The

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 neer, 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 himself and to said train and to those on board the same, and that, if said engine had been stopped after the engine and tender alone had passed over plaintiff, one of his limbs would have been saved, but that the said engineer, knowing the perilous position of plaintiff, continued to cause said engine and train to move, although he well knew that the plaintiff had fallen in front of said engine and was in a position of imminent peril, and would likely be injured, unless said train was stopped; that the failure to stop said train after discovering the perilous position of the appellee was the proximate cause of the loss of his right leg. Defend ant answered, denying each and all of the allegations of negligence set forth in plaintiff's petition, and averred that on the occasion in question it operated its train in the usual and customary manner at the usual and customary rate of speed at the time and place in question, and arrived at the station in question on its schedule time; that the plaintiff, Tom Aston, with a full knowledge that the defendant's said train and locomotive was approaching said place, deliberately stepped upon its said railroad track upon which said train and locomotive was running, in front of said moving locomotive, at a distance not more than eight or ten feet in front thereof; that said Aston was guilty of contributory negligence in going upon said railroad track at said time and place; that he was so close to the moving locomotive at the time that he entered upon said railroad track that it was impossible for those in charge of its locomotive to have stopped the same before reaching a point where the said Aston entered upon said track; that it rang its bell, sounded its whistle, and had its electric headlight burning as it approached said station in the usual and customary manner; that said Aston both saw and heard said train, and knew that it was approaching said station at said time; and that he recklessly, and without due regard for his own safety, and with a full knowledge of the danger which he would encounter by going upon defendant's track in front of its engine, deliberately went upon said track. The defendant railroad company specifically denied that its engineer in charge of said train knew of plaintiff's perilous position at the time he

ed by the defendant railroad company. The record discloses that both of plaintiff's feet and legs were crushed, the left by being run over by the engine drawing defendant's train and the mail and baggage car, and the right by other coaches in the train in the rear of said engine, mail and baggage cars. case was submitted to the jury impaneled to try the same upon special issues, and their findings were such as to preclude a recovery, except those upon the issues submitted in relation to discovered peril. They found, and the evidence warranted such findings, that the defendant's engine injured one of the plaintiff's legs, the left leg; that after the engine drawing defendant's train passed plaintiff the plaintiff was in a position of imminent peril, and that the defendant's engineer operating the engine was aware of plaintiff's position and imminent peril; that after said engineer discovered and became aware of the position and imminent peril of the plaintiff, he could have stopped the train by the use of the means at his command with safety to himself and to his train and to those on board of said train in time to have avoided injury to plaintiff's other footright foot; that the failure of the defendant's engineer to stop the train in time to avoid injury to plaintiff's right foot and leg was negligence and the proximate cause of the injury to said right foot and leg; that at the time plaintiff was lying upon the ground near defendant's railroad track, and was observed in that position by defendant's engineer as the engine passed plaintiff, said engineer realized that, if plaintiff remained in the position he was then in, he would probably be injured by the wheels of one of the rear cars if the train did not stop at that time and place; that plaintiff's right foot and leg were so injured by being run over by defendant's cars that it became necessary to amputate the same; and that plaintiff had sustained damages thereby in the sum of $10,000. The jury further found, in response to question asked by the court, that the plaintiff was not guilty of negligence which contributed to his injury.

Appellant groups in its brief its sixteenth, eighteenth, twenty-eighth, twenty-ninth, and thirtieth assignments of error. These assignments assert respectively that the trial court erred in refusing a special charge request

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 him. When I first saw him standing up, I do jections to the court's charge in submitting not remember the distance he was from the 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, between the two rails. I holloaed to the engiments and propositions thereunder, for the neer to stop her at that time. The engineer reason claimed, among others, that they pre-applied his emergency brakes, but the train did sent different questions of law, and are not followed by such statement as is required by the rules. The statement in support of the assignments does not strictly comply with the requirement of the rules, but we think the assignments themselves and the propositions propounded thereunder present the same question of law for our decision, and, especially in view of the fact that we have reached the conclusion that the judgment of the lower court should be affirmed, the assignments will be considered.

[1] It is claimed that the court erred in the several rulings complained of by the assignments because the evidence was insufficient to authorize the submission to the jury of the issue of discovered peril, and does not sustain the findings of the jury upon that issue. In this view of the evidence we do not concur.

The plaintiff testified:

see

* *

"When I reached that gravel walk that night and saw the train down south of me, there was no alarm or signals of any kind given. It was a dark night, and I could not tell by looking at the headlight of the train or any part of it that I could where the train train was. When I stepped into the track, I noticed the train was right on me. I could see the pilot right at me, it seemed to me. It scared me so bad I could not hardly tell you what happened. I fell off from between the tracks; fell out on the east side of the track. When I first fell, the train caught my left leg and cut it off or run over it. My leg was on the east rail. The engine and tender and the mail car and the baggage car passed over it, and the front end of the The negro negro coach struck my right leg. coach was behind those other cars. I could not explain how it got caught. I hardly know what I was doing at the time it got caught. I was lying with my head from the track, and when it struck my right leg it just changed ends with me and threw my head back toward the track. I cannot say how come me not to get off the track when my first leg was cut. I made an effort to get off. I was not able to get away. When this last coach I have testified about caught me, it caught the right leg. The right leg was last cut. It was run over and just mangled from my ankle, plumb up close to my knee. That knee was afterwards amputated." E. Pecot, the appellant's fireman on the engine which ran over appellee, testified by deposition as follows:

"In coming into the station with my train headed toward Corsicana on the night of the accident, I would be on the left side of engine, on the side next to the station. I first noticed Tom

not stop entirely. When I holloaed to the engineer to stop her, he immediately applied his emergency brakes, which of course, gradually brought the engine to a stop. Of course, the engine did not come to a standstill, but gradually got slower, and I asked him [the engineer] if he hit a man, and he said not."

This witness further testified, in effect, that after he called to the engineer to stop and the speed of the train was slackened, the engineer released the air brake, and the engine and train moved about the distance of two or three coach lengths, and stopped at the regular stopping place at the station; that there were five cars in the train; and that when the train stopped he immediately took his torch, and, in company with the engineer, who slightly preceded him, went back and found the plaintiff, who had attempted to cross the railroad track, lying on the ground on the opposite side of the track from the side he got upon it.

T. Stovall, the appellant's engineer, in charge of the engine which injured appellee, testified by deposition as follows:

"I could not say that I saw Tom Aston before he was injured. I first saw him when he fell out on the ground. The engine at that time was south of the Main street crossing. That is north of the depot down about the freight house between the two crossings. My engine was about 22 or 3 coaches from the ticket office at the time that occurred. Tom Aston was in the neighborhood of 30 feet from me when I first saw him.

Aston had fallen out when I first saw him. I do not know whether he had been struck at all by the engine when I first saw him. I recall the fireman saying something just before I reached there. I set my emergency brake immediately after that. That was all I could do."

He also testified:

had

"With reference to what rate of speed my train was moving that night after I passed the first crossing south of the depot, I will say I made application there for the station stop. i braked applications for station stop; enough to make the regular station stop. I had my engine under full control. When I saw Mr. track. His body was not on the ground, but it Aston, he was on the right-hand side of the was going to the ground. He was not standing erect; he was down. Just about the time I saw him, Mr. Pecot said, 'Did you hit that man?' * I saw Mr. Aston, and that made me apply the brake. * ** My train very nearly stopped when I applied my air brake at that time. I moved about three cars' length, I suppose, from where Aston was on the ground. At the time I saw him on the ground I thought he

*

*

a position of such danger as that he would probably be injured if the train was not then stopped. That the engineer did not make use of the means within his power consistent with the safety of the train and those aboard of it to then stop the train is conclusively shown by the testimony, and from the facts

and circumstances in evidence it is clear

engineer first saw the plaintiff he acted as a man of ordinary prudence and care would have then the engineer cannot be held to have discov acted under the same or similar circumstances, ered the plaintiff in 'imminent peril.'"

There was no error in refusing to give this charge. At the request of the appellant the court charged the jury as follows:

"If you believe from the evidence in this case that the plaintiff attempted to cross defendant's track directly in front of its moving train, and that defendant's engineer did not see plaintiff and he was in a falling position, and that the until the front of the engine had passed him, engineer immediately upon seeing plaintiff applied his brakes, and if you further believe from the evidence that after plaintiff fell it appeared to the engineer that he was in the clear, and was not in danger of being struck or further injured by the train, and after seeing the plaintiff the engineer used such care as a person of ordinary prudence would have used under the same or similar circumstances, then you are instructed that the engineer could not be held to have discovered plaintiff in imminent peril."

that the jury was authorized to infer and find that the engineer, having seen appellee falling to the ground, or lying on the ground, in close proximity to the railroad track and moving train, knew or realized, before appellee's right foot and leg were run over and crushed, that he was in peril of being injured by the moving train, and guilty of culpable negligence in failing then to use the means at his command to stop the train and avoid such injury. The facts were sufficient to charge the engineer with knowledge or realization of the perilous position of the appellee, and it was not essential to appellee'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:

"If there had been probability that by the continued movement of the train injury would be inflicted on the boy the duty to stop the train would have arisen, but no such result was indicated by the facts."

In the case at bar the engineer knew of the dangerous proximity of the appellee to its moving train, and the facts in evidence were sufficient to indicate to the engineer at the time he saw appellee falling to the ground that he would probably be injured by a continued movement of the train.

The next assignments of error present the same questions of law just discussed, and are disposed of by what we have already said.

[5] The twenty-third assignment of error complains of the court's refusal to give the following special charge:

"If you believe from the evidence in this cause that plaintiff attempted to cross defendant's track directly in front of its moving train, and that defendant's engineer did not see plaintiff until he was about even with the pilot beam or cylinder of the engine, and that at the time the plaintiff appeared to the engineer to be falling away from the engine, and that said engineer in charge of the engine thought that plaintiff fell away from the track and was not in danger of being run over by the train, and if you further believe that said engineer thereupon released his brake and allowed the train to move on to its usual stopping place, and after the

[7] The two remaining assignments of error are grouped and complain of certain remarks of counsel for the appellee in his closing argument to the jury. These remarks were, in substance, that the reason why the engineer and fireman were not here as witnesses so the jury could look at them was because they could not explain why they did not stop the train when they knew plaintiff had fallen down on the track in front of the moving train, and that "the engineer saw plaintiff when he was down on the rail of defendant's track in front of the engine." We are not sure that, under the facts of this case, the remarks of counsel here complained of were not within the scope of legitimate argument, but, if they were not, we are not prepared to say that they resulted in such injury, if any, to appellant as to authorize a reversal of the case. The assignments are therefore overruled.

We think the evidence supports the findings of the jury upon which the judgment appealed from was based, and that no material or reversible error is appointed out by the assignments.

The judgment of the court below is therefore affirmed.

Affirmed.

JOSEY et al. v. MASTERS. (Court of Civil Appeals of Texas. Texarkana. Nov. 4, 1915.)

1. SEQUESTRATION 13-RIGHT TO PROPERTY CLAIMANT-JURISDICTION-WAIVER OF

OBJECTION.

county. A writ of sequestration issued out (No. 1512.) of said justice court at appellee's instance was levied on the horse in Dallas county. Appellant Josey thereupon presented to the officer (the sheriff) who levied the writ his affidavit and claim bond, with appellants J. O. Hart and D. A. Bradshaw as sureties, for the purpose of trying the right of property in the horse, which the sheriff then delivered to him, as authorized by the statute. Article 7769 et seq., Vernon's Statutes. The affidavit and bond were not returned by the officer, with a copy of the writ, to a court in Dallas county having jurisdiction to try the question as to the right of property in the horse, as required by the statutes (articles 7776, 7778), but same were by the sheriff returned with the original writ to the justice court of Titus county, where judgment by default was rendered in favor of appellee against Josey, and also against the other appellants as the sureties on his claim bond. The cause having been removed to the county court of Titus county by means of a writ

Where, in an action brought in T. county for the title possession of a horse, plaintiff alleges that the horse is in the possession of defendant S. in D. county, and one J. presents, to the officer levying the writ of sequestration in D. county, his affidavit and claim bond to try the right of property in the horse, which the officer then delivers to him as expressly authorized by Vernon's Sayles' Ann. Civ. St. 1914, art. 7769 et seq., it is the duty of J., if the property is not in his possession when levied on, to see to it that the affidavit and claim bond are returned to a court in D. county as required by articles 7776 and 7777; and when he neglects this duty he will be deemed to have waived his right to object that these papers were not returned to the proper court, and that judgment was taken against him and the sureties on his bond in the action in T.

county.

[Ed. Note.-For other cases, see Sequestration, Cent. Dig. §§ 17-20; Dec. Dig. 13.]

2. APPEAL AND ERROR 934-PRESUMPTION of certiorari issued at the instance of appelJURISDICTION - POSSESSION OF PROPERTY. On appeal in such case, after it has been taken from the justice court to the county court by certiorari, it will be presumed, if necessary to support the trial court's ruling, that J. admitted that the property was in the possession of S. when levied on, where the application for writ of certiorari is not a part of the record.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3782; Dec. Dig. 934.]

3. SEQUESTRATION 20-CLAIMANT-NOTICE. In such case, J. and his sureties were chargeable with knowledge that the officer had sent such papers to the justice court in T. county, from which the writ of sequestration was issued, instead of to a court in D. county, and also with the fact that such justice court had jurisdiction under Vernon's Sayles' Ann. Civ. St. 1914, article 7778, to hear and determine the case, where the assessed value of the property did not exceed $200.

[Ed. Note. For other cases, see Sequestration, Cent. Dig. §§ 42-49; Dec. Dig.

20.]

4. COURTS 24, 25-JURISDICTION-CON

SENT.

Jurisdiction of the subject-matter cannot be conferred by the consent of parties, but where the court has jurisdiction of the subjectmatter the parties may by consent confer jurisdiction over their persons.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 76-80; Dec. Dig. 24, 25.]

Appeal from Titus County Court; Sam Porter, Judge.

Action brought in justice court by T. T. Masters against R. H. Josey and others. From a judgment for plaintiff in the county court, defendants appeal. Affirmed.

Seb F. Caldwell, of Austin, for appellants. T. C. Hutchings, of Mt. Pleasant, for appellee.

WILLSON, C. J. Appellee sued one Scullin in a justice court of Titus county for the title possession of a certain horse, which he alleged was in Scullin's possession in Dallas

lants, it was there tried de nova, and judgment was rendered in appellee's favor against appellant Josey for the horse and against Josey and the appellants J. O. Hart and D. A. Bradshaw as sureties on his claim bond, A. Bradshaw as sureties on his claim bond, and against J. E. Hart and H. A. Hood, sureties on the certiorari bond, $200 and $20 additional as a penalty allowed thereon by law.

The only issue tendered by appellants in the county court, so far as the record before us shows to the contrary, was one questioning the jurisdiction of the justice court of Titus country to try the right of property in the horse, on the ground that, the writ having been levied in Dallas county, the courts of that county alone had power to try that question. The contention presented by the issue tendered was based on article 7776, Vernon's Statutes, which required the officer who made the levy in Dallas county, when he received Josey's affidavit and claim bond, to indorse on the bond the value of the property as assessed by himself, and then to return same with a copy of the writ to a court in Dallas county "having jurisdiction according to the value of the property as assessed by

said officer," and article 7777 of said Statutes, which required said officer to return the

original writ to the justice court of Titus

county after indorsing thereon that claim to the property had been made and oath and bond given, "stating by whom, the names of the sureties, and to what justice or court the bond had been returned." Appellee excepted to the issue tendered, on the ground that, using his language, "the defendants invoked the jurisdiction of this court and caused this case to be brought to this court and caused this plaintiff to be cited to appear and prosecute this suit in this court." The court below sustained the exception. Whether he