text:
    MANSFIELD OIL MILL CO. v. EDGMON.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 15, 1913.
    Rehearing Denied April 9, 1913.)
    Master and Servant (§ 129) — Injury to Servant — Proximate Cause — Fellow Servant.
    The proximate cause of the injury to an employe, fireman of a stationary engine, was the negligent starting of it by the engineer, a fellow servant, before the fireman had time to get away, after turning the flywheel by hand, as a preliminary to starting; the defect in the engine, on account of which it had been stopped, being only the occasion.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.]
    Appeal from District Court, Tarrant County; W. T. Simmons, Judge.
    Action by J. M. Edgmon against the Mansfield Oil Mill Company. Judgment for plaintiff. Defendant appeals.
    Reversed and ren-, dered.
    Capps, Cantey, Hanger & Short, of Ft. Worth, for appellant. Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellee.

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

   SPEER, J.

J. M. Edgmon recovered a judgment in the sum of $1,500 against the Mansfield Oil Mill Company for personal injuries received by him while in the employ of that company. The defendant has appealed.

There were numerous grounds of negligence alleged, but the charge permitted a recovery upon the theory either that the defendant had failed to furnish plaintiff with a safe and suitable place to work or with safe and suitable machinery, tools, and appliances, or had failed to exercise ordinary care in the selection of its superintendent and engineer, the plaintiff being the fireman.

.The verdict in no manner indicates the issue upon which the finding was made ior the appellee, but in the view we take of the case this is immaterial, since we are of the opinion that the undisputed facts show the sole proximate cause of the appellee’s injury was the act of the engineer, Machlin, in' starting the engine when he did, and that Machlin and appellee were fellow servants. The evidence would justify a finding that appellant was guilty of negligence in permitting its engine to get out of repair. There was some trouble with the. crank pin and the oiler which necessitated the stopping of the engine. The flywheel it seems stopped “on center,” in which position the application of steam would not start the engine until the flywheel had been turned by personal force “off center,” and it was while appellee and the foreman, Graves, were in the act of doing this that the engineer prematurely started the engine, throwing appel-lee to the floor and injuring him. Under these circumstances, the question of furnishing appellee a safe place to work was not an issue in the case, and the defect in the engine was not the proximate cause of’the injury. At most, that was only the occasion for stopping the engine, and the act of the engineer in starting it before appellee had abandoned his position on the flywheel was the proximate cause of the injury. Roe v. Thomason, 25 Tex. Civ. App. 67, 61 S. W. 528; C., R. I. & T. Ry. Co. v. Harton, 86 Tex. Civ. App. 475, 81 S. W. 1236; C., R. I. & T. Ry. Co. v. Jackson, 40 Tex. Civ. App. 273, 89 S. W. 1117.

The facts immediately connected with the accident are practically undisputed, and are thus detailed by the witness Machlin: “I was running the engine, and Joe Edgmon was firing. On January 20th, when I came down to go to work, the night man told me he had been having some trouble with the crank pin. The oiler pin came loose, and he could not keep it tight. And right after I went on duty the oiler came loose, and we had to stop, and then it stopped, and then we had to stop a number of times — three or four or five times, probably — to tighten and readjust it. This last time when it stopped, while myself and Graves and Edgmon were pulling on it to start down — of course, we had to do this before — Edgmon was on the south side pulling down, with his feet, on the spokes of the wheel, with his arms up over the rim of the wheel, holding on the face of the wheel, holding to the rim, pulling down, and I was on top' of the shaft, with my feet placed against a brick pillar that supported the engine shaft, pushing, and Graves was down right under me, and when we got the engine to where I thought she would start up, on the first quarter, I says, ‘That will do, I think she will start there;’ and I jumped off from where I was on the floor, and Graves stepped back, and went around to the throttle, and about the time I put my hand on the throttle T gave the steam and hollered ‘Watch out!’ about the same time, Watch out!’ and just as the wheel moved I saw Edgmon go down. I shut her off. It was just a start and a stop.” Machlin was no doubt a fellow servant with appellee; and, if his act in starting the engine as he did was negligence, appellee could not for that reason recover.

There is a suspicion, but it is no more than this, in the evidence, that the act of the 'superintendent Graves, appellant’s vice principal, in hurrying the men, caused the engineer to start the engine sooner than he otherwise might have done. But there is nothing to indicate that the superintendent directed him to apply the steam, or that he even knew further than the engineer’s statement above detailed notified him that he would start the engine when he did. Neither does the evidence raise the issue of negligence on the part of the appellant in the matter of employing or retaining its foreman, Graves, or the engineer Machlin. Under our conclusion that the undisputed evidence shows the act of appellee’s fellow servant Machlin to have been the sole proximate cause of the injuries complained of, the judgment of the district court is reversed, and here rendered for appellant.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    WEINBERG v. GARREN.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 22, 1913.
    Rehearing Denied March 29, 1913.)
    Evidence {§ 354) — '“Original Entey” — Copy OE TEMPORARY MEMORANDUM — PRESENT Recollection.
    Permanent entries made from a slate, card, or memorandum book by a person other than the one that made such temporary entries, and oral statements made by the salesman in the evening and entered by such other person, are admissible in evidence as original entries, when supported'by suppletory oath, and there need be no present recollection of the correctness of the items entered.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. § 354.

    For other definitions, see Words and Phrases, vol. 1, p. 841; vol. 8, p. 7592.]
    Appeal from Johnson Oounty Oourt; J. B. Haynes, Judge.
    Action by Ben Garren against Frank Weinberg. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Goldsmith & Warren, of Cleburne, for appellant. W. B. Harrell, of Cleburne, for ap-pellee.

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

   Conclusions.

CONNER, C. J.

The single question presented for our determination is whether the court correctly admitted the book of entries offered by appellee supporting his case. We are of opinion that neither of the objections thereto can be sustained. Within the meaning of the law, we think that the book was one of original entry. It is not an objection to the competency of the party’s book, when supported by suppletory oath, that the entries therein were transcribed from a slate, card, or memorandum book in which they were first entered for a temporary purpose, although the entries on the slate or memorandum were made by a person other than the party who copied them on the book. In such cases, the entry of the charges in the first instance are regarded as memoranda preparatory to permanent evidence of the transactions, and the entry in the regular book of accounts of the party is deemed to be the first and original entry, and as such competent proof with the oath of the party of the charges therein made. See 17 Cyc. 377, par. “cc.” Appellee’s evidence was to the effect that the entries in the book under consideration were duly entered by a little daughter, and the daughter testified that the entries were correctly made from the slips issued by appellant when the bananas were delivered and from her father’s oral statements of the amounts paid to him at the end of the day’s service. These entries were evidently the first entries made in an enduring form, and hence, as stated, were original entries within the rule authorizing their admission into evidence. Nor is the fact that part of the entries so made consisted of appellee’s oral statements, and that, after having examined the book, he was unable to recall any individual recollection of the transaction, valid objections to the introduction of the book.

Mr. Wigmore on Evidence, vol. 1, § 751, in speaking of memoranda and entries admissible, thus states the rule finally receiving the approbation of the courts, viz.: “If a copy by another person of a statement originally written is receivable, why is not a copy receivable of a statement originally oral? The situation is the same as in the preceding instance, save that the salesman, workman, or foreman, instead of handing the bookkeeper or clerk a written statement of the transaction, makes an oral statement, which is then and there copied as before. Here a salesman will on the stand testify that the statement made by him was an accurate embodiment of his recollection, while the bookkeeper will verify the correctness of his entry, which is none the less in fact .a copy, though it reproduces an oral statement. To receive the memorandum supported by the joint testimony of the two is in perfect accord with legal principle, and is certainly demanded by all consideration of mercantile conveniences. This result may now be regarded as generally accepted.” The same author, in an exhaustive discussion, makes it clear that, in order to authorize the introduction of the book or memorandum so verified and supported, it is not necessary that there be a present recollection of the correctness of the items entered. See sections 734, 735, et seq., of the same book.

On the whole, we find no reversible error, and the judgment is affirmed.


author: SPEER, J.

text:
    GROGAN v. SPAULDING et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 1, 1913.
    On Appellant’s Motion for Rehearing March 8, 1913.
    On Appellees’ Motion for Rehearing April 12, 1913.)
    1. Infants (§ 113) — Actions—Judgment— CONCLUSIVENESS.
    Infants may sue and be sued, and are as much bound by the judgment or decree as if they were adults.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 321; Dec. Dig. § 113.]
    2. Infants (§ 78) — Action Against Infant —Gtjakdian ad Latem — Appointment.
    Failure of the court to appoint a guardian ad litem for an infant defendant, as required by Rev. Civ. St. 1911, art. 1942, is an error for which the judgment against the infant will be reversed, but does not render the judgment void.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 195-207, 209; Dec. Dig. § 78.]
    3. Infants (§ 113) — Judgment—Gonclusiveness — Action Against Infant.
    _ Where a judgment was recovered against an infant for the balance of the price of an automobile sold to him, Which judgment the infant - paid, it was conclusive against him; and he could not recover the amount so paid on dis-affirming the contract to purchase immediately after reaching his majority.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 321; Dec. Dig. § 113.]
    Appeal from District Court, Taylor County; T. L. Blanton, Judge.
    Action by P. T. Grogan, Jr., against John Spaulding and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    J. M. Wagstaff, of Abilene, Theo. Mack, of Ft. Worth, and J. F. Cunningham, of Abilene, for appellant. Kirby & Davidson, of Abilene, for appellees.

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

   SPEER, J.

P. T. Grogan, Jr., sues John Spaulding and 'Will Spaulding, composing the firm of Spaulding Bros., to recover a sum of money paid to the defendants for a certain automobile; the petition alleging that at the time of said payment the plaintiff was a minor, ‘and that on reaching his majority he had promptly elected to rescind the purchase.

The defendants answered generally, and specially by a plea of res adjudicata. A trial before the court resulted in a judgment for the defendants, and the plaintiff has appealed.

A single assignment is presented, raising the sole question that the court erred in rendering judgment for the appellees upon the undisputed evidence to the effect that at the time appellant paid the consideration for the automobile he was a minor, and that on arriving at his majority he had elected to rescind the contract of purchase, tendering the machine back to the appellees; and, further, that at the time appellant was sued by appellees for the purchase money of the automobile he was yet a minor. It is also shown that in the suit by appellees against appellant no guardian ad litem was appointed by the court, but an appeal was taken by the minor, and the judgment against him was affirmed by this court, which judgment has never in any manner been vacated or set aside. Appellant invokes the familiar rule that a minor, upon reaching his majority, may elect to rescind his contract, made during his minority, and recover back the consideration paid. He insists that he is in no worse position by reason of the demand against him having been reduced to judgment during his minority than if he had paid the same voluntarily; that in either instance he could recover the money paid. But we cannot agree to this contention. Infants are permitted to sue and be sued, and are as much bound by the judgment or decree as if they were adults. Cannon v. Hemphill, 7 Tex. 184; 27 Cen. Dig. tit. Infants, § 821.

Article 1942, Revised Statutes 1911, makes it the duty of the court, in case an infant defendant has no regular guardian, to appoint a guardian ad litem to defend for him, and the failure of the court to make such appointment is an error for which the judgment rendered against such minor will be reversed; but it has never been held that the judgment is for that reason void. Taylor v. Rowland, 26 Tex. 293; Wallis v. Stuart, 92 Tex. 568, 50 S. W. 567.

In the case last cited our Supreme Court holds that a minor sued as an adult and not defended by a guardian ad litem might properly sue to set aside such judgment, and to have a new trial awarded him; but until such course has been pursued, or the judgment against him in some manner annulled, the minor is as much bound by the adverse decree as any other litigant, and cannot, upon reaching his majority, disaffirm the judgment as he would a contract. In short, the judgment imports verity and implies a finding against the plea of minority, or that the contract was for necessaries, or otherwise that all proper defenses arising out of the minority of the defendant have been decided adversely to him. If such issues are -improperly decided, the minor’s remedy is by appeal or other direct attack, and not by collateral attack, as is attempted in this instance.

There is no error in the judgment, and it is affirmed.

On Appellant’s Motion for Rehearing.

We see no reason to recede from our views expressed in the original, opinion as to appellant’s right to recover the amount paid in satisfaction of the judgment against him; but as to the sum of $50, paid at the time he contracted to purchase the automobile, we think the trial court should have rendered judgment in his favor. On the original hearing we considered only his right to recover back the amount paid under the judgment, but a re-examination of the assignment of error convinces us that it is broad enough to cover the $50 item as well. When this initial sum was paid, the appellant was, of course, a minor, and the undisputed facts show that upon reaching his majority he promptly disaffirmed and elected to rescind the contract of purchase. The evidence establishes the fact that if the machine was not absolutely worthless it had been duly tendered back to the appellees, both before and after appellant áttained his majority. Appellees have not answered this contention of appellant, and we see no reason why 'judgment should not' now be rendered in his favor for this item.

Rehearing granted, judgment of the lower court reversed, and judgment here rendered for appellant for the sum of $50, together with all costs.

On Appellees’ Motion for Rehearing.

The opinion rendered on appellant’s motion for rehearing, wherein the judgment of the lower court was reversed and judgment rendered for appellant for the sum of $50, is withdrawn and all assignments overruled, and the judgment of the lower court in all things affirmed. We make this order in view of the fact, called to our attention in appel-lees’ motion for a rehearing, that the pleadings of appellant filed in the county court of Taylor county in the suit of Spaulding Bros., did put in issue the $50 constituting the advance payment on the automobile in question, and for the reasons given in our original opinion the judgment in that case is therefore conclusive as to this item also.

Appellees’ motion for rehearing granted, and the judgment of the district court is affirmed.


author: TALBOT, J.

text:
    WRIGHT v. WRIGHT.
    (Court of Civil Appeals of Texas. Dallas.
    April 5, 1913.)
    1. Husband and Wife (§ 205) — Right of Action Between.
    A married woman, duly appointed as guardian of her infant daughter by a former marriage, who loaned the money of such infant daughter to her husband, could sue him on the note given therefor.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. ■§§ • 744, 748-755, 970 ; Dec. Dig. § 205.].
    2. Guardian and. Wabd (§ 10) — Persons Entitled to Appointment.
    A married woman is not incapacitated from acting as guardian of her infant children by a former marriage, but, on the contrary, is by statute given the preference as guardian of such children.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent Dig. §§ 23-33; Dec. Dig. § 10.]
    3. Guardian and Ward (§ 56) — Right of Action by Guardian.
    That a loan by a guardian was not made and secured strictly according to the statute could not prevent a recovery by the guardian on a note given for the loan.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 255-260; Dec. Dig. § 56.]
    4. Appeal and Error (§ 736) — Assignments of Error — Multifariousness.
    Assignments of error embracing two or more separate or distinct questions of law will not be considered because too general.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3091; Dec. Dig. § 736.]
    5. Appeal and Error (§ 732) — Reservation of Grounds of Review — Motion for New Trial.
    Under rule 24 of the Courts of' Civil Appeals (142 S. W. xii), providing that assignments of error must distinctly specify the grounds of error relied on and. distinctly set forth in the motion for a new trial, and that a ground of error not distinctly set forth in a motion for a new trial and not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived unless fundamental, where defendant filed a general demurrer to the petition and six special demurrers to each of the two counts and moved for a new trial on the ground that the court erred in overruling the general and special demurrers, assignments on appeal that the court erred in overruling certain special exceptions and in overruling the motion for a new trial were not entitled to consideration ; no particular ground of error being distinctly set forth in the motion for a new trial as required by the rule.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.]
    6. Appeal and Error'(§ 302) — Reservation of Grounds of Review — Motion for New Trial.
    Rule 24 for Courts of Civil Appeals (142 S. W. xii), requiring that errors relied on be distinctly set forth in the motion for a new trial, applies whether the- case is tried by the court with or without, a jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1753; Dec. Dig. § 302.]
    7. Appeal and Error (§§ 731, 733) — Assignments of Error — Sufficiency.
    An assignment of error that the verdict or judgment is contrary, to law and the evidence is too general and will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021, 3025-3027; Dec. Dig. §§ 731, 733.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Action'by Mrs. Pearl Wright against J. H. Wright. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Tom. P. Whipple, of Waxahachie,' for appellant. 'Supple & Harding, of Waxahachie, for appellee.

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

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

   TALBOT, J.

Appellee sued appellant in the district court of Ellis county, Tex., on a promissory note for the sum of $927.41, dated November 24, 1906, and payable to appellee, guardian. ■ The note bore interest at the rate of 8 per cent, per annum and provided that if the same was not paid at maturity and was placed in the hands of an attorney for collection, or if suit was brought thereon, to pay an additional 10 per cent, thereof as attorney’s fees. The petition contains two counts, in substance: (1) That plaintiff and defendant are husband and wife, but that they have been living separate and apart for about two years, during which time plaintiff has been compelled to make her own support without any assistance or aid from the defendant; that defendant executed and delivered to plaintiff the note sued on, naming her in said note as “Mrs. Pearl Wright, guardian,” etc.; and that said note became and is her separate property as a matter of law. (2) That plaintiff was, at the time of the execution and delivery of said note and at the date of the filing of this suit, the duly appointed, qualified, and acting guardian of the person and estate of her minor daughter, by a former husband, Maude Smith; that the consideration of said note was money belonging to the estate of her said daughter loaned by plaintiff to defendant, and prayed that, in the event she was not entitled to recover on the first count of the petition, plaintiff have judgment as guardian of the said Maude Smith. Defendant answered by a general demurrer to plaintiff’s petition, and by six special demurrers to the first count and six special demurrer to the second count thereof. In addition to the demurrers referred to, defendant pleaded a general denial and specially matters not necessary to state. Defendant’s demurrers were overruled, and, the case having'been submitted to the court without a jury, judgment was rendered in favor of the plaintiff as guardian of her said daughter, and the defendant appealed.'

The first and second assignments of error are, in effect, that, as the allegations of plaintiff’s petition show that she and defendant are husband and wife, she cannot maintain an action against him for debt, either in her own right or in her fiduciary bapacity of guardian of her minor child. In this view we do not concur. The note sued on having been executed and delivered by appellant to appellee as the guardian of the estate of her minor child, for borrowed money belonging to sai'd estate, and the guardianship still pending, it was not only appellee’s legal right as such guardian, but her duty, upon the failure of appellant to pay said note when due, to institute and prosecute to judgment a suit thereon, A married woman is not by our law incapacitated from acting in the capacity of guardian. On the contrary, she is given by statute the preference of the guardianship of her minor child or children of a former marriage, and “she may do all things necessary to a proper discharge of the duties of her office irrespective of her coverture.” Speer on Married Women, §§ 164-283. Mrs. Wright was joined by her husband in the bond executed by her as the guardian of her child, and there is no question of the legality of her guardianship. It would be a strange doctrine and exceedingly harsh rule that would deny to a married woman, who is authorized by statute to act as guardian of her minor child, the right to maintain a suit against her husband to recover money loaned him belonging to such child’s estate, even though the loan was not made, as contended by appellant, and secured strictly according to the provision of the statute relating to loans by guardians.

The third, fourth, and fifth assignments of error are not briefed in accordance with the rules, and are not therefore entitled to consideration. The third and fourth are grouped and contain several separate and distinct grounds of error and are bad for multifariousness. It is held by numerous authorities that an assignment of error which embraces two or more separate and distinct questions of law will not be considered because too general. Neither-of said assignments is entitled to consideration for the further reason that the defendant’s motion for a new trial in the district court did not distinctly specify the errors complained of in said assignments. Amended rule 24 for the the government of the Courts of Civil Appeals (142 S. W. xii) declares that an assignment of error must distinctly specify the grounds of error relied on and distinctly■ set forth in the motion for a new trial im, the cause, and that a ground of error not distinctly set forth in a motion for a new trial in the cause and not distinctly specified in reference to that which is shown in the record or not specified at all, shall be considered as waived, unless it be so fundamental that the court would act upon it without an assignment of error. No such motion for a new trial as is required, by this rule was filed in the trial court. The grounds of the motion that was filed are as follows: (1) The court erred in overruling the defendant’s general and special demurrers to plaintiff’s petition. (2) The judgment was contrary to the law and the evidence.

The assignments here under considation complain of the court’s action in overruling the defendant’s fourth special exception, his sixth special “exception to the alternative plea in plaintiff’s petition,” and in overruling his motion for a new trial, and it is apparent, of course, that no particular ground of error is distinctly set forth in defendant’s motion for a new trial, and not having been so set forth, and the error assigned not being fundamental, must, under the rule referred to, be considered as waived. As has been shown in the former part of this opinion, the defendant presented in the trial court six special demurrers to each count in the plaintiff’s petition, making twelve special exceptions in all, the nature of neither of which, nor the specific error complained of, is pointed out in the motion for a new trial and the lower court’s attention directed to the same for revision and correction. The rule applies whether the case was tried by the court with or without a jury. Astin v. Mosteller, 152 S. W. 496. That the assignment of error with the aid of the proposition advanced under it may be “clear and comprehensive” is not sufficient. The matter complained of must be distinctly and clearly set forth in the motion for a new trial. San Antonio Traction Co. v. Emerson, 152 S. W. 468. It has been repeatedly held that an assignment that the verdict or that the judgment was contrary to the law and the evidence was too general and would not be considered. But, if we were called upon, or felt disposed, to consider the assignments of error in question, we are not prepared to hold that either of them discloses reversible error.

There was no conflict in the evidence, and it was amply sufficient, under the rules of law applicable, to authorize and sustain the judgment rendered. Indeed, we think that, under the undisputed evidence, no other judgment should have been rendered. It is therefore affirmed.

Affirmed.


author: HARPER, J.

text:
    SMITH v. MOORE et al.
    (Court of Civil Appeals of Texas. El Paso.
    April 10, 1913.)
    1. Esceows (§ 8) — Delivery op Deed in Escrow — Rights op Parties.
    Where a vendor in a contract of sale stipulating for the execution and delivery of a deed to a bank, to be held in escrow until deferred payments were made on designated dates, executed and delivered a deed to the bank m escrow, he could not thereafter withdraw it from the bank, without the purchaser’s consent, until the expiration of a reasonable time, notwithstanding the time limit named in the contract; and the act of withdrawal after expiration of a reasonable time must be pleaded and proved by the vendor, when sued by the purchaser for the money paid.
    [Ed. Note. — For other„ cases, see Escrows, Cent. Dig. §§ 9, 10; Dec. Dig. § 8.]
    2. Vendor and Purchaser (§ 334) — Contracts— Breach — Rights op Purchaser.
    A vendor, who received a part of the price, could not retain it, unless he tendered performance of his part of the agreement, and after such tender the purchaser failed or refused to perforan his part.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. § 334.]
    Appeal from Reeves County Court; John Y. Eeavell, Judge.
    Action by Charley W. Smith against Mrs. Lena Moore and another. Prom a judgment of dismissal', rendered on sustaining a general demurrer to the petition, plaintiff appeals.
    Reversed and remanded.
    ' Buck & Drane, of Pecos, for appellant. Ross & Hubbard, of Pecos, for appellees.

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

   HARPER, J.

This is a suit brought by appellant against appellees in the county eourt of Reeves county, Tex., at the April term, A. D. 1912, to recover $450 and interest, as is shown in plaintiff’s petition. On the 6th day of April, 1912, the case was called for argument and consideration of demurrers before the court, and the court sustained the general demurrer to plaintiff’s petition. The plaintiff excepted to. the ruling of the court in sustaining defendants’ general demurrer to plaintiff’s petition and declined to amend. The eourt dismissed plaintiff’s suit and rendered judgment for defendants. To which action of the court plaintiff duly excepted and gave notice of ■appeal. Plaintiff duly filed his appeal bond. Plaintiff duly filed his assignment of error. Appellant now brings the cause to this court for a revision of the error therein assigned, which is as follows: “The court erred in sustaining defendants’ general demurrer to plaintiff’s original petition and dismissing plaintiff’s suit, for the reason that said petition .showed, upon its face, a good cause of action in favor of plaintiff against defendants for the sum of $450 and interest, as shown in plaintiff’s petition, for moneys paid and received under and by the virtue of the contract set up in plaintiff’s said petition, which contract; as shown by said petition, was breached by said defendants.”

Plaintiff’s petition, omitting formal parts, is as follows:

“First. That on the 11th day of January, 1910, plaintiff entered into a contract with J. W. Moore, acting as the agent for his wife, Mrs. Lena Moore, defendant, whereby defendant, through her husband, J. W. Moore, obligated herself to sell to plaintiff section No. 145, block No. 13, H. & G. N. Ry. survey, in Reeves county, Texas, for a consideration of $4,800, to be paid by plaintiff as follows: $100 in cash; $400 to be paid on June 1, 1910; $500 to be paid October 1, 1910; and $500 to be paid January 1, Í911; the balance of said purchase ■ money to be evidenced by plaintiff’s three notes for $1,100 each, to bear interest at the rate of 6 per cent, per annum from date until paid. And it was further stipulated in said contract that the party of the first part [Mrs. Lena Moore] was to make a warranty deed to said land to the party of the second part [plaintiff] and place the same in the Pecos Valley Bank of Pecos, Texas, to be held by said bank in escrow until the three first' deferred payments named in said contract were paid, viz., the $400 June 1, 1910, $500 October 1, 1910, and $500 January 1, 1911, at which time, if the party of the second part [plaintiff] had complied with the terms of the contract, and made said payments, the deed was to be delivered to party of second part [plaintiff]. A copy of said written contract is hereto attached, marked ‘Exhibit A,’ and made a part of this petition..
“Second. That on the date of entering into said contract and agreement plaintiff paid to defendant J. W. Moore, for defendant Mrs. Lena Moore, $100; that on September 23, 1910, plaintiff paid to defendant Mrs. Lena Moore $150 on said land and contract, and on October 15, 1910, plaintiff paid to defendant Mrs. Lena Moore $100 on said land and contract, and on November 12, 1910, plaintiff paid to defendant Mrs. Lena Moore $100 on said land and contract; and that each of said payments were accepted by defendant Mrs. Lena Moore as payment on said land and contract.
“Third. That, as is shown by said contract, time was not the essence of the same, and, further, if so claimed» to be by defendants," it was waived by the acceptance by defendant Mrs. Lena Moore of the aforesaid sums of money from plaintiff on said contract subsequent to the dates payments were to have been made, as shown therein.
“Fourth.' Plaintiff avers that he has been informed and believes, and hereby alleges, that defendant Mrs. Lena Moore, joined by her husband, executed and acknowledged a deed to plaintiff to said land and delivered the same in escrow to said the Pecos Valley Bank, and after such delivery accepted certain payments of plaintiff on said contracts and land.
“Fifth. Plaintiff alleges that after the delivery of said deed in escrow to said the Pecos Valley Bank, and while said contract was in full force and effect, defendants, unmindful of plaintiff’s rights in the premises, voluntarily, without any notice whatever to plaintiff, and without his consent, sold said land by deed to F. W: Johnson, W. D. Cowan, R. S. Johnson, and Stump Robbins on February 27,1911, which deed is of record in Book 30, page 218, of the Deed Records of Reeves county, Texas, the said parties being innocent purchasers without notice, and thereby rendering specific performance under said contract and escrow deed ineffectual.
“Sixth. Plaintiff alleges that it was his desire at all times to carry out the terms of said contract and buy said land, and that he would have done the same if it had not been for the wrongful and unauthorized action of defendants in. ignoring his rights in the premises and selling said land, as before alleged, and thereby placing it beyond the reach of him, and that he is now willing and able to purchase said land and pay therefor the price named in said contract, and will do the same in the event defendants can and will deliver him good title to the same.
“Seventh. That by reason of the premises plaintiff has been damaged -in the sum of $450, the money so paid on said land and contract, as aforesaid, together-with interest on the respective payments, as aforesaid, from date of same.
“Premises considered, plaintiff prays the court that defendants be cited to appear and answer this petition in terms of law; that he have judgment against said defendants for his debt, $450, and interest, and for costs of suit, and for both general and special'relief,” etc.

Exhibit A of plaintiff’s original petition:

“This memorandum of agreement this day made and entered into by and between J. W. Moore, acting as agent for his wife, Mrs. Lena Moore, of Pecos, Texas, party of the first part, and Charley W. Smith, of Gales-burg, Ill., hereinafter designated as party of second part, witnesseth; ,
“That the party of the first part has contracted and sold to the party of the second part section 145, block 13, H. & G. N. Ry. survey, Reeves county, Texas, for the consideration of $4,800, to be paid as follows: $100 in cash; $400 to be paid on June 1, 1910; $500 Oct 1, 1910; and $500 Jan. 1, 1911, and the issuance by the party of the second part of three vendor’s lien notes of $1,100 each, bearing interest at the rate of 6% per annum from date until paid.
“It is further agreed by and between the parties hereto that the party of the first part shall make a warranty deed to the above-described land and deposit same in the Pecos Valley Bank of Pecos, Texas, to be held by said bank in escrow until the three first deferred payments named above shall. have been made, viz., the $400 June 1, 1910, $500 Oct. 1, 1910, and $500 Jan. 1, 1911, at which time, if the party of the second part has complied with the terms of the contract and made payments as above stipulated, the party of the first part will deliver this deed to the party of the second part.
“It is further understood and agreed by and between the parties hereto that the party of the second part shall have the privilege of entering upon this land at any time he may see fit and putting such improvements upon same as he may wish.
“Witness our hands in duplicate this 11th day of January, A. D. 1910.
“J. W. Moore,
“Party of the First Part.
“Charley W. Smith,
“Party of the Second Part.”

To this petition defendants filed a general demurrer, as follows: “Defendants except to plaintiff’s original petition filed herein, and say that same is insufficient in law and shows no cause of action.”

The court entered the following judgment of dismissal: “On this the 6th day of April, A. D. 1912, at a regular term of said court, came the parties by their attorneys, and then came on to be heard the defendants’ general demurrer to plaintiff’s petition, filed 5th day of April, A. D. 1912; and the argument of counsel thereon being heard, it is the opinion of the court that the law is for the defendants, and that plaintiff’s petition shows no cause of action against defendants, and that said general demurrer should be and the same is hereby sustained. And the plaintiff in open court having declined to amend, and excepted to the ruling of the court in sustaining said general demurrer, it is therefore considered and ordered by the court that plaintiff’s suit be and the same is hereby dismissed, and that defendants go hence without day, and that they recover of plaintiff, Charley W. Smith, their costs in this behalf expended, for which they may have their execution. * * * ”

The court erred in sustaining the demurrer to the petition, for it stated a good cause of action.

The fourth paragraph of plaintiff’s petition alleges the execution of a deed, and that same was placed in escrow to await the happening of a certain event, to wit, the payment of the moneys cited as the consideration therein. Appellees, under such state of facts, would not have the right to withdraw the deed from the bank, without the appellant’s consent, until after the expiration of a reasonable time, notwithstanding the time limit named in the contract. This is a question of defense to be pleaded and proven by defendants. Bott v. Wright, 132 S. W. 960. Besides, the defendant, under the allegations of plaintiff’s petition, received money under the contract to sell from the plaintiff, and has no right to it, unless she tendered her part of the agreement, and after such tender plaintiff failed or refused to perform his part of it. Pfeiffer v. Wilke, 197 S. W. 361.

Reversed and remanded.


author: HARPER, C. J.

text:
    RICHARD COCKE & CO. v. BIG MUDDY COAL & IRON CO.
    (Court of Civil Appeals of Texas. El Paso.
    April 10, 1913.
    Rehearing Denied April 24, 1913.)
    1. Sales (§ 161) — Performance—Delivery F. O. B.
    The delivery of coal to a railroad company at a mine under a contract of sale f. o. b. mines constitutes a delivery to the buyer.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 377-380; Dec. Dig. § 161.]
    2. Sales (§ 181) — Action eor Price — Admissibility.
    In an action for the price of coal to be delivered f. o. b. mines, evidence of the buyer that he did not' receive any of the coal- was inadmissible; since the question was whether the seller had delivered at the mine, and the fact that only a certain part of the coal had finally reached the buyer, would not tend to prove that it was not put on the cars.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 473-491; Dec. Dig. § 181.]

      3. Evidence (§ 158) — Best and Secondary ElVIDEN CE — OO NTH ACTS.
    Where coal was sold and shipped f. o. b. mines upon mine weights and was also weighed at destination, the testimony of the buyer as to shortage of weight, without accounting for the record taken by the weigher at either place, was inadmissible as secondary evidence.
    [Ed. Note. — For other cases, see Evidence, Gent. Dig. §§ 472, 473, 474%-504, 506-526; Dee. Dig. § 158.]
    4. Evidence (§ 471) — Opinion Evidence-Conclusions oe Pact.
    In an action for the price of coal, where the buyer under his general denial was entitled to prove payment, his evidence that he had paid in full for the coal was not inadmissible as opinion evidence, but called for a statement of fact.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dee. Dig. § 471.]
    5. Sales (§ 404) — Remedies op Buyer — Action for Breach.
    When a buyer under an executory contract for sale and delivery of coal inspects it, and finds that it is not what his contract calls for as to quality, he can refuse to receive it, and sue for such damages as he has suffered by the seller’s breach of contract.
    [Ed. Note. — Por other cases, see Sales, Cent. Dig. § 1146; Dec. Dig. § 404.]
    6. Sales (§ 179) — Performance op Contract — Buyer’s Acceptance.
    Where coal tendered in performance of an executory contract of sale is not such as was described in the contract and this is known to the buyer, he must either refuse it and rescind, or accept and abide by the contract.
    JEd. Note'. — For other cases, see Sales, Cent. Dig. §§ 456-468; Dec. Dig. § 179.]
    7. Sales (§ 364) — Action por Price — Instructions — Damages.
    In an action for the price of coal sold f. o. b. mines, where defendant pleaded the general denial and set up a contract with plaintiff for a certain grade of coal under which plaintiff had shipped a lower or inferior grade, obliging defendant to fulfill, his contracts to purchase coal at a higher market price, a requested charge on the buyer’s damages was within the issues, and should have been given.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1065-1076; Dec. Dig. § 364.]
    8. Sales (§ 418) — Remedies op Buyer — Action por Breach — Damages.
    On a seller’s breach of an executory contract for the sale of coal, the measure of damages is the market price of such coal, less the contract price, the market price for this purpose to be determined as of the time and place of delivery agreed on.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.]
    9. Sales (§ 418) — Remedies op Buyer — Action por Breach — Special Damages.
    Where a seller, at the time an executory contract for the sale of coal is made, has notice that it is being purchased for sale in a particular market, or is to be supplied in pursuance of a particular contract, he may be reasonably held to have made his contract in contemplation of that purpose, so that on his breach thereof damages for the loss caused thereby, if not uncertain and remote, are recoverable.
    .[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174^-1201; Dec. Dig. § 418.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by the Big Muddy Coal & Iron Company against Richard Cocke & Co. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Harris & Harris, of Houston, for appellant. A. T. Carleton, of Houston, for appellee.

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

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

   HARPER, C. J.

The Big Muddy Coal & Iron Company brought this suit against Richard Cocke, doing business in the name of Richard Cocke & Co., for the sum of $478.-46 for coal, and alleged the following cause of action: On the 5th day of August, 1909, defendant ordered from plaintiff 35 cars of coal of grade and quality known as “Big Muddy coal” at a price of $1.65 per ton f. o. b. mines, weights at shipping point to govern, and that plaintiff shipped coal in accordance with such order, and, further, that on August 21, 1909, the defendant ordered from plaintiff about 30 car loads of what is known as “Carterville lump coal” at a price of $1.20 per ton f. o. b. mines, weights at shipping point to govern. The plaintiff accepted the order, and shipped the coal.

Defendant answered by general denial, and specially that he admits entering into the contract of August 5, 1909, for coal at $1.65 per ton f. o. b. the mine, but denies that he agreed tp pay for coal which he did not receive; that the cars of coal received under said contract were, when they arrived at Houston, Tex., short in weight from one to five tons per car less than the weight billed to this defendant. He also admits that he entered into a contract on August 21, 1909, for 30 cars of Carterville coal at $1.20 per ton f, o. b. the mine, but expressly denies that he agreed to pay for any coal not delivered to defendant; that the coal shipped under the last-named contract was short in weight from one to five tons per car less than weights billed to "defendant. Further answering, he says that he has paid plaintiff for all coal actually delivered to him, that he refused to pay the $478.46 because it represents the price of coal under the aforesaid contracts billed but never delivered, and charges that same was never loaded on the cars. Further answering, defendant alleged that by the contract of August 5, 1909, he ordered the best grade of lump coal or egg coal at $1.65 per ton f. o. b. the mine, but that the coal shipped was not up to grade, but was a lower grade, worth only 50 cents per ton on the market, making $19 per car load less than contract price, whereby defendant lost $665. He further says that August 10, 1909, he ordered 30 cars of Carter-ville lump coal for shipment during the next 60 days at $1.20 per ton f. o. b. the mine, but that plaintiff failed to keep this, contract, and that by reason of plaintiff’s failure to ship said coal at Carterville for defendant defendant was compelled to go into the open market and buy coal at an advanced price -to fulfill Ms own contracts; that he so purchased 255% tons at $2 per ton, an advance ■of 80 cents per ton over the contract price, making a total loss of $204.40 by reason of plaintiff’s failure to ship coal as agreed.

The plaintiff by supplemental answer set up general denial, and further alleged that the contract of August 5, 1909, was to deliver the coal to the railway company, as the agent of defendant, and the defendant was to pay $1.65 per ton for all-coal delivered on board the cars at the mine, and that, if the coal was not delivered to defendant, it was not the fault of plaintiff, and it is not responsible therefor. And as to the contract of August 21, 1909, for 30 cars Carterville coal at $1.20 per ton f. o. b. mine, was for that grade, to be delivered to defendant on board of cars, thus making the railway company the defendant’s agent, and therefore is not responsible if the coal was not delivered to defendant. Alleged that in each instance the amount of coal charged to defendant was loaded on the cars at the mine, but, if not, then defendant is estopped from recovering for short weights because defendant has paid in full for all coal loaded up to the 1st day of January, 1910, and that he has failed to pay for coal shipped only since that date. Further plead general denial to the charge that the coal was not as represented, but, if it was not, that defendant is estopped to complain, and cannot recover by reason of any inferiority in grade of coal because he accepted all coal shipped and paid full contract price up to January 1, 1910, and made no claim to plaintiff for any deduction Denies that it failed to keep the contract to deliver 30 cars Carterville coal, but was able and ready to so do, but that defendant instructed plaintiff to discontinue the shipments, ¿nd that he is thereby estopped from claiming the $204.40 claimed.

Appellant’s first error assigned: “The court erred in excluding, over the objection of defendant, Richard Cocke, defendant’s evidence as to the shortage of weight of coal shipped by the plaintiff to the defendant, and as to the poor quality of said coal, and as to the failure of plaintiff to keep its written contract to ship the thirty (30) cars of Carterville coal within sixty (60) days from the date of the contract, and as to the complete failure of plaintiff to ship seven cars of Carterville coal out of the aforesaid thirty cars.”

First proposition: “Where testimony is improperly rejected, the judgment must be reversed, unless it was merely cumulative and could not have changed the result.”

Second proposition: “Opinion evidence of nonexperts is generally admissible upon questions relating to quality, quantity, time, number, and speed and the like.”

The following questions were asked:

“Mr. Cocke, did you receive a single lump of the coal which plaintiff is suing you for?
“Do you know about what the shortage was on each car load of coal, of your own ' personal knowledge, on each car load of coal shipped you, and, if so, what was such shortage?
“Have you refused or failed to pay for any coal sMpped to you?”

The letters which are the basis of the-cause of action sued on are as follows: “March 15, 1909. We would like to handle your coal at Houston. Please make a proposition. When we are in the market for coal, we will certainly buy yours. The weights and quality are very satisfactory. Richard Cocke & Co.” Upon reply to this by the Coal Company, fixing prices, defendant ordered the coal, the value of which is sued for, and it was expressly stipulated in writing by the Coal Company that the place of delivery was at the mine, and upon mine weights f. o. b. railroad cars at the mine. The proffered testimony of Cocke that he did not get a lump of coal in Houston sMpped by the Big Muddy Coal & Iron Company was properly excluded, because the question was, Did the Goal Company deliver on board the cars at the mine? and the fact that only so much coal finally reached Houston would not tend to prove that it was not put on the cars. Under all the authorities the delivery of the coal to the railroad company at the mine under the facts of this case was a delivery to the purchaser. Chas. F. Orthweiss & Sons v. Wichita Falls Mill & Elevator Co., 32 Tex. Civ. App. 600, 75 S. W. 364.

Likewise the court did not err in excluding the opinion of witness Cocke as to the shortage of weight of coal shipped, because it was not the best evidence, in view of the fact that the testimony showed that the coal was shipped upon mine weights, and, further, that the coal was weighed in Houston, and there was no attempt to account for the record taken by the weigher at either place, which was the best evidence. Sabine Land & Improvement Co. v. Perry, 54 S. W. 327.

It was error for the court to exclude the testimony of witness Cocke “that he -had paid plaintiff in full for all the Carterville coal he ever bought from them.” Under his general denial he was entitled to prove payment, and the proffered testimony was not opinion evidence, but called for a statement of fact, evidence of which he may not have had any except his own knowledge.

The second assignment charges that “the court erred in the charge given by the court to the jury in instructing the jury that the defendant cannot recover in this case, nor is he entitled to any credit in this case, under his claim that certain of the coal delivered to him by the plaintiff failed to come up to the contract grade; and on this issue you are instructed to find against the claim of the plaintiff.” And that the court erred in refusing special charge No. 2 requested by the defendant, which is as follows: “If you believe from the evidence that in the contract of date August 5, A. D. 1909, defendant, Richard Cocke & Co., -contracted for the best grade of lump or egg coal, and if you further believe from the evidence that the plaintiff did not ship to the defendant, Richard Cocke & Co., the best grade of lump or egg coal, but did- ship a lower or inferior grade, then you will find your verdict for defendant, Richard Cocke & Co., and against the plaintiff in such sum as amounts to the difference between the original market value of the aforesaid best grade ordered and the reasonable market value of the lower and inferior grade (if any there was), delivered to the defendants.”

The evidence in this case shows that the coal was received, inspected, accepted, and actually used by the defendant.

When a purchaser under an execu-tory contract for sale and delivery of personal property inspects the same, and finds that it is not what his contract calls for as to quality, he can refuse to receive it, and sue for such damages as he has suffered by the breach of the agreement; he must take the property under the contract or not at all. If the property tendered be not such as is described in the contract, and this be known to the purchaser, he must either refuse it and rescind, or accept and abide by the agreement. Edwards v. Wooldridge, 52 Tex. Civ. App. 512, 115 S. W. 920.

The fourth and fifth assignments are as follows:

Fourth error: “The court erred in the charge given to the .iury that the defendant cannot recover in this case any amount under its claim that the plaintiff failed to ship 30 ears of Carterville coal under the contract alleged by defendant as dated August 10, 1909, and otherwise known as the contract of August 10, 1909, and as to this claim on the part of the defendant you will find against defendant.”

Fifth error: “The court erred in refusing special charge No. 3, requested by defendant, Richard Cocke, reading as follows: If you believe from the evidence that on or about, to wit, August 11, 1909, plaintiff quoted defendant Richard Cocke & Co., a mine price of $1.20 per ton for 30 car loads of Carter-ville lump coal for shipment during the next 60 days, and, to wit, for shipment between August 10, 1909, and October 10, 1909, which offer the defendant, Richard Cocke, accepted; and if you further believe that the plaintiff failed to keep its contract and to ship said 30 cars of coal within 60 days from the said August 10, 1909, and if you further believe from the evidence that by reason of such failure of the plaintiff to so ship said coal to the defendant, Richard Cocke & Co., said defendant was compelled, in order to fulfill his contracts, to go into the open market and buy coal at an advanced price over the said $1.20 per ton, then you will find your verdict for the defendant, Richard Cocke & Co., and against the plaintiff for such sum as the said defendant was obliged to pay in excess of the aforesaid $1.20 per ton.” This charge should have been given. The pleading and evidence raised the question, and the special, charge offered is substantially correct.

Ordinarily, if a contract for the sale of personalty, executory on the part of the vendor, is broken by him, the measure of damages is the market price of such property less the contract price, and the market price for this purpose must be determined as to the time and place of the delivery agreed upon.

But if at the time the contract is made the vendor has notice or knowledge that the goods are being purchased for sale in a particular market, or to be supplied in pursuance of a particular contract, he may fairly and reasonably be deemed to have made his contract in contemplation of that purpose, and to have assumed the risks thereby entailed, then, if he breaks his contract, damages for loss caused thereby, if not uncertain and remote, may be recovered. Sutherland on Damages, 52; Kirby Dumber Co. v. Cummings & Co., 57 Tex. Civ. App. 291, 122 S. W. 273. In this case the evidence conclusively shows that at the time the sales were made plaintiff knew that defendant purchased the coal for resale in Houston, Tex.

'Blit plaintiff in answer to the assignments under consideration contends that the defendant by his own acts prevented the plaintiff from fulfilling the contract by stopping the shipments. Without expressing any opinion as to the evidence, we think the evidence raises a question of fact as to whether the defendant did anything to prevent the deliv■ery or shipment of the coal as ordered by defendant, and therefore should have been submitted to the jury, bearing in mind the measure of damages hereinabove indicated.

For the errors indicated, the cause is reversed and remanded for a new trial.

McKENZIE, J., not sitting.


author: REESE, J.

text:
    HUTTO et al. v. HAUL et al.
    (Court of Civil Appeals of Texas. Galveston.
    March 6, 1913.)
    1. Appeal and Error (§ 742)—Assignments of Error—Pbopositions.
    Where error was assigned to the refusal to charge that plaintiffs could only recover such damages as were reasonably certain, and of which the cause was reasonably certain,' and the proposition thereunder was that the court erred in refusing to charge, as requested, that the damages, if any, that plaintiffs could recover should be limited to those which were the natural and proximate result of the breach of contract, and the statement was only that the court’s charge failed to so instruct, with a reference to the special charge set out in the assignment, the assignment cannot be considered; no such charge as that contained in the proposition having been requested.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Appeal and Error (§ 742) — Assignments op Error — Statements.
    Where the statement under an assignment of error to the refusal of a requested charge contains none of the evidence on the question presented, the alleged error cannot be reviewed, and it must be presumed that the charge given on that issue was sufficient under the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Trial (§ 260) — Requested Instructions —Given Instructions.
    The refusal of a requested instruction is not error, where such instruction, so far as applicable to the issues, was substantially embraced in the charge given.
    [Ed. Note. — -For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    4. Bailment <§ 21) — Dispossession op Bailee — Parties Liable.
    A third person, with knowledge of the terms of a lease of chattels, cannot avoid liability for acting together with the bailor in dispossessing the bailee by its belief that the bailee had breached his contract, if in fact he had not.
    [Ed. Not'e. — For other cases, see Bailment, Cent. Dig. §§ 91-102; Dec. Dig. § 21.]
    5. Bailment (§ 21) — Disturbance op Bailee’s Possession.
    Bailees, who paid a cash rental for a sawmill for 3% months, and who did not assume a contract between the bailor and a third person for the manufacture and delivery of staves, had the right to let the mill lie idle, and a failure to operate it did not authorize the bail- or and such third person to dispossess them.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 91-102; Dec. Dig. § 21.]
    6. Appeal and Error (§ 216) — Objection Below — Sufficiency' — Special Instructions — Necessity of Request.
    Where a party, desiring the law on a point in the case to be more particularly stated, does not request a special charge to that effect, he cannot complain on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 216.]
    7. Appeal and Error (§ 731) — Assignment op Error — Sufficiency.
    An assignment of error complaining that the verdict and judgment were not supported by the' evidence, which was insufficient and incompetent, followed by a statement, “Statement of Facts, pp.- 2 to 74,” is nothing more than an assignment that the verdict and judgment are not supported by the evidence, and is too general to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.]
    Appeal from District Court, Jasper County; W. B. Powell, Judge.
    Action by Y. C. Hall and another against W. L. Hutto and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Lee & Ingram, Smith & Blaekshear, and Ford & Beaty, all of Jasper, for appellants. Joe W. Thomas, of Woodville, for appellees.

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

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

   REESE, J.

Y. C. Hall and R. E. Wilkinson sued W. L. Hutto and the Western Naval Stores Company to recover damages in the - sum of $3,600, alleging that plaintiffs had leased from W. L. Hutto a certain sawmill plant for a term of Sy2 months, to wit, from September. 1st to December 15th, with the privilege to plaintiffs of buying the sawmill and appurtenances at the termination of the lease at the price of $1,700. It was further alleged that the Western Naval Stores Company, who had knowledge of the above contract, agreed to furnish plaintiffs timber for the manufacture of certain lumber products, whic-h plaintiffs were to manufacture for said company at a stipulated price. It was further alleged that under this contract plaintiffs operated the mill from September 4th until the 13th, when the mill got out of repair, and defendants Hutto and the Naval Stores Company conspired together and took possession of said sawmill, ousting plaintiffs from the possession thereof. Plaintiffs claim that they could and would, but for such acts of defendants, under their said contract have manufactured 10,000 feet of lumber and 1,000 staves per day during the term of their lease, at a clear profit of $16 per day; that plaintiffs’ profits from the operation of the mill during the time of their lease under their contract with the Naval Stores Company would have been $2,000, and in addition thereto, from other sources, $1,400. For the loss of these profits and the $200 cash paid Hutto for the lease, plaintiffs sue. Defendants answered by general denial and specially alleged that plaintiffs, as part of the lease contract, assumed a- certain contract then existing between Hutto and the Naval Stores Company for the manufacture of lumber and staves; that, for a few days after taking possession of the mill, plaintiffs undertook to perform this contract so assumed by them; but that on or about September 12th they failed and refused to proceed with or complete their said contract, and without cause abandoned and repudiated the same and refused to operate the mill, whereupon defendant Hutto took possession of the mill. The case was tried with the assistance of a jury; the trial resulting in a verdict and judgment for plaintiffs for $1,170.

The evidence is sufficient to authorize the following conclusions of fact which,, following the verdict of the jury, we make. The contract was entered into between Hutto and appellees as alleged; the $200 consideration was paid in cash. It was no part of the contract between Hutto and appellees that they should assume his contract with the Naval Stores Company, but, on leasing the mill, they entered into an independent contract with the company as alleged. Ap-pellees took possession under their lease and operated the mill for a few days, when the furnace got out of repair. Before it could be repaired, defendants, acting together, took possession of the mill and ousted ap-pellees. The Naval Stores Company had knowledge of the lease contract between ap-pellees and Hutto.

Appellants requested the court to charge the jury, in substance, that appellees could only recover such damages as were reasonably certain in amount, and as to which the cause thereof was reasonably certain. The refusal to give this charge is complained of under the first assignment of error. The proposition stated under the assignment is: “The court erred in refusing to instruct the jury, as requested in said special instruction, that the damages, if any, that plaintiffs were entitled to recover should be limited to such as were the natural and proximate result of the breach of contract.” It is a sufficient answer to this that no such charge was requested. The charge requested, and the refusal to give which is assigned as error, rested upon an entirely different proposition of law. The only statement under the proposition is that the court’s charge failed to so instruct the jury, and a reference to the special charge set out in the assignment. The court is only requested to instruct the jury as to facts issuable under the pleadings and evidence. There being no reference in the statement as to the evidence upon the question presented, we are unable to determine whether the requested charge bore any relation to the issuable facts. At least enough of the evidence should have been briefly stated to show that such charge as that requested was necessary or proper to a proper determination of the issues presented by the pleadings and evidence. Rule 31, Courts of Civil Appeals Rules (142 S. W. xiii). In the absence of any reference to the evidence, we must assume, which appears to be very probable, that under the evidence there was no question that such damages as were suffered by appellees, if any, were the natural and reasonably certain result of the action of appellants, and that the charge of the court was sufficient on this issue. The court charged the jury that if they fo.und the facts authorizing a recovery by appellees, stating them, they should “find in favor of plaintiffs damages, if any sustained by them, in an amount equal to the profits, if any, they would have made by operating the mill under the contract.” No objection is made to the charge in so far as it authorizes a recovery of profits. For the reasons given, the assignment cannot properly be considered. If considered, it presents no merit and would be overruled.

The charge requested and the refusal to give which is complained of by the second assignment of error; in so far as it was applicable to the issues made by the evidence, was substantially embraced in the court’s, charge. The case turned, under the evidence, upon the issue as to whether ap-pellees, in connection with the léase contract, assumed the contract existing between Hutto and the Naval Stores Company. If they did, and refused to carry out this contract, it constituted a breach of the contract, in -which case the jury was told plaintiffs could not recover. If appellees did not assume this contract, then, having paid $200 for the lease of the mill, they were under no obligation to Hutto to carry out his contract with the Naval Stores Company, or to continue to operate the mill, and such failure or refusal constituted no breach of their contract and would not justify appellants in taking possession of the mill and ousting appellees during th.e time of the lease. These issues were properly submitted to the jury. The second assignment of error is overruled.

The appellant the Naval Stores Company could not justify its act by its belief that appellees had breached the contract with Hutto and abandoned the property. The action is for actual damages, and, knowing of the terms of the lease, it could not absolve itself from liability if it, in concert with Hutto, took possession of the mill, by a belief that appellees had breached their contract, if in fact they had not. The charge requested, referred to in the third assignment of error, was properly refused.

The court did not err in charging the jury, in substance, that, if appellees did not assume the contract between Hutto and the Naval Stores Company, their failure to operate the mill did not authorize appellants to oust them and to take charge of the mill. If they did not assume this contract, they were not in any way, by the terms of their contract with Hutto, bound to operate the mill. They had paid cash for the use of it for the 3% months, and had the right to let it lay idle if they chose, so far as Hutto was concerned. The undisputed evidence established the fact that appellants took possession of the mill about September 15th, and the only issues were as to their right, to do so, depending upon whether appellees had breached their contract, and the amount of damages. The fourth assignment is without merit.

The fifth, sixth, and seventh assignments, relating to the charge of the court on the question of damages, are, in substance, that the court failed to charge the jury as to the proper measure of damages. We are not required to consider either of these assignments, as there is no statement from the record from which we can determine whether any further charge than that given by the court was necessary or proper. At any rate, if appellants desired that the law on this point should have been more particularly stated, they should have requested a special charge to that effect.

The eighth assignment of error complains that the verdict and judgment are not supported by tbe evidence, which was insufficient and incompetent. It is submitted as a proposition and is followed by the following statement: “Statement of Facts, pp. 2 to 74.” The assignment cannot be considered. It is too general, and the statement is insufficient. The assignment is nothing more than that the verdict and judgment are not supported by the evidence. It is unnecessary to multiply authorities to show that such an assignment is too general to require consideration. Wilson & Martin v. Lucas, 78 Tex. 294, 14 S. W. 690. There is no statement except reference to the charge itself to indicate that there was error in the charge as complained of in the ninth assignment of error. There does not appear to be any merit in the assignment.

We find no error requiring reversal, and the judgment is affirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    HIGGINBOTHAM et al. v. GULF, C. & S. F. RY CO.
    (Court of Civil Appeals of Texas. Galveston.
    April 3, 1913.
    Rehearing Denied April 24, 1913.)
    1. Raileoads (§ 390) — Injuries to Persons on Track — Avoidable Injury.
    If those in charge of a train saw one upon the track and realized that he was in peril in time to stop the train and avoid injury and failed to use every means in their power consistent with the safety of those upon the train to prevent injury, the railroad is liable, notwithstanding the injured person was himself negligent in going on the track in front of the approaching train; and, if his actions were such that it appeared probable that he would not get off the track in time to avoid injury, those in charge will be held to have realized his peril, as under such circumstances they could not speculate on whether he would or would not get off and take the risk of injuring him when it was in their power to prevent injury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. § 390.]
    2. Railroads (§ 400) — Injuries to Person on Track — Action—Question for Jury-Discovered Peril.
    On evidence in an action against a railroad for the alleged wrongful death of one struck and killed by a train while he was standing on the track endeavoring to turn his horses back, held, that the question whether those in charge of the train saw deceased and realized his danger in time to have avoided injuring him and negligently failed to use the means at their command to prevent it was for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 460.]
    8. Railroads (§ 398)— Injuries to Person on Track — Insufficiency of Evidence-Discovered Peril.
    The fact that those in charge of a train saw one upon the track and realized his danger may be proved by the circumstances in which lie injury oceurred¡ and is not required to be shown- by direct evidence.
    [Ed. Note. — For other cases, see Railroads, Cent.Dig. §§ 1356, 1358-1363; Dec.Dig. §398.]
    4. Railroads (§ 381) — Injuries to Person on Track — Contributory Negligence.
    One who goes upon a track while trying to turn his horses back and remains thereon in front of an approaching train is negligent as a matter of law, and cannot recover unless his peril was discovered in time to avoid injury.
    TEd. Note. — For other cases, see Railroads, Cent. Dig. §§ 1285-1293; Dec. Dig. § 381.]
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Action by Josie Higginbotham and others against the Gulf, Colorado & Santa Fé Railway Company. Judgment for defendant, and plaintiffs appeal.
    Reversed and remanded.
    John Lovejoy and Presley K. Ewing, both of Houston, H. E. Marshall, of Liberty, and Walker & Baker, of Cleburne, for appellants. Terry, Cavin & Mills, of Galveston, Stevens & Stevens, of Liberty, and F. J. & C. T. Duff, of Beaumont, for appellee.

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

   PLEASANTS, C. J.

This suit was brought by appellants, the widow, children, and mother of A. J. Higginbotham, deceased, against the appellee to recover damages for the pecuniary loss sustained by them by the death of said A. J. Higginbotham, which it is alleged was caused by the negligence of appellee’s agents and employés in the operation of one of its trains. The petition alleges, in substance, that the said A. J. Higginbotham received the injuries which resulted in his death in the following circumstances: He was a contractor engaged in constructing a bridge on a public road of Liberty county near the crossing of said road by appellee’s railroad. When he reached his place of work, he unloosed his horses from his wagon in order that they might graze while he was at work, and while so grazing they went upon the defendant’s railroad track. For the purpose of getting them off the track the said Higginbotham went thereon, and while he was absorbed in his efforts to get his horses off the track, and in plain view of the operatives of an approaching passenger train on defendant’s railroad, said train, which was running at an excessive rate of speed, ran against the said Higginbotham and inflicted injuries upon him which caused his death. The allegations of negligence contained in the petition are as follows: “That aforesaid injuries to and death of him, said A. J. Hig-ginbotham, were proximately caused by the negligence of the defendant, acting by its agents and servants in the charge and control of said train, in failing to use ordinary or reasonable care and caution to keep a reasonable lookout for and to discover who might be on the track as was deceased, and in negligently running said train on, near, or across said public road at a rate of speed that was excessive and dangerous, and in negligently failing to give the warning required in such case or any reasonable or adequate warning of the approach of said train by whistle or hell, or in any other manner, and in negligently failing, after actually discovering said A. J. Higginbotham’s situation of peril, to use all reasonable means at command, consistent with the safety of the.train and those aboard, to avoid injury to him therefrom; which acts and omissions of negligence, severally and collectively, were a proximate cause, as aforesaid, of said A. J. Higginbotham’s said injuries and death.” The defendant answered by general demurrer, general denial, a plea of contributory negligence, and a plea of settlement with two of the children for, whose benefit the action was brought, to wit, D. W. Higgin-botham and Anna Higginbotham, joined by her husband, John J. Harrison. After the plaintiffs’ evidence was in, the defendant moved the-court to instruct a verdict for the defendant on the ground that the plaintiffs had failed to make out their case. This motion was granted; and, under a peremptory instruction of the court for the defendant, a verdict was returned in its favor, upon which judgment was rendered that plaintiffs take nothing and defendant go hence with its costs..

The evidence shows that, as alleged in plaintiffs’ petition, the deceased, A. J. Hig-ginbotham, was killed by a passenger train on appellee’s • road while he was engaged in getting his horses off appellee’s track. J. R. Geldard, a witness for plaintiffs, testified that he was in the public road about 25 yards north of deceased at the time he was killed-; that a couple of horses that deceased had worked down there to his wagon were loose; that defendant’s east-bound passenger train was coming, and deceased’s horses started across the track, and he ran in to get ahead of them so as to keep them from getting on the track; that, according to witness’ best recollection, deceased first got on the track from the public road; his horses and he both approached the railroad from the south side, and at the time he was hit, the horses were on the west side of the public crossing, right up against the railroad, about 60 or TO feet west of the public road; that witness heard the train blow for the crossing, that is, blow what they told him was the crossing whistle; could not say whether the train had gotten around the curve when deceased went on the track; when witness noticed the train it was about a quarter of a mile down' the track; that, when deceased got down to where the horses were, he commenced fighting at them with his hands, trying to turn them back, and was there so engaged, as witness estimated it, about three minutes, about two minutes ' after witness saw the train; that the distance to the curve from where deceased was fighting the horses, as estimated by the witness, was half to three-quarters of a mile; that the track from the curve to where deceased was standing at the time when struck 'was a straight track, nothing to obstruct the view-between him and the curve; that, when the train struck deceased, witness estimated that he was knocked from 50 to 60 feet, and he hit the ground about five feet from the public road, about 10 feet from the railroad track; that, after the train struck deceased, it ran from 100 to 150 yards before it stopped; that the train was within 15 to 20 feet of deceased, something like that, when the steam was cut off; and that the train did not slow up any after it cut off the steam before it struck him; that witness did not hear the ringing of the bell, was in a position to have-heard the bell if it had been ringing, and. his hearing was good; that he could not estimate the distance from where the train, sounded the whistle, because he never paid much attention to where the train was when, it whistled, but his best judgment is that' the train blew after it came around the curve; his estimation would be somewhere about a quarter of a mile from the crossing; knew where-the whistling post was, but did-not know how far from the crossing, but' it was east of the curve and west of the crossing. :

Nora Richardson, a witness for plaintiffs, testified that she was an eyewitness of the, accident, being on a gallery about 100 yards' distant;, that deceased was building a bridge on the public road near the crossing; his horses were loose and had ropes on them, and went upon the railroad track; that deceased went there to turn them back, had difficulty with them, as they did not want to • turn back; ‘‘they stayed up there until the train knocked him off”; that deceased went upon the track just about the time the train-came in sight around the curve; the train' was coming about as fast as it could, was running extra fast, and deceased never left the track from the time the train came' around the curve until he was struck; that she heard the whistle blow about the time' the train turned the curve, but she did not. hear any bell ringing; that eyesight and hearing of deceased were good; that the train had about five cars besides the engine and-tender; that it was on a straight stretch of track after it got around the curve before it reached the crossing; that the train went about two lengths of the train after it struck deceased before it stopped.

Carl Emanuel, a witness for plaintiffs,' testified that he saw the accident which, caused the death of deceased; saw the. train when it was about 10 feet from him; witness was standing about 50 yeards from the track; the deceased had been on the track a minute or two minutes, as witness" supposed, before he was struck; was trying to get his horses off the track; was just-motioning at the horses at the time the train struck him; was fighting at his horses with his hands; witness had seen deceased on the tract about a minute and. a half or two minutes before that; the track was straight to the curve; a distance of half a mile or three-quarters, something like that; that deceased got on the railroad track near the cattle guard west of the crossing; that the train was going tolerably fast, and that deceased was from 60 to 70 feet west of the public road when the train hit him; that witness went over after deceased was killed, and saw him lying there, about 6 or 8 feet from the track, and about 40 feet, as witness guessed, from where he was struck; that he heard the train approaching before deceased got on the railroad track, and heard the whistle at the whistling .post; that it was a minute or two after the train whistled before it struck deceased; that it blew at the whistling post, just after the train gets around the curve, but witness did not know how far, must have been a quarter of a mile away; that the last time he saw deceased before the train struck him, he was standing sideways to the engine, never saw him turn his head or look down towards the engine; that deceased could, while on the track, have looked down the track and seen the train coming; the train made a noise in approaching there, and witness could hear it, but he was closer to the train than deceased was, about 200 yards further up the track; that when the train whistled for Milvid, three-quarters of a mile from, the place of the accident, a negro named Davis told deceased he had better look after his horses as the train was coming; that the right of way was clear ahead from the curve to where plaintiff was struck, was open, just as much open looking east as it was looking west; that the place where the train whistled before it struck deceased was not where it whistled for Rye; the place .it whistles for Rye is just about the. crossing; the place where it whistles for this 'crossing is down about a quarter of a mile.

None of the operatives of the train testified, and the testimony before' set out is all of the testimony introduced showing the circumstances in which the deceased was killed.

-Under their first assignment of error appellants complain of the charge of the court instructing the jury to return a verdict for the defendant on the ground that the evidence raised the issue of discovered peril, and that issue should have been submitted to the jury.

We think this assignment should be sustained. It is unnecessary to cite authority in support of the proposition that if the operatives of the train saw the deceased upon the track and realized that he was in peril in time to have stopped the train and avoided injuring him and failed to use every means in their power, consistent with the safety of those upon the train, to prevent the injury, appellee would be liable for such injury notwithstanding the deceased was himself negligent in going and remaining upon the track in front of the approaching train. The undisputed evidence shows that for a distance of one-half to three-fourths of a mile the view from the place at which the deceased was struck down the track in the direction of the approaching train was unobstructed, and assuming that the engineer and fireman were in the position where their duties required them to be, and were looking ahead as their duty required, they necessarily saw deceased upon the track and saw that he was engaged in the effort to get the horses from off the track.’ The evidence further shows that no warning signal of any' kind was given the deceased and no effort was made to slacken the speed of the train until it was within 15 or 20 feet of him. That the train could have been stopped within 100 to 150 yards was shown by the fact that it .did stop within that distance after it struck the deceased. But one other fact is necessary to bring the case within the rule of discovered peril, and that is that the operatives' of the train realized the peril of the deceased in time to have prevented the injury. It was not necessary, in order to charge them with the duty of using the means at their command to prevent injury to the deceased, that they should have believed or thought it certain that deceased would not get out of the way of the train. If his actions and his apparent absorption in his efforts to get the horses out of the way of the train were such that it appeared probable or likely that he would not get off the track in time to avoid being struck by the train, the operatives • of the train should be held to have realized his peril. If the circumstances reasonably indicated to said operatives the probability of his not getting off the track, they Were not authorized to speculate on whether he would or would not get off, and take the risk of killing him when it was in their power to prevent injuring him.

If • the doctrine of discovered peril- only applied when the operatives of a train were certain that the person injured was-in peril of life and took no steps to save him when his injury could have been prevented, the necessary proof in every case in which discovered peril is the ground of recovery would show a- case of murder or criminal negligence. Such proof is not necessary. Railway v. Munn, 46 Tex. Civ. App. 276, 102 S. W. 442. In the case cited this court, speaking through former Chief Justice Gill, says: “There are loose expressions in cases from courts of the highest authority which tend to support the contention that, in order to justify a recovery in suc-h a'case, the engineer must actually know that deceased will not leave the track. This is notably true in Railway v. Shetter, 94 Tex. 199, 59 S. W. 533, in which occurs the expression: ‘ * * * A person walking negligently along a railway track in front of a moving train will surely be hurt unless the train stops or he gets out of the way. In a sense he may be said to be in danger, but those controlling the train are not required to assume that by his negligent failure to act he will remain in danger. It is only when they realize that he cannot or will not get out of, the way that the duty of averting the collision arises. * * * ’ One might infer from this that one who, in fact, saves himself at the last moment, was never in fact in peril, and that until the engineer knows that one cannot or will not leave the track in front of his engine he has not realized that person’s peril ; but neither in the decision in which that language was used nor in thé latter case (Railway Co. v. O’Donnell, 99 Tex. 636, 92 S. W. 409), in which Justice Brown quotes it, is it used in the sense in which appellant construes it. This is made clear by the language of Judge Brown immediately preceding the -quotation in O’Donneil’s Case, supra, as follows: ‘If O’Donnell was negligent, then, to render the company liable, the evidence must show that O’Donnell was in a place of danger when seen by the employes of the company, that the men in charge of the engine saw him and realized that he was in a dangerous position, and also that he either could not or would not probably extricate himself from the dangerous situation. * * * ’ The authorities, when rightly construed, are one on the proposition that, in order to give rise to this new duty resting upon the discovery of peril, it is not requisite that the engineer must know that disaster is inevitable unless he himself can avert it It is enough if he knows that the person injured was in a place of danger from which he probably could not or would not extricate himself in time. Railway v. Hanna, 34 Tex. Civ. App. 608, 79 S. W. 639, and authorities cited.” The following cases support this rule: Railway Co. v. Wear, 33 Tex. Civ. App. 492, 77 S. W. 272; Gehring v. Galveston Electric Co., 134 S. W. 291; Railway Co. v. Jacobson, 28 Tex. Civ. App. 150, 66 S. W. 1111; Galveston Electric Co. v. Antonini, 152 S. W. 841.

It goes without saying that the fact that the operatives of the train saw the deceased and realized his danger can be proved by the circumstances in which the injury occurred and is not required to be shown by direct evidence. We think the evidence before set out was sufficient to have sustained a finding that the operatives of the train saw the deceased and realized his peril in time to have avoided injuring him and negligently failed to use the means at their command to prevent the injury. Railway Co. v. Brooks, 132 S. W. 95; Myers v. Railway Co., 134 S. W. 814; Freeman v. Jamison, 138 S. W. 1100.

We think that the deceased in remaining upon the track in front of the approaching train was negligent as a matter of law, and plaintiffs cannot recover unless the jury should find from ,the evidence that the operatives of the train saw the deceased and realized his peril 'in time to have avoided striking him by the use of proper care and failed to use such care.

From these views of the law it follows that the judgment of the court below should be reversed and the cause remanded, and it has been so ordered.

Reversed and remanded.