author: MeMEANS, J.

text:
    ST. LOUIS, B. & M. RY. CO. v. VERNON.
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 30, 1913.
    Rehearing Denied, Nov. 20, 1913.)
    1. Master and Servant (§ 278) — Injuries —SUFFICIENCY' OF EVIDENCE — NEGLIGENCE.
    Evidence in a railroad engineer’s action for injuries in a collision of his train with another standing on the main track at a station held to sustain a finding of negligence in failing to have the other train on the side track, or, if not, of negligence in failing to warn plaintiff that the main track was obstructed, and in not turning the switch for the side track.
    [Ed. Note. — For other cases, see.Master and Servant, Cent; Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    2. Master and Servant (§ 276) — Injuries— Evidence — Proximate Cause.
    Evidence in an action for injuries to a railroad engineer in a collision of his train with another standing on the main track held to sustain a finding that negligence in not having the other train on siding, or in not warning plaintiff that the main track was obstructed, and turning the switch for the siding, was the proximate cause of plaintiff’s injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.]
    3. Statutes (§ 221) — Legislative Knowledge of Law — Presumptions.
    It will be presumed that the Legislature knew, when it enacted the Employers’ Liability Act (Acts Slst Leg. [1st Extra Sess.] c. 10; Rev. Civ. St. 1911, § 6649), that .contributory negligence would bar a recovery by an employe.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 293, 299; Dec. Dig. § 221.]
    4. Negligence (§ 101) — Contributory Negligence — Diminution of Recovery — Employees’ Liability Act.
    Acts 31st Leg. (1st Extra Sess.) c. 10 (Rev. Civ. St. 1911, art. 6649), providing that an employé’s contributory negligence shall not-bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of his negligence, only denies recovery because of contributory negligence to the extent that the jury determines is attributable to his negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164; Dec. Dig. § 101.]
    5. Negligence (§ 141) — Comparative Negligence-Instructions.
    An instruction, in a railroad employé’s action for personal injuries, that, if any negligence of plaintiff and any negligence by defendant were concurrent proximate causes of the injuries, the jury should diminish plaintiff’s_ damages in proportion to the Amount of negligence attributable to him was not misleading as permitting a recovery, if the jury found that plaintiff’s negligence did not contribute to his injuries, though he was guilty of negligence which necessarily caused them, and was not affirmatively erroneous.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. § 141.]
    6. Master and Servant (§ 289) — Injuries— Sufficiency of Evidence — Negligence.
    Plaintiff’s evidence, in an action by a railroad engineer for injuries in a collision of his train with one on the main track at a station, held not to show plaintiff’s contributory negligence as a matter of law in assuming that the track was clear because the switch target was white.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    7.Master and Servant (§ 265) — Injuries —Burden of Proof — Contributory Negligence.
    Acts 31st Leg. (1st Extra Sess.) c. 10 (Rev. Civ. St. 1911, art. 6649), providing that a railroad employé’s contributory negligence shall not bar recovery for personal injuries, but the damages shall be diminished in proportion to the negligence attributable to him, did not abrogate the rule placing the burden of proving contributory negligence upon defendant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.]
    8. Negligence (§ 101) — Contributory Negligence — Diminution of Recovery.
    Even where plaintiff’s proof shows that he is guilty of contributory negligence as a matter of law, under Acts 31st Leg. (1st Extra Sess.) c. 10 (Rev. St. 1911, art. 6649), providing that the effect of contributory negligence shall merely diminish recovery in proportion, the court could only direct the jury to diminish the damages in proportion to plaintiff’s negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164; Dec. Dig. § 101.]
    9. Trial (§ 260) — Instructions—Requests.
    Requested charges were properly refused where those which were correct were sufficiently covered by charges given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    10.Damages (§ 221) — Contributory Negligence-Diminution of Recovery — Findings.
    In a railroad employé’s action for personal injuries under Employers’ Liability Act (Acts 31st Leg. [1st Extra Sess.] c. 10; Rev. Civ. St. 1911, art. 6649), it is the better practice to have the jury find whether plaintiff was negligent, and, if so, to find the damages sustained by him and the extent his damages are diminished because of his own negligence.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 563-566; Dec. Dig. § 221.]
    Appeal from District Court, Harris County.
    Action by T. H. Vernon against the St. Louis, Brownsville & Mexico Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Andrews, Ball & Streetman, of Houston, and Claude Pollard, of Kingsville (Coke K. Burns and W. L. Cook, both of Houston, of counsel), for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for appellee.

      For other oases see same topic and section NUMÍ3ER 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

   MeMEANS, J.

T. H. Vernon brought this suit against the St. Louis, Brownsville & Mexico Railway Company, a corporation operating a railroad, to recover damages for personal injuries sustained by him while in the employment of defendant as locomotive engineer on account of a collision of the freight train he was engaged in operating with another freight train standing on defendant’s main track at or near its station of Brazoria. Plaintiff alleged that his injuries were a proximate result of negligence of the defendant’s agents or servants in charge of the standing train (1) in having that train on the main track, instead of on the siding, at its south end, and (2) in failing to give a reasonable or adequate warning in any manner of the standing train being on the main track, and (3) in failing to have the switchboard turned red, and the switch lined up for the approaching train plaintiff was operating. The defendant, after a general denial, specifically denied the particulars of negligence alleged against it, and pleaded for contributory negligence, that plaintiff approached the station and switch without having his train under control, and without maintaining a reasonable lookout, and at an excessive rate of speed, aDd in excess of the limit prescribed by its rule of 25 miles per hour. It was also alleged that these several negligent acts were the sole proximate cause of plaintiff’s alleged injuries. It was further alleged that plaintiff, after he actually discovered the danger of collision, negligently failed to make all reasonable use of the means at hand to stop and avoid the collision, and that thereby he brought about his own injuries, and should not recover. It was further alleged in the alternative that, if plaintiff did not in fact see and appreciate that the extra freight train was on the main track in time to avoid injury, his failure to see and appreciate such fact was due ta his negligent failure to keep a proper lookout, and that such failure was the proximate cause of his injuries.

The plaintiff, in reply to defendant’s answer, among other things, alleged: “That the train he had in charge, being a regular freight train, was superior and had the right of way over the blocking train, which was an extra freight train, and inferior and subordinate to said train in his charge; that, coming into said station late, as he did, he had a right to expect, and to rely on the expectation, that the defendant’s employSs in charge of said inferior train would exercise ordinary care, for his safety, in respect thereof, and under the rules and custom of the business, as practiced by defendant, have said inferior train on the siding at or near said station or at least not on the main track in the location it was, and that, if said train was so located, they would give him the signals required by the rules in such ease, or at least reasonable and adequate warning of such location of the same, and in addition would line up the switch or siding for his train, and flag the same accordingly; that the defendant had established no rule requiring a superior train, such as that in plaintiff’s charge at the time, to approach the station under control, as that term is used by the defendant, in circumstances similar to that on the occasion in question, but only that the train should not be run exceeding 25 miles an hour, and the same was being run by plaintiff well within that limit at the time, and he did in fact keep a proper lookout, as he approached and came into the station, and had the train under control, all that was required of him, and after his actual discovery of the blocking train on the main track he used all reasonable means at his command to avoid collision or injury, and he was throughout in the exercise of that ordinary care usual in such case, and which would have been ample to avoid a collision and injury had the employSs of the blocking train, as he had the right to expect, and relied on their doing, exercised due care in the particulars aforesaid, but, instead of that, they were guilty of negligence in having said inferior freight train on the main track in the position and manner as done, and in failing to place such inferior train on the siding at or near said station, if not entirely, then as far as they could, and at the south end thereof, and also in failing to give said regular freight train in charge of plaintiff the signals required in such case, both by the defendant’s rules and the custom of its business, or any reasonable or adequate warning of the location of said freight train on said main track, and also in failing to line up the said switch or siding for said regular freight train in charge of plaintiff, and flagging the same accordingly.”

A trial before a jury resulted in a verdict and judgment in favor of the plaintiff for ?17,500, from which the defendant has appealed.

The facts material to a proper disposition of this appeal are as follows: Plaintiff, Vernon, was in the service of defendant as a locomotive engineer, and on the morning of September 4, 1911, was engaged as such in the operation of a regular freight train going south on defendant’s railroad. Under the rules and custom in force on defendant’s road, the train being operated by plaintiff, being a regular train, was superior to irregular and extra freight trains also being operated over the road at the same time. Under the rule of the defendant, it was the duty of those operating the extra train, when meeting a train of the superior class, to place their train on the side track at least five minutes before the time of arrival of the train of the superior class, so that the latter would have a clear main line track. It was also a rule that, if a train of the inferior class does not arrive within the time the train of the superior class is ordered to wait for it, the latter may, without waiting longer, proceed.on its way. It was also a rule that, whenever it became necessary to protect the front of the train, the head brakeman should go forward with danger signals to stop any train from that direction. This rule requires that the brakeman must, at the distance of 15 telegraph poles from his train, place one torpedo on the engineer’s side; he must then continue to go at least the distance of 20 telegraph poles from the front of his train, and place two torpedoes on the rail on the engineer’s side, 90 feet apart, when he may return to a point 15 telegraph poles distant from the front of .his train, where he must remain until an approaching train has been stopped, or until he has been recalled by a whistle of his engine. In case the head brakeman is unable to go forward, the rules require that the fireman be sent in his place. There was also a printed or time card rule requiring all trains to approach “the end of double tracks, junctions, railroad crossings at’ grade and drawbridges prepared to stop, unless the switches and signals are right and the track clear.” There was a rule and custom on that road to approach all yards and yard limits under control; but there was testimony sufficient to justify the jury in finding that this rule and custom had been disregarded and abandoned. Yard Unfits are defined by yard limit boards or by the outer switches where there are no yard limit boards. At Brazoria there were no yard limit boards; and the yard limits there were defined by the outer switches. A railroad owned and operated by the state formed a junction there with defendant’s road.

The defendant’s regular train in charge of plaintiff as engineer was No. 547, and was a superior train under the rules, with the right of way to the main line over the train with which it collided, which was No. 545, and which, under the rules, was an extra, and not of the same class as the regular train. A telegraphic order was advised to both trains, directing the regular south-bound, in charge of plaintiff, to wait at Brazoria until 9:20 in the morning for extra No. 545, northbound. Plaintiff’s train reached Brazoria that morning a little late, about 9:27. The evidence warrants the conclusion that plaintiff, coming into Brazoria after 9:20, had a right to assume that the extra, if at that time it had arrived, had been placed on the side track, and that the main line was clear for him to pass on through without stopping. Plaintiff’s train reached Brazoria around a curve, and, after coming around the curve, when he crossed the bridge, plaintiff, being able to see only a short distance ahead, then saw the extra train, which afterwards proved to be on the main track, but which he then thought was on the side track, and could not then tell differently, and was confirmed in this view, because, under the rules, it should have been on the side track, or he should have been warned if it was not, and, besides, the switch target was turned white, which indicated that the switch was lined up for the main track, and not for the side track, when, under the evidence, it should have been lined up for the side track, if, for any reason, the standing train was left on the main track. If the switch had been lined up for the side track, the switchboard would have shown red, and not white. When plaintiff discovered that the extra train was on the main line, he was distant about 2% to 3 telegraph poles from same; but he remained on his engine, using the means at his command to avert a collision, and only at the last moment jumped from the engine just before a collision took place, and was thereby injured.

The evidence warrants the conclusion and we find that the extra north-bound freight reached Brazoria in ample time to be placed on the side track before plaintiff’s train reached there, but that this was not done, and the extra was left standing on the main line; that, notwithstanding the employés in charge thereof were apprised and knew that plaintiff’s train was coming, they sent out no flagman, or otherwise gave warning to plaintiff that the main line was obstructed by their train, as the rules required them to do in such case, nor did they turn the switch for the side track, which would have caused the switch board to show red instead of white, although one of the crew had been sent back to do so, but with ample time neglected to do it. The excuses offered for not placing the extra on the side track were that the locomotive drawing it was in bad order, and did not have enough steam to have started again had it gone into the siding, and not enough steam to pump the brakes off, and, besides, there were cars on the side track in sufficient number to prevent the entire train to go in, and would have left a part of it on the main line. No excuse was offered, at least none has been called to our attention, for the failure of the crew of the extra to give the warnings to the on-coming regular that the main line was obstructed, as required by the rules. The speed limit on defendant’s road was 25 miles an hour. Plaintiff came into Brazoria at a speed of 18 to 20 miles on hour, and his train was not under control as that phrase in the rules is understood. As before stated, however, there was evidence from which the jury might have found that the rule requiring trains to run into stations such as Brazoria under control and at a less rate of speed than 25 miles an hour had been habitually violated, disregarded, and abandoned.

On this point, the plaintiff testified: “I had my train under perfect control at that time with respect to the usage and custom of the business, as conducted by the defendant at that time. There was no rule that required me to have my train under control in the sense of being able to stop within the range of my vision; they had no such rule; I never received any instructions or orders to do that. The custom and course of the business as to superior trains coming into a station like that under the circumstances of this occasion — the inferior train was supposed to be in the siding; the superior train was not even supposed to know that they were on earth at that time, when I went into Brazoria after 9:20. There was no restraint on my speed in running through there at that time beyond this rule of 25 miles an hour. I did not receive any orders or instructions not to exceed or run at any less speed than that.” He further ■ testified: “As I came there, approaching the station, .the switches appeared to be all right and clear. My belief was, until I discovered this extra on the main line, that it was that way; if it hadn’t been, I wouldn’t have went around there like I did. I would have went around there prepared to stop.”

Another witness, Henry Teague, testified: “The target of the switch being white would indicate a clear track. * * * I said that a white target indicated that the main line •was a clear track, clear for the main line. The switch indicated that you have got a clear track at the switch; you have got a clear main line.”

The witness Rebuck’s testimony on this point was substantially the same. However, there was other testimony that controverted theirs. Under all the evidence we conclude that the jury were authorized to find that the defendant’s agents and servants in charge of the extra were guilty of negligence towards plaintiff in failing to have their train on the side track and the main line clear by the time of the arrival of the regular train, of which plaintiff was the engineer, or, if not, they were guilty of negligence toward him in failing to warn plaintiff that the main, line track was obstructed by their train, and in failing to turn the switch for the side track, and that such negligence was a proximate cause of the plaintiff’s injuries.

The court’s charge to the jury was full, and fair, and an admirable presentation of the law as applied to the facts, and it is here given in full:

“(1) In passing on the issues submitted to you by the court, you must be governed by the law given in the court’s instructions, which you will consider in their entirety, and not in separate and detached parts alone; but you are the exclusive judges of the facts submitted to your determination, and of the weight of the evidence, and of the credibility of the witnesses.
“(2) Under statutes now in force, known as the Employers’ Liability Act, it is provided that a corporation operating a railroad in this state shall be liable in damages to any of its employes suffering injury proximately caused by negligence of its agents or employes, and that the fact, if a fact, that the injured employe may have been guilty of contributory negligence shall not bar a recovery, but that in such event the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe. tinder these statutes, an employer, such as defendant, is not an insurer of the safety of its employés, but negligence of its employés, if committed within the scope of their employment towards another employé, is chargeable to such employer, and deemed in law its own.
“(3) ‘Negligence’ as used herein means a want of ordinary care to another to whom care is due, and by ‘ordinary care’ is meant such care as an ordinarily prudent person would have exercised under the same or similar circumstances. ‘Contributory negligence’ means such act or omission on the part of a plaintiff as an ordinarily prudent person would not do or suffer under similar circumstances, which, concurring with a negligent act or omission of a defendant, becomes a proximate cause of an injury. By ‘proximate cause’ of an injury is not necessarily meant the near-, est time or physical sequence, but is meant a cause without which the injury would not have happened, and from which the injury in question, or some like injury, might reasonably have been anticipated as a natural and probable consequence.
“(4) If you believe from the evidence that the defendant’s employés in charge of the extra train, or any of them, had that train on the main track in the position you may find it was, or that such employés or employé failed to flag the regular freight train in charge of plaintiff, or to give any signal or warning of the location of said extra train on the main track, or that such employés or employé failed to line up the switch or siding for said regular freight train, then, if you further believe from the evidence that such conduct on the part of such employés, or any of them, in any or all of the particulars above submitted, was negligence towards plaintiff, that is, a failure to exercise towards him such care as ordinarily prudent persons would have exercised under the same or similar circumstances, and that such negligence, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, then he is entitled to recover, and, if you so find, return your verdict in his favor.
“(5) The burden is upon the plaintiff to prove the facts necessary to entitle him to recover, as above submitted to you by the court, and, unless such facts are proved by a preponderance of the evidence, to be considered by you in its entirety, then return your verdict in favor of the defendant If you do not believe from the evidence that the employes, or any of them, in charge of the extra train, under and in view of the attendant circumstances, failed to exercise such care as an ordinarily prudent person or persons would have exercised under the same or similar circumstances, in having the extra on the main track in the position you may find it was, or in failing to flag or signal or warn the regular freight train in charge of plaintiff of the location of the extra on the main track, if they did so fail, or in failing to line up the switch or siding for said regular freight train, if they did so fail, or if you do not believe that the employés in charge of said extra train, or any of them, could, in the exercise of ordinary care, as before defined, reasonably have foreseen a collision and injury to plaintiff, or a like injury, as a natural and probable result of having the extra on the main track in the position you may find it was, or as a natural and probable result of failing to flag or signal or warn the regular freight train of the location of the extra on the main track, if they did so fail, or as a natural and probable result of failing to line up said switch or siding for the regular freight train, if they did so fail, then, in either or both of these alternative events, return your verdict for the defendant.
“(6) If you believe from the evidence that, under and in view of the rules relied on by the defendant, or the custom and usage of the business as you may find it, or independent of such rules and such custom or usage, the plaintiff approached or came into the yard, at the north opening of the switch in question, without having the train in his charge under control, such as the evidence may show you was proper, and that such act was a want of ordinary care, that is, a failure on his part to exercise such care as an ordinarily prudent person would have exercised under the same or similar circumstances, or if you believe that plaintiff so approached or came into such yard without keeping a proper lookout, and that such was a want of ordinary care on his part, or if you believe that he so approached or came into such yard at a speed in excess of that at which a person of ordinary prudence would have operated the train under like circumstances, or in excess of 25 miles per hour, then he was guilty of negligence.
“(7) If you believe from the evidence that negligence on the part of plaintiff as just submitted to you, if any, was the sole proximate cause of alleged injuries to him, if any, or if you believe that, as he was approaching with the train in his charge, he saw and appreciated the fact that the extra freight train was on the main line in sufficient time for him, by the use of the means at hand, to avoid a collision or injury, and that he then failed to make all reasonable use of the means at hand to avoid a collision and injury, and thereby brought about his alleged injuries, if any, then return your verdict for the defendant. Under the second alternative just submitted, failure of plaintiff to use all reasonable means at hand to avoid collision or injury after he actually saw and appreciated the fact that the extra was on the main track, if he did so fail, would be the sole proximate cause of his injury, if any, and negligence, if any, of defendant’s employés operating the extra train would in that event be a remote cause, and not actionable.
“(8) If you believe from the evidence that negligence on the part of plaintiff, if any, as submitted to you by the court, and negligence on the part of the defendant, if any, as submitted to you by the court, were concurrent proximate causes of alleged injuries to plaintiff, if any, then you will diminish the damages to plaintiff, if you find him entitled to recover, in proportion to the amount of negligence you find attributable to him.
“(9) If you do not believe from the evidence that plaintiff was guilty of any negligence on the occasion in question, as alleged by defendant, or submitted to you by the court, then you will not, if you find plaintiff entitled to recover, diminish his damages anything on account of contributory negligence.
“(10) If your verdict is in favor of the plaintiff, then you will, in view of and subject to the foregoing instructions, assess Ms damages at such sum as you believe from the evidence to be fair and just compensation for the injuries alleged and proved to have been suffered by plaintiff on the occasion in question, if any, taking into consideration as elements of damage, so far as shown by the evidence to be a natural and probable result of such injuries,, if at all, mental and physical pain to him therefrom, if any, including such as he will in reasonable probability suffer therefrom in the future, if any, and also the reasonable value of time lost to him from such injuries down to the trial, if any, and also, such sum, if paid now, as will be fair and just compensation to him for his diminished capacity, from such injuries, to labor and earn money in the future, if any.
“(10a) If you believe from the evidence that the injuries complained of by plaintiff in his petition are in part the result of a former accident, then, to that extent, allow him nothing therefor, as you can take into consideration herein only such injuries as you find from the evidence proximately resulted from the accident in question, if any.”

Appellant’s first assignment of error complains of the eighth paragraph of the foregoing charge, which reads: “If you believe from the evidence that negligence on the part of the plaintiff, if any, as submitted to you by the court, and negligence on the part of defendant, if any, as submitted to you by the court, were concurrent proximate causes of alleged injuries to plaintiff, if any, then you will diminish the damages to plaintiff, if you find Mm entitled to recover, in proportion to the amount of negligence you find attributable to him.”

The ground of complaint urged in the first, second, third, and fourth propositions under this assignment is that under the quoted paragraph of the charge the jury were permitted to find negligence on plaintiff’s part in failing to come into the station of Brazoria with his train under control, and to combine as concurrent cause such negligence, if found, and negligence on the part of defendant, if found, in having the extra on the main track in the position it was, and in failing to flag the regular freight train in charge of plaintiff, and in failing to give any signal or warning of the location of the extra on the main line, and in failing to line up the switch or siding for the regular freight; whereas, it contends that it is the law that the negligence of the plaintiff so found would be the sole proximate cause, and the negligence of the defendant so found would be only a remote cause, and in this respect the paragraph was erroneous.

As we understand appellant’s contention as presented in the very elaborate and able brief of its counsel, it is simply tMs: Conceding that appellant’s servants were guilty of negligence towards plaintiff in some or all of the particulars above stated, and that without such negligence plaintiff would not have been hurt, yet the evidence showed that plaintiff was guilty of negligence in coming into the station of Brazoria without having his train under control (and we may concede that the evidence was sufficient to raise the issue of Ms negligence in that regard), and that without such negligence on his part he would not have been injured, and that therefore his negligence broke the causal connection between the negligence of the agents of appellant in charge of the extra in the particulars mentioned and the injury of plaintiff, leaving plaintiff’s negligence the sole proximate cause of the injuries, and the defendant’s negligence at most only a remote cause, and that therefore he was not entitled to recover.

We will not undertake to follow at length appellant’s argument in support of this contention. The contention here made would he applicable in determining liability of the defendant as it exists at common law and as applied by the courts of this state prior to the passage of the Employers’ Liability Act As we understand it, the rule urged by appellant is the same, in effect, as that formerly given by the courts of this state for the holding that contributory negligence of the plaintiff was an absolute bar to his right of recovery even where it was indisputably shown that the defendant’s negligence was a contributing cause of the Injury. Some of the authorities base the reason of the rule upon the view that, where plaintiff’s negligence contributed to the injury, his contributory negligence breaks the causal connection between the injury and defendant’s negligence ; in other words, his negligence is the proximate cause, and not the negligence of defendant. Among the authorities that so hold are 2 Labatt on the Law of Master and Servant, p. 2234; 2 Cooley on Torts, pp. 1411, 1412, 1414; 1 Shearman & Red. on Negligence, p. 88; Wharton on Negligence, pars. 300, 303, 133. On the other hand, our Supreme Court has stated the reason of the rule as follows: “The reason why a person who, if guilty of contributory negligence contributing to his own injury, cannot recover is because the policy of the law will not ordinarily permit one to recover who is himself at fault.” Hays v. Railway, 70 Tex. 607, 8 S. W. 493, 8 Am. St Rep. 624. In Railway v. Sympkins, 54 Tex. 619, 38 Am. Rep. 632, it is said: “If a party be wrongfully on the track under such circumstances, or, being there, acts in such a way as to be himself the proximate cause of his own injury, he will be precluded from recovery on grounds of public policy, as being himself guilty of contributory negligence. Although the company’s agents may have failed in proper watchfulness, the injured person is regarded as being himself too directly a cause of the injury to be allowed to complain. It is not that no wrong has been done by the company in the negligence of its agents, but that the injured party is precluded from complaining of that wrong.” To the same effect, are Railway v. Adams, 44 Tex. Civ. App. 288, 98 S. W. 224, and Railway v. Olds, 112 S. W. 792. But the reason for the former rule that denied a recovery to a plaintiff whose own negligence contributed to his injury is beside the question now before us.

That was the law before the adoption of the Employers’ Liability Act, and it will be presumed that the Legislature knew the law at the time the act was adopted, and intended to take away from it some of its rigors. The act is as follows: “That in all actions hereafter brought against any such common carrier by [or] railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employe. * » * The fact that the em-ploy5 may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe.” Acts (1st Extra Sess.) 1909, p. 280; Revised Statutes 1911, art: 6649.

This act changes the rule of the common law which precludes the injured employe from recovering where his negligence contributed to his injury, and substitutes therefor a denial of recovery for only such an amount as the jury may determine from the evidence is attributable to his negligence. The question here presented is not a new one in this court, for substantially the same question was presented and overruled in Houston Belt & Terminal Company v. Woods, 149 S. W. 376; writ of error refused. We quote from the opinion: “By a second proposition under the second assignment it is contended that it was error for the court in the part of the charge complained of to submit to the jury whether the negligence of defendant, if shown, in providing lighting which was insufficient and not reasonably safe was the proximate cause of the injury and death of John Woods, for the reason, as it contends, the undisputed testimony shows that the alleged injury to John Woods was caused by his own voluntary act in taking the lighted lantern into a place of danger, in violation of orders and instructions, when it was not necessary for him to do so, and that such voluntary act on his own part intervened between the alleged negligence of defendant and the injury, and became itself the proximate and supervening cause, without which the injury would not have occurred, thus leaving the alleged negligence of defendant remote in its relation to the injury, and not actionable in law. The claim of broken causal connection because of contributory negligence on the part of the deceased, if it could be allowed, would have the effect of entirely abolishing the doctrine of contributory negligence in every case. The negligence of defendant was a continuing negligence, and, if it resulted in the injury and death of Woods, was the proximate cause thereof, and the only effect of Woods’ contributory negligence would be to bar a recovery therefor under the law as it stood prior to the adoption of the act of April 13, 1909; but, since the adoption of that act, the only effect of contributory negligence of the injured party would be, not to bar a recovery, but to diminish the damages in proportion to the amount of negligence attributable to the injured employes.”

The first four propositions under the assignment are overruled.

By its fifth proposition under the first as.signment appellant asserts that under the eighth paragraph of the court’s charge, above quoted, it was left for the jury to say whether or not, if plaintiff had been found negligent in not having his train properly under control, such negligence was a contributing -or concurrent proximate cause with negligence of the defendant; whereas, it contends that the law is that such negligence of plaintiff, if shown, would necessarily be a concurrent and proximate cause, and refers to the cases of Railway v. McCoy, 90 Tex. 264, 38 S. W. 36; Railway v. Rowland, 90 Tex. 365, 38 S. W. 756; Culpepper v. Railway, 90 Tex. 631, 40 S. W. 386, and other cases in support of its contention.

■ In the cases referred to the court charged the jury on the question of plaintiff’s contributory negligence, and submitted the question as to whether such contributory negligence was the proximate cause of plaintiff’s injury in such a form as to mislead the jury, •and to impress upon their minds that, although the plaintiff was guilty of negligence in doing an act which necessarily caused his injury, they might yet find for him, if they found it did not contribute to his injury, and it was held that such a charge was erroneous, and required a reversal of the judgment.' No such vice is found in the portion of the charge here complained of. A similar complaint was made of a charge in Railway v. Lester, 99 Tex. 221, 89 S. W. 752, and our Supreme Court, in passing upon the point, uses the following language: “This question has been presented to this court so frequently ■of late that it suggests the propriety of calling the attention of the bar to the following cases upon which the objection is based [citing the McCoy, Rowland, and Culpepper, Cases], Chief Justice Gaines wrote the opinion in each of those cases, and carefully distinguished the charges being then examined from charges like this. The charges in those cases were held to be erroneous, because they submitted the question as to whether the negligent act contributed to the injury in such form as to mislead the jury, and to impress upon their minds that, although the plaintiff was guilty of negligence in doing an act which necessarily caused his injury, they might yet find for the plaintiff, if they found it did not contribute to his injury.”

In Parks v. San Antonio Traction Company, 100 Tex. 222, 94 S. W. 331, 98 S. W. 1100, it is held, in effect, that a charge stating generally the law governing the defense of contributory negligence, which directs a verdict for defendant, if, from the evidence, such negligence is found to have existed, and to have proximately contributed to cause plaintiff’s injury, is not affirmative error against defendant, though the evidence was conclusive that the act, if negligent, was also .a proximate cause.

We hold that the charge in the respect .in which it is here complained of was not affirmative error, nor was it misleading or confusing as complained in the sixth proposition. The first assignment and all the propositions thereunder are overruled.

Under the second and third assignments of error appellant presents the proposition that the court erred in the ninth paragraph of its charge in telling the jury that, if they did not believe from the evidence that plaintiff was guilty of any negligence on the occasion of the collision, as submitted by the court, they would not diminish plaintiff’s damages in the event they found he was entitled to recover, and in the tenth paragraph of the charge, which states the elements of damage. The contention here made is that it was error to confine the jury to the contributory negligence of plaintiff in the particulars pleaded by defendant and submitted in the charge, but that, if on the trial acts of plaintiff were proved which raised the issue of plaintiff’s contributory negligence, they should have been submitted, although not alleged. It is contended that plaintiff’s own testimony showed his contributory negligence, where he says, in effect, that he assumed that the main line was clear because the switch target showed white, and that he acted partly on this assumption in coming into the switch at the rate of speed he did. Defendant did not plead that plaintiff was contributorily negligent in this regard; but it argues that under the Employers’ Liability Act the common-law rule in vogue in Texas that the burden upon the issue of contributory negligence is upon the defendant has been abrogated, or at least the rule that contributory negligence must be specifically pleaded is of necessity abolished by the act.

There can be no question, we think, that plaintiff’s testimony did not make him prima facie guilty of contributory negligence as a matter of law, but at most only raised the issue of such negligence on his part, and that it did raise such issue is doubtful. He did not testify that he relied entirely on the switch target being white instead of red; but all his testimony shows that he reasonably anticipated the extra freight was on the side track as it should have been, or, if not, that the switchboard would have been turned to show red instead of white, lining up the track for the siding, and that, in addition, he would have received due warning, as he ought, of the presence of the extra on the main track, that,. until he had reason to apprehend the contrary, it was proper for him to run his train at any rate of speed within the limit prescribed by the rule of 25 miles per hour, and that as soon as he did discover that the extra was on the main line he used every means at hand to avoid the collision and injury.

It will be thus seen that the testimony not only did not show negligence on plaintiff’s part as a matter of law on account of his assumption of a clear track because of the switch target being white, ‘but, if believed by the jury, he was thereby exonerated from any negligence whatever. But we cannot agree with appellant’s counsel that the act referred to has abrogated the common-law rule placing the burden of pleading and proving contributory negligence of the plaintiff upon the defendant. The act itself does not abolish the defense of contributory negligence, but recognizes it. True, the defense is a qualified one; but to the extent it is allowed and recognized it is perfect. It will not allow the defendant to escape all the consequences of its wrong merely because the plaintiff has contributed thereto by his wrong; but it requires a defendant to respond in damages for-all the injuries its wrong inflicts, less the proportion thereof that the plaintiff contributes thereto 'by his negligence. When plaintiff alleges and proves facts which show that he has been hurt as a result of another’s negligence, he has done all that the law requires of him in order to a recovery. If the defendant would escape so much of the consequences of its wrong as the plaintiff by his negligence has wrought to himself, then it should plead and prove it. Rosenbaum Grain Co. v. Mitchell, 145 S. W. 1188. It is only where the proof made by plaintiff shows that he is prima facie guilty of contributory negligence as a matter of law that the court is justified, without pleadings of defendant, to instruct a verdict for defendant, and under the act in question the court could, in such case, only instruct the jury to diminish in proportion to the amount of the negligence attributable to plaintiff. The assignments and propositions thereunder are overruled.

We will not discuss the remaining assignments of error presented by appellant in detail, because to do so would extend this opinion, already too long, beyond all reasonable bounds. It must suffice to say that we have carefully examined all the assignments and the several propositions submitted under them, and are of the opinion that no reversible error is pointed out in any of them. The special charges requested by defendant, the refusal to give which is the basis of several assignments of error, were properly refused, because such of them as were correct were sufficiently covered by the court’s charge. Several of the special charges directed that in the event the jury found that plaintiff’s injuries were contributed to by his negligence to find for defendant. These were incorrect, because they ignored the act providing that the effect of such contributory negligence is to diminish the damages only. The assignment which complains that the verdict of the jury is excessive must be overruled. There is nothing in the record to indicate that the jury found that the plaintiff was contributorily negligent, or that they diminished the damages suffered by him by reason of any such negligence on his part. The evidence, which we will not pause to set out or restate, was ample, we think, to justify the amount of the award. We suggest that in cases of this kind it would be the better practice to have the jury make a finding as to whether they find the plaintiff guilty of contributory negligence, and, if they do so find, then to find the amount of the damages he sustained, and also the extent they diminish his damages on account thereof. There' being no reversible error in the record, the' judgment of the court below is affirmed.

Affirmed.


source: Caselaw Access Project

author: LETT, J.

license: Public Domain

text:
    HOUSTON OIL CO. OF TEXAS v. JONES et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 27, 1913.
    Rehearing Denied Dec. 11, 1913.)
    1. Appeal and Error (§ 499) — Record-Reservation op Grounds op Review.
    Assignments of error based on the refusal of the court to give a peremptory instruction for appellant must be overruled in the absence of anything in the record to show that such instruction was ever called to the court’s attention or acted on by it.
    [Ed. Note. — For other cases, see Appeal and Erfor, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    2. Appeal and Error (§ 1070) — Review-Harmless Error — Verdict and Judgment.
    Where the petition alleged that a described tract contained 160 acres, and sought recovery of an undivided one-half, or, if it contained more, an undivided one-half of 160 acres, that the verdict and judgment awarded an undivided one-half of the land as set forth in the petition, without more definite description, was not a fundamental error, since it cannot be said as a matter of law that the petition failed to describe the 160 acres claimed, and the verdict and judgment were in conformity therewith.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. § 1070.]
    3. Adverse Possession (§ 95) — Trial—Admissibility op Evidence.
    Evidence of failure to pay taxes on land during the time it was alleged that adverse possession was being asserted was material and admissible as against the claimants by adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 530-532; Dec. Dig. § 95.]
    4. Appeal and Error (§ 1056) — Review-Harmless Error — Exclusion op Evidence.
    Refusal to admit evidence of failure to pay taxes on land during the time it was claimed that adverse possession was being asserted by appellees was reversible error where, in view of all the testimony, the exclusion of such evidence is deemed to have been injurious to appellant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.]
    Appeal from District Court, Newton County; W. B. Powell, Judge.
    Action by H. C. Jones and another against the Houston Oil Company of Texas. From •a judgment for plaintiffs, defendant appeals. Reversed and remanded.
    Hightower, Orgain & Butler and W. H. Davidson, all of Beaumont, and H. O. Head, •of Sherman, for appellant. Jno. B. Warren, of Houston, for appellees.

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

   LETT, J.

This was an action of trespass to try title brought by the appellees against appellant to recover an undivided one-half interest in a tract of land described by metes and bounds in the petition. Appellant answered by denial and plea of not guilty. In a trial to a jury there was a verdict and judgment for appellees for an undivided one-half of 160 acres out of the land described in the petition. There was a trial agreement that the title to the land in controversy was good in the Houston Oil Company of Texas, and that it has title thereto unless same has been divested out of the said company by the adverse possession of those under whom plaintiffs claim. The verdict of the jury was in favor of appellees.

The first and second assignments are presented together, and must be overruled. The assignments are predicated on the refusal to give a peremptory instruction for appellant. The record does not show that the special charge of peremptory instruction was ever called to the court’s attention or acted on by him.

The third assignment is presented as a fundamental error. The contention is that the verdict of the jury awarded appellees •an undivided one-half of 160 acres of the land ■described in plaintiffs’ petition, and the judgment describes the land awarded to appellees merely as an undivided one-half interest oí a 160 acres of land out of the land described in the plaintiffs’ petition, setting out the metes and bounds of the entire land as in the petition. The point made is that there was no sufficient and definite description of 160 acres, one-half interest in which was awarded appellees* by which such 160 acres ■can be identified. It was alleged in the petition that the land so described had been ■surveyed for appellees on several occasions, beginning in 1872 as 160 acres of land, and that it contained 160 acres. Plaintiffs further alleged that they were the owners of a one-half undivided interest in the land described, and in the alternative that, if it ■should be determined that it contained more than 160 acres, they recover their interest in 160 acres of the tract so as to include their improvements, and that the excess be taken off the north side.- Looking, therefore, to the pleading, we cannot say as a matter of law that appellees failed to describe the 160 acres to which they claim title. And the verdict and judgment being in conformity to the pleading, a fundamental error based on the pleadings and judgment in the record cannot properly be said, we think, to appear.

The fourth assignment is based on a bill of exception to certain evidence. We think there was no error. Thornton v. Britton, 144 Pa. 126, 22 Atl. 1048; Boyd v. Railway Co., 101 Tex. 411, 108 S. W. 813.

The seventh assignment predicates error upon the refusal to permit evidence of the failure to pay taxes on the land in suit during the time it was claimed D. M. Jones was asserting adverse possession. It has been ruled that such evidence was proper and material. Harris v. Wagnon, 148 S. W. 606. Considering all the testimony in this ease, it is deemed injurious to appellant to have been denied the evidence sought, and is reversible error.

The other assignments, except the one involving the sufficiency of the facts, should be overruled. It is not necessary to pass on the facts, and we do not undertake to do so.

The judgment is reversed, and the cause remanded for another trial.


author: HARPER, J.

text:
    MADRID et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.
    Rehearing Denied Dec. 10, 1913.)
    1. Criminal Law (§ 678) — Indictment—Different Offenses.
    Where the indictment and evidence would have sustained a conviction of either assault to murder, maiming, or robbery, but the offenses all arose out of one transaction, the state was required to elect the offense for which it would seek a conviction, since, while defendants could be convicted of any one, they could not be convicted of more than one.
    [Ed. Note. — For other cases, see Criminal Law, Cent. , Dig. §§ 1580-1583; Dec. Dig. § 678.]
    2. Criminal Law (§ 1167) — Indictment-Separate Offenses.
    Where an indictment in separate counts charged assault to murder, maiming by cutting off prosecutor’s ears, and robbery, defendants were not prejudiced by the fact that the court only submitted the charge of robbery, since the state was entitled to elect and ask a conviction for the most grave offense, included in the indictment, which the evidence would support.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. § 1167.]
    3. Indictment and Information (§ 171)— Joint Defendants — Separate Conviction.
    ■Where an indictment charged that three persons named did unlawfully and willfully make an assault on prosecutor, etc., all were not entitled to an acquittal unless the evidence showed that they jointly committed the offense, but one or more could be convicted according to the proof of guilt.
    " [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 536, 537, 549; Dee. Dig. § 171.]
    4. Criminal Law (§ 111) — Jurisdiction—Offense at County Boundary.
    Where an offense was committed near a county line and evidences of the crime were discovered about 50 feet from the line, defendants could be properly prosecuted in either county under Code Cr. Proc. 1911, § 238, providing that an offense committed on the boundary of any two counties may be prosecuted in either.
    [Ed. _ Note. — For other cases, see Criminal Law, Cent. Dig. § 229; Dec. Dig. § 111.] „
    5. Criminal Law (§ 775) — Instructions— Alibi.
    Where, in a prosecution for robbery, the court gave the ordinary charge of alibi and then gave a special charge at defendants’ request that though the jury might believe beyond a reasonable doubt that defendants were present at or near the place where the alleged assault was committed, yet if they further found that there was any mistake as to the personal identity of defendants as being parties who committed the offense, or if they had reasonable doubt as .to whether they were the parties, they should acquit, the defendants’ identity as the persons guilty of the offense was sufficiently submitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1833-1837; Dec. Dig. § 775.]
    6. Criminal Law (§ 800) — Instructions— Willful.
    In a prosecution for robbery, it was proper for the court to define the word “willful” and require that the jury find that the robbery was unlawful and willfully committed, though the statute defining the offense does not in terms require that the robbery be willfully done.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. § 800.]
    7. Criminal Law (§ 1172) — Instructions— Prejudice.
    Accused, in a prosecution for robbery, was not prejudiced by an instruction that the robbery must have been willfully committed, since such requirement only imposed an additional burden of proof on the state.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    8. Criminal Law (§ 1124) — Motion for New Trial — Newly Discovered Evidence.
    An order denying a motion for a new trial for newly discovered evidence cannot be reviewed on appeal where evidence submitted on the motion is not brought up by bill of exceptions or otherwise.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. § 1124.]
    9. Criminal Law (§ 958) — New Trial — Newly Discovered Evidence.
    An application for a new trial for newly discovered evidence was properly denied where there was no showing of diligence to procure the evidence at the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2396-2403; Dee. Dig. § 958.]
    10. Criminal Law (§ 938) — New Trial— Newly Discovered Evidence — Requisites.
    Newly discovered evidence, in order to afford ground for a new trial, must in fact be newly discovered and such as could not by reasonable diligence have been discovered in time for the trial. It must also be probably true and of such a nature as would probably produce a different result.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. § 938.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Mose Madrid and others were convicted of robbery, and they appeal.
    Affirmed.
    C. Nugent, of Matador, B. E. Cook, of Ste-phenville, and W. F. Ramsey and C. L. Black,, both of Austin, for appellants. C. E. Lane,. Asst. Atty. Gen., for the State.

      For other eases see same topic and section NUMBER in Deo. 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

   HARPER, J.

On the 4th day of February,. 1913, the appellants were indicted by the-grand jury of Erath county. The indictment contains three counts; the first charging-them with assault to murder one J. D. Roase-well, the second charging them with maiming him by cutting off his ears, and the third charging them with robbing the said Roase-well. It may be said the evidence offered in behalf of the state would support either and all the above counts. However, the court only submitted the third count in the. indictment, and appellants insist that, as the evidence, if it would support the third count, would also support the other two counts, the-court should in his charge have submitted all three of the counts; that if the court had done so the jury might have found appellants guilty of either assault to murder or ' maiming, and, as the punishment for either of these two latter offenses is less than that, affixed to the- offense of robbery, appellants, were materially injured by the court only-submitting the graver offense for their consideration.

While it is true that under the indictment in this case and the evidence adduced thereunder the appellants could have been convicted of either assault to murder, maiming, or robbery, yet as it was all one transaction they could not be convicted of all three offenses, nor any two or them, and it has always been held that, when the elements entering into a transaction would constitute two or more offenses, the state has the right to elect which one of the offenses for which it will seek a conviction.

By the court only submitting robbery, appellants suffered no injury of which they will be heard to complain. Under the charge of the court, if the jury had not believed, beyond a reasonable doubt, that appellants were guilty of robbery as charged in the third count, they would have been compelled to acquit appellants, even though they had believed them guilty of either maiming or assault to murder. This is a matter of which the appellants cannot be heard to complain, as the state has the right to elect and ask a conviction for the most grave offense which the evidence will support'. Branch, in his Criminal Law, correctly states the rule to be: “He (state’s counsel) may carve as large an offense out of a single transaction as he can, but he must cut only once” — citing Grisham v. State, 19 Tex. App. 513; Paschal v. State, 49 Tex. Cr. R. 111, 90 S. W. 878; Taylor v. State, 50 Tex. Cr. R. 288, 98 S. W. 839; De Leon v. State, 55 Tex. Cr. R. 41, 114 S. W. 828; Herera v. State, 35 Tex. Cr. R. 607, 34 S. W. 943.

Tlie indictment charges that “Mose Madrid, Tom Maker, and Frank Ostrowski did unlawfully and willfully make an assault.” Under this indictment appellants contend that they must jointly have committed the offense, and, if either one was entitled to acquittal, then all should have been acquitted, and the court erred in not so instructing the jury. This is not the law, for under an indictment charging that all three persons committed the offense, in the language contained in this indictment, if the evidence should show the guilt of only one, the jury would be authorized to so find and acquit the other two, and the court did not err in so instructing the jury. Neither did the court err in instructing the jury that, if “Mose Madrid either alone, or acting under such circumstances with Tom Maker and Frank Ostrowski or any other person as to constitute him a principal, did then and there unlawfully,” etc., commit the offense, he should be convicted, and in thus applying the law to each of the other two defendants. The case of Tooney v. State, 5 Tex. App. 163, and others cited by appellants correctly announce the law to be that it is error to submit to the jury an issue not presented in the indictment, but such rule of law has no application to this case. The court presented no issue not presented in the indictment. The issue submitted as to each of the appellants was: Did he, acting alone or acting in connection with some other person under such circumstances as to constitute him a principal, commit the offense of robbery as charged in the indictment? If an indictment should charge that A. alone committed the offense of robbery, and the evidence should conclusively show that B. in fact committed the offense, yet it also should show that A. was at the time keeping watch and otherwise aiding or abetting B. in the commission of the offense under such circumstances as in law would constitute him a principal, the court would be authorized, and it would be his duty to so instruct the jury. Appellants’ able attorneys evidently had in mind the rule that if one is charged with having committed an offense, and the evidence should develop that instead of being a principal offender he was only an accomplice, he could not be convicted under the indictment. But such is not the rule when the evidence should show that the person on trial did not in fact strike the fatal blow in a murder ease, or, in robbery, take the money off the person, if the evidence would make him a principal in the commission of am offense. The contention of appellants “that a charge is erroneous which warrants a jury to convict on proof of acts not alleged in the indictment” is sound, but the error fallen into is that, because the indictment charges that “Mose Madrid, Tom Maker, and Frank Ostrowski did unlawfully and willfully make an assault,” etc., it is necessary that the proof show that all three jointly committed the offense. The indictment charged each of them with the commission of the offense, and charged no joint action on their part, and either could be convicted if the evidence showed his guilt, even though it should have been developed that some person not named in the indictment in fact took the money from Roasewell, if it was also shown that the person or persons named in the indictment committed such acts as constituted them a principal under the provisions of our Code.

The proof conclusively shows that the offense was committed in the town of Thurber near the line of Palo Pinto and Erath counties. Mr. Roasewell’s ear was cut off, his clothing and money taken off him, and he was cut in several places. The point where the ear was found, parts of clothing and blood, was about 50 feet from the county line within Erath county. Mr. Roasewell did not know where the county line was situate, but he stated circumstances and facts which showed the occurrence to have taken place near the county line. Article 238 of the Code of Criminal Procedure provides that an offense committed on the boundary of any two counties, or within 400 yards thereof, may be prosecuted and punished in either county. This article was evidently passed to meet just such contingencies as is here presented. The testimony not definitely fixing the place where the offense was committed on either side of the county line, but fixing it so near as to be certainly within 400 yards of the line, it was not necessary, nor would it have been proper for the court, to have submitted that issue to the jury. The indictment was returned by the grand jury in Erath county; the offense was alleged to have been committed in that county; and the evidence showing that if it did not actually occur in that county, yet it did occur within a short distance of the county line, the court properly refused the special charge instructing-the jury that if they did not find that the offense was committed in Erath county to acquit.

Mr. Roasewell on the trial of this case-positively identified appellants as the persons who assaulted, maimed, and robbed him. In addition to the plea of not guilty, appellants introduced evidence to show their whereabouts, and that they were not and could not have been the offenders. The court gave a charge on alibi, which has been frequently approved by this court. Branch’s Crim. Law,. § 3, and cases cited. In addition thereto the court gave the following special charge at. the request of appellants: “Although you may believe beyond a reasonable doubt that defendants were present at the place or near the place where the alleged assault was committed, yet if you further find from the evidence, if any, that there is a mistake as to-tiie personal identity of the defendants as being the parties who committed the offense, or if you have a reasonable doubt as to they being the parties who committed the offense, taking into consideration all of the facts and circumstances offered in evidence before you both by state and defendants, you should acquit defendants, and this you should do although the offense was actually committed.” Under such circumstances it was not necessary to give the other special charges requested on this issue.

The indictment in this case charged the appellants with having willfully committed the robbery. The court in his charge defined the word “willful,” stating: “The word ‘willfully,’ as used in this charge, means that the act must have been done with evil intent and legal malice and without reasonable grounds for believing it to have been lawful and without legal justification” — and then required the jury to find that the robbery was unlawful and “willfully” committed. Appellant assigns this as error, claiming that the Penal Code does not require the offense of robbery to be willfully done. While in defining robbery the Code does not use the word “willful,” yet the offense itself is composed of such elements that the meaning of the word is necessarily included therein.

However, if this were not true, the court in defining the word “willful” and requiring the jury to find that the act was willfully done, as legally defined, would have been adding a burden to the proof necessary to be made by the state, and it would not be an error of which appellant could complain.

The, prosecuting witness positively identified appellants as the persons who robbed him. The jury evidently believed him, and we, at this distance, cannot say he is unworthy of belief. No evidence was admitted over the objection of appellants; none that they, offered excluded; and under such circumstances we feel impelled to hold that there is no merit in that ground in the motion setting up the insufficiency of the testimony.

This disposes of all the grounds in the motion for new trial, except the one setting up newly-discovered testimony. The state’s attorney filed a replication to this portion of the motion for new trial. Appellants then filed a- supplemental plea in reply to the state’s answer, to which.the district attorney also filed a replication. Numerous affidavits are attached to each of these pleadings. The motion was heard by the court, and the record discloses there was evidence adduced thereon; yet this evidence is not presented to us by bill of exceptions or otherwise, and under such circumstances we can but presume the district judge was correct in overruling the motion on this ground.

Rut, was the testimony before us, we do not think the ground in the motion itself discloses that diligence to secure the testimony before the trial that the law requires to be used before a new trial will be granted on the ground of newly discovered testimony. No motion for a continuance was presented ; no application for a postponement of the case on the ground that insufficient time had been granted in which to get ready for trial; yet after conviction this is assigned as the reason why the witnesses were not produced at the trial. The courts cannot thus be trifled with. If, in fact, new testimony is discovered after conviction which was unknown to the defendant, and which could not have been known by the use of reasonable diligence, and the testimony is of a material nature, a new trial should always be granted. But in this case a total lack of diligence is wanting, and the testimony is not of that nature for which we would feel authorized to'disturb the verdict. In subdivisions 3, 4, 6, 6, and 7 of section 1149 of White’s Annotated Code of Criminal Procedure, the rules governing the granting of new trials on account of alleged newly discovered evidence are set forth at length, and the authorities there cited.

The evidence must in fact be newly discovered and such as could not, by a reasonable exercise of diligence, have been discovered in time for the trial; and although the testimony is in fact newly discovered evidence, yet if by the use of diligence it could have been discovered before the trial, a new trial will not be granted. It must be probably true and of such a nature that it would produce a different result. Considering the motion for new trial, together with the affidavits attached, and the contest filed by the district attorney, and the affidavits attached thereto by him, this ground of the motion for a new trial hardly comes up.to the requirements announced by Judge White in his annotations to our Criminal Procedure.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    Ex parte SIMPKINS.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    Habeas Cobpus (§ 113) — Appeal — Dismissal.
    Where, on a hearing upon habeas corpus, accused was remanded to the custody of the sheriff who was directed to release him upon bond, and accused appealed, his appeal should be dismissed for want of jurisdiction if he afterwards submitted to the trial court’s decision and entered into bond pursuant thereto.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. § 113.)
    Appeal from District Court, Grayson County; W. J. Mathis, Judge.
    Habeas corpus proceeding by E. S. Sirhp-Mns. From an order remanding relator to custody, he appeals.
    Appeal dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant resorted to a writ of habeas corpus to relieve himself from an arrest based on a complaint and information charging him with keeping a disorderly house. Upon a hearing he was remanded to the custody of the sheriff, who was instructed to release him upon his giving bond. Appellant gave notice of appeal from the decision of the court, and the ease was submitted. Since the submission appellant has concluded to accept the decision of the lower court and has entered into bond in pursuance of that conclusion. This fact has been made known to this court in a satisfactory way. This would dismiss the appeal for want of jurisdiction under the circumstances stated. This has been called to our attention by the attorneys on both sides and the sheriff and accompanying affidavit.

The appeal will be dismissed.


text:
    HEED v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Homicide (§ 63*) —Manslaughter — Absence oe- Intent to Kill — Mutual Combat.
    On a trial for homicide, it appeared that accused and deceased met accidentally; that there was some feeling by accused towards deceased on account of the killing of a dog; that defendant had threatened to whip deceased or the man who killed the dog; that he asked deceased if he killed it, to which deceased responded by asking him what he was going to do about it; that accused said he could whip whoever killed the dog, applying an insulting epithet to such unknown person; that deceased said he would not take that and told accused to get down from his horse, which accused did; that deceased struck accused with a whip handle on the head; that accused drew a knife, and in the ensuing fight, in which deceased obtained or attempted to obtain a railroad fishplate, accused stabbed deceased. Held, that if accused entered into the fight with no purpose of killing he could not be guilty, under the circumstances, of a higher grade of homicide than manslaughter, and hence the court should have submitted manslaughter from the viewpoint of mutual combat.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 86, 87; Dec. Dig. § 63.*]
    2. Homicide (§ 36*) —Manslaughter—Provoking Difficulty.
    Though accused used such insulting epithet to provoke a difficulty, if he intended to provoke only an ordinary fight, and was forced to kill under the circumstances, he was not guilty of a higher grade of homicide than manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 57; Dec. Dig. § 36.*]
    Appeal from District Court, Eastland County ; Thomas L. Blanton, Judge.
    John Reed was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    D. G. Hunt and J. K. Stubblefield, both of Eastland, for appellant. C. E. Lane, Asst Atty. Gen., for the State.
   DAVIDSON, J.

A brief summary of the evidence will show the defendant, who is about 20 years of age, killed Oliver Brown on the 9th of March, 1912. Brown was also a young man about 25 or 26 years of age. Appellant was the owner of a dog which was killed in the pasture belonging to the father of deceased. In February, before the killing in March, defendant and the elder Brown were at a country schoolhouse one Sunday. Defendant made inquiry of the elder Brown as to who killed his dog, and made the statement, while talking with him, that he could whip whoever killed his dog, and mentioned the name of deceased during, the conversation. The elder Brown denied’ Silling the dog. Appellant said that he or deceased killed him, or must have killed him. On the 9th of March appellant, in company with the two Campbell boys, Fayette and David, were en route to the town of Carbon on horseback, when they met deceased driving a wagon. Appellant asked Brown if he had killed his dog. Brown said, “What have you got to say about it?” Appellant said he “could whip the son of a bitch who killed his dog.” Brown, the deceased, dropped his lines and told appellant to get off his horse, which he did. As soon as appellant alighted from his horse, deceased struck him on the head with a whip handle, and the parties engaged in the fight in the wagon. During the fight deceased had three knife wounds inflicted on him by appellant, from which he subsequently died. The parties separated, appellant going to Carbon, and deceased drove away. Deceased was met by his brother directly, who took charge of the wagon and drove it home; deceased dying about 30 minutes after the difficulty and before he-reaehed his father’s home, where he lived. The conviction was for murder in the second degree, with a punishment of ten years allot-ed to him in the penitentiary. The knife used in the difficulty was a poeketkmfe;" no further description is given of the knife. It is also in evidence that, when deceased struck appellant on the head with the whip handle, appellant started towards the wagon, or attempted to get in the wagon, and deceased reached for and obtained a piece of iron, described as being a fishplate used in coupling railroad rails, and when he obtained this appellant says he stabbed or cut him with his knife. There was evidence pro and con that deceased had secured the piece of iron when cut. One of the Campbell boys testified practically as did appellant in regard to the difficulty. A brother of deceased was some 250 yards away, approaching the scene of the trouble, at the time it happened.

The court gave a charge on both degrees of murder, manslaughter, and self-defense. The charge on manslaughter is based upon the grounds: (1) An assault and battery causing pain or bloodshed; (2) a serious personal conflict in which great injury is inflicted by the person killed, by means of violence, etc.; (3) any condition or circumstance which is capable of creating and does create sudden passion, whether accompanied by bodily pain or not The court says: “All of the above are deemed adequate causes. And where there are several causes to arouse passion, although no one of them alone might constitute adequate cause, it is for you to determine, from all the facts and circumstances in the case, whether or not all such causes combined might be sufficient to do so.” Appellant requested an instruction submitting substantially manslaughter from the viewpoint of mutual combat. The testimony has been sufficiently stated in this connection; but, to restate, we find that the meeting was accidental. It is shown there was some feeling by appellant towards deceased on account of killing his dog, and it is shown he had threatened to whip him, or the man who did kill the dog. The father of the deceased, when asked by appellant, denied it. When appellant met the deceased, he asked him about it, and deceased said: “Wbat are you going to do about it?” Appellant said he could whip the son of a bitch who killed his dog. Deceased said he would not take that and told appellant to get down from his horse. Appellant accepted, got off his horse, and the fight began by deceased striking appellant tbe first lick with a whip handle on the head. When deceased invited him into the difficulty, .appellant accepted. This raised the question of imperfect self-defense viewed from the standpoint of an affray or mutual fighting. ' If he entered into the fight not for the purpose of killing, appellant could not be guilty, under the circumstances, of a higher grade of homicide than manslaughter. If it be viewed from the standpoint of appellant provoking the difficulty or provoking deceased to extend him an invitation by using the expression “son of a bitch,” and if that was intended to provoke the difficulty and it was of no higher magnitude than an ordinary fight, and he was forced to kill under the circumstances detailed, from his viewpoint of it he still would not be guilty of a higher grade of homicide than manslaughter. Deceased struck the first lick with his whip handle. Appellant then got out his knife. Under those circumstances, we are of opinion the court should have given the requested instructions. The issue presented by the charge requested was in the case. If the jury had been told what the law was under those peculiar circumstances, and viewed from that standpoint, they might have convicted him of no higher grade of homicide than manslaughter. As it is, they gave him ten years for murder in the second degree. There is no evidence in the record of any threats except a whipping. Harris did testify that defendant said that he and his knife could whip the deceased, but his testimony was withdrawn from the jury, and it does not even appear in the statement of facts. It was error on the part of the court to refuse this requested instruction. Carter v. State, 37 Tex. Cr. R. 403, 35 S. W. 378; Delgado v. State, 34 Tex. Cr. R. 159, 29 S. W. 1070; Habel v. State, 28 Tex. App. 588, 13 S. W. 1001; Gray v. State, 55 Tex. Cr. R. 98, 114 S. W. 639, 22 L. R. A. (N. S.) 513; Branch, Crim. Law, § 468; Rose’s Texas Notes, vol. 5, p. 1157.

There are some other matters arising with reference to impaneling the petit jury, as well as the refusal of continuance, which will not likely occur upon another trial.

For the errors indicated, the judgment is reversed and the cause is remanded.


text:
    IOVANOVICH v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    Criminal Law (§ 1099) — Appeal — Statement of Facts — Signing. ,
    It was not a sufficient excuse for appellant’s failure to procure a statement of facts that the officers of the state failed to agree on or return the proposed statement in time; it being the duty of defendant’s attorney under such circumstances to present his proposed statement to the judge and ask him to approve the same, or himself prepare and file a statement in the event he does not find the one presented correct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    George lovanovich was convicted of theft as bailee, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of the offense of theft by bailee, and his punishment assessed at four years’ confinement in the state penitentiary.

There is no statement of facts nor any bills of exception in tbe record, consequently no question presented in tbe motion for a new trial can be reviewed by us. Tbe indictment charges an offense under our laws, and in tbe absence of a statement of facts we must presume tbe court charged the law, and all the law, applicable to tbe evidence introduced.

Appellant’s* counsel has filed an affidavit stating that it was through no fault or negligence on the part of appellant or bis counsel that be has been deprived of a statement of facts, and asks that tbe ease be reversed, because be has been deprived of a statement of facts. Appellant’s counsel in tbe affidavit states be prepared a statement of facts and presented it to tbe assistant county attorney for examination and approval, but that such official, although frequently promising so to do, never acted on and never returned to him tbe statement of facts. If this was all tbe law required him to do, then be would be entitled to a reversal. But tbe law provides that, before be will be entitled to have bis case reversed because of failure to secure a statement of facts, be must, in addition to furnishing tbe county attorney a copy, when they fail to or do not agree upon tbe statement of facts, then present to tbe Judge a copy of the statement of facts, and ask tbe trial judge to prepare and file a statement, in tbe event be does not find tbe one presented to him to be correct. Appellant at no time presented a statement of facts to tbe trial judge, and under such circumstances be is not entitled to have bis ease reversed on that ground.

Tbe judgment is affirmed.


text:
    LARA v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Criminal Law (§ 363) — Evidence—Res Gestas.
    Where an officer claimed that be was called to a saloon and notified of pending trouble, and that some one had a knife; that he discovered the knife on accused’s person and demanded it; that accused refused to surrender it, and a difficulty arose, in which he was cut on the hand before he obtained the knife; that he then arrested four persons and started off with them, when some one called to him to watch out, and he was then assaulted from the rear; and that a person who came to his rescue was killed — he was properly permitted to testify on accused’s trial for assault to murder as to the details of both difficulties, the participants therein, the wounds inflicted on him, and that such person who came to his rescue was killed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 804; Dec. Dig. § 363.]
    2. Criminal Law (§ 338) — Evidence—Bes Inter Alios Acta.
    On a trial for assault to murder, evidence that another party had been convicted of murdering a person who came to the prosecuting witness’s rescue in the difficulty in which the alleged assault occurred, was improperly admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.*]
    3. Criminal Law (§ 338) — Evidence—Res Inter Alios Acta.
    On a trial for assault to murder, evidence that other parties had been indicted for their participation in the difficulty in which the alleged assault occurred, and such indictments themselves, were improperly admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.]
    4. Criminal Law (§ 338) — Evidence—Res Inter Alios Acta.
    On a trial for assault to murder, it was error to admit evidence that other parties indicted for their participation in.the same difficulty had forfeited their bonds, fled, and were refugees from justice, where accused had not attempted to flee, and was not shown to be responsible for the acts of such other parties subsequent to the difficulty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.]
    5. Homicide (§ 349) — Reversal—New Trial —Scope oe Inquiry.
    Where a conviction for aggravated assault under an indictment for assault to murder is reversed, assault to murder should not be submitted on the new trial.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 726; Dee. Dig. § 349.]
    Appeal from District Court, Wilson Coun-. ty; F. G. Chambliss, Judge.
    Florencia Lara was convicted of aggravated assault, and be appeals.
    Reversed and remanded.
    J. E. Canfield, of Floresville, for appellant. C. E. Lane, Asst. Atty. Gen., for tbe State.

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

   HARPER, J.

Appellant was indicted for making an assault on J. L. Allen with intent to murder him, be was convicted of aggravated assault, and bis punishment assessed at one year’s confinement in jail and a fine of 8300.

Mr. Allen was an officer, and be testified: That be was called to a saloon at Potb and notified of pending trouble, and that some one bad a knife. He searched several and failed to find any weapon. He says that appellant then approached, and invited him to take a drink, leaning up against him. He declined tbe drink, but felt a knife on appellant’s person, and demanded it. Appellant refused to surrender it, and a difficulty arose in which be was cut ón tbe band before be succeeded in getting the knife. He then arrested four Mexicans, and started off with them, and while at tbe back of tbe saloon, some one holloed to him to “Watch out,” when be was assaulted from tbe rear. He pulled bis pistol, but that in tbe mélée it was taken from him, and be was struck over tbe bead with it. Also some one struck bis right arm and broke it. That one Ludwig came to bis rescue and was killed.

Appellant testified lie had no knife on his person, but that Allen came to him and some five of his friends, who wére getting in the wagon to go home, and invited them to take a drink; that three of them did go in and take a glass of beer with Mr. Allen, and while they were drinking Ghaverrea passed by and stuck a knife in the waistband of his pants; that Mr. Allen at once grabbed the knife, and some one struck him from behind, and that he knew no more. It was permissible for Mr. Allen to testify as to all the details of the difficulty, or two difficulties, and as to who were participants therein; as to the wounds inflicted on him, and that Joe Ludwig was killed in the difficulty — that is, detail the entire transaction as it occurred from his viewpoint — and the bills of exception as to< this testimony present no error.

But it was not permissible for Mr. Allen to testify that Arrando had been indicted by the grand jury, tried, convicted of the murder of Mr. Ludwig, and sentenced to the penitentiary. Nor was it permissible for Mr. Allen to testify that the grand jury had investigated this difficulty and returned bills of indictment against Elberto Ghaverrea, Reyes Plores, Gregoria Corteñas, and others, charging them with assault to murder on him for their participation in this difficulty, and the court should not have admitted this testimony.

The court was also in error in permitting the bills of indictment against these others to be introduced in evidence. This was but getting before the trial jury the fact that the grand jury had accepted the state’s theory of the case, and indicted all those whom Mr. Allen said had been participants in the affray, and they could have been introduced for no purpose, except to support and bolster up the state’s theory. This investigation of the grand jury and return of the indictments were certainly after the difficulty, would shed no light on the difficulty, and were getting before the jury the opinion of the grand jury as to the merits of the disputed issues. The grand jury may not have been informed as to the defendant’s theory of the case; the evidence of the witnesses who tended to support his defense may not have been before the grand jury. Often this is the case, and it was highly improper to have permitted these indictments against others to be introduced in evidence. They were not witnesses, and as it appears by these indictments, they could not have been witnesses for the defendant, and the state tendered none of them as witnesses. We have treated these bills jointly, and this relates to all the indictments introduced, and on another trial the objection to their introduction in evidence should be sustained.

By another bill it is shown that Mr. Wright was permitted to testify: “I am acquainted with Gregorio Corteñas, and know that he was indicted by the grand jury of the December term of the district court, 1911, in connection with an assault to murder J. L. Allen. I had him under arrest, but he gave bond and has not been under process to this court, nor has he been since the indictment was returned. I have a capias for his arrest, and have made diligent search for him, and have sent circulars all over the southwest part of the state. I do not know where he is. I do not know Jilberto Chaverrea, but I have had a capias as an officer for him since the grand jury of December, 1911, but have no idea where he is. He has not been in court in Wilson county to my knowledge.-’ These were two of the men shown to have been indicted as participating in the assault on Mr. Allen, and the fact that they fled, had forfeited their bonds — were refugees from justice — was not legitimate evidence against this defendant It was not sought to .be shown he had anything to do with their flight, and he could, in no sense, be held responsible for any of their acts after the difficulty was over. He, at least, had not fled, nor made any attempt to do so, but was in court contending he had made an assault of no character, but instead, that he had been assaulted and seriously wounded. While testimony as to what took place during the difftoulty, the acts and conduct of each participant, was admissible in evidence, yet the subsequent acts of any of the others, in which he did not participate, were not admissible against him, and the court erred in not excluding all such testimony.

There are other bills in the record presenting similar matters, but what has been said should make it clear what testimony is admissible and what should be excluded, without taking up each bill and discussing it. As before stated, the fact that Mr. Allen was called to the saloon, that he searched for a knife, and the acts and conduct of each and every one of the alleged participants in the difficulty until it was over, under this record, were properly admitted in evidence. But nothing subsequent thereto should have been admitted. It was error to show that Arrando had been tried and convicted; it was error to show that others had been indicted for assault to murder; it was error to show that some of them had fled; it was error to show that others had forfeited their bonds — in fact all these matters that took place after the difficulty was over will be excluded on another trial.

We need not discuss the alleged errors in the charge on assault to murder, as that grade of offense will not be presented on another trial; having been convicted of aggravated assault only, on another trial that issue should alone be presented. Besides, the entire charge is copied in one bill, and the assignments of errors in it are too general to bring anything before us for review.

Reversed and remanded.