author: RASBURY, J.

text:
    TEXAS MIDLAND R. R. v. WIGGINS.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 29, 1913.
    Rehearing Denied Dec. 13, 1913.)
    1. Appeal and Ebboe (§ 1001) — Review— Yeedicts.
    Where there is any evidence sustaining a verdict, it will not be disturbed on appeal; and hence the only matter for the appellate court to consider upon an assignment challenging the sufficiency of the evidence is whether there was enough evidence to go to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dee. Dig. § 1001.]
    2. Raileoads (§ 327) — Ceossing Accident-Look and Listen.
    Persons about to cross a railroad track must look and listen for approaching trains, and a failure to do so bars recovery.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1043-1056; Dec. Dig. § 327.]
    3. Raileoads (§ 350) — Ceossing Accident— Juey Question.
    In an action by one run down by a train, the question whether he looked and listened is one for the jury whenever the evidence is conflicting.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    4. Appeal and Error (§ 1003) — Review-Verdicts.
    A verdict may be overruled on appeal, when it is so against the preponderance of the evidence as to be manifestly wrong.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.]
    5. Railroads (§ 307) — Crossing Accidents —Flagman.
    When an ordinarily prudent person would have maintained a flagman or watchman at the railroad crossing where an injury occurred, a failure on the part of the railroad company to keep such flagman or watchman was negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 972-977, 979, 980; Dec. Dig. § 307.]
    6. Railroads (§ 350) — Crossing Accidents —Flagman.
    In an action by one run down by a railroad train, the question of the railroad company’s negligence in failing to keep a watchman at the crossing held, for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    7. Evidence (§ 117) — Admissibility—Possession op Liquor — Proof of Intoxication.
    In an action by one run down by a train, evidence by a witness, several blocks away from the accident, that when he reached the place of the accident he found a pint whisky bottle, one-third full, in the débris of plaintiff’s wagon, is not competent, standing alone, to show intoxication.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 136; Dec. Dig. § 117.]
    8. Trial (§ 106) — Argument of Counsel-Discretion of Court.
    The scope of the argument of counsel rests largely in the discretion of the trial court.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 267; Dee. Dig. § 106.]
    9. Appeal and Error (§ 1060) — Review-Harmless Error — Necessity of Showing Prejudice.
    In an action by one run down at a railroad crossing, argument of counsel, based on the failure of defendant to prove plaintiff’s intoxication after alleging it in its answer, and on the fact that one of defendant’s witnesses testified in another case for defendant, will be considered harmless, when no showing of prejudice is made.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.]
    10. Trial (§ 242) — Instructions—Confused Instructions.
    In an action by one run down on a railroad crossing where the court charged that if any of the things alleged to have caused the accident existed, and their existence was negligence and the proximate cause of the injury, the finding should be for plaintiff, a further charge that if plaintiff was guilty of contributory negligence which proximately caused or contributed to the accident, verdict should be for defendant, even though also guilty of negligence, was not improper or misleading in denying a verdict for defendant, even though it was not negligent.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 569-576; Dec. Dig. § 242.]
    11. Damages (§ 208) — Actions—Jury Question.
    In an action by one struck by a train, evidence held sufficient to authorize the submission to the jury of plaintiff’s loss of future earning capacity.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, 533, 534; Dec. Dig. § 208.]
    12. Damages (§ 208) — Personal Injury-Loss of Future Earning Capacity.
    Where plaintiff, a negro, was only able to approximate his age at 50 years, the fact that his age was not' absolutely established, nor his life expectancy proven, is no ground for refusal to submit to the jury the question of his loss-of future earning capacity;_ it appearing that he was before the jury for inspection, and that testimony was offered as to his previous health, and habits.
    [Ed. Note. — For other cases, see Damages,. Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205,. 220, 533, 534; Dec. big. § 208.]
    13. Damages (§ 132) — Personal Injury — Verdict.
    An award of 83,500 damages to a negro-50 years old, who was run down by defendant’s: train, is not excessive, where it appeared that before the accident he was perfectly sound and-able to earn from $1.50 to $2 a day, but after the accident he was permanently disabled, and' could do nothing but the very lightest labof', and constantly suffered pain.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dee. Dig. § 132.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by John Wiggins against the Texas Midland Railroad. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Henry C. Coke and S. W. Marshall, both of Dallas, and Dashiell, Crumbaugh & Coon, of Terrell, for appellant. Ed. R. Bumpass, of Terrell, for appellee.

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

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

   RASBURY, J.

Appellee was struck and injured by one of appellant’s locomotives attached to a passenger train at a point in Terrell, Tex., where the appellant’s railroad crosses Moore avenue. Suit was instituted in the court below, the complaint alleging such injuries to be the result of the negligence of appellant in: (1) Failing to sound the whistle and ring the bell for the crossing ; (2) moving the train at a high and dangerous rate of speed; (3) the presence of 'buildings and platforms upon appellant’s right of way and the permitting of cars to-stand upon its side track, thereby obstructing appellee’s view of the approaching train, and preventing him from hearing signals t and, (4) failing to place a watchman at said crossing, which was alleged to be a dangerous and hazardous one. Appellant met the charges of negligence by the general denial, allegations of contributory negligence on the part of appellee in: (1) Not looking for the-train, and in not listening for the signals; for that, had he done so, he could have seen the approaching train and heard the signals in time to haVe avoided the accident; (2) in that appellee had been imbibing intoxicants the morning of the accident, and 'as a result was inattentive and drowsy, and failed to look for the train; (3) that the buildings complained of were not on appellant’s right of way, and had not been erected by its permission, but were the property of others, and that the side tracks or switches adjacent to the buildings had been placed there .to serve the owners in loading and unloading freight; and, (4) that after discovering appellee was about to cross its track ahead of its approaching train, appellant used every effort in its power to stop its train in time to avoid the accident, but was unable to do so. Upon trial by jury verdict for $3,500 was awarded appellee, followed by judgment in accordance therewith, from which this appeal is taken.

The evidence introduced upon trial of the case was conflicting, but in deference to the verdict of the jury it sustains the following conclusions of fact: Terrell has 7,000 or 8,000 inhabitants; Oallie street runs north and south through the town, and appellant’s line of railway is laid upon and in the center thereof; Moore avenue runs through Terrell east and west. The injuries were inflicted upon appellee at the point of intersection of said streets. Said Moore avenue is about one mile in length in the city, and is the important business street of Terrell. Practically all of its business houses, stores, and other institutions front said avenue, and surround as well the place of the accident. Over the avenue and across appellant’s railway, not only all the east and west local traffic passes, but the east and west traffic from the surrounding country, as well as distant traffic, which' is heavy, passes over said avenue and across appellant’s railway. At the intersection described the four corners are occupied as follows: South of Moore avenue and west of Oallie. street is the Union Depot (used by appellant and the Texas & Pacific Kailway Company, which runs parallel with and south of Moore avenue). South of Moore avenue and east of Callie street is the Starr-Mayfield building, used for wholesale purposes, and to reach which appellant has built a switch from a point north of Moore avenue, which extends south on Callie street across Moore avenue to said building. North of Moore avenue and east of Callie street is the city waterworks building,' some sort of coalhouse, the calaboose, and other buildings built and maintained by the municipality. North of Moore avenue and west of Callie street and appellant’s line of railroad is the Ca'rter-Jandrews building. Since it is in and about this building that the accident occurred, we describe its situation and surroundings particularly. The structure fronts 85 feet on Moore avenue, and extends back on Callie street on a line with appellant’s railroad 115 feet. It was not built by, and is not upon the appellant’s right of way. On the east or Callie street side of the building the owners thereof have erected an elevated platform. North of and beyond this platform at some ppint appellant- built a switch branching from its main line, for the purpose of serving those who occupy said building in unloading freight. There is about 13 feet of space between the switch and the building. From the switch to the main line is 19 feet. This switch not only parallels the Carter-Jan-drews building and the platform to the §nd thereof, but projects into the north side of Moore avenue. In the front of the building or on the Moore avenue side there is between the building and the curb a 12-foot sidewalk. The switch just mentioned projects past the sidewalk into Moore avenue from 3 to 6 feet. Said Moore avenue is about 76 feet wide between curbs. Deducting for the gutters at each curb, there is available for traffic about 68 feet. In addition to the two wholesale houses, the Union Station, and the city waterworks, there was in close proximity to said point the electric light plant, ice plant, compress and oil mill. From these institutions much noise and resultant confusion emanates. On the morning of the accident, or prior thereto, a freight or “box” car had been placed by appellant upon the switch that served the Carter-Jandrews building, which projected into and upon Moore avenue from 15 to 18 feet, or from 3 to 6 feet beyond the sidewalk in front of said building on Moore avenue. Appellee, who was the driver of a wagon belonging to a local merchant in Terrell, was directed by his employer to go to the Starr-Mayfield ’building herein described, for purposes unimportant to mention here. In doing so he entered Moore avenue west of Callie street, and while proceeding on his way, and just after passing the freight or “box” car, and as his horse was stepping upon appellant’s railroad track, or was thereon, the horse and wagon were struck by an incoming passenger train, appellee thrown^ therefrom upon the ground, and seriously and permanently injured.

The first and second assignments of error, in effect, challenge the sufficiency of the evidence to sustain the verdict and the judgment. It is vigorously maintained by the appellant that appellee could have seen the train in time to have avoided the accident (notwithstanding the presence of the car in the street), that the signals were given, and that the train was not moving at a dangerous rate of speed, and sets out at length the testimony of itjs witnesses sustaining-such claim. Just as vigorously appellee urges and maintains the contrary theory, and substantiates his claim by quoting in like manner the testimony of his witnesses. As to whether appellee could have seen the train, or the signals were given, or the train was moving at a dangerous rate of speed are questions to be determined by the jury, and our sole function is to read the evidence and determine if it is sufficient to carry to the-jury the determination of such issues as-questions of fact. G., H. & S. A. Ry. Co. v. Michalke, 96 Tex. 276, 38 S. W. 31; Receivers H. & T. C. Ry. Co. v. Stewart (Sup.) 17 S. W. 33; G., H. & S. A. Ry. Co. v. Harris et al., 22 Tex. Civ. App. 16, 63 S. W. 599. We have done so, and conclude there was no error in submitting such issues to the jury. In connection with the assignments under discussion the rule is firmly established in this state that where there is evidence in the record which sustains the verdict of the jury, it will not be disturbed by the appellate court. It is only where the verdict of the jury is manifestly against the evidence, or inadequate with or contrary thereto, that it becomes our duty to set it aside. We have not set out the testimony of both sides by way of comparison in order to sustain our conclusions, since there is no occasion to do so. Having reached the conclusion we have, and counsel being familiar with the rule in such cases, we anticipate such a course will not be expected of us.

It is, of course, the duty of persons about to cross a railroad track not to walk or drive carelessly into a place of possible danger, and to do so is not merely an imperfect performance of duty, but an entire failure of performance, which will bar the right to recover damages if such failure contributed proximately to an injury. But Whether the complaining party did so contribute to his injury is, as we have said, always a question of fact for the jury to determine when the evidence on the point is conflicting. On the other hand, where the evidence of negligence on the part of the injured party is undisputed, it then becomes the duty of the trial court to instruct a verdict as illustrated by the following cases: Haass v. G., H. & S. A. Ry. Co., 24 Tex. Civ. App. 135, 57 S. W. 855; M., K. & T. Ry. Co. v. Martin, 44 S. W. 703; Bennett v. S. L. S. W. Ry. Co., 36 Tex. Civ. App. 459, 82 S. W. 333; G., C. & S. P. Ry. Co. v. Townsend, 82 S. W. 804. In consonance with what we have said the assignments are overruled.

Under the third and fourth assignments of error appellant asserts that the verdict and judgment are against the preponderance of the evidence. These assignments cannot be sustained. While it is the right and duty of this court to reverse a judgment and grant a new trial when the verdict is so against the weight and preponderance of the evidence as to be manifestly wrong (G., C. & S. F. Ry. Co. v. Walters, 49 Tex. Civ. App. 71, 107 S. W. 372; I. & G. N. Ry. Co. v. Brice, 111 S. W. 1097), yet, as we have said at another place, the evidence in this case does not warrant such a conclusion.

By the seventh and eighth assignments of error appellant asserts that the evidence was insufficient to authorize the court to submit to the jury for their determination whether appellant should have stationed a flagman at the Moore avenue and Callie street crossing. The settled rule in reference to the issue here raised is that if a person of ordinary prudence would, under all the circumstances, have maintained a flagman or watchman at the crossing where the plaintiff was injured, then the failure on the part of the railroad company to keep such flagman or watchman was negligence. M., K. & T. Ry. Co. v. Magee, 92 Tex. 616, 50 S. W. 1013; Id., 49 S. W. 156; C. T. & N. W. Ry. Co. v. Gibson, 35 Tex. Civ. App. 66, 79 S. W. 351; C. T. & N. W. Ry. Co. v. Gibson, 83 S. W. 862. The court below submitted the issue under the rule announced in the authorities cited, and no complaint is made of the charge. Accordingly, the issue narrows as to whether there was evidence which warranted the submission of the issue. At another place in this opinion we have detailed the population pf Terrell, and the conditions surrounding the crossing and the traffic passing over same, and that from such conditions much noise and confusion resulted at the crossing. As to whether the conditions surrounding the crossing made it difficult to hear an approaching train and rendered the crossing dangerous and hazardous, the several witnesses differed. The solution of the conflict was with the jury, and, their findings on that issue being within the rules we have hereinbefore stated, we are not authorized to disturb same, and the assignments are accordingly overruled.

The ninth assignment of error complains of the refusal of the court below to permit appellant to prove by the witness Clark that after the accident he found a pint bottle in the wagon which appellee was driving containing whisky, about one-third full. On this issue appellant alleged that appellee contributed to his injury by inattention to the approaching train, due to the fact that he was drowsy as the result of drinking intoxicants. Some of appellant’s witnesses testified that appellee “seemed to be in a deep study,” “he was sorter bent over,” “John was stooped over, looking at his horse,” “he was driving along with his head down, not paying any attention; seemed in a deep study.” Each of the quotations from the evidence was by different witnesses. The bill of exception was signed by the district judge, with the explanation that the witness Clark was two blocks away when the accident occurred, and before he arrived there other parties had arrived and were removing appellee ; that the collision had crushed the wagon, and the bottle found by the witness was either in the dSbris, or that portion of the wagon bed left intact, and further that there had been no proof that Wiggins had been drinking, or any that in any manner connected him with the whisky. We conclude that the testimony quoted, while admissible on other theories, in no sense established that appellee was intoxicated on tlie day of tlie accident, and that the finding of the bottle of whisky in the manner and at the time we have detailed was a circumstance too remote to prove intoxication, in the absence of other connecting facts or circumstances.

The tenth assignment complains of the action of the trial court in permitting counsel for appellee to discuss and draw deductions from the allegation by appellant that appellee was drunk on the day of the accident, and appellant’s failure to prove such allegation. The court qualified the bill of exception presenting the alleged error by the statement that while no sufficient proof of drunkenness had been offered, yet the allegation had been read to and in the presence of the jury.

The eleventh assignment complains of counsel for referring to the fact, after being admonished by the court to desist, that John Maulé, a witness then on the stand and being examined by appellee’s counsel, had testified for appellant on the trial of another case to facts similar to those testified to in this case.

Aside from the fact that whether matters similar to those covered by the assignments above occurring upon trial are to be permitted or not is largely within the discretion of the trial court, it is not made to appear, nor can we say from an examination of the record, that the same did or was calculated to bias or prejudice the jury against appellant, or that as a result thereof the verdict is either excessive or against the weight of the evidence. Banner v. Thomas, 159 S. W. 102.

The seventeenth assignment of error complains of paragraph 9 of the court’s charge, which is as follows:. “If you find from the evidence that plaintiff was guilty of contributory negligence as explained to you in the preceding paragraph of this charge, which proximately caused or contributed to the accident, which resulted in his injury, you' will find for the defendant, even though you believe that the defendant is also guilty of negligence.” The criticism of this part of the charge is that before the jury could find for appellant, they must believe that the negligence of appellee caused or contributed to the injury. In short, that under this charge the jury could not find for appellant, even though they believed that appellant did, in reference to the accident, that which an ordinarily prudent person would have done under the same or similar circumstances. We- cannot agree with the criticism. The trial court, with much particularity and singular clearness, informed the jury that if any of the things alleged to have brought about the injury did in their opinion exist, and their .existence was negligence, and in addition were the proximate cause of the injury, then to find for appellee, or if they did not exist, or if their existence was not negligence, to find for appellant. The court then, in order to present appellant’s claim that appellee contributed to his injuries, told the jury they could look to all the evidence to determine if appellee had used such care as a person of ordinary prudence would have used under the same or similar circumstances, and that if by looking he could have seen the train, or by listening' he could have heard same,, etc., and failed, he would be guilty of contributory negligence, and could not recover. The court then adds, by paragraph 9, here objected to, that if appellee was so guilty of contributory negligence, they should find for defendant, even though defendant was also negligent. This charge, in our opinion, is not only not misleading and confusing, as maintained by counsel, but in our opinion, accentuates the defense of contributory negligence. The charge does not permit the jury to compare the negligence of the parties, but directs the jury unequivocally that, in the event appel-lee’s own negligence contributed to the injury, then to return a verdict against him even though appellant was also negligent.

By the eighteenth and nineteenth assignments of error appellant asserts that the court should not have submitted to the jury the appellee’s right to recover for loss of earning capacity, since there was no evidence in the record authorizing same, or showing impaired earning capacity. Appellee testified that before the accident he was in good health, as sound as a dollar, had never been, ill, nor had the services of a physician, and had been earning $1.50 to $2 per day. His employer, in substance, testified to the same facts, based upon an acquaintance with ap-pellee of 25 years, and adds that since the accident he has been feeble ánd unable to do any manual labor other than feed horses and deliver light packages. Upon the'trial :of the case, which was two years after the accident, appellee testified that there was still soreness in his injured parts, that he suffered day and night, at times could not sleep at all, and was compelled to use a crutch. His injuries are a crushed and broken instep and an injury to his side. His physicians say his injuries are permanent The facts related above are, in our opinion, sufficient to authorize the submission of the issue .of the loss of future earning capacity.

But it is urged that neither appellee’s age nor his life expectancy were proven. Ap-pellee, who is a negro, was uncertain about his age, but placed it at 50 years, as the best approximation he could make of it, and in this statement he was not substantially discredited. Having shown appellee’s injuries, his past earning capacity, and his age and present condition, together with his health, habits, and appearance before the injury, it cannot be said, in the absence of other evidence, that the failure to prove appellee’s expectancy in a more precise manner prevents the submission of the issue of the loss of or impaired earning capacity in the future. G., H. & W. Ry. Co. v. Lacy, 86 Tex. 244, 24 S. W. 269. The evidence did establish that before the injury appellee was in perfect health, was strong and capable, abstemious, and earned from $1.50 to $2 per day.

By the twentieth assignment of error it is urged that the verdict is excessive. Our right to disturb jury verdicts is so limited and so surrounded with limitations and so well .understood that it is unnecessary to here state the rule. Under the facts just recited under the eighteenth and nineteenth assignments of error, and those stated in other portions of this opinion, we conclude it cannot be fairly said that the verdict is .excessive.

We have carefully examined all the other assignments of error in the brief not here specifically discussed, and because in our opinion they present no reversible error, same are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    STAMP v. EASTERN RY. CO. OF NEW MEXICO.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 10, 1913.
    On Motion for Rehearing, Dec. 13, 1913.)
    1. Carriers (§ 286) — Carriage of Passengers — Care Required.
    A railroad company which maintains an unlighted and unguarded station platform elevated four or five feet above the ground is guilty of negligence towards its passengers.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1142-1148, 1150-1152; Dee. Dig. § 286.]
    2. Carriers (§ 327) — Carriage of Passengers — Contributory Negligence.
    A passenger who, without being familiar with a railroad station, walks around the platform in the dark, without any particular precautions to avoid a fall, is guilty of contributory negligence barring recovery for injuries caused in a fall from the unlighted and unguarded platform.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1363-1366; Dec. Dig. § 327.]
    3. Carriers (§ 323) — Carriage of Passengers — Contributory Negligence.
    That a railroad company owes the highest degree of care to a passenger upon its premises will not excuse th,e contributory negligence of the passenger.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. § 1346; Dec. Dig. § 323.]
    4. Commerce (§ 47) — Interstate Commerce —What Constitutes.
    In case of a passenger traveling on a pass good from one point in the territory of New ■Mexico to another point; there is no interstate carriage or question of interstate commerce.
    [Ed. Note. — For other cases, see Commerce, .'Cent. Dig. § 26; Dec. Dig. § 47.]
    5. Evidence (§ 35) — Foreign • Daws — Proof —Necessity.
    . A foreign law is required to be proven just as any other substantivé fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 35, 51; Dec. Dig. § 35.]
    6. Evidence (§ 34) — Judicial Notice.
    The courts will take judicial notice that before statehood the decisions of the Supreme Court of the United States were the law of the land in the territory of New Mexico.
    [Ed. Note. — For other cases, see .Evidence, Cent. Dig. §§ 49, 50; Dec. Dig. § 34.]
    7. Carriers (§ 307) — Carriage of Passengers — Conditions in Pass against Liability-Validity of Conditions.
    • Where, before statehood, a railroad company in the territory of New Mexico gave plain-’ tiff a pass for an intrastate trip, a condition in the pass exempting the company for all liability, whether caused by its own negligence or not, was valid.
    [Ed. Note. — For other cases, see Carriers, ■ Cent. Dig. §§ 1252-1259, 1491; Dec. Dig. §• 307.]
    8. Carriers (§ 307) — Carriage of Passengers — Free Pass.
    A pass given as a gratuity is none the less a free pass because the carrier requires the person using to sign an agreement exempt-, ing it from liability for injuries.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1252-1259, 1491; Dec. Dig. § 307.]
    On Motion for Rehearing.
    9. Carriers (§ 307) — Carriage of Passengers — Free Pass.
    A pass given by a railroad company to the mother of one of its employés is none the less a free pass because the giving of such pass was customary, where the employé could not have sued and recovered in case of the carrier’s refusal.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1252-1259, 1491; Dec. Dig. § 307.]
    10. Courts (§ 96) — Decisions—Precedents.
    The binding effect of decisions of the Supreme Court upon the territory of New Mexico was not changed by act of Congress of March 3, 1911, providing that the amount in controversy, upon which the right to appeal to the federal Supreme Court depended, should be ascertained under oath; that being a mere matter of pleading and procedure.
    [Ed. Note. — For other cases, see Courts, Cent. Dig.' §§ 325, 327, 328, 334; Dec. Dig. § 96.]
    11. Courts (§ 95) — Precedents — Bight to Change.
    While all courts may change their decisions, the court, in determining the law of a foreign state, must presume that an authoritative announcement of the law will not be changed.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 322, 323; Dec. Dig. § 95.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by Mrs. Annie Stamp against the Eastern Kailway Company of New Mexico. From judgment for defendant, plaintiff appeals.
    Affirmed.
    J. A. Stanford, of Waco, and Synnott & Underwood, - of Amarillo, for appellant. Madden, Trulove & Kimbrough and F. M. Byburn, all of Amarillo, for appellee.

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

       U. S. Comp. St. Supp. 1911, p. 229.

   HENDRICKS, J.

The’ appellant, Mrs. Annie Stamp, a feme sole, sued the Eastern Railway Company of New Mexico in the district court of Potter county, Tex., alleging in substance that she was a passenger upon appellee’s line of railway, traveling from a point in New Mexico to a point in Texas, and while at a station of the appellee, and upon a part of the platform of said station intended for passengers, she fell from said platform at a point where it was about five feet in height from the ground, and that the railway company was guilty of negligence in failing to have the depot and platform properly lighted and in failing to have banisters or guard rails around the edge of the platform where she fell. The defendant railway company, among other things, pleaded the contributory negligence of the plaintiff in walking out upon the platform at a place where she was not required to go and in stepping off of the same without taking any precaution whatever for her own safety; defendant further specially answering that the injury to plaintiff occurred in what was then the territory of New Mexico, and that plaintiff at said time was in possession of a free pass, issued by it, with stipulations upon the back of same, agreed to and executed by her, whereby she released the ap-pellee of all damages, whether caused by the defendant’s negligence or otherwise, and agreed to assume all the risk of accident or damage to her person or baggage while in the use of said pass, and that plaintiff was at the time of her injury domiciled and residing in the territory of New Mexico, and that defendant had its domicile and line of railway in said territory, and that the rights and liabilities of the parties should be determined under the rules of law prevailing in the territory of New Mexico or in the United States courts, and that, under said rules prevailing in either jurisdiction, the said contract as to release from liability was valid and binding; the defendant further alleging that plaintiff was a mere licensee upon defendant’s premises and the defendant owed her no other care than not to willfully and wantonly injure her. At the close of the testimony the district court instructed a verdict for the defendant railway company and entered judgment accordingly.

The evidence discloses that Mrs. Stamp, the appellant, was in the possession of the pass, through the solicitations of her son, who was a “pumper” and in the employment of the railway company at the station of Becker, where she was injured, and the following recitation appears on the reverse side of the pass, signed by her: “This pass is not transferable; it must be signed in ink by the holder named, who, by accepting it, agrees to assume all risk of accident and damage to person or baggage under any circumstances, whether caused by negligence of agents or otherwise. [I] accept the foregoing conditions. [Signed] Annie Stamp.”

At the station where the injury occurred, the railroad track in front of the waiting room extended east and west and the depot was parallel thereto. The appellant, her son, and the latter’s wife went to the depot in time to catch a train leaving for the east about 4:30 in the morning and walked into the waiting room at the east end of the depot, which was not lighted at the particular time, with a light only in the office of the agent or operator. Her son left the waiting room for the purpose of looking for the train, and Mrs. Stamp testified: That, after her son walked out, “I walked out on the platform myself. I do not know why I went out there. It was then dark and it was kind of cold and it had been raining the fore part of the night. * * * It was chilly and damp in the depot and one purpose was to walk around a little and exercise. I had no special motive in going out there. The door to the waiting room is right in the southeast corner. I walked out that door and I got turned around on the platform. I turned around the southeast corner. * * * I walked along the platform at the east end of the waiting room. I do not know how far I walked, I probably went to the edge, I did not think I did. * * * I turned then and started back toward the waiting room door. I went, I suppose, too close to the edge of the porch and fell off of it into the hole. There was no light on the platform at the time. I did not know that the platform was built up off of the ground. I did not know there was any jump-off there from the platform to the ground. I do not know whether I just walked right straight off the platform or not. I did not know how near the edge of it I. was. My left foot went off of the platform first. I turned going back with iny side this way (we presume indicating), and that threw my left side to the outer edge of the platform. My left foot went off first. I do not know anything that happened after my foot went off of the platform.” The son who accompanied Mrs. Stamp on this particular occasion testified in her behalf: “This platform extends somewhere about 30 feet from the east end of the depot.”

The best we are able to ascertain from the testimony it seems that the platform at the east end of the depot was covered by a hood-shaped porch — a prolongation of the roof of the main building with arches and supporting pillars either at the edge or' very close to the edge of the platform, where the accident and injury occurred.

We conclude that it was quite dark and for this purpose only, regarding her as a passenger under the law of this state, that the railroad company had not exercised the degree of care obligatory upon it under the circumstances. But we are inclined to think that this woman was guilty of contributory negligence. When she walked out of the door of the waiting room and turned at right angles and proceeded into the dark, along the platform of the appellee, the railway company, to the edge of the platform, precipitating herself off the platform to the ground, that inherently her act is indicative of a degree of carelessness and negligence as to preclude a recovery. We quote from the Supreme Court of Virginia: “The law duly imposes upon a railroad company the duty of keeping its stations and premises in such safe condition as that its passengers, in the exercise of ordinary care, can get upon or leave the same, and to go wherever they are expressly or impliedly invited to go thereon, without injury; and this embraces suitable steps and platforms, as well as suitable light. Keefe v. Railroad Co., 142 Mass. 251, 7 N. E. 874; 2 Wood, Railway Law, § 310, and cases cited. In the present ease, however, the appellant has not exercised such care as entitled her to recover. The ease, as disclosed by the record, is simply this: Upon her alighting at the station, she was shown by the light of the lamp up the steps of the platform and into the reception room where a light was .burning. The hour was late, and no other trains were to'pass the station that night. After being shown into the reception room, she declined the offer of an employs of the company to conduct her to a hotel- near by, preferring, as she said, to spend the residue- of the'-night at the depot; and while the- platform lamp was being trimmed, presumably-, from the evidence, in her presence, she.walked out upon the platform and, without taking the precaution to inquire or ascertain whether or not she could safely do so, turned at right angles upon stepping upon' the platform from the lighted reception room and walked in the dark to the end of it, where she fell off and was injured. This, all the circumstances considered, was not only negligence but recklessness on her part, which clearly defeats a recovery. It was Contended, in the argument, that she went out- to obey a sudden and urgent call of nature, but of this there is .no positive proof in the record; < and, even if it were so,- that could not affect her duty to take ordinary care in walking upon the platform or elsewhere upon the defendant’s premises. It is unnecessary, therefore, to inquire whether or not- it was the duty of the company to have provided a railing at the outer edge of the platform or whether or not it has been negligent in any particular.” Reed v. Axtell, 84 Va. 231, 4 S. E. 587.

We also refer to the case of Gulf, Colorado & Santa & Railroad Co. v. Hodges, 24 S. W. 563, decided by the Court of Civil Appeals of the Second District. That court said: “It seems that the place where appellee fell from the platform was, at the time, enveloped in almost total darkness; that he [meaning the passenger] got off the train on the east side of the depot and immediately started in a northwest direction along the depot platform and walked off of it at a place where it was between four and five feet high.” -We also quote a part of the testimony quoted by the court in that case as follows: “I got on the platform so easy that I though I could leave it as easy. When I got to the top of the platform where I fell, I did not change my :gait, but my right foot went out, and I did not touch the platform, and in consequence thereof I fell. I do not remember looking for the top of the platform. It was too dark to look for anything. * * * I was walking along regardless of everything, until I received the injuries. * * * I- thought I was on level ground. * * * I was not thinking anything about steps but was walking as though I was going to some place; and the first thing I knew I fell off.” The court concludes as a matter of law that: “It seems to us for a man 76 years old to proceed along a railroad platform in the dark, in the manner described, necessarily conveys the idea of negligence” — citing the Virginia case, supra, quoted from by us.

It is true that in the Hodges Case the passenger was attempting to leave the depot and the platform but, oblivious of his surroundings and the darkness enveloping him, regardless of his own welfare, without any precautionary measure on his part as to the situation in which he was placed, was injured, and the intrinsic culpability of the act was such as to ally itself to this case and the act of culpability manifested here.

Because a railroad company may owe •a higher decree of care than its passenger, upon whose premises the latter may be situated, does not, we think, tend to soften or destroy culpability upon the part of the passenger, if actually manifested. Contributory negligence, as a standard, should be the same, except, of course, that it may vary on account of the relationship existent.between the parties. A servant may rely under certain. conditions upon the master having done his duty, and the passenger may rely, as indicated in the Virginia case, upon the performance of the duty of the carrier. But this is not to- be confounded with an act itself, as indicated in this record, where, although the duty may not have been performed, the passenger proceeds into the dark, with the degree of carelessness indicated here, and practically walks off the edge of the platform without knowledge of surroundings; surely such manifestations under such conditions do not constitute ordinary care.

On the question of the free pass and the law of New Mexico becoming a part of the contract, one <W. A. Havener testified that - he had been practicing law in New Mexico for 24 years and was familiar with the statutes and decisions of the higher courts of New Mexico and said that: “There was no statute in reference- to or that in any way affects provisions on passes, wherein plaintiff assumes all risks of injury from any cause and that defendant in any event (the emphasis is ours) be liable for any such injuries, whether caused by reason of negligence of the defendant or not; the consideration for said release being the issuance of said pass. This precise question has never been passed upon by the appellate courts of New Mexico so far as I know or have been able to ascertain.” Tbe question evidently, put to tbis witness was one of entire exoneration of tbe railway company as to liability for injuries in any event. He further said “that tbe question as to tbe validity of tbis release bad never been passed upon by tbe courts of New Mexico”; that the federal courts, however, “announce the rule in tbis character of cause that such a release of liability is binding. They bold that, since tbe pass is a mere gratuity, tbe person proposing to use it has tbe opportunity to use it or reject it as be sees fit, and if he accepts it be accepts it with all its conditions; and tbe federal courts bold that a condition on tbe bach of a pass releasing tbe carrier from liability, even for bis own acts of negligence, is valid and enforceable.” It will be remembered that tbis accident occurred when New Mexico was a territory; and tbis witness further stated that; “Tbe principles and rules of law announced by the United States c.ourts and tbe decisions announced by tbe United States Supreme Court would, of course, have been tbe supreme law for tbe territory. Tbe rules of law announced by tbe United States courts relative to tbe validity of the conditions upon tbe pass referred to would control tbe decision of tbe question and tbe appellate courts of New Mexico concerning an accident happening at that time. It is a fact that, under tbe decisions of tbe courts of New Mexico, a party in possession of a gratuitous pass and having signed a release of liability, libe tbis ease, or similar thereto, would be considered a mere licensee while on tbe premises of tbe railroad company and would not be considered a passenger. * * * Tbe railroad company owes no duty to a licensee other than not to willfully and wantonly injure him. That is, tbe railway company might be guilty of some degree of negligence, and yet if it bad no knowledge that a licensee was in any danger, and therefore could not have knowingly and willfully caused injury, the railway company would not be liable for damages for any injury that might have resulted to him.” Tbe witness then quotes tbe substance of tbe case of Northern Pacific Railway Co. v. Adams, reported in 192 U. S. 440, 24 Sup. Ct. 408, 48 L. Ed. 513, wherein a passenger was riding upon a gratuitous pass, containing practically tbe same stipulations indorsed on tbe back of this pass, and which precluded a recovery upon tbe part of tbe passenger.

It is agreed in this case that tbe parties may resort to tbe decisions introduced in evidence; tbe appellant, of course, objecting to their admissibility upon tbe facts of tbis particular case. It is noted that tbe Supreme Court in that case held that, when the gratuitous transportation was extended, the company was not as to tbe passenger a carrier for hire, and that it waived its right as a common carrier to exact compensation and extended to him tbe privilege of riding in its coaches without charge if be would assume tbe risks of negligence, and thát tbe passenger was not in tbe power of tbe company and not obliged to accept its terms, and that if be desired to bold tbe railroad company to its common-law obligations, be should have paid bis fare and compelled the company to receive and carry him, and, having freely' and voluntarily chosen to accept tbe privilege offered, be cannot repudiate • its conditions. Tbis same witness also testifying in substance to tbe language herein used by us as to tbis opinion, with reference to which be also testifies was tbe law of New Mexico when tbis injury occurred and this pass was issued and delivered.

We do not see any question of interstate commerce involved, as tbe pass was from a point in New Mexico over a railroad in New Mexico to another point in New Mexico, or that tbe acts of Congress, upon a study of tbe same, which prevailed at that time, with reference .to the issuance of free passes, would have any application to tbe case. Of course a foreign law is required to be proved as a substantive fact as any other matter of evidence. We are inclined to think, while not specifically decided, that we could take judicial knowledge of the fact that the decisions of the Supreme Court of the United States would be the law of the land in the territory of New Mexico at tbe time indicated. A perusal of the United States statutes at large and of tbe decisions of the Supreme Court of tbe United States indicate to such an extent tbe status of the territory as a component part of this nation, with its causes appealable to the Supreme Court of the United States, under tbe acts of Congress and tbe rules of that court regulated by tbe matter of amount as any other cause from the federal inferior court to tbe higher tribunal. Appellant answers that, tbe law of Texas being different, this testimony and tbe condition which arises in this record is not sufficient to overcome tbe presumption ordinarily existent that tbe law of another state upon tbe same subject-matter is tbe same as tbe law of our state. We believe that this condition is met in tbis record, and that the decision of tbe Supreme Court of the United States, with tbe additional testimony of this particular witness, settles as a fact the law of New Mexico existent at the particular time and which became a part of the contract between Mrs. Stamp and the railway company and should be applied in this forum.

There is a statement in tbe brief of appellant that this is not a free pass and that conditions here place it in tbe domain of a contract and take it out of tbe domain of a gratuity. A close analysis of tbis evidence, we believe, does not warrant this position, and that, when it was shown that no money was paid for tbis intended- transportation, we are unable to see, as measured by tbe rules of a contract applied to tbe testimony here, that a contractual obligation exists, based upon consideration flowing from Mrs. Stamp to the railway company, and find that it is a mere gratuity.

Believing that the district court correctly disposed of the case, its judgment is affirmed.

On Motion for Rehearing.

The appellant in this case attempts to distinguish between the facts which we concluded showed contributory negligence and the facts in the two cases, quoted by us in our original opinion for the purpose of sustaining that position. We did not intend to convey the suggestion that the two cases cited were “blanket” cases, in every respect similar to the cause under consideration. We thought they were similar to the extent as that the principle to be deduced therefrom, based upon the facts therein exhibited, with reference to the culpability of the plaintiff, were so analogous as to preclude a recovery. It is often hard for the briefmaker, as well as for the courts, in attempting to present a principle applicable to a record, to find a “receipt,” so to speak, which would preclude discussion — to always have an absolute similitude of facts to sustain the position attempted to be maintained. In. considering the cause on the original, hearing, we thought then, and we are very strongly impressed now, that a careful consideration of the acts of the plaintiff concludes the cause. Neither the appellant nor the appellee has attempted to assist us with reference to the serious and important question of contributory negligence involved in this record by any citation of authorities; the former contended with a discrimination of facts and condemnation of the authorities and principles attempted to be invoked by us.

It may be that we have overlooked some authorities upon this question, but upon investigation we are inclined to think that, as to the direct question involved (this woman proceeding into the dark and stepping into unknown danger), the case of Buenemann v. Railway Co., 32 Minn. 390, 20 N. W. 380, decided by the Supreme Court of Minnesota, is rather in point in appellant’s favor. In that cause the passenger was upon the platform of the railway company intending to take passage upon defendant’s train, which had just arrived. He walked to the rear of the train for the purpose of obtaining a' seat in the rear car, which, of course, was a legitimate purpose, and it appeared that he did not go further than was necessary. It seems that in this cause the passenger knew that the platform was elev.ated but the night was dark and there were no lights, with the exception of the lights in the building (the same as in this record), to light the platform or approaches. The Supreme Court of Minnesota said in that cause; “lie was a stranger and was not familiar with the ground; but conceding, as we must, that he saw that it was dark and knew that the platform was elevated, and, as counsel say, ended somewhere, yet might he not assume, when he saw that the company had left the platform unlighted, that they would not leave a passenger coach so near the end of the platform as to endanger the safety of passengers who might be seeking to approach either end of the car.” The court, however, further said: “So far as we can arrive at a conclusion from the imperfect manner in which the evidence is brought before us, we admit we are personally strongly i/mpressed, mth the idea that plaintiff was negligent but by no means so clearly as to so hold as a matter of law against the verdicts of two juries and the opinion of both of the learned judges who presided at the respective trials in the court below” — and upon this history of this case this Supreme Court thought that these facts with reference to the action of the two juries and the trial judges in the court below was “entitled to some weight as tending to show that at least there is reasonable ground for a difference of opinion on the question.” The first trial resulted in a verdict in favor of the plaintiff; and we presume the trial judges, on account of the great preponderance of the testimony, indicating contributory negligence, granted a new trial but permitted a second verdict to stand, which the Supreme Court sustained. It was with considerable misgiving and reluctance that the able court in that instance affirmed the judgment of the trial court; and there is apparent in that cause an element not existing in this record, as stated, that the passenger might assume that the railroad, in bringing its train into a depot, would not leave a passenger coach so close to the end of a platform as to endanger the safety of passengers who might be seeking to approach either end of said car. The passenger in that cause “was in the act of turning upon the platform when he missed his step and fell therefrom to the ground, having evidently in the darkness gone too near the edge,” and which was the immediate act manifested by Mrs. Stamp here. If that court, impressed by the weakness of plaintiff’s case and the strength of the proof of contributory negligence, reluctantly affirmed a judgment of recovery, based to some extent upon the verdict of two juries and the final action of the trial court, in overruling the motion for a new trial, what would have been its opinion if the trial court, had peremptorily instructed the jury, as in this cause, and the evidence had been the same? The contributory negligence in this record is grounded by us upon what we deem to be the heedless action of the appellant in walking near the edge of the platform in the dark, knowing that the same must end somewhere, without knowledge of surroundings.

We cite the case of Bennett v. Railway Co., 57 Conn. 422, 18 Atl. 668, by the Supreme Court of Connecticut, not upon the similitude of facts in that record to this cause, but for the applicability of an observation in that case upon an element we considered quite potent and suggestive in tins record. Tbe appellant, Annie Stamp, in this cause testified that after proceeding upon the platform a certain distance, and while in the- dark, she lost her bearings and became turned around, evidently not knowing the course that she was pursuing. In the Bennett Case, supra, it seems that plaintiff knew the premises, which, with the fact of passing three lighted stairways, distinguishes it from this cause, and knew that passengers were accustomed to indiscriminately use three of the stairways at the station, and passed the three which were lighted and missed his calculation in approaching the fourth, which was unlighted, and was injured. The court said; “He has now passed from a place of safety into one of great danger,” and “the law, instead of being satisfied with slight care, requires the utmost care. Slight negligence became gross negligence, because none will be tolerated.” We are not prepared to adopt this statement in full as a legal principle but think the following observation . quite relevant and pertinent: “Every one knows how difficult it is in walking in utter darkness to correctly calculate courses and distances even in very familiar localities. The record does not disclose that any’precautions were taken to know and keep in mind his whereabouts, except perhaps to reply upon his general knowledge of. the premises, to inform him when he reached the stairs. If that is so, he was inexcusable.” The court further said that the appellant in that cause disregarded “the instinct of self-preservation,” and the darkness, coupled of course with the other act/of plaintiff, was a moving consideration, evidently, in the opinion of that in concluding contributory is a matter of law.

the ease Massey v. Sellar, 43 Or. 267, Pac. 399, not wholly applicable, upon the facts, it being a case ¡.tor was by invitation, and where of premises had an unguarded id where the visitor had stepped was seeking a water-closet in a r. The observation of the court think pertinent is as follows: t was so dark in there that he nothing,’ it was certainly an act his part to enter on a cruise of and discovery without determin-f it was safe to proceed. To bolt nto a place little known, and senses cannot take note of it, is of a prudent man, and there is no any other inference or deduction it. Reasonable minds could not y other conclusion touching it, so thing for the jury to determine,”

, Also the case of Emery v. Railway Co., 77 Minn. 465, 80 N. W. 627, is cited, where a lady was a visitor upon the premises of the railway company and fell from the platform of the defendant upon her return home, after having accompanied a relative to. the train, and was familiar with the platform, and, the court said, “hence must have known the' danger of Valking off the north end of it in the darkness, for she testified it was the darkest night she ever saw. If so,- the danger was proportionate to the darkness; but she made not the slightest effort to avoid danger and secure her safety, for she testifies she walked right off the end of the platform and was thereby injured,” We believe it will be readily understood, without attempting to discriminate, the purpose of the quotations and the limit of their applicability to the record here.

In regard to the matter of the foreign law and the question of a free pass concluding a recovery, the appellant again vigorously insists -that the foreign law is not proven, and that further the pass on which appellant rode was not a free pass, and upon the latter question cites the following authorities: Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 870; Grand Trunk Ry. Co. v. Stevens, 95 U. S. 655, 24 L. Ed. 536; B. & O. Ry. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 774; Doyle v. Railway Co., 166 Mass. 492, 44 N. E. 611, 33 L. R. A. 845, 55 Am. St. Rep. 417; also s. c., 162 Mass. 66, 37 N. E. 770, 25 L. R. A. 157, 44 Am. St. Rep. 335; U. S. Statutes Annotated, Supplement of 1912, p. 114 (Act June 18, 1910, c. 309, §'7, 36 Stat. 547 [U. S. Comp. St. Supp. 1911, p. 1286]). The case of Railway Co. v. Stevens, supra, decided by the federal Supreme Court, was one where the plaintiff was the owner of a patented, car coupling; the railway company, negotiating for its adoption as an appliance upon its road, had agreed to pay plaintiff’s expenses if he would make a “joint errand for himself and the company,” as the appellant expresses it, and the Supreme Court said: “His expenses in making that journey were to be paid by the defendant, and of these expenses the expense of his transportation was a part.” Also holding the transportation an express contract: “The transportation of the plaintiff in the defendant’s cars, though not paid for by him in money, was not a matter of charity nor of gratuity in any sense. It was by virtue of an agreement in which the mutual interests of the parties were consulted.” “Drovers passes” are of course part of the consideration of the transportation and are also contracts.

The case of Doyle, Adm’r, v. Railway, decided by the Supreme Court of Massachusetts, supra, involved a ticket or pass which was issued to the holder monthly, clearly in consideration and as a part of his empíoyment. The facts of this case are explained by a reading of another case between the same parties, Doyle, Adm’r, v. Railway Co., the latter reported in 166 Mass. 492, 44. N. E. 611, 33 L. R. A 844, 55 Am. St. Rep. 417, showing that the issuance of the transportation to the deceased was an express ingredient of the contract of employment, by virtue of which the defendant; by the issuance of this character of transportation, “was enabled to obtain the services of those who did not live in Boston? and thus draw its employSs from a larger body, subject only to the expense of transportation, and the plaintiff's intestate was enabled to enter the defendant’s employment on equal terms as to wages with those living in Boston,” and held that “the ticket (in both cases) could not properly be regarded as a gratuity.” This transportation is by virtue of a contract, express or implied, or lacks the elements of one; if there is no consideration to the company by virtue of such contract, there is no contract and it is in the nature of a gratuity.

In this cause, upon the whole testimony, we are unable to say that the mother was a dependent member of the family, if that was a requirement for the successful solicitation of a pass; nor that the custom to give passes to the emplóyés, or rules to that effect, extended to the son for the benefit of his mother and was a part of the employment, express or implied; the proof is too uncertain. Could the son, upon refusal to issue the pass, have sued and recovered for the transportation if he had paid' the fare for his mother under 'the proof here? We cléarly do not think so.

In this cause the appellant sues for $12,000. In the cáse of Sims v. Sims, 175 U. S. 162, 20 Sup. Ct. 58, 44 L. Ed. 117, the Supreme Court of the United States, with reference to appeals and writs of error to the Supreme Court of the United States from the Supreme' Court' of a territory, said: “Under the existing acts of Congress, therefore (except in the cases so transferred to the Circuit Courts of Appeals, and in cases of habeas corpus, cases involving the validity of a copyright, and cases depending upon the Constitution or a statute or treaty of the United States, none of which classes includes the case at bar), the appellate jurisdiction of this court to review and reverse or affirm the final judgments and decrees of the Supreme Court of a territory includes those cases, and those cases only, at law or in equity, in which ‘the matter in dispute, exclusive of costs, shall exceed the sum of $5,000.’ ” With reference to the jurisdiction of the Supreme Court of the United States over causes upon appeal or writs of error from the Supreme Court of a territory, the statutes governing the matter', since the rendition of the opinion of the Sims Case, supra, have been modified by the additional prescription in procedure requiring ascertainment of the sum in dispute to be under oath;, the last change directly applicable to New Mexico is indicated by the congressional act of March 3, 1911 (chapter 231, § 245, 36 Stat. 1158 [U. S. Comp. St. Supp. 1911, p. 229], Federal Statutes Annotated, vol. 1 [Supplement] p. 233), as follows: “Sec. 245 (writs of error and appeals from the Supreme Courts of Arizona and New Mexico). Writs of error and appeals from the final judgments and decrees of the Supreme Courts of the territories of Arizona and New Mexico may be taken and prosecuted to the Supreme Court of the United States in any case wherein is involved the validity of any copyright, or in which is drawn in question the validity of a treaty or statute of, or authority exercised under the United States, without regard to the sum or value of the matter in dispute; and in all other cases in which the sum or value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thousand dollars.”

The matter of the ascertainment of the sum in dispute under oath as a condition of the jurisdiction of the Supreme Court of the United States is a mere matter of pleading and procedure and could not affect the proposition of the rule of law prevailing in New Mexico, as evidenced by the decisions of the Supreme Court of the United States in two cases.

Appellant argues quite ingeniously that the law as announced by courts is subject to change, and on account of its mutability it should not overcome the presumption that the law of New Mexico is the same as we interpret it. True, the courts change their decisions, but the'logic, pushing it to a forced conclusion, lands appellant upon the proposition that the rule of law decided in this state that the law of ánother state is presumed to be the same as ours is a fallacy, because our own courts may change the law at any time, when in realityMt is a salutary rule where applicable.

The case of Boering v. Railway "Co., infra, and the last case by the Supreme Court, uses very strong language in regard to a free pass, and we would not be any more at liberty in believing that that court would change its decision than that our Supreme Courtiwould change its decisions when several yearsvprevi-;ously it had twice decided the same proposition. If we are correct and this transportation is not á contract, we think the lalv of this case as a part of the law of New Mexico is that introduced in evidence by appellee contained in the cases of Railway Co. v. Adams, 192 U. S. 440, 24 Sup. Ct. 408, 48 L. Ed. 513, and Boering v. Railway Co., 193 U.S. 449, 24 Sup. Ct. 515, 48 L. Ed. 742, wlierte transportation of this character was held tt> • be gratuity. The case of Western Union Telegraph Co. v. Etta White, 162 S. W. 905, decided by us December 6, 1913, is clearly) distinguishable from this case, patent upon) reading the two cases, and does not apply. ( The question of diverse citizenship is not l in this record. If this transportation was ] not based upon a consideration, the law of j the Supreme Court of the United States is r the law of this very case, and, if sued upon ’ in New Mexico, we believe the result there would have been the result here. A further inspection and consideration of tile congressional act with, reference to free passes causes ns to reiterate that the same is not applicable to the record here.

The motion for rehearing is overruled.


author: DAVIDSON, J.

text:
    Ex parte HUNT.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    Habeas Corpus (§ 3) — Mandamus (§ 57)— Bond — Compelling approval.
    Where a person, desiring to appeal from a conviction in the corporation or mayor’s court, presents a sufficient bond to perfect his appeal, which the mayor refuses to approve, his remedy is by mandamus to force the mayor or other officer to follow the law, and not by habeas corpus to procure his discharge.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 3; Dec. Dig. § 3; Mandamus, Cent. Dig. §§ 68,114-120; Dec. Dig. § 57.]
    Appeal from Scurry County Court; C. R. Buchanan, Judge.
    Habeas corpus proceeding by W. I. Hunt. From a judgment adverse to him, petitioner appeals.
    Affirmed.
    C. E. Lane, Asst Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of vagrancy in the corporation or mayor’s court in the town of Snyder. He sets up, in substance, that he was in charge of the city marshal, and that he had employed an attorney to appeal his case; that he was taken to jail and not given time to make his bond, which had been fixed in the sum of $50. The city marshal had a check of his for $100. Appellant had deposited this amount with him, which it seems was intended to operate as a guaranty that he would not run away, or perhaps to act in place of the bond. However, appellant did not give bond. He asserts some of the papers were informal; that they show he was convicted in the may- or’s court, when in fact it was the corporation court.

On the trial of the case Wolfe, the city marshal, testified that he had relator in jail under a commitment issued by the mayor of the town of Snyder, which commitment he had and identified. This commitment, however, is not in the record.. He states he had made no return on the commitment. The docket of the corporation court was identified, and the complaint was also identified as against relator. It is also shown by this witness there was never any bond presented to him for approval, nor was he asked by relator’s attorney to accept any bond. There was a check given him for $100, but no bond; but this cheek was given th'e officer after the time relator’s right to make a bond had expired. He further testifies he had $30.27 of applicant’s money that he had on him at the time of arrest, which money he placed in the bank, and is now held by him at the relator’s request for safe-keeping; that relator had never at any time presented him any bond; that his.bond was first fixed at $50, and then the mayor set same at $100; that all the cost was not in at the time the bond was fixed at $50. This witness further states he saw relator sign a bond for $50, and when Mr. Payne, his attorney, and witness went to the mayor’s office, the amount of the fine find costs being run up, showed it was more than $25, and the mayor raised the bond to $100. He further testifies he was under the impression that he was told by the •attorney representing relator that the bond was raised to $100, and saw relator sign this bond, but no other person signed it; that he never had any kind of bond presented to him for approval; he only had the $100 check, and that was after the time for relator to file bail bond had expired. This is the case on the facts.

This leaves the matter in doubt as to what appellant was seeking. If he was seeking to be discharged under these circumstances because he had been deprived of his right of appeal for the failure of the court to approve his bond, even had he presented one, and it had been sufficient, it would not justify a resort to writ of habeas corpus. He had a remedy against the mayor with reference to approving the bond; but it seems appellant did not even present an- appeal bond for approval, either to the mayor or to the city marshal. Had he desired to consummate his appeal, he should have followed the statute, and in case the officer refused his legal rights, his duty then was to apply to the county judge for mandamus proceedings to force the mayor or other officer to follow the law. A case directly in point is Ex parte De Loche, 50 Tex. Cr. R. 525, 100 S. W. 923.

Under the authority of that case, this judgment will be affirmed.


author: HARPER, J.

text:
    HALL v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    1. Ckihinal Law (§§ 1092, 1099) — Appeal-Statement op Facts.
    Where the term at which defendant was convicted of a misdemeanor adjourned May 28th, a statement of facts and bill of exceptions, not filed until July 30th, could not be considered, either in passing on alleged errors or as the basis for supporting the judgment.
    -n or otner cases. una. i\___ _ „„„ Law, Cent. Dig. §§ 2803,2829, 2834-2861, 2866-2880,2919; Dec. Dig. §§ 1092, 1099.]
    2. Criminal Law (§ 1144) — Appeai^Pre-sumption — Instructions.
    Where the court cannot consider the statement of facts, it must presume that the trial court submitted the law as applicable to the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]

      3. Criminal Law (§ 814) — Trial — Issues and Variance.
    Under an information for keeping a disorderly house in a house owned by another and leased by the defendant, an instruction authorizing a conviction if defendant himself was the owner was reversible error, since he could not be charged with committing an offense in one way and be convicted for its commission in another way.
    [Ed. Note. — For other cases, see Criminal Uaw, Cent. Dig. §§ 1821, 1833, '1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    Martin Hall was convicted of keeping a disorderly house, and he appeals.
    Reversed and remanded.
    Warren & Briggs, of Gilmer, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was tried at the May term of the county court of Upshur county, which adjourned on the 28th day of May. The statement of facts and bills of exceptions were not filed until the 30th day of July. This is a misdemeanor case, in which appellant was prosecuted under an information which charged him with “keeping and being concerned in keeping a disorderly house, in a house leased, occupied, and controlled by him, the said Martin Hall, and which said house was owned by Taylor Martin, etc.”

Under all of our decisions neither the statement of facts nor bills of exceptions' can be considered, nor made the basis for supporting the judgment any more than they can be considered in passing on the alleged errors, and while, if we could look to the statement of facts, the error complained of in the charge as a fundamental error might be immaterial, in that it might appear there was no evidence that appellant was the owner of the house, yet, as we cannot consider the statement of facts, we must presume the court submitted the law as applicable to the evidence, and under such circumstances the charge of the court would authorize the conviction of appellant as owner of the house when the information charged that Taylor Martin was the owner.

The court instructed the " jury: “Before the state will be entitled to a conviction in this case it will be necessary for the jury to believe from the evidence, beyond a reasonable doubt, that defendant, Martin Hall, was the owner, lessee, or tenant,” etc. Again, in submitting the case specifically, the court instructed the jury: “If you believe from the evidence, beyond a reasonable doubt, that defendant was the owner, or lessee, or tenant of a house,” etc., he would be guilty. It is thus seen that while.the information charged that appellant was the lessee or tenant, and that Taylor Martin was the owner, yet the charge authorized his conviction if he. and not Taylor Martin, was the owner. The information Could have charged that he was owner, lessee, and tenant; but this it did not do, but specifically alleged ownership in another, and yet the charge authorized this conviction if he was the owner. He cannot be charged with having committed an offense in one way, and be convicted of having committed it in another way.

Under such circumstances, the case must be reversed and remanded.


author: PRENDERGAST, P. J.

text:
    PEGRAM v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    Contempt (§ 66*) — Appeal.
    Appeal will not lie from a judgment in proceedings in accordance with Code Cr. Proe. 1911, art. 528 et seq., fining one for contempt of court in refusing to obey a subpoena.
    [Ed. Note. — For other cases, see Contempt, Cent. Dig. §.§ 213-215, 223-237; Dec. Dig. § 66.*]
    . Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    W. P. Pegram was fined for contempt of court, and appeals.
    Dismissed.
    Woods & Harris, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The appellant was fined by the lower court for contempt of court in refusing to obey a subpoena. The record shows that the proceedings were strictly in accordance with article 528 et seq., C. C. P., and that on the proper final hearing the judgment nisi was made final.

It has been the uniform holding of this court and our Supreme Court, when it had criminal jurisdiction, that appeals did not lie in such proceedings. It is unnecessary to cite all the cases; but see State v. Thurmond, 37 Tex. 341; Carter v. State, 4 Tex. App. 165; Crow v. State, 24 Tex. 12; Borrer v. State, 63 S. W. 1133.

As this court has no jurisdiction of this appeal, the case is ordered dismissed.


text:
    HART v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    Criminal Law (§§ 1092, 1099*) — Appeal — Proceedings to Perfect — Time for Filing Statement op Facts and Bills op Exception.
    Where a term of the county court adjourned on May 31st, a statement of facts and bills of exception filed June 30th could not be considered, since such papers must be filed within 20 days after adjournment of court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2634-2861, 286'6-2880, 2919; Dec. Dig. §§ 1092, 1099.*]
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    Man Hart was convicted of false imprisonment, and he appeals.
    Affirmed.

      Warren & Briggs, of Gilmer, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

As this case is presented, we are of opinion it must be affirmed-The ease was tried in the county court, the charge being false imprisonment. Court adjourned on the 31st day of May; the statement of facts was filed on the 30th day of June; the bills of exception were filed the same day. In this condition of the record, none of the matters set up in bills of exception or pertaining to statement of facts can be considered. Under the decisions construing our statute, all these papers must be filed within 20 days after adjournment of court. Without the statement of facts, none of the grounds of the motion for new trial can be considered.

The judgment is therefore affirmed.


text:
    BOYD v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    Criminal Law (§ 1095) — Appeal — Statement of Facts — Time or Filing.
    Bills of exceptions not filed in the trial court in a criminal prosecution until the sixtieth day after adjournment for the term, and after appellant had, within 30 days allowed for filing a statement of facts and bills of exceptions, attempted to extend the time for another 30 days, were too late, and will be stricken on motion.
    [Ed. Note. — For other cases, see -Criminal Law, Cent. Dig. § 2847; Dee. Dig. § 1095.]
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    Fritz Boyd was convicted of crime, and he appeals.
    Affirmed.
    Warren & Briggs, of Gilmer, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

From a conviction of false imprisonment, appellant prosecutes this appeal.

The term of the county court at which this trial occurred adjourned for the term May 31, 1913. The court at that time entered an order allowing 30 days thereafter to file a statement of facts and bills of exceptions. Within that 30 days he attempted to extend the time for another 30 days. What purports to be a statement of facts and bills of exceptions were not filed in the lower court until on the sixtieth day after the court adjourned for the term. The Assistant Attorney General has made a motion to strike out said purported statement of facts and bills of exceptions because not filed within time.

Almost every week for the last few years this court has uniformly struck out such papers, when filed without an order allowing 20 days or less, or where such papers are not filed, in accoirdanee with such order, within 20 days from the adjournment of the court. It would be a useless task to undertake to collate and cite these various cases. We merely cite Durham v. State, 155 S. W. 222, and cases therein cited. Under the law, this court must of necessity strike out and not consider said papers. Without these,' no question is raised which we can review.

The judgment will therefore necessarily be affirmed.


text:
    PHILLIPS v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    Criminal Law (§§ 1095, 1102*) — Statement or Facts — Timis op Filing.
    A statement of facts and bills of exception, not filed until 60 days after the adjourning of court in a misdemeanor prosecution, will be stricken on motion, in view of the stenographer’s act of 1911.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. §§ 1095, 1102.*]
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    E. Phillips was convicted of false imprisoning, and appeals.
    Affirmed.
    Warren & Briggs, of Gilmer, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of the offense of false imprisoning one W. O. Hayles, and his punishment assessed at a fine of $200, and 90 days’ imprisonment in the county jail.

The term of county court at which he was tried adjourned May 28, 1913, while the bills of exceptions and statement of facts were not filed until July 30, 1913, 60 days after the adjournment of court. This being a misdemeanor conviction, the motion of the Assistant Attorney General to strike out the statement of facts and bills of exceptions must be sustained. This question has been so thoroughly discussed in a number of opinions since the passage of the stenographers’ act in 1911 (Laws 1911, c. 119), we do not deem it necessary to do so again. Durham v. State, 155 S. W. 222; De Friend v. State, 153 S. W. 881. The opinions in both those cases were handed down before the convening of the Upshur county court.

The motion for new trial contains no ground that we can review, in the absence of a statement of facts.

The judgment is affirmed.