saloon and restaurant for negro patrons in the rear thereof, doors from both of which opened out upon the right of way condemned; that large numbers of vicious and disorderly persons would congregate about such doors and would pass in and out of said places of business, and thus constitute a source of annoyance to the defendants and of injury to the public; that the erection of said fence was for the defendants’ own protection, and was not an invasion of any of plaintiffs’ rights.

Appellants invoke the well-settled rule announced in Muhle v. N. Y., T. & M. Ry. Co., 86 Tex. 459, 25 S. W. 607, Olive v. Sabine Ry. Co., 11 Tex. Civ. App. 208, 83 S. W. 142, and other authorities, that a condemnation decree passes only the right to the specific use therein awarded, and the right remains in the owner of the fee to use the property in any manner not inconsistent with the uses for which it was condemned. They insist that the facts found by the trial judge, to which no exception was presented in the trial court by the defendants, conclusively show that the right to maintain the fence in controversy was not given by the condemnation decree, and hence that the maintenance of the fence was in violation of the rights reserved by the owner of the fee which passed to plaintiffs as lessees of the hotel property, and that the trial court erred in refusing to grant a mandatory writ of injunction for the removal of the fence and in refusing to award to plaintiffs the damages to their business found by the court.' Special stress is laid upon the findings that the industrial track is located 17 feet 4 inches from the east wall of the hotel building, with a public passageway constructed and maintained by the defendants between the industrial track and said building for the use of vehicles and foot passengers ; that the fence is not necessary for the safe operation of the industrial track; that the maintenance of the- fence is a use of the property condemned additional to that authorized by the condemnation decree; that the contemplated coach track has never been constructed, and will, when constructed, be located east of the industrial track; and that the plaintiffs have sustained substantial damages to their business by reason of the fact that entrance to the saloon and restaurant from the strip of land in controversy has been cut off.

For a better understanding of the issues it is proper to note at the outset that the maintenance of the fence is not an additional use of the property, but rather a means adopted for the protection of the defendants in the exercise of the uses specially enumerated in the decree of condemnation.

On the former appeal of this case, speaking through Associate Justice Buck, this court, after reviewing the authorities pertaining to the relative rights of the owner of the fee and the railway company to the uses of the property condemned after the same had been condemned, said:

“We feel that it must be held, as a matter of law, that the subjection of the right of way of the railway company to uses of a highway or passway for the patrons of a restaurant or other place of business is inconsistent with the use of said property for railway purposes, and that therefore the appellants in this case were within the rights accorded them under the law when they sought to exclude patrons of this restaurant, and the public generally, from using their right of way as such highway or passway. The use of such property for said purposes would largely increase the hazard of accident, and consequently, the liability of the railway company, and therefore, in preventing its use for such purposes, the railway company would be taking a course, not only within the conservation of its own rights, but in the protection of the public.”

We have found no authorities which-contravene the correctness of that conclusion, and we adhere to it now. And, if that conclusion is correct, then the findings of fact by the trial court that the maintenance of the fence is not necessary to the safe-operation of the industrial track, and is an additional servitude upon the property condemned, cannot destroy the right of the d>e-fendants which they have as a matter of law to maintain the fence, and are therefore immaterial, and are of no binding force or effect upon the defendants, even though they did not except to the same as findings of fact.

By article 6603, Revised Statutes 1911, the duty is imposed upon railway companies to fence their track in localities where stock are permitted to run at large, and also-in localities which have adopted the stock law, prohibiting stock from running at large, and the rule is well settled in this state that that statute was enacted, not only for the protection of animals, but especially for the purpose of protecting human life from derailments caused by striking such animals. T. & N. O. Ry. Co. v. Langham, 95 S. W. 686, and authorities there cited. Such being the law, the acquisition of a right of way in such localities under condemnation proceedings clearly would embrace the right to fence the track, and under those circumstances the owner of the fee could not be heard to say that the fencing of the right of way was an additional servitude placed upon the property, or that the same was unnecessary to the safe operation of trains over the right of way. Condemnation proceedings in a town or city are not different from those in the country, and, even though the statute referred to might not require the fencing of the right of way inside of a town or city, nevertheless it would be the common-law duty of the railway company to do so if, as a matter of fact, such a fence was reasonably! required for the protection of lives of persons who might go upon the track at places where they had no legal right to be, and the condemnation of the land in controversy carried with it the right to fence the track if such fencing was necessary to the discharge of that common-law duty.

Furthermore, it is a familiar rule that, if the railway company habitually permits the public to use its track as passways at places other than public crossings, such persons become licensees, to whom the railway company owes a higher degree of care to avoid injuring them in the operation of its trains than it owes to a mere trespasser, and hence the legal burden upon the railway! company in the operation of its trains is increased accordingly. Further still, it was held in Lyon v. McDonald, 78 Tex. 71, 14 S. W. 261, 9 L. R. A. 295, that the owner of the fee had no right of passage over ground that had been condemned by the railway company, since such- owner was not prevented from crossing the same at any public crossing. If the owner of the fee has no such right of passage, then a fortiori he has no right to claim such right of passage in the public as an incident to their patronage of his business conducted on property adjoining the condemned land.

Furthermore, if the finding that the fence was not necessary to the safe operation of the industrial track be construed as meaning that the defendants in the operation of that track were not required to exercise any higher degree of care for the safety of the public and of their employds in the absence of the fence than would be required with said fence, then such finding is contradicted, to some extent at least, by the facts stated in the twenty-third paragraph of the findings, which show that passengers from trains are in the habit of occasionally crossing the strip in controversy from the Union Station for the purpose of entering the back door of plaintiffs’ saloon, and that such persons sometimes congregated about the doors opening into the saloon and restaurant, and sat upon beer kegs around the door, in connection with the further facts stated in the thirty-first paragraph of the findings showing a large patronage to plaintiffs’ business! through the back door of the saloon and the side door to the restaurant. The judgment rendered was in favor of the defendants, and every reasonable presumption must be indulged to support it, and, if the issue whether or not, in the absence of the fence, defendants, in the operation of trains on the industrial track, would be required to exercise a higher degree of care for the protection of the public and their employds, be one of the pivotal issues in the case, as insisted by appellants, then it must be presumed that the court found that issue in favor of the defendants, and we are of the opinion that the facts last recited are sufficient to support that conclusion.

Nor do we think that the probative force of those facts is necessarily destroyed by the further facts found by the court that defendants failed to fence other tracks running nearer saloons and restaurants than the industrial track in the present suit, especially in the absence of any finding whether or not persons are in the habit of crossing such tracks and congregating near the same at those places, and the further fact that defendants maintained a passageway for public travel between the industrial track and the fence. The said passageway runs parallel with the house track until it reaches the point Where it crosses that track. Persons loitering upon the condemned property and walking across it at places other than the crossing named necessarily would impose upon the defendants an added burden to- keep a lookout for them.

We are of the opinion that there is no merit in the further contention by the appellants that the railway companies are es-topped to claim the right to maintain the fence by reason of the facts found by the court and shown above, principally that defendants stood by and allowed the plaintiffs to spend some $25 or $30 in money for the purpose of using the passageway lying next to the building, which defendants had held out as a public thoroughfare for the last three years, since, as said in F. W. & D. C. Ry. Co. v. Ayers, 149 S. W. 1068, permissive use of a road or way across uninc-losed land does not ripen into a right, however long existing. See, also, Ramthun v. Halfman, 58 Tex. 551; N. P. Ry. Co. v. Smith, 171 U. S. 260, 18 Sup. Ct. 794, 43 L. Ed. 157; Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765, 40 L. R. A. 177.

The judgment of the trial court in favor of tlie defendants necessarily implies a finding adverse to plaintiffs on their, plea of estoppel. If defendants liad the rigfit to fence the track, and if the permissive use of the passageway did not ripen into a right on the part of the public to use it as such, we fail to see how the principle of estoppel would apply by a mere knowledge on the part of the defendants of plaintiffs’ intended use of the property and of the expenses incurred by them in making openings in the building leading to that passageway, coupled with their failure to object to such improvements until alter the same were made. No facts are found indicating a willful desire on the part of the defendants to mislead the plaintiffs into incurring such expenses within the meaning of the rule announced in Timón v. Whitehead, 58 Tex. 295, cited by appellants.

The use by the public of the passageway for a period of three years would not be for a sufficient length of time to constitute a dedication of such highway by prescription. Heilbron v. St. L. S. W. Ry. Co., 52 Tex. Civ. App. 575, 113 S. W. 610, 979. If the facts found by the trial court that the defendants had maintained the passageway for the use of the public for three years could be construed as a finding that the de-' fendants irrevocably dedicated the same as a public highway, which construction we believe would be unwarranted, nevertheless such a dedication could not confer upon the plaintiffs any special rights to the use of the highway different from that enjoyed by the public at large, and the right to use it for the purposes claimed in this suit clearly would not be a right common to the public. Hughes v. Dubbs, 84 Tex. 502, 19 S. W. 684.

For the reasons noted all assignments of error are overruled, and the judgment is affirmed.

BUCK, J.

(dissenting). In the face of the findings of fact by the trial court filed herein and set out in the majority opinion the writer feels some doubt as to the correctness of the conclusions reached by his Brethren. The case-as now presented is in many respects different from that shown on the former appeal. In the first place, by the amended pleadings filed subsequent to our decision in the former appeal plaintiffs present a somewhat different cause of action, among other things supplying the allegation “that it was not necessary for the operation of the defendant railroad that it have said fence erected and maintained on said property as above described.” The absence of this averment was commented on in the opinion on the former appeal reported in 176 S. W. 827. In the second place, the court has found facts which have not been attacked by the appellee, which substantiate the claim of the appellants that the erection and maintenance of this fence is not necessary f&r the safe operation of defendant’s track •or tracks, and for the uses for which the property had been condemned, and, that the use of the premises by the plaintiffs as a means of egress and ingress to the rear of the saloon and to the restaurant is not inconsistent with the use of the premises for the purposes for which the condemnation proceedings were had, and does not increase the hazard on the part of the defendant in the use thereof for said purposes. In the absence of a positive showing, or at least a reasonable presumption from the facts recited, that such use by the plaintiffs was inconsistent with the use of the premises by defendant for the purposes for which the property had been condemned, it seems to the writer that an appellate court is not justified in presuming in favor of the judgment the necessary facts to sustain it. This is especially true when the court’s findings are contrary to such presumptions. In Kimball v. Houston Oil Co., 100 Tex. 336, 99 S. W. 852, our Supreme Court, speaking through Justice Williams, says:

“It is the contention of plaintiffs that the district judge and the Court of Civil Appeals erred in holding that it was incumbent upon them to prove that Isam Farmer, the junior purchaser of the land in controversy, paid for it a valuable consideration and took without notice of the prior unrecorded deed to David Brown. Besides controverting this proposition, the defendants in error urge that this question does not arise in the present state of the record, because, they say, there being no statement of facts, the court should presume in favor of the judgment that every fact essential to its correctness was proved. This is the rule where there is neither statement of facts nor findings of the trial judge; but it is not applicable here, because the law authorizes an appeal upon such findings alone, and generally entitles the appellant, who has properly excepted to them, to have the correctness of the legal conclusions on which the judgment rests tested by the facts stated as their basis. Continental Ins. Co. v. Milliken, 64 Tex. 46; Chance v. Branch, 58 Tex. 490; Cousins v. Grey, 60 Tex. 346.
“It may sometimes happen that findings omit any mention of a fact proof of which would be essential to the correctness of the judgment, and that, in the absence of anything said about it, such fact should be presumed; and we are not to be understood as holding that such findings are to be treated as special verdicts were formerly treated, and required to state affirmatively every fact necessary to support the judgment. Thomas v. Quarles, 64 Tex. 493. However that may be, it is apparent that in this case the trial judge stated affirmatively the facts and the state of the evidence from which he drew his conclusions of law, and held that the junior must be regarded as inferior to the senior deed, in the absence of proof that the last purchaser paid value and bought without notice. It cannot be presumed, in view of the express statements made, that there was proof.of other record or notice or want of consideration than such as is mentioned.”

In Reed v. Brewer, 90 Tex. 144, 37 S. W. 418, it ⅛ said, quoting from the syllabus:

“Where trial is without a jury, and no findings of fact are made, it will be presumed on appeal that the court found every fact necessary to its judgment fairly deducible from the evidence. A party desiring to avoid being bound by this presumption should demand of the trial court the filing of conclusions of fact.”

The court finds in paragraphs XXIV, XXV, XXVI, and XXVII that the distance from the house tract, the only track on the lot condemned, to the door of the restaurant, is 17 feet 4 inches, and the distance from said house track to the door in the rear portion of the saloon is 21 feet, that the industrial track is not used on an average of more than four times a week, and that for the purpose of operating this industrial track it is not necessary for the safe operation of same for the ' defendant company to have and maintain the fence so erected. It further appears from said findings (XXIII) that:

Only “a few times there were seen as many as three or four people standing together by the sides of the doors opening on to this passageway during the period of September 5, 1914, to January 7, 1915, and sitting upon beer kegs around said door; occasionally passengers from the trains stopping at the Union Station walked across the tracks of defendants and entered into the back door of said saloon.”

It further appears from the findings of the court (VII) that the defendant has erected a public passway between Seventh and Eighth streets, and has erected and maintained a crossing over this house track near the end of the premises now occupied by plaintiffs, and that said public crossing had been used generally by the public for three years prior to the time plaintiffs entered into possession of said premises.

As the writer understands the record, the defendant company has constructed and maintains a public passway running the full length of plaintiffs’ premises and lying just east of the fence erected. Since the railway company has voluntarily devoted to the use of the public this passway running the length of plaintiffs’ property and crossing defendant’s house track, the writer cannot see how it could be reasonably claimed that there would be any increase in the hazard to life or to property by reason of certain ones of the public turning off at this passway into either or both of the open doors leading into plaintiffs’ building. From the findings of the court it appears that it is only rarely that any one attempts to cross from the depot over to plaintiffs’ place of business, and therefore the writer necessarily concludes that plaintiffs’ patrons generally use the very passway which has been constructed for and thrown open to the public. Since the house track is more than 17 feet from the door of the restaurant, the fact that a few times three or four people stood in or about the doorway, or sat upon kegs around said doorway, could hardly support the conclusion that thereby and therefrom the use of this house track by the defendant was impressed with any additional danger or hazard.

While there might be some question as to whether under certain circumstances a lessee of the hotel building would succeed to the rights reserved to the owner of the premises condemned, yet no question seems to be made with reference thereto, and it was stated on oral argument that no question existed. Therefore it is assumed that the plaintiffs herein possessed all of the rights to the use of the premises condemned which were not inconsistent with the uses of the railway in contemplation of the condemnation proceedings. The erection of this fence by the railway company is either an additional use to those enumerated in the condemnation judgment, or a means of securing, the safe and unimpeded use for the purposes uesig-nated in said judgment. The court has found as a matter of fact that the erection of the fence is an additional use, and, if so, it would require a further condemnation. In the case of Lyon v. McDonald, 78 Tex. 71, 14 S. W. 261, 9 L. R. A. 295, our Supreme Court held that, where a railroad company permits a party to use part of the premises condemned for depot grounds for storing lumber shipped to him over the railroad until sold, and allows him to erect thereon an office, etc., the owner of the fee can recover from such party the rental value of the premises so used for a lumber yard; as the railroad company neither has the right to use the premises for such purposes, nor to permit others so to use them. It is further held in this case that, though the owner of the fee in the premises condemned for depot grounds owns an adjacent lot, he has no right of passageway over the railroad grounds except the public crossings. This opinion further holds that:

“Where land is condemned for a special purpose on the score of public utility, the sequestration of the land is limited to that particular use; and, if the property be put to a wholly different use, though for public purposes, a new assessment will be required.”

Since the court has found that the railroad company has devoted that portion of the lot condemned lying adjacent to and the length of the hotel building leased by plaintiff's to the purposes of a public crossing or passway, the writer is of the opinion that the plaintiffs would have the same right, and also their customers, to use this passway as other members of the public, and that it would make no material difference that in so using such passway they should do so for the purpose of entering or coming from the restaurant or the rear of the saloon.

Without further extending this dissent, it is sufficient to say that, in view of the findings of .fact by the court above referred to, and in view of the authorities cited, the writer is of the opinion that the judgment of the trial court was not authorized, and should be reversed.
      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S^xoFor other cases see same topic- and KEY-NUMEER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    TARRANT COUNTY TRACTION CO. v. BRADSHAW.
    (No. 8355.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 8, 1916.)
    1. Appeal akd Error &wkey;>216(2) — Scope oe Review — Preservation of Exceptions — Waiver oe Rejections — Instructions.
    Objections to a charge as defective or incomplete cannot be considered on appeal, unless request was made on the trial for a special charge correcting the alleged errors.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. &wkey;>216(2); Trial, Cent. Dig. § 628.J
    2. Trial <&wkey;260(8) —Instructions— Sufficiency — Requests—Instructions Already Given.
    Where the court fully and fairly presented in the charges given the issue of contributory negligence, it was not error to refuse a requested charge on that question which was covered by the charge given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 657; Dec. Dig. &wkey;260(8).]
    3. Damages &wkey;>191 — Medical Attendance-Evidence.
    The mere fact that plaintiff’s attending physician qualified his statement that the reasonable charge for his services was $25 by the clause, “if the patient were able to pay it,” would not necessarily limit or destroy its weight as a statement of their reasonable value.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 50⅛ 510; Dec. Dig. <&wkey;>191.]
    4. Damages <&wkey;46, 101 — Medical Attendance — Liability—Extent. '"
    Where plaintiff is entitled to recover for medical attention and medicines necessary in the treatment of injuries, defendant is liable, not for the amount actually expended or incurred, but only for the reasonable or market value of such services and drugs as were reasonably necessary and for which plaintiff has paid or legally bound himself to pay, since defendant is not a party to the contract for services.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 99, 242-254; Dec. Dig. &wkey;46, 101.]
    5. Damages <&wkey;46 —Medical Services — Legal Liability.
    Where plaintiff sent for a doctor and accepted his services, in the absence of some other agreement, he would be legally liable to pay therefor.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 99, 251; Dec. Dig. <S&wkey;46.)
    6. Damages &wkey;>191 — Liability—Evidence— Sufficiency — Medical Attendance.
    Evidence that plaintiff sent for a doctor and accepted his services, together with the doctor’s statement that his services were of the reasonable value of $25, if plaintiff could pay it, is sufficient to sustain an award of that amount.
    [Ed. Note. — For other eases, see Damages, Cent. Dig. §§ 504, 510; Dec. Dig. &wkey;191.]
    7. Damages <&wkey;163(l) — Burden of Proof— Expenses — Nursing.
    Where plaintiff pleaded that his wife nursed him] for 3Ó days after the injury for which he sought recovery, and that her services were reasonably worth $2 per day, and the evidence showed that it was necessary to have a nurse and that the wife and a neighbor did the nursing, that was insufficient, without proof of the reasonable value of the services, to support an award for the amount claimed.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 454, 455; Dec. Dig. &wkey;163(l).]
    8. New Trial <3^150(4) — Newly Discovered Evidence — Affidavit—Sufficiency.
    An affidavit for new trial alleging diligent effort by defendant before trial to learn the names of witnesses of an accident, that inquiry was put to witnesses as to other possible witnesses, that none of such witnesses disclosed that the newly discovered witness had seen the accident, and that the defendant nor its attorneys knew until after trial that he had seen it, sufficiently shows due diligence.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 310; Dec. Dig. &wkey;jl50(4).]
    9. New Trial <&wkey;104(3) — Newly Discovered Evidence — Cumulative Evidence — Opportunity to Observe.
    While new trial will not be granted for newly discovered evidence which is merely cumulative, evidence of a witness of an accident, who was more advantageously placed to see it, and who observed that plaintiff’s horse began kicking when the breeching fell on its legs and not on the approach of defendant’s car, is sufficient on winch to grant a new trial, though there was other evidence that after the car came along, the breeching was down.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 220; Dec. Dig. &wkey;104(3).]
    10. New Trial t&wkey;i03 — Newly Discovered Evidence — Materiality.
    Where plaintiff testified that his injury resulted when his horse kicked, being frightened by defendant’s car, newly discovered evidence that the horse began to plunge and kick when the breeching fell on his legs before the car approached is material so as to warrant new trial, if diligence is shown.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 215-217; Dec. Dig. &wkey;103J
    Buck, J., dissenting.
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    Action by\ W. C. Bradshaw against the Tarrant County Traction Company. Judgment for plaintiff, and defendant appeals.
    Reversed' and remanded.
    Ramsey & Odell, of Cleburne, for appellant. J. B. Haynes, of Cleburne, for appel-lee.
   BUCK, J.

Appellee filed this suit for damages on account of personal injuries alleged to have been, received by him on or about February 13, 1915, alleging, in substance, that be was driving a horse attached to a delivery wagon at the southwestern corner of the public square in Cleburne, that one of defendant’s interurban cars came from the southeastern corner of said square, and that appellee’s horse became frightened at the car, and finally kicked him on one of bis legs, resulting in the alleged injuries and consequent damage. The negligence alleged by plaintiff was that defendant’s employés in charge of said car did not stop upon discovering that plaintiff’s horse was frightened, and that it was further negligent in failing to keep a lookout to discover plaintiff, and in failing to know and realize his dangerous position.

Defendant answered, denying plaintiff’s allegations, both as to his injuries and as to the manner in which such injuries were caused. It further pleaded contributory negligence on the part of plaintiff in driving his horse to the place where he did drive it under all of the circumstances surrounding him at the time, and, further, in not alighting from his vehicle when the horse first began to show signs of fright, and thus escaping the danger of being injured.

A trial before a jury resulted in a verdict and judgment in plaintiff’s favor for the sum of $150, from which judgment the defendant appealed.

Appellant’s first assignment is as follows:

“The court erred in the seventh paragraph of its charge to the jury, wherein it instructs the jury that plaintiff would be entitled to recover if they believed from the evidence that defendant’s employes did not use ordinary care to keep a lookout, etc., for plaintiff, for the reason that said charge does not state, define, or limit the nature and character of the ‘lookout’ required to be maintained or kept by the employes of defendants in charge of said car.”

If the charge as given was defective or incomplete in the respect urged, the appellant should have sought to cure the defect by requesting a correct charge from the court, and, having failed to do so, he will not be heard to complain of the charge' in this respect upon appeal. Oil Co. v. Thompson, 76 Tex. 235, 13 S. W. 60, and other cases cited) in 1 Eneyc. Digest of Texas Reports, pp. 871-873. Defects or omissions in the charge given cannot be complained of where there was no request for a special charge correcting them. I. & G. N. Ry. Co. v. Collins, 33 Tex. Civ. App. 58, 75 S. W. 814; Milmo v. Adams, 79 Tex. 526, 15 S. W. 690; Cockrill v. Cox, 65 Tex. 669, and other cases cited in 1 Eneyc. Digest, supra, 872.

Under its second assignment appellant urges error in the refusal of the court to give special charge No. 2 requested, which, in substance, was to the effect that if plaintiff at the time of the accident knew that his horse was frightened at the car and he remained in his wagon until after the car had passed, and that if the jury should find and believe that an ordinarily prudent person, in the exercise of ordinary care, would not have remained in the wagon at the time and under the circumstances, and that his failure to alight from the wagon was contributory negligence, then they would find for the defendant. W'e think that in the fifth paragraph of the court’s main charge the question of contributory negligence was fully and fairly presented, and the instructions in said paragraph cover those contained in the submitted charge, and the court did not err in refusing the requested charge.

In plaintiff’s petition it was alleged that on account of the injuries to his foot caused by the kick of the horse, plaintiff was confined to his room for a month or more, and was required to secure the services of a physician and to buy medicine in the treatment of his injuries, and that plaintiff’s wife nursed him for a period of some 30 days, and that her services were reasonably worth the sum of $2 per day, and such nursing was necessary on account of the said injuries. Assignments 3, 4, and 5 urge error in the charge of the court allowing a recovery for “any reasonable expenses he (plaintiff), may have incurred for necessary medical treatment and medicine and nursing made necessary on account of said injuries.” It is urged that there is no evidence to sustain the allegations in the petition with reference to such expenses, and that, therefore, the court erred in submitting the same as an element of damages.

Especially is it urged that there is no evidence as to the reasonable value of any nursing incurred, or medical services given, or medicines purchased. We think that the testimony of Dr. Yater, one of the physicians who waited on plaintiff and treated him for his injuries, is sufficient to sustain a recovery as to the medical services and medicine. After stating that he treated plaintiff, found him in bed, complaining of his right foot and hip hurting him, found his foot red! and swollen, and that he gave him treatment therefor, he testified:

“The reasonable charges for the treatment and medicine that I gave Mr. Bradshaw, if a man was able to pay it, would be $25. In his condition it was necessary for me to have some one to nurse him.”

We do not think the inclusion of the clause, “if a man was able to pay it,” would destroy or necessarily limit the force of the testimony to the effect that the reasonable charge for the treatment and medicine would be $25. We understand that the witness meant to say, or that at least such is a permissible construction of his language, that the services rendered and the medicine furnished were of the reasonable value of $25, and that witness regarded plaintiff legally bound by reason of said services and medicines furnished to pay said sum, but that by reason of plaintiff’s physical and financial condition, he might not be able to pay said amount, if any at all.

Where a plaintiff is entitled to recover for medical attention and medicines necessary in the treatment of injuries, the defendant is liable, not for the amount actually expended or incurred by plaintiff, but only for the reasonable or market value of such services, drugs, etc., as were reasonably necessary and for which plaintiff has paid or has become legally bound to pay. The defendant, not being a party to the contract of employment between the plaintiff and the physician or nurse; or the contract of purchase between the plaintiff and the druggist, his liability, if at all, is not fixed by the amount paid or promised to be paid by plaintiff for such services and supplies as were reasonably necessary in the treatment of the injuries, but defendant’s liability is limited to the reasonable or market value thereof. H. & T. C. Ry. Co. v. Patterson, 27 Tex. Civ. App. 249, 65 S. W. 203; Wheeler v. Railway Co., 91 Tex. 356, 43 S. W. 876. The fact that plaintiff sent for the doctor, as testified by the former, and accepted his services, would, in the absence ot some other agreement, create a legal liability to pay therefor on the part of plaintiff. Therefore we have services requested, rendered, and accepted, and evidence of the reasonable value thereof, which we deem to be all the law requires as to this character of proof. Therefore the fourth and fifth assignments are overruled.

But the third assignment presents more difficulty. In this specification complaint is made that there is no evidence to sustain any recovery for nursing, and we are of the opinion that the contention is sound. While plaintiff pleaded that his wife nursed him during the 30 days in which he was confined to his room, and that her services were reasonably worth $2 a day, and while the evidence shows that both his wife and a neighbor did nurse him for a period approximating a month, and while Dr. Yater testified that it was necessary to have a nurse, yet there appears no evidence of record as to the reasonable or market value of such services. Since there is no complaint as to an excess in the verdict, it is urged that under the authority of the Supreme Court in Railway Co. v. Boozer, 70 Tex. 530, 536, 8 S. W. 119, 8 Am. St. Rep. 615, the error should not be held reversible. Perhaps, in any event, we would be authorized, under the authority of Railway v. Patterson, 27 Tex. Civ. App. 249, 65 S. W. 202, and Railway v. White, 32 S. W. 187, to permit a remittitur to the extent of $60 as a condition of affirmance ; but, as in the opinion of the majority the judgment must be reversed under another assignment, this course is not open to us.

In the seventh and last assignment error is urged to the action of the trial court in overruling and not sustaining appellant’s amended motion for a new trial. In its motion defendant set up the alleged newly discovered evidence of Dr. B. W. Price, which was to the effect that before the plaintiff’s horse became frightened and before said horse began to kick, the breeching of the harness fell down on the horse’s legs; that at said time said horse began to stop and squat; that plaintiff struck said horse with the lines and kept endeavoring to urge said horse forward; that said horse then became frightened and finally began to kick; and that the cause of such fright and kicking was the fact of the breeching falling down on the legs of the said horse, and plaintiff’s conduct in striking said horse and urging it forward.

It was further shown in said motion, and in the affidavit of Dr. Price attached thereto, that said Price was in a position where he had a full view of the surroundings, including defendant’s track at and near said point, and that said witness saw no car of the defendant at or near said place, or pass said place at said time. It was further urged in the motion and averred in the supporting affidavits of appellant’s claim agents, attorneys, and others, that diligent efforts had been made by the defendant and such claim agents, attorneys, etc., before trial to learn the names of all who had seen the accident, and it was further averred that in talking to the witnesses who, it was learned, had seen such accident, defendant’s claim agents and attorneys inquired of them, and each of them, as to other parties who had seen such accident or who were in a position to see the same; that none of the witnesses talked to and inquired or disclosed the fact that Dr. Price had seen the accident, nor did the defendant’s agents and attorneys know that he had seen said accident until after the trial, although they made diligent efforts to find out all the witnesses who had seen it.

Appellee urges that even though appellant has shown diligence in its efforts to discover this evidence presented in the motion for new trial, which diligence is denied, yet at most such testimony would be cumulative only in its nature, and therefore the-court did not err in overruling the motion. It will be remembered that the accident occurred on the public square and naturally there were mariy witnesses to the transaction. Some eight or ten testified. It was a sharply controverted issue as to whether or not at the time of the accident the interurban car passed at all, or was even on the square. A number of witnesses, including the trainmen of the car that left Cleburne at 11 o’clock, and the one that left at 11:30, an express car, testified, in effect, that no such accident occurred at either time mentioned; that is, the trainmen testified that they saw no such accident and saw no horse cutting up; and others testified that during the time when the horse was misbehaving they saw no car. But it appears from an examination of the testimony of the witnesses that no witness testified that before the horse began to plunge and rear and appear frightened, the breeching dropped down on its legs. There was some testimony to the effect that during the time the horse was cutting up the breeching was down on its legs, put the testimony of no witness disclosed the fact that the breech-ing fell down before the horse began to cut up. Will Thompson testified that he knew the horse, that it was one which had belonged to his father, and that said horse had the habit of kicking and running away. Jim Thompson testified that he had owned the horse, that it was a bad kicking horse, and would “run and kick and run and kick some more, and if there were any half notes he would hit them, too.” That the horse was what he considered a dangerous horse; “if the breeching or harness should happen to break, or drop down on him he would kick and cut up and try to run. Every time anything ' would go wrong with him he would kick and run and kick.” He further testified that he sold the horse to some one living in Alvarado, and that later he was brought hack to Cleburne, and that plaintiff purchased him. The plaintiff testified, in part, as follows:

“Just guessing at it, I should say that I was about 3 feet from the track of the company when the horse began to got scared. The car was 'coming west on this track on Chambers street, or the south side of the square. The car was coming meeting me. My horse, as soon as he saw the ear coming, began squatting, jumping, plunging, whirling, and trying to run in on the sidewalk, and I sat there and tried to hold him. Tes; X could see the motorman running the car; I could see his face and he was looking- right down the track, and looked like he was looking directly towards where I was. I did not see any obstruction between myself and the motorman. He did not stop the car; he came on down the street, and my horse kept jumping, and I kept holding on to him, and just about the time the ear passed, or was passing him, making the curve there, the horse turned loose to kicking. * * * Just as the car made the curve the horse kicked me on the right foot and glanced up my leg there.”

It therefore appears that it was a very material question as to what caused the horse to he frightened, or to begin cutting up in the first instance; whether it was the approach of the car and at a time when the horse was in such close proximity to the track and to the approaching car that the motorman, in the exercise of ordinary care to keep a lookout along the track, would have discovered the perilous position in which ifiaintiff was placed and taken steps to stop the car, or whether the horse’s fright and misbehavior was due to other causes, and was in no way enhanced or affected by the approach of the car, if the car was on the square at all at the time of the accident. In the opinion of the majority the newly discovered. evidence being upon this crucial point, and no witness testifying having placed himself in the advantageous position held by Dr. Price, and sufficient diligence having been shown, the motion for new trial should have been granted, and the trial court’s failure to sustain the motion will necessitate a reversal.

The writer is not thoroughly satisfied that such a course is required of us in the condition of the record as presented. The granting of a motion for new trial for newly discovered evidence is largely within the sound discretion of the trial court, and unless such discretion is shown to have been afeused, the failure to grant such motion will not work a reversal. In the case of San Antonio Gas Co. v. Singleton, 24 Tex. Civ. App. 341, 59 S. W. 920, 922, the following announcement of the rule is quoted with approval, to wit:

“It is incumbent on a party who asks a new trial on the ground of newly discovered evidence to satisfy the court: First, that the evidence has come to his knowledge since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is not cumulative; fourth, that it is so material that it would probably produce a different verdict if a new trial were granted”— citing Hatchett v. Conner, 30 Tex. 104; Railway Co. v. Forsyth, 49 Tex. 171.

In the cited case the opinion goes on to say:

“Whether the'motion for a new trial met the above conditions was one largely addressed to the discretion of the trial judge. ‘It is impossible to prescribe rales which shall afford a certain guide for the determination of every case; and, where the law does not furnish a rule, the application must of necessity be addressed to the discretion of the presiding judge. Having presided at the trial, having seen the witnesses and heard them testify his means of judging of the correctness of the verdict and the propriety of granting a now trial are superior to those afforded the appellate court by a mere statement of the evidence in the record. Hence, in revising the judgment of the district court refusing a new trial, it has been the uniform practice of this court not to reverse the judgment unless it clearly appears that the party applying has brought his application within those rules which entitled him to a new trial as a matter of law. The inquiry has been, not whether, upon the evidence in the record, it apparently might have been proper to grant the application in the particular ease, but whether the refusal of it has involved the violation of a clear legal right or a manifest abuse of judicial discretion.’ Ables v. Donley, 8 Tex. 331; Railway Co. v. Marcelles, 59 Tex. 334.”

As stated, heretofore, the evidence was sharply controverted as to whether defendant’s car was in sight at the time of the accident, some of defendant’s witnesses testifying that they did not see the car at all, and defendant’s employes testifying that they saw no such accident as claimed by plaintiff and plaintiff’s witnesses occurred. Defendant’s witness Jim Thompson testified that the horse driven by plaintiff would kick and try to run away when anything unusual occurred, at the approach of a car, and lohen the breeching fell down on his legs. The witness Will Thompson testified:

“When my attention was first attracted to this kicking, I hallooed to the gentleman in the back to turn loose and jump out. At the time I noticed the horse he was kicking and the strap that held the breeching up was broken, and it was around his Mnd feet. * * * I suppose I was 40 feet back in my store at the time I first noticed this horse kicking, but the first thing that attracted my attention was the noise, and I looked out and saw the horse kicking.”

Defendant’s witness Albert Smith testified:

“I was working on a man in the (barber) shop and had stepped to the washstand when my attention was first attracted. I glanced out at the window and I noticed the horse began to kick about the time I looked out there at the window. * ⅜ * At the time my attention was first attracted to the horse kicking, there was a man in the hack or wagon. I-le was sitting on the seat a part of the time, and after the horse began kicking, as best I could see, it looked like the horse kicked him and he fell overboard behind the seat.”

The testimony of defendant’s witness Will Thompson disclosed that during the mSlée he saw the breeching down on the horse’s hind legs. No effort seems to have been made by appellant’s attorneys, either during the examination of said witness, or of any other witness, who saw the transaction, to find out at what time the breeching fell down. It does not appear from the statement of facts that any witness was questioned about this matter, nor was any inquiry made even of the plaintiff himself, though he was on the stand more than once, as to what time the harness broke. It appears to the writer, either that defendant’s counsel did not attach any importance to this fact, or that they were not diligent in prosecuting the investigation when the testimony was adduced which would have put them on notice that upon further examination of the eyewitnesses present probably they could have discovered whether or not the breeching fell before or after the horse began to act as if frightened; or they could have secured such testimony from witnesses within a short distance of the courtroom. The affidavit of Dr. Price discloses that his office was upstairs on the south side of the square and overlooked the scene of the accident; that said office was over the dry goods store of Thompson & Atchley, the witness Will Thompson being one of the partners. Other witnesses who testified were in business houses adjoining or near to the place of Thompson & Atchley, and no reason is shown why, in the prosecution of diligent research and investigation to discover all eyewitnesses to the accident, the defendant's claim agent or investigator did not apply to Dr. Price to find out what, if anything, he knew about the accident. This was probably one of the considerations that induced the trial court to overrule appellant’s motion for a new trial. In the opinion of the writer no reversible error is shown in said action of the court below.

In the opinion of the majority, the motion for new trial should have been granted, and its refusal will necessitate a reversal of the judgment.

Reversed and remanded.

BUCK, J., dissenting, as shown in opinion.
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