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thrown upon the track, and before the train | saw plaintiff at the side of the track, and it stopped the wheels of one of the coaches denied that plaintiff was in a position of passed over said limb and injured it so that peril at said time, or that it continued to it was necessary to have the same amputat-operate and cause said locomotive and train ed. He further alleged that the engineer in to move with any knowledge of the plaintiff's charge of said train saw him fall in front being in a position of peril, and it denied of said engine by the side of the track, and that said engineer at any time after the locotherefore knew of his perilous position by motive passed the plaintiff lying upon the said track, and continued to move the said ground by the side of the track possessed engine and train after the perilous position any knowledge that he was in a position of the said plaintiff was known to said engi- where he would likely be injured unless the

er, when the said engineer could, by the train was stopped. Plaintiff, by supplementuse of the means at his command, have stop- al petition, denied the affirmative facts allegped the said engine and train with safety to ed by the defendant railroad company. The himself and to said train and to those on record discloses that both of plaintiff's feet board the same, and that, if said engine had and legs were crushed, the left by being run been stopped after the engine and tender over by the engine drawing defendant's train alone had passed over plaintiff, one of his and the mail and baggage car, and the right limbs would have been saved, but that the by other coaches in the train in the rear of said engineer, knowing the perilous position said engine, mail and baggage cars. The of plaintiff, continued to cause said engine case was submitted to the jury impaneled to and train to move, although he well knew try the same upon special issues, and their that the plaintiff had fallen in front of said findings were such as to preclude a recovery, engine and was in a position of imminent except those upon the issues submitted in peril, and would likely be injured, unless relation to discovered peril. They found, said train was stopped; that the failure to and the evidence warranted such findings, stop said train after discovering the perilous that the defendant's engine injured one of position of the appellee was the proximate the plaintiff's legs, the left leg; that after cause of the loss of his right leg. Defend- the engine drawing defendant's train passed ant answered, denying each and all of the plaintiff the plaintiff was in a position of imallegations of negligence set forth in plain-minent peril, and that the defendant's engitiff's petition, and averred that on the occasion in question it operated its train in the neer operating the engine was aware of usual and customary manner at the us- plaintiff's position and imminent peril; that ual and customary rate of speed at the time after said engineer discovered and became and place in question, and arrived at the aware of the position and imminent peril of station in question on its schedule time; that the plaintiff, he could have stopped the train the plaintiff, Tom Aston, with a full knowl-by the use of the means at his command with edge that the defendant's said train and safety to himself and to his train and to locomotive was approaching said place, de- those on board of said train in time to have liberately stepped upon its said railroad avoided injury to plaintiff's other foottrack upon which said train and locomotive right foot; that the failure of the defendwas running, in front of said moving loco- ant's engineer to stop the train in time to motive, at a distance not more than eight avoid injury to plaintiff's right foot and leg or ten feet in front thereof; that said Aston was negligence and the proximate cause of was guilty of contributory negligence in go- the injury to said right foot and leg; that at ing upon said railroad track at said time the time plaintiff was lying upon the ground and place; that he was so close to the mov- near defendant's railroad track, and was ing locomotive at the time that he entered observed in that position by defendant's enupon said railroad track that it was impos- gineer as the engine passed plaintiff, said sible for those in charge of its locomotive engineer realized that, if plaintiff remained in to have stopped the same before reaching a the position he was then in, he would probpoint where the said Aston entered upon ably be injured by the wheels of one of the said track; that it rang its bell, sounded its rear cars if the train did not stop at that time whistle, and had its electric headlight burn- and place; that plaintiff's right foot and leg ing as it approached said station in the usual were so injured by being run over by defendand customary manner; that said Aston ant's cars that it became necessary to ampuboth saw and heard said train, and knew tate the same; and that plaintiff had susthat it was approaching said station at tained damages thereby in the sum of $10,said time; and that he recklessly, and with-000. The jury further found, in response to out due regard for his own safety, and with question asked by the court, that the plaintiff a full knowledge of the danger which he was not guilty of negligence which contributwould encounter by going upon defendant's ed to his injury. track in front of its engine, deliberately Appellant groups in its brief its sixteenth, went upon said track. The defendant rail- eighteenth, twenty-eighth, twenty-ninth, and road company specifically denied that its thirtieth assignments of error. These assignengineer in charge of said train knew of ments assert respectively that the trial court ed by defendant directing the jury to return he attempted to cross the track. He was about a verdict in its favor, in overruling its ob- three feet from the left rail when I first saw jections to the court's charge in submitting not remember the distance he was from the

him. When I first saw him standing up, I do the issue of discovered peril, in overruling engine. I saw him before he attempted to cross. a motion made by defendant to have judg. He was on the left side of the track, and we ment entered in its favor upon the findings distance, probably 20 feet, from him when I saw

were going north. The engine was just a short of the jury, in overruling a motion made him standing there. I saw him when he stepby appellant to set aside the findings of the ped upon the track. My engine was about 8 jury upon the issues submitted in relation or 10 feet from him when I saw him step upon to discovered peril, and in granting the plain- street crossing just north of the depot before it

the track. The engine and train went to the tiff's motion to have judgment entered in his stopped; that is the engine's stopping place. favor upon the findings of the jury. Appel- When I say he stepped upon the track, I meant lee objects to a consideration of the assign- he stepped immediately in front of the engine, ments and propositions thereunder, for the neer to stop her at that time. The engineer

between the two rails. I holloaed to the engireason claimed, among others, that they pre- applied his emergency brakes, but the train did sent different questions of law, and are not not stop entirely. When I holloaed to the engifollowed by such statement as is required neer to stop her, he immediately applied his

emergency brakes, which of course, gradually by the rules. The statement in support of brought the engine to a stop. Of course, the the assignments does not strictly comply engine did not come to a standstill, but graduwith the requirement of the rules, but we ally got slower, and I asked him [the engineer] think the assignments themselves and the if he hit a man, and he said not." propositions propounded thereunder present This witness further testified, in effect, the same question of law for our decision, that after he called to the engineer to stop and, especially in view of the fact that we and the speed of the train was slackened, have reached the conclusion that the judg- the engineer released the air brake, and the ment of the lower court should be affirmed, engine and train moved about the distance the assignments will be considered.

of two or three coach lengths, and stopped [1] It is claimed that the court erred in at the regular stopping place at the station; the several rulings complained of by the as- that there were five cars in the train; and signments because the evidence was insuffi- that when the train stopped he immediately cient to authorize the submission to the jury took his torch, and, in company with the enof the issue of discovered peril, and does gineer, who slightly preceded him, went back not sustain the findings of the jury upon and found the plaintiff, who had attenipted to that issue. In this view of the evidence we cross the railroad track, lying on the ground do not concur.

on the opposite side of the track from the The plaintiff testified:

side he got upon it, “When I reached that gravel walk that night "

T. Stovall, the appellant's engineer, in and saw the train down south of me, there was charge of the engine which injured appellee, no alarm or signals of any kind given. It was a dark night, and I could not tell by looking at testified by deposition as follows: the headlight of the train or any part of it that “I could not say that I saw Tom Aston beI could

* see where the train was. *fore he was injured. I first saw him when he When I stepped into the track, I noticed the fell out on the ground. The engine at that time train was right on me. I could see the pilot was south of the Main street crossing. That is right at me, it seemed to me. It scared me so north of the depot down about the freight house bad I could not hardly tell you what happened between the two crossings. My engine was I fell off from between the tracks ; fell out on about 212 or 3 coaches from the ticket office at the east side of the track. When I first fell, the time that occurred. Tom Aston was in the the train caught my left leg and cut it off or neighborhood of 30 feet from me when I first run over it. My leg was on the east rail. The saw him. Aston had fallen out when I first engine and tender and the mail car and the bag- saw him. I do not know whether he had been gage car passed over it, and the front end of the struck at all by the engine when I first saw negro coach struck my right leg. The

The negro

him. I recall the fireman saying something coach was behind those other cars. I could not just before I reached there. I set my emerexplain how it got caught. I hardly know what gency brake immediately after that. That was I was doing at the time it got caught. I was all I could do.” lying with my head from the track, and when

He also testified: it struck my right leg it just changed ends with

“With reference to what rate of speed my me and threw my head back toward the track. I cannot say how come me not to get off the train was moving that night after I passed the track when my first leg was cut. I made an first crossing south of the depot, I will say I effort to get off. I was not able to get away: had braked applications for station stop;

made application there for the station stop. I When this last coach I have testified about caught me, it caught the right leg. The right enough to make the regular station stop. I had leg was last cut. It was run over and just my engine under full control. When I saw Mr. mangled from my ankle, plumb up close to my, track.' His body was not on the ground, but it

Aston, he was on the right-hand side of the knee. That knee was afterwards amputated.'

was going to the ground. He was not standing E. Pecot, the appellant's fireman on the erect; he was down. Just about the time I saw engine which ran over appellee, testified by him, Mr. Pecot said, 'Did you hit that man?

* * * I saw Mr. Aston, and that made me deposition as follows:

apply the brake.

* * My train very nearly “In coming into the station with my train stopped when I applied my air brake at that headed toward Corsicana on the night of the ac- time. I moved about three cars’ length, I supcident, I would be on the left side of engine, on pose, from where Aston was on the ground. At the side next to the station. I first noticed Tom the time I saw him on the ground I thought he

*

*

reason that I released my brakes. As soon as to his right foot and leg, and, according to my engine stopped, I saw Mr. Aston. I immedi- the findings of the jury upon questions not ately lit my torch and ran back to see if the involved in the issue of discovered peril, a man had been hurt."

R. L. Horn stated, in substance, that he recovery precluded. But such means were lived at Hubbard City, and was working at the not used, and as a result thereof plaintiff's ice factory stationary engine when the acci- right foot and leg, evidently in his efforts dent in question occurred, and that he was and struggle to free himself from the perilous at the depot that night; that as the appel- position in which he was placed, got upon the lant's train approached the station he noticed iron rail of the railroad track and was crushthe engine coming to a stop; that it was ed and injured to such an extent that ampu

tation was necessary. slowing down too much to stop at the regular stopping place; that he then heard the en- understand, is to the effect that, although

[2-4] The contention of appellant, as we gineer when he pushed the air in emergency, the engineer saw the appellee falling to the and heard him when he released the air ; that ground immediately at the railroad track he slowed down almost to a stop, and then re- about the front of the engine, yet there is leased the air and worked steam up to the regular stopping place. He further said nothing in the evidence to justify the concluthat, according to his estimate, the train was injured if the train was not then stopped,

sion that he realized that appellee would be going from the time it crossed the street up and hence the doctrine of discovered peril to the point where it struck the plaintiff be does not apply. And the propositions, among tween six and seven miles an hour, and that

others, are asserted: it was going slow after the emergency brakes

That "the engineer must have realized that, if were put on; that he did not know it to be Aston remained in the position he was then in, true as an engineer that the emergency ap- he would be injured, unless the train was plied to a train of that character running brought to an immediate stop," and "that the only six or seven miles an hour would stop the time and place in question, did in fact real

engineer in charge of defendant's locomotive, at the train instantly almost; that when the air ize that Tom Aston was in peril as he lay by is put in emergency it won't stop the train the side of defendant's railway track when the immediately. He stated, however, that the engineer was passing him, cannot be shown or application of the emergency brakes would and when such fact is shown only by conjecture

established by mere conjecture, nor inference; stop a train of five or six coaches on a level or inference, no liability is shown, and the issue track running five, six, or seven miles an of discovered peril does not arise." hour in about eight or nine feet; that the It is well settled that: engineer in charge of the engine that struck The doctrine of discovered peril “has no applithe plaintiff could have stopped the train in cation in the absence of actual knowledge, on a distance of nine feet after striking him if the peril of the party injured, in time to avoid

the part of the person inflicting the injury, of he had wanted to do so.

the injury by the use of the means and agencies Thus it appears that, when the appellant's then at hand. If he had no such knowledge, the engine struck appellee, he fell to the ground, new duty was not imposed, though it be clear and that after so falling, or as he was in the might have acquired same.” Railway v. Bread. act of falling, to the ground, the engineer ow, 90 Tex. 26, 36 S. W. 410. operating the engine saw him; that at this It is also well-established law that, where particular instant the engineer could have there is no evidence of negligence or fact stopped the train in a distance of nine feet from which negligence can be inferred, it is by application of the emergency brakes, but not permissible to indulge in mere conjecthat, instead of making use of such brakes, ture. But to state broadly, as in effect apupon the assumption that the plaintiff had pellant does in his second proposition quoted not been struck, he released the air and al- above, that it cannot be established by inlowed the train to move two or three car ference that the appellant's engineer on the lengths to the usual stopping place at the occasion in question realized that the plainrailway station. The engineer said hiniself tiff, Aston, was in peril as he lay by the side that he had his engine under full control. of appellant's railway track when the enHe further said, as has been shown, that:

gineer was passing him is not, in our opinWhen he first saw the plaintiff, he was about ion, sound. Mere conjecture cannot be in30 feet from him; "that he was on the right: dulged, but, if there are facts in evidence hand side of the track; that his body was not on the ground, but it was going to the ground. from which negligence reasonably can be inHe was not standing erect, he was down." ferred, a finding of negligence will be auAgain he said:

thorized and supported by the evidence. It “At the time I saw him (plaintiff] on the was not necessary to sustain a charge of negground I thought he had not been struck or run ligence on the part of the appellant on the over. That was the reason that I released my doctrine of discovered peril that its enbrakes."

gineer actually knew or realized that inHad the engineer made use of the means jury would result to appellee if the train was at his command after plaintiff's left foot and not stopped. The duty to use the means at leg had been crushed by the engine, it is his command to stop the train with the view clear that the train would have been stopped of avoiding injury to appellee instantly arose a position of such danger as that he would engineer first saw the plaintiff he acted as a probably be injured if the train was not then man of ordinary prudence and care would have stopped. That the engineer did not make acted under the same or similar circumstances,

then the engineer cannot be held to have discovuse of the means within his power consistent ered the plaintiff in 'imminent peril.'” with the safety of the train and those aboard of it to then stop the train is conclusively charge. At the request of the appellant the

There was no error in refusing to give this shown by the testimony, and from the facts court charged the jury as follows:

, and circumstances in evidence it is clear

"If you believe from the evidence in this case that the jury was authorized to infer and that the plaintiff attempted to cross defendant's find that the engineer, having seen appellee track directly in front of its moving train, and falling to the ground, or lying on the ground, that defendant's engineer did not see plaintiff in close proximity to the railroad track and until the front of the engine had passed him, in close proximity to the railroad track and and he was in a falling position, and that the moving train, knew or realized, before appel- engineer immediately upon seeing plaintiff aplee's right foot and leg were run over and plied his brakes, and if you further believe crushed, that he was in peril of being in- from the evidence that after plaintiff fell it apjured by the moving train, and guilty of and was not in danger of being struck or fur

peared to the engineer that he was in the clear, culpable negligence in failing then to use ther injured by the train, and after seeing the the means at his command to stop the train plaintiff the engineer used such care as a person and avoid such injury. The facts were suffi- of ordinary prudence would have used under cient to charge the engineer with knowledge are instructed that the engineer could not be

the same or similar circumstances, then you or realization of the perilous position of the held to have discovered plaintiff in imminent appellee, and it was not essential to appel- peril.” lee's right of recovery on the issue of discov- [6] The special charge requested and given ered peril that the engineer knew that he is equivalent to or practically the same as would certainly be injured unless the train the one requested and refused, and appellant was stopped. Railway Co. v. Vallejo, 102 has suffered no injury by the refusal of the Tex. 70, 113 S. W. 4. In the case just cited one made the basis of this assignment of the Supreme Court held that there was no error. Besides, it is a well-established rule duty on the part of the railway employés of practice in this state that, if two special discovering a small child about the railway charges are requested covering the same tracks of the appellant, but in no danger in issue, and the court selects one and gives it its position from the moving train, to stop in charge, the appellant is in no position to same and remove the child to a place of complain of the refusal of the other. Railsafety, but in discussing the question of the way v. Ford, 118 S. W. 1137. railway company's duty said:

[7] The two remaining assignments of er“If there had been probability that by the con- ror are grouped and complain of certain retinued movement of the train injury would be inflicted on the boy the duty to stop the train marks of counsel for the appellee in his closwould have arisen, but no such result was in- ing argument to the jury. These remarks dicated by the facts."

were, in substance, that the reason why the In the case at bar the engineer knew of engineer and fireman were not here as witthe dangerous proximity of the appellee to nesses so the jury could look at them was its moving train, and the facts in evidence because they could not explain why they did were suflicient to indicate to the engineer at not stop the train when they knew plaintiff the time he saw appellee falling to the ground had fallen down on the track in front of the that he would probably be injured by a con- moving train, and that “the engineer saw tinued movement of the train.

plaintiff when he was down on the rail of de. The next assignments of error present the fendant's track in front of the engine.” We same questions of law just discussed, and are are not sure that, under the facts of this case, disposed of by what we have already said. the remarks of counsel here complained of

[5] The twenty-third assignment of error were not within the scope of legitimate complains of the court's refusal to give the argument, but, if they were not, we are not following special charge :

prepared to say that they resulted in such in"If you believe from the evidence in this jury, if any, to appellant as to authorize a recause that plaintiff attempted to cross defend- versal of the case. The assignments are ant's track directly in front of its moving train, and that defendant's engineer did not see plain

therefore overruled. tiff until he was about even with the pilot beam We think the evidence supports the findor cylinder of the engine, and that at the time ings of the jury upon which the judgment apthe plaintiff appeared to the engineer to be falling away from the engine, and that said engi- pealed from was based, and that no material neer in charge of the engine thought that plain or reversible error is appointed out by the tiff fell away from the track and was not in assignments. danger of being run over by the train, and if

The judgment of the court below is thereyou further believe that said engineer thereupon released his brake and allowed the train to move

fore affirmed. on to its usual stopping place, and after the

Affirmed.

county. A writ of sequestration issued out JOSEY et al. v. MASTERS. (No. 1512.) of said justice court at appellee's instance (Court of Civil Appeals of Texas. Texarkana. was levied on the horse in Dallas county. Nov. 4, 1915.)

Appellant Josey thereupon presented to the 1. SEQUESTRATION O13-RIGHT TO PROPER- officer (the sheriff) who levied the writ his TY – CLAIMANT - JURISDICTION-WAIVER OF affidavit and claim bond, with appellants J. OBJECTION.

0. Hart and D. A. Bradshaw as sureties, Where, in an action brought in T. county for the title possession of a horse, plaintiff for the purpose of trying the right of properalleges that the horse is in the possession of ty in the horse, which the sheriff then delivdefendant S. in D. county, and one J. presents, ered to him, as authorized by the statute. to the officer levying the writ of sequestration in D. county, his affidavit and claim bond to Article 7769 et seq., Vernon's Statutes. The try the right of property in the horse, which affidavit and bond were not returned by the the officer then delivers to him as expressly officer, with a copy of the writ, to a court in authorized by Vernon's Sayles' Ann. Civ. St. 1914, art. 7769 et seq., it is the duty of j., if Dallas county having jurisdiction to try the the property is not in his possession when question as to the right of property in the levied on, to see to it that the affidavit and horse, as required by the statutes (articles claim bond are returned to a court in D. coun, 7776, 7778), but same were by the sheriff rety as required by articles 7776 and 7777; and when he neglects this duty he will be deemed turned with the original writ to the justice to have waived his right to object that these court of Titus county, where judgment by depapers were not returned to the proper court, fault was rendered in favor of appellee and that judgment was taken against him and the sureties on his bond in the action in T. against Josey, and also against the other apcounty.

pellants as the sureties on his claim bond. [Ed. Note. For other cases, see Sequestration, The cause having been removed to the counCent. Dig. 88 17–20; Dec. Dig. @ 13.]

ty court of Titus county by means of a writ 2. APPEAL AND ERROR 934-PRESUMPTION of certiorari issued at the instance of appel-JURISDICTION – POSSESSION OF PROPERTY. lants, it was there tried de nova, and judg

On appeal in such case, after it has been taken from the justice court to the county court ment was rendered in appellee's favor against by certiorari, it will be presumed, if necessary appellant Josey for the horse and against to support the trial court's ruling, that J. Josey and the appellants J. 0. Hart and D. admitted that the property was in the possession of S. when levied on, where the application A. Bradshaw as sureties on his claim bond, for writ of certiorari is not a part of the rec- and against J. E. Hart and H. A. Hood, sureord.

ties on the certiorari bond, $200 and $20 ad[Ed. Note. For other cases, see Appeal and ditional as a penalty allowed thereon by law. Error, Cent. Dig. 88 3777–3782; Dec. Dig. Om

The only issue tendered by appellants in 934.]

the county court, so far as the record before 3. SEQUESTRATION 20—CLAIMANT-NOTICE.

In such case, J. and his sureties were us shows to the contrary, was one questionchargeable with knowledge that the officer had ing the jurisdiction of the justice court of sent such papers to the justice court in T. Titus country to try the right of property in county, from which the writ of sequestration was issued, instead of to a court in D. county, the horse, on the ground that, the writ havand also with the fact that such justice court ing been levied in Dallas county, the courts had jurisdiction under Vernon's Sayles' Ann. of that county alone had power to try that Civ. St. 1914, article 7778, to hear and deterniine the case, where the assessed value of the question. The contention presented by the property did not exceed $200.

issue tendered was based on article 7776, Ver[Ed. Note.-For other cases, see Sequestration, non's Statutes, which required the officer who Cent. Dig. $$ 42-49; Dec. Dig. Om 20.]

made the levy in Dallas county, when he re4. COURTS On 24, 25 - JURISDICTION – Conceived Josey's affidavit and claim bond, to SENT.

indorse on the bond the value of the property Jurisdiction of the subject-matter cannot be conferred by the consent of parties, but as assessed by himself, and then to return where the court has jurisdiction of the subject- same with a copy of the writ to a court in niatter the parties may by consent confer ju- Dallas county “having jurisdiction according risdiction over their persons.

to the value of the property as assessed by [Ed. Note.- For other cases, see Courts, Cent. said officer,” and article 7777 of said StatDig. $$ 76-80; Dec. Dig. On 24, 25.]

utes, which required said officer to return the Appeal from Titus County Court; Sam original writ to the justice court of Titus Porter, Judge.

county after indorsing thereon that claim Action brought in justice court by T. T. to the property had been made and oath and Masters against R. H. Josey and others. bond given, "stating by whom, the names of From a judgment for plaintiff in the county the sureties, and to what justice or court the court, defendants appeal. Affirmed.

bond had been returned.” Appellee excepted Seb F. Caldwell, of Austin, for appellants. to the issue tendered, on the ground that, T. C. Hutchings, of Mt. Pleasant, for appellee. using his language, "the defendants invoked

the jurisdiction of this court and caused this WILLSON, C. J. Appellee sued one Scul-case to be brought to this court and caused lin in a justice court of Titus county for the this plaintiff to be cited to appear and prosetitle possession of a certain horse, which he cute this suit in this court.” The court bealleged was in Scullin's possession in Dallas / low sustained the exception. Whether he

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