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WRITS OF ERROR DENIED
DENIED — Contd

SECOND DISTRICT

Abilene & S. R. Co. v. Burleson, 173 S. W. FOURTH DISTRICT

517. Adams & Garrett v. Randle, 171 S. W. 256.

THIRD DISTRICT Alamo Oil & Refining Co. v. Richards, 172 S. Rice v. Roberts, 177 S. W. 149. W. 159.

St. Louis S. W. R. Co. of Texas v. Shumate, Brown v. Yoakum, 170 S. W. 803.

178 S. W. 1050. Galveston, H. & S. A. R. Co. v. Enderle, 170 S. W. 276.

FOURTH DISTRICT Grand Temple & Tabernacle in State of Texas Globe Loan Company v. Betancourt, 171 S. W. of Knights & Daughters of Tabor of Inter

308. national Order of Twelve v. Johnson, 171 S. McCaleb v. Boerne Electric Power & Mfg. Co., W. . . , .

173 S. W. 1191. Jones v. Veltmann, 171 S. W. 287. Martinez v. Medina Valley Irr. Co., 171 S. W. W. H. Norris Lumber Co. v. Harris, 177 S. W.

Spiller v. Hollinger, 172 S. W. 175. 1035.

515. Whitaker v. Shenault, 172 S. W. 202.

FIFTH DISTRICT York Mfg. Co. v. Colley, 172 S. W. 206. Zucht v. San Antonio School Board, 170 S. W. Terrell Sewerage Co. v. Stiles, 177 S. W. 1053. 840.

Texas Midland R. Co. v. Becker & Cole, 171 S. FIFTH DISTRICT

W. 1024. Ball-Carden Co. v. Ridgell, 171 S. W. 509. Texas Midland R. R. v. Fogleman, 172 S. W. Hart v. Hart, 170 S. W. 1071.

558. Houston & T. C. R. Co. v. Smallwood, 171 S.

SIXTH DISTRICT
W. 292.
Murray Gin Co. v. Putman, 170 S. W. 806.

Texas & P. R. Co. v. Beaird, 169 S. W. 1050.
St. Louis, S. F. & T. R. Co. v. Smith, 171 S.
W. 512

SEVENTH DISTRICT Scates v. Rapid Transit R. Co., 171 S. W. 503. Wilkerson v. Ft. Worth & D.'c. R. Co., 17i Memphis Cotton Oil Co. v. Goode, 171 S. W.

284. S. W. 1041.

SIXTH DISTRICT
Beard v. International & G. N. R. Co., 171 S.

W. 553.
Bryson v. Abney, 171 S. W. 508.

WRITS OF ERROR GRANTED Bulloch v. Missouri, K. & T. R. Co. of Texas,

171 S. W. 808. Findlay v. Lumsden, 171 S. W. 818.

FIRST DISTRICT Glasscock v. Wells,' 171 S. W. 782.

Central Bank & Trust Co. of Houston v. Weiss, Rogers v. Harris, 171 S. W. 809.

170 S. W. 820. Smith v. Moore, 171 S. W. 822. Wacaser v. Rockland Sav. Bank, 172 s. w. Hollinger

v: Llano Granite & Marble Co., 173

S. W. 603. 737.

Missouri, K. & T. R. Co. of Texas v. Churchill, SEVENTH DISTRICT

171 S. W. 517. Barcus v. O'Brien, 171 S. W. 492. Bost v. McCrea, 172 S. W. 561.

SECOND DISTRICT David v. First Nat. Bank of Claude, 172 S. W. 579.

Jones v. City Nat. Bank, 166 S. W. 442. Memphis Cotton Oil Co. v. Gardner, 171 S. W. Thomas v. Barthold, 171 S. W. 1071.

1082
Parker v. Schrimsher. 172 S. W. 165.

THIRD DISTRICT
Sanger v. First Nat. Bank of Amarillo, 170 S.
W. 1087.

Brown v. Fleming, 178 S. W. 964.
Slaughter v. Boyce, 170 S. W. 259.
Winkie v. Conatser, 171 S. W. 1017.

FOURTH DISTRICT
EIGHTH DISTRICT

Galveston, H. & S. A. R. Co. v. Dickens, 170

S. W. 835.
Baldwin v. Jordan, 171 S. W. 1016.

Martin V. Burr, 171 S. W. 1044.
Barstow v. Ward County Irr. Dist. No. 1, 177
S. W. 563.

FIFTH DISTRICT
Bastrop & Austin Bayou Rice Growers' Ass'n
V. Cochran, 171 S. W. 294.

Allison v. Richardson, 171 S. W. 1021.
Childs v. McGrew, 171 S. W. 506.

Insurance Co. of North America v. O'Bannon, Fidelity & Deposit Co. of Maryland v. Albrecht, 170 S. W. 1055.

171 S. W. 819. Houston Lighting & Power Co., 1905, v. Con

SEVENTH DISTRICT ley, 171 S. W. 561. Marks v. Sambrano, 170 S. W. 546.

Browder v. Memphis Independent School Dist., Prince v. Taylor, 171 S. W. 826.

172 S. W. 152.

Pollard v. Allen, 171 S. W. 530.
WRITS OF ERROR DISMISSED

EIGHTH DISTRICT
FIRST DISTRICT

Dickson v. Lights, 170 S. W. 834.

McBride v. Loomis, 170 S. W. 825. Lone Star Canal Co. v. Broussard, 176 S. W. Miller v. Flattery, 171 S. W. 253. 649.

Simmons v. Arnim, 172 S. W. 184.

THE

SOUTHWESTERN REPORTER

VOLUME 179

lar, a check drawn by plaintiff to defendant's SHELBY v. GRABBLE.

order, which plaintiff testified was delivered by

him to defendant and subsequently charged to (Court of Appeals of Kentucky. Oct. 15, 1915.) his account in the bank and represented money 1. APPEAL AND ERROR Om 1002 REVIEW which he had loaned to defendant, was compeQUESTIONS OF FACT.

tent to impeach defendant, though the amount Where plaintiff and his witnesses testified covered by the check was not a part of the loan to one state of facts, and defendant and his represented by the note. witnesses to another state of facts, a verdict [Ed. Note.-For other cases, see Witnesses, for plaintiff was not flagrantly against the evi- Cent. Dig. 88 1273, 1275; Dec. Dig. Om405.) dence, and the Court of Appeals could not substitute its judgment for that of the jury as to Appeal from Circuit Court, Ballard disputed questions of fact.

County. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. $$ 3935–3937; Dec. Dig. Om

Action by J. C. Grabble against A. M. 1002.]

Shelby. Judgment for plaintiff, and defend2. EVIDENCE Om 155-ADMISSIBILITY-SIMILAR ant appeals. Affirmed. EVIDENCE OF ADVERSE PARTY.

J. B. Wickliffe, of Wickliffe, and Eaton & Where, in an action on a note claimed to have been given for borrowed money, defendant Boyd, of Paducah, for appellant. Hendrick denied signing the note and sought to show that & Nichols, of Paducah, for appellee. plaintiff did not have the means with which to make the loan in question, and plaintiff testified that he had a sum of money in a bank, the

CLAY, O. This is a suit on a note for testimony of the cashier of such bank that plain- $850, dated March 1, 1912, and payable, 12 tiff had a large sum on deposit at or about the months after date, to the order of J. C. time the loan was made was competent.

[Ed. Note.-For other cases, see Evidence. Grabble, purporting to have been signed and Cent. Dig. 88 445-458, 2148; Dec. Dig. C'executed by A. M. Shelby. Shelby interposed 155.]

a plea of non est factum and want of con3. TRIAL O76–RECEPTION OF EVIDENCE-sideration. Plaintiff, J. C. Grabble, recoverOBJECTIONS-TIME FOR OBJECTIONS.

ed a verdict and judgment for $837.50, with Where the cashier of a bank testified from interest from the date of the note. Shelby a memorandum concerning plaintiff's deposit in the bank, if defendant desired to object to appeals. such evidence as secondary evidence and to [1] It is first insisted that the verdict is have the books produced, he should have ob- flagrantly against the evidence. Plaintiff jected and excepted at the time, and it was testified, in substance, that he and the detoo late to object after the cashier's testimony had been completed.

fendant had had various business transac[Ed. Note. For other cases, see Trial, Cent. tions. On October 14, 1911, he loaned the Dig. $$ 172, 183–190, 237; Dec. Dig. On 76.] defendant $350. In January, or February, 4. EVIDENCE 368 - DOCUMENTARY EVI. 1912, he loaned the defendant $185. Later DENCE-REQUIRING PRODUCTION.

Where the cashier of a bank testified with on in the month of February he loaned the out objection from a memorandum concerning defendant $235. The defendant was also in a deposit in his bank, and the books of the debted to him for certain fee bills. Finally bank were not in the town where the trial was he and the defendant made a settlement, taking place, but in a neighboring town, and to whereby it was agreed that the amount due, require their production would probably have necessitated a delay or postponement of the including certain interest and fee bills, was trial, it was not error after he had completed $850. Thereupon plaintiff drew up the note his testimony to refuse to order their produc- for $850, and, on meeting the defendant, the tion. Ed. Note. For other cases, see Evidence,

latter signed the note in the presence of Cent. Dig. 88 444, 1540-1558; Dec. Dig. Omplaintiff and John Nichols. John Nichols 368.]

testifies that he was present when the note 5. WITNESSES O 405-IMPEACHMENT_COMPE- was signed. It further appears from the eviTENCY OF IMPEACHING EVIDENCE.

dence for plaintiff that he was a constable at Where, in an action on a note claimed to the time and was also engaged in repairing have been given for borrowed money, defendant denied signing the note and testified that plain-machinery, from which he derived some intiff never at any time loaned him a single dol- come. On cross-examination, it was sought

On For other cases see same' topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to show that plaintiff did not have sufficient, which plaintiff also testifies was charged to money to make the loan. Plaintiff stated that his account in bank and represented money he had some money in bank. In this state which he had loaned to defendant. The obment he was corroborated by Mr. Lovelace, jection to this testimony is based on the fact the cashier of the bank at La Center. On that the $40 covered by the check was not a the other hand, defendant testified that he part of the loan represented by the note. never signed the note in question and that Inasmuch, however, as defendant testified plaintiff never loaned him a dollar in his that plaintiff never at any time loaned him a life. While there are a number of circum- single dollar, the evidence was competent for stances which tend to sustain the contention the purpose of impeachment and, being so of plaintiff, there are also certain circum- limited by the admonition of the court, was stances which tend to support the contention properly admitted. of the defendant. After all, it is a case The instructions are not subject to comwhere plaintiff and his witnesses testify to plaint. They authorize a verdict for the one state of facts, and defendant and his plaintiff only in the event defendant executed witnesses to another state of facts. That and delivered the note and there was a being true, it cannot be said that the verdict valuable consideration therefor. of the jury is flagrantly against the evi- Judgment affirmed. dence, and we are not at liberty, therefore, to substitute our judgment for that of the jury, which is the tribunal fixed by law, in

CARTER COAL CO. V. HILL. this character of cases, for settling disputed (Court of Appeals of Kentucky. Oct. 14, 1915.) questions of fact.

1. MASTER AND SERVANT Om 118–PROPPING [2-4] In testifying to the amount of money ROOF OF MINES-STATUTORY PROVISIONS. which plaintiff had in bank, Mr. Lovelace, Ky. St. 1909, $ 2739b, subsec. 7, which was the cashier of the bank at La Center, tes- in force in 1913, and which provided that every tified from a memorandum. Defendant in- owner, lessee, or operator of a mine should

provide and furnish the miners employed therein terposed no objection to this testimony. a sufficient number of caps and props to be used After the witness had testified at consider-by the miners in securing the roof in their able length on cross-examination and had rooms, and at such other working places where concluded his testimony, the defendant ob- such employment it was the duty of such miners

by law or custom of those usually engaged in jected to his testimony and asked that he to keep the roof propped after the miner had be required to produce the books of the bank. selected and worked the same, did not apply The objection and motion to produce the of propping or timbering did not devolve upon

where by custom or rule of the mine the duty books were overruled. Defendant claims the miner himself. that this was error. As the defendant [Ed. Note. For other cases, see Master and sought, on cross-examination of plaintiff, to Servant, Cent. Dig. 88 177, 202, 209; Dec. Dig. show that plaintiff did not have the means

118.) with which to make the loan in question, 2. MASTER AND SERVANT @ww278 — ACTIONS

FOR INJURIES-SUFFICIENCY OF EVIDENCE. and as plaintiff stated that he had a sum of In an action for injuries to one employed money in the bank at La Center, the evidence in defendant's mine, where the work of shootof the cashier of that bank that he had a ing or digging down the coal and loading it into large sum on deposit, at or about the time the evidence held to show that it was the duty of

cars was let by contract at a price per ton, loan was made, was certainly competent. If the mining company to prop the roof of the defendant desired to have the books show-room neck were the injured person was working plaintiff's account produced and to object ing, but that, under the contract between it and to the cashier's evidence on the ground that the duty devolved upon the contractor.

the contractor whom plaintiff was assisting, it was secondary evidence, he should have [Ed. Note.-For other cases, see Master and objected and excepted at the time and ask- Servant, Cent. Dig. $$ 954, 956–958, 960–969, ed for the production of the books. Where 971, 972, 977; Dec. Dig. Om 278.] a witness testifies from memory, or a memo- 3. MASTER AND SERVANT 118–LIABILITY randum, and no objection, based on the char

FOR INJURIES-DELEGATION OF DUTIES.

Where, under the custom of a coal mine acter of the evidence, is made at the time, in which the work of shooting or digging down it is too late to object after his testimony has the coal and loading it into cars was let out been completed; and where, as in this in- by contract at a given price per ton, it was stance, the books are not in the town where timber but to set the props in a room neck

the duty of the coal company not only to crossthe trial takes place, but in a neighboring where one assisting a contractor was working, town, it is not error, after the witness has the responsibility arising from this duty could completed his testimony without objection, not be evaded by a contract requiring the con

. to refuse to order the production of the [Ed. Note.-For other cases, see Master and books when this will probably necessitate a Servant, Cent. Dig. $$ 177, 202, 209; Dec. Dig. delay in or postponement of the trial.

118.) [5] Another error relied on is the introduc-4. MASTER AND SERVANT @mw190--LIABILITY tion by plaintiff of a check for $40, drawn to

FOR INJURIES-ASSURANCE OF SAFETY. the order of defendant, and which plaintiff in which the work of shooting or digging down

Where the duty of cross-timbering a mine says that he delivered to defendant, and the coal and loading it into cars was let out

Ky.)

CARTER COAL CO. v. HILL

3

by, contract rested on the coal company, and it and judgment for $15,000. The coal comselected B. to perform this work, B. was a pany appeals. vice principal, and his assurance to one who was assisting a contractor that the roof of a

The facts are as follows: The company room neck was safe was, in effect, an assurance employed certain men to undercut coal by by the coal company.

means of electrical cutting machines. After [Ed. Note. For other cases, see_Master and the coal is undercut it is the duty of other Servant, Cent.Dig. $$ 449-474; Dec.Dig. Omw 190.]

employés, called "loaders," to shoot or dig 5. MASTER AND SERVANT Ow157–LIABILITY down the coal and load it into the cars. This FOR INJURIES-CONTRIBUTORY NEGLIGENCEWARNING OF DANGER.

character of work was let out by contract at If B., instead of giving an assurance of so much per ton. One G. P. Brooks had the safety, warned such employé that the room contract at the place where plaintiff was neck was dangerous a sufficient length of time before the accident to have enabled him by injured. In carrying out his contract Brooks the exercise of ordinary care to stop work and was assisted by plaintiff, Will Gaylor, and avoid the peril, it was his duty to heed the W. F. 'Detherage. Plaintiff had had about 15 warning of danger, and he could not recover for years' experience as a miner. Prior to the an injury caused by the dangerous condition of accident he had been working as a loader in the roof.

[Ed. Note.-For other cases, see Master and another part of the mine. On the morning Servant, Cent. Dig. $ 303; Dec. Dig. Om157.] of the accident he was directed by Brooks 6. TRIAL 125 - CONDUCT OF COUNSEL to go to work in a room neck. This neck had IMPROPER ARGUMENT. In an action for personal injuries against called a room.

not been carried a sufficient distance to be

It was only 9 or 10 feet a coal company, plaintiff's counsel stated that the corporation's "hoarded thousands and mil- wide, and the work of mining had progresslions" could not pay plaintiff for the wails and ed only for a distance of about 20 feet. Soon pains and agonies that he had suffered, and re-after plaintiff went to work he was struck ferred to the corporation as a wicked, soulless corporation that had no life and could not be by a large piece of overhanging slate and hurt or feel, and as a lawless corporation that severely injured. The roof of the neck at had left desolation, destruction, and maiming this point could have been protected by from one end of a creek to the other. Objections and motions to exclude these statements cross-timbers of jack posts, and it was the were overruled. Held, that this argument was duty of the company to do this work. so objectionable as to require a reversal, es- Brooks says that it was his duty to do all pecially as counsel, in going outside of the straight timbering; that is, set the jack record and bringing to the attention of the jury the amount of money which the corporation posts. Pete Broyles, the timber man, who had and the number of accidents which had was also sued, says that it was his duty to happened in its mine, could have had no pur- do the cross-timbering, but not set the jack pose other than to inflame the minds and excite posts. Other witnesses say it was not part the passions of the jury.

[Ed. Note. For other cases, see Trial, Cent. of plaintiff's duty either to cross-timber, set Dig. $8 303-307; Dec. Dig. Om 125.]

the jack posts, or take down the draw slate. 7. APPEAL AND ERROR Om 688—REVIEW-Mo-Plaintiff also states that just before going inTIONS FOR NEW TRIAL-AFFIDAVITS.

to the room neck he was assured by Pete Under Civ. Code Prac. $.340, subsec. 2, Broyles, the timber man, that the top of the authorizing a new trial for misconduct of the jury, the prevailing party, or his attorney, and room was sound. Plaintiff also claims that section 343, providing that the grounds men- it was his custom to sound the roof when he tioned in such subsection, among others, must went to work; that he did so on the occasion be sustained by affidavits showing their truth, in question, and the roof appeared to be affidavits as to improper argument which took place in the court's presence, about which there solid. Plaintiff admits, however, if he found was no dispute, and to the happening of which the slate loose it was then his duty to rethe court certified in the bill of exceptions, were port it to some one. For the defendant, the unnecessary; such affidavits only being requir: mine foreman, York, after stating it was ed where the misconduct of counsel does not take place in the court's presence or is the sub- his duty to look after the working places and ject of dispute, if it does so take place.

see that they were safe, testified as follows: [Ed. Note.-For other cases, see Appeal and

"Q. Tell the jury whose duty it was to take Error, Cent. Dig. 88 2894–2896; Dec. Dig. Om down the draw slate. A. It was the contractor, 688.]

the men employed loading the coal to take it

out; or, if it come in large falls, we would Appeal from Circuit Court, Knox County. send a man to help timber it up and pay them

Action by W. H. Hill against the Carter for taking it up." Coal Company. From a judgment for plain

Broyles, the timber man, testified that it tiff, defendant appeals. Reversed and re

was not his duty to look after the loose slate manded.

at the face of the coal in the men's working J. D. Black and Black, Black & Owens, all places. It was his duty to cross-timber, but of Barbourville, for appellant. Brown & this could not be done within 12 feet of the Nuckols, of Frankfort, and Golden & Lay, face of the coal. He further testified that of Barbourville, for appellee.

the place where plaintiff was at work was

too close to the face of the coal to permit CLAY, O. This is a personal injury case of cross-timbering, and it was no part of in which plaintiff, W. H. Hill, recovered of his duty to set the jack posts, although he defendant, Carter Coal Company, a verdict admits that he started to get a jack post for

the purpose of setting it up just shortly be- it was the duty of the company not only to fore the accident occurred. He further cross-timber, but to set the props, the reclaims that just prior to the accident he sponsibility arising from this duty could not warned plaintiff of the dangerous condition be evaded by a contract requiring the conof the roof. Gaylor, who was working with tractor to perform the work. If, upon anplaintiff, and who had formerly been a con- other trial, it should be made to appear that tractor and assigned his contract to Brooks, the contractor's employés were themselves said that, under his contract, the company charged with the duty of propping or taking was to do all cross-timbering, but he was to down the draw slate, then the question of set the jack posts. Detherage, who was also whose duty it was to do such work under working with plaintiff, testified that it was the particular circumstances of this case the duty of the man doing the contract to should be submitted to the jury. Of course, take down the loose slate; that the man en- if it was the duty of the plaintiff and those gaged in loading coal is always supposed to working with him to do this work, and they take care of the loose, slate. He further said failed to do so, and by reason thereof he it was the duty of the man who loaded the was injured, there can be no recovery. coal to set the jack posts. Brooks, the con- [4, 5] Objection is urged to an instruction tractor, testified that it was not the duty of authorizing a recovery based on an assurthe company to timber at the place where ance of safety given by Broyles, the timber the slate fell. It was his duty, under his man. It is urged that Broyles was not in contract, to have the draw slate taken down authority over plaintiff and had no right and to set the jack posts in the working to bind his master by an assurance of safeplaces.

ty. The evidence shows that the duty of [1-3] The accident out of which this action cross-timbering the rooms devolved upon the arose occurred in the year 1913, and there company. Broyles was the agent selected fore prior to the amendments of 1914 to the by the company to perform this work. He mines and mining statute. Under the stat- was to do this work when the conditions reute then in force, it was the duty of the quired, and it must be presumed that he posmine owner, after the miners had selected sessed superior knowledge of the danger, or and marked them, to furnish to the miners lack of danger, growing out of the condition a sufficient number of caps and props to be of the roof. As the duty of cross-timbering used by the miners in securing the roof in devolved upon the master, and as this duty their rooms, and at such other working plac- was intrusted to Broyles, Broyles became a es where by law or custom of those usually vice principal and took the place of the masengaged in such employment it was the du- ter, and his assurance of safety was, in efty of the miners to keep the roof propped. fect, an assurance by the master. It follows Section 2739b, subsec. 7, Kentucky Statutes that the trial court did not err in giving the 1909. Manifestly, this statute is not appli- instruction referred to. We conclude, howcable where, by custom or rule of the mine, ever, that the rule should work both ways. the duty of propping or timbering does not Broyles not only says that he did not give devolve upon the miner himself. Defendant plaintiff any assurance of safety, but disinsists that the trial court erred in assuming tinctly told him that the roof was dangerous. in the instructions that it was the duty of If the plaintiff had the right, on the one the defendant to prop the roof, and there hand, to rely on Broyles' assurance of safefore use ordinary care to make plaintiff's ty, he should be required, on the other hand, working place reasonably safe. Plaintiff's to heed Broyles' warning of danger, and the evidence shows that under the custom of the jury should be told, in substance, to find for mine no duty of propping devolved upon him. the defendant if Broyles, the timber man, Defendant insists that the evidence of York, warned plaintiff of the dangerous condition Broyles, Gaylor, Detherage, and Brooks, of the roof and of the danger of working above set forth, shows that it was the duty thereunder a sufficient length of time before of the plaintiff and those working with him the accident to have enabled plaintiff, by the to do the propping. We have carefully con- exercise of ordinary care, to stop work and sidered the evidence referred to, and fail to avoid the peril. find any ground for this contention. Brooks [6] In his argument to the jury counsel says it was his duty, under his contract, to for plaintiff used the following language: set the jack posts, and a careful reading of

"(1) You can take from this corporation its the statements of York, Detherage, Gaylor, pay this man for these wails and pains and

hoarded thousands and millions, and you can't and Broyles shows that the word "loaders” agonies that he has suffered. was used with respect to the contractor, and "(2) Go out and bring in a verdict here not with respect to the men employed by him against this wicked, soulless corporation-this to do the work. On the whole, we think the thing that's got no life, that you can't hurt and

that can't feel. evidence shows that it was the duty of the "(3) Something must be done with this lawcompany to do the propping, but that under less corporation that's left a string of desolathe contract between the company and

tion and destruction and maiming from one end Brooks this duty devolved upon Brooks. you have here before you in Wiley Hill.

of Brush creek to the other, a sample of which

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