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of the case, we do not feel authorized to say the sense that it was commonly used by pethat it was conclusively shown that the de-destrians and persons traveling in wagons, ceased was not struck at the crossing. It is buggies, and other vehicles, and a place true the witness Johnson on cross-examination where the operatives of appellant's train said he merely estimated the distance from might expect persons to be at any time. In the crossing to where the hat of the deceas- approaching such a crossing, although it be ed was found, and the appellant's surgeon, in the country, railway companies have no Dr. Thomas, stated that he stepped the dis- right, regardless of the danger to persons tance, which he says he found to be 130 feet; that may be lawfully using the crossing, to but the value and weight to be attached to operate its trains at such speed as they see the respective statements of these witnesses proper. Although the place of the accident was for the jury. Neither the ability of the is in the country, and there is no statute reg. witness Johnson to closely approximate the ulating the speed of trains, yet negligence distance from the crossing to the place where may be evidenced by the speed at which the the hat was lying, nor the correctness of his train is being propelled, when considered "in estimate, was, except by the testimony of Dr. connection with the place of the accident Thomas, called into question, and the jury was and the circumstances surrounding it.” It quthorized to conclude that he was not as bad- was the duty of appellant's servants on the ly mistaken in his estimate of the distance as occasion in question to exercise ordinary the testimony of that witness would indicate. care, and whether they were exercising such Dr. Thomas merely stepped the distance, and care in the speed of the train under the ciraccording to his statement of the number of cumstances of the situation was a question steps Johnson underestimated the distance for the jury. The case of Railway Co. v. 115 feet. This is hardly probable, and the Langham, 95 S. W. 686, cited by appellant, jurors were warranted in concluding, as they does not, in our opinion, announce a contraevidently did, that Johnson's estimate of the ry rule. Instead, the rule as stated here is distance was accurate. Besides, Johnson, distinctly recognized. who was present when Dr. Thomas claims he [5] Did the evidence show beyond constepped the distance, says that he did not see troversy that the statutory signals were givThomas step it, and the jury may have con- en? We think this question should be ancluded that he did not in fact step the dis- swered in the negative, notwithstanding there tance, but merely estimated it, as he did the is positive testimony of some of appellant's distance from the hat to the place where he witnesses that they were. The testimony of discovered "a disturbance in the ground like the engineer is to the effect that he sounded where people had walked around."

the road crossing whistle about one-quarter [4] Having held that the evidence raised of a mile distant therefrom, but that just bean issue of fact as to whether or not the de- fore, or about the time, the bell, which had ceased, Luten, was struck at the crossing, been ringing for the Dallas-Waco road crossit becomes necessary to consider whether or ing, was stopped, and not started again unnot it raised issues of negligence with re- til the stock alarm whistle was blown, when spect to the speed at which the train was he discovered the deceased on the track. As being propelled and the failure to give the to the sounding of the whistle, the fireman's statutory signals as the train was approach- testimony is practically the same as that of ing the crossing. First, could negligence be the engineer; but he testified that the bell predicated upon the speed of the train? We was not only kept ringing after the Dallas think so.

That this crossing should be and Waco dirt road had been passed, but classed as a public one, though not estab- made the unreasonable statement that the lished by the commissioners' court or worked bell "had been ringing all the time since we by the county, so far as the giving of the left Waco," a distance of about 19 miles. In statutory signals is concerned, can hardly be this latter statement the fireman was contraquestioned. It was over a high dump in dicted by the engineer who said: appellant's road. The approaches, which extended back about 35 feet, were built by approached that Dallas and Waco crossing with

“Yes; put the bell to ringing when we appellant, and the crossing maintained by it. the railroad, and then cut the bell off after passFor many years the crossing, with full ing that crossing, and the bell was started to knowledge of appellant, had been habitually ringing next after I blew the whistle for this

No; the bell was not ringing all the way used by the people in the neighborhood, and from Waco." the necessity for giving the statutory warnings for their protection prior to the acci- These were the only witnesses who testident in question had been recognized by ap- fied in regard to the ringing of the bell. The pellant, and such warnings usually given. train passed along on the east side of the deThe undisputed evidence shows that the ceased's house, and Mrs. Luten, who was train which struck and killed E. E. Luten sitting in the east room of her house as the was running 35 or 40 miles an hour as it train approached the crossing where the deapproached this crossing, and that a dense ceased was struck, and who heard the noise fog prevailed. The crossing, it is true, was of the train, but could not see it on account “I heard the train that morning as it went bell was not continuously rung from a disby. The whistle was not blown that morning tance of at least 80 rods from the crossing for that crossing.

I heard the train coming before it got even with the house. It wasn't as the train approached it, but that it was not making very much noise. The first time I started to ringing until the locomotive was heard the whistle blown, it blew two short in a much less distance from the crossing. blasts, and then stopped right after that; while whether the failure to give these signals it was coming to a stop I could hear a grating sound. When I heard the two short blasts, and was the proximate cause of the injury and the stopping of the train right after that, the death of E. E. Luten was a question for the train was over in the direction of that crossing jury. Clearly we would not be authorized near where Mr. Luten was found.”

to say as a matter of law it was not. This positive testimony of Mrs. Luten is [6] The next contention of appellant is that not qualified by any other statement made the testimony conclusively shows that, after by her in reference to the blowing of the appellant's servants in charge of the train whistle for the crossing in question. She discovered the peril of the deceased, they said that, if the engineer sounded the whistle did all in their power to stop the train and for the Dallas and Waco crossing, which was avoid injuring the deceased, but were unable a half mile or mile south of the crossing to do so; therefore the issue of discovered where it is claimed the deceased was struck, peril was not in the case, and that issue she did not hear it; that she did not mean to should not have been submitted to the jury. tell the jury it did not blow for that cross- We are not prepared to say the testimony is ing. In addition to Mrs. Luten, other wit of that conclusive character upon this quesnesses introduced by appellees testified with tion claimed for it by appellant. Whether respect to the blowing of the whistle at or the operatives of appellant's train discharged near the crossing. W. W. McCoy, who lived the duty imposed upon them by law, after about three-quarters of a mile away, said discovering the peril of the deceased, to that at the time Mr. Luten was killed he avoid striking and injuring him, was, in our was at home chopping wood; that he did opinion, a question for the jury. The testinot see the train, but heard it; that he al mony of the engineer is that the locomotive so heard the report of a gun, and that right was about 150 or 200 yards from the deafter he heard the report of the gun he heard ceased when he discovered that the deceased the whistle of the train give two short blasts, was a man; that he then blew the stock and that the train then stopped. He further alarm whistle, and the deceased veered to the said that he heard the noise of the running right, and he thought he was going to get off train before he heard the report of the gun, the track, but that he did not do so; that that he heard the whistle just after the re the train was running at the rate of 40 miles port of the gun, and that he did not hear an hour; that he did not know how far the the whistle before the gun fired. N. H.

train ran, after he blew the whistle and saw Humphreys' testimony

the deceased was not going to get off the

was substantially the same as the witness McCoy. He did not track, until he put on the brakes; that he hear the noise of the train, but heard the supposed he ran 200 or 300 feet from the time report of a gun and train whistle blowing. he blew the whistle until he put on the emer

gency brakes; and that the only brakes he He said:

“I heard the report of the gun before I heard put on were the emergency brakes. The firethe train whistle blow. After hearing the gun, man said that, when they first saw Mr. I heard two short blasts of the locomotive whis- Luten on the track, the engineer made an tle. * I did not hear the train blow be application of air, and not until they got fore the two short blasts."

within about 250 feet of the deceased did This testimony, we think, conflicts with the he apply the emergency brakes and open the testimony of appellant's engineer and fire sand pipes. The engineer also testified, as we man, and was amply sufficient to raise an have shown, that the deceased was 200 or 300 issue of fact as to whether or not the feet north of the road crossing when struck, whistle of the locomotive was sounded as and that when he saw the object on the track required by statute as the train approached and blew the whistle the first time he must the crossing. It is not purely of a negative have been just south of the crossing a few character as was the testimony in Railway yards; that it was either a short way south Co. v. Kutac, 76 Tex. 473, 13 S. W. 327, and of the crossing, or about at the crossing; Railway Co. v. Anderson, 126 S. W. 928, and that he kept his eyes on the deceased all a decision of the question is not governed the time after he discovered him on the track, by those cases. Its probative force is at and at no time did he see the deceased look least equal to that of the testimony touching around. So that whether, under all the facts a similar question in the case of Southern and circumstances shown, the operatives Traction Co. v. Owens, 198 S. W. 150, and of the train exercised that degree of care in that case a writ of error was denied. and diligence required by law to stop the So far as the ringing of the bell is concerned, train and avoid striking the deceased was an the testimony of the engineer and fireman, issue of fact, and not one of law. the only witnesses who testified on that issue, While appellant could not be charged with is in conflict, and the testimony of the engi- negligence until its servants in charge of the neer clearly warrants the conclusion that the train actually discovered the peril of the

*

*

deceased, "still it would be liable if, after Besides, the court gave a special charge re such discovery," they "failed to use the great- quested by appellant upon the issue, and the est precaution to avoid injuring" him. San- refusal of another requested charge upon the ches v. Railway Co., 88 Tex. 117, 30 S. W. 431. same issue is not reversible error. The speWhether the engineer was justified, especially cial charge given, however, presented the since the deceased failed to give evidence of theory of the one refused. knowledge of the approaching train by looking [8] The court charged the jury as follows: in its direction, in concluding, from the “Bearing in mind the foregoing definition, you mere stepping of the deceased to near the are further instructed that the law requires

those in charge of railway engines and trains east rail, that he was going to leave the to use great care and prudence in operating track, and the consequent delay in applying them, so as to avoid injury to the persons of the emergency brakes and opening the sand other people. And if, by the want of such care pipes, were pertinent and legitimate matters or prudence, injury is inflicted upon others,

without the fault of themselves, such company for the consideration of the jury upon the would be liable for such injury and damage.” issue. Again, the testimony authorizes, as

Appellant complains of this charge, and we have held, that the deceased was at the cites Railway Co. v. Smith, 87 Tex. 348, 28 crossing when struck, and, if he was, thes. W. 520. The charge in question is almost emergency brakes and sand, according to the literally the same as that given in Railway testimony of the engineer, were not used until Co. v. Matula, 79 Tex. 577, 15 S. W. 573, the locomotive approached within a few yards which under the facts of that case was apof the crossing. We would not be justified proved by the Supreme Court. In the later in saying as a matter of law that the issue

case, however, of Railway Co. v. Smith, suof discovered peril was not raised by the evi- pra, the Matula Case was discussed and limdence.

ited as to the degree of care required of [7] The second assignment of error com- railway companies at public crossings to plains of the refusal of the court to give a prevent injury to persons upon such crossspecial charge, requested by appellant, that, ings, and the rule announced to be that such unless the jury believed that E. E. Luten was companies must use ordinary care to disstruck while upon the road crossing, they cover the presence of persons at such crosscould in no event find in favor of the appellees. ings and to avoid inflicting injury upon them, There was no error in refusing this charge, for and that in the exercise of that degree of the reason that it ignored the issue of dis- care they must use such an amount of vigcovered peril, and required a finding abso- ilance and caution as a man of ordinary lutely in favor of appellant, unless the deceas-prudence would use under like circumstanced was at the road crossing when struck by es. But in view of the facts in Railway Co. the locomotive. Besides, the issue of whether

V. Matula, and another charge given therein, or not the deceased was struck at the crossing to the effect that, if the jury should find was submitted in the court's general charge. "that the injuries complained of were inNor did the court materially err in refusing flicted by the defendant, by the negligence to give appellant's special charge on the ques- and want of due and proper care on the part tion of contributory negligence. It may be of its employés,” to find for the plaintiff, the doubted that contributory negligence was an affirmance of the case was held to be proper, issue in the case; but, if it was, the court's notwithstanding the giving of the incorrect charge upon the subject was very slightly charge. For similar and as strong or strongless general than the requested special charge. er reasons, we think it may be said that the Practically the only difference in the special like charge here complained of should not charge and the general charge, in submitting require a reversal of this case. There was the question, is that the special charge im- no application in the present case, as there posed upon the deceased, which the general was in the Smith Case, of the charge to the charge did not in terms do, the duty of exer- facts of the case, and it was in no way recising ordinary care "to ascertain the pres-ferred to in any paragraph of the charge in ence or approach of a train to avoid striking which the facts are grouped and the condihim." The general charge did define ordi- tions upon which a verdict for the appellees nary care and contributory negligence, and was authorized. On the contrary, negligence told the jury in effect that, if the deceased and ordinary care were properly defined in went upon appellant's railroad track without the first and second paragraphs of the using the care and caution which would have court's general charge, and in the paragraphs been used by an ordinarily prudent person thereof enumerating the facts which the jury under similar circumstances, and such fail- was required to find, in order to return a ure proximately contributed to his injury, he verdict in favor of appellees, the care imcould not recover.

posed upon the appellant was ordinary care The court's general charge upon the issue as defined in the second paragraph of the of discovered peril was also sufficient, we charge, and the negligence therein referred believe, to protect the rights of the appellant, to was the negligence defined in the first and the refusal of the special charge request- paragraph of the charge. So, as was simied by appellant in relation thereto affords larly said in Railway v. Smith, supra, we charge, the jury must have understood that;5. EVIDENCE Om472(1)–CONCLUSION OF WITthe degree of care incumbent upon appellant

NESS. was ordinary care, and that by the charge witness is admissible when it relates to a fact

The conclusion, inference, or judgment of a complained of the jury must have understood which is collateral or relatively unimportant, that the appellant, under the circumstances and is rejected when the fact sought to be esof the case, was required to exercise a great tablished is either in issue or so material as to

involve substantial rights. amount of vigilance. At any rate it is not 6. EVIDENCE Cw471(2)—CONCLUSION OF WITprobable, in view of the entire charge, that NESS-CIRCUMSTANTIAL VALUE. the jury, by the charge under consideration, In suit by the insurer of an automobile was misled to the prejudice of appellant. against theft to recover a car as the car for loss The fifth assignment of error is therefore timony of the treasurer of the insurer that the

of which it had paid insured, rejection of tesoverruled.

loss was paid because of “theft," as being the The eleventh assignment of error asserts conclusion of the witness, was proper as against that the twelfth paragraph of the court's the contention that it was admissible as a cir

cumstance tending to show theft, since the witcharge is upon the weight of the evidence, in ness was not detailing facts and circumstances that it assumes that deceased was struck from which the jury might infer or reason to upon a crossing, whereas the uncontroverted the commission of a theft. evidence shows that he was struck on de- 7. SALES 233 (3)-TITLE TO PROPERTY

BURDEN OF PROOF. fendant's track at a private place where the

Where defendant was in possession of an right of way was fenced. We do not so con- automobile by purchase from a third person, it strue this paragraph of the charge. It dis-was the duty of an insurer of an automobile tinctly submits, in our opinion, for the de- against theft, claiming the car as that for loss

of which it had reimbursed insured, to prove a cision of the jury, the issue whether or not better title than the prima facie title of defendthe deceased was at or upon the crossing. ant. There are a number of other assignments

Error from District Court, Ellis County ; of error, but the several questions presentedW. L. Harding, Special Judge. by them have been discussed and disposed of

Suit by the Federal Insurance Company against appellant by what we have said in against U. Munden. Judgment for defendant, our consideration and treatment of the first and plaintiff brings error. Affirmed. assignment of error. Believing the record discloses no reversible

Crane & Crane, of Dallas, for plaintiff in error, the judgment of the district court is error. Farrar & McRea, of Waxahachie, for affirmed.

defendant in error.

RASBURY, J. Plaintiff in error sued de

fendant in error to determine the ownership FEDERAL INS. CO. V. MUNDEN.

of an automobile, which at the commence(No. 7921.)

ment of the suit was in possession of the lat(Court of Civil Appeals of Texas. Dallas.

Plaintiff in error alleged that it insurMay 18, 1918.)

ed the automobile against loss by theft, while 1. EVIDENCE @ww183(3) – DOCUMENTARY Evi- owned by and in the possession of Everett S. 1. EVIDENCE @ww183(3) — DOCUMENTARY Evi-Jones of Boston, Mass., subsequent to which DENCE-PROOF OF LOSS OF ORIGINAL.

Proof of delivery of the original invoice to the automobile was stolen, upon proof of another than the party seeking to introduce a which plaintiff in error paid Jones $1,700, copy thereof did not prove its loss nor raise a whereupon, by the express provisions of said presumption in that respect, thus laying proper contract of insurance and by operation of law predicate for the admission of the copy. 2. SALES 52(5)–EVIDENCE "INVOICE." independently thereof plaintiff in error be

Though an “invoice” might be an incident came subrogated to Jones' right to recover to a sale of personalty, standing alone it did said automobile, and which right was connot evidence that fact, being a mere detailed statement of the nature, quantity, and cost or firmed by said Jones in writing, and that price of the things invoiced, and as appropriate defendant in error's possession of said autoto a bailment as to a sale.

mobile was wrongful, but that he had on de[Ed. Note. For other definitions, see Words mand refused to surrender same. Prayer was and Phrases, First and Second Series, Invoice.]

for possession of the automobile, for its de3. APPEAL AND ERROR Om 1056(2)-EXCLUSION OF UNNECESSARY EVIDENCE.

preciation in value, and for other alternate Exclusion of documentary evidence favorable relief, etc., unnecessary to detail. In aid of to plaintiff on an issue not disputed, as to which the suit writ of sequestration was issued, plaintiff's witness testified, was not error.

by authority of which the sheriff seized the 4. EVIDENCE 471(2)—CONCLUSION OF WITNESS-THEFT.

automobile, whereupon defendant in error In suit by the insurer of an automobile presented said officer statutory replevin bond against theft to recover a car as the car for loss and retained possession thereof. The defendof which it had paid insured, the statement by ant in error by appropriate pleading in subinsured as a witness for the insurer that his car "was stolen," particularly in view of the stance denied the material allegations of statutory definition of theft in Pen. Code 1911, plaintiff in error's petition. Trial was by art. 1329, was inadmissible as purely a conclu- jury, who at the conclusion of the evidence sion; for a witness should give the facts and

a leave to the judge or jury the function of reason- were peremptorily directed to return verdict ing from them.

for defendant in error, which was followed by

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

similar judgment, from which this appeal price of the things invoiced, and it is as apis taken.

propriate to a bailment as it is to a sale. It The only facts necessary to be stated are does not, of itself, necessarily indicate to that plaintiff in error insured a 1912 model whom the things are sent, or even that they Cadillac automobile motor and engine No. have been sent at all.” Dows v. Nat. Ex. 61174, owned by Everett S. Jones, of Boston, Bank, 91 U. S. 618, 23 L. Ed. 214. Mass., against loss by theft. Thereafter proof [3] Finally, it may be said that every fact of loss satisfactory to plaintiff in error was which could be deduced from the invoice was made, showing said automobile had been stol- testified to by Jones, and that his purchase en and whereupon it paid Jones $1,700 under of the car and the price he paid for it was its policy. By the insurance contract plain- not a disputed issue. tiff in error was subrogated to Jones' right For the reasons stated the action of the to recover said automobile when stolen, and court in the respect stated does not constiwhen the plaintiff in error paid the loss. De-i tute error. fendant in error, who resided in the vicinity [4, 5] As we have shown, it was in evidence of Midlothian, Tex., at the time the suit was that the Cadillac Automobile Company of filed, was in possession of a 1912 model Cad-Boston had sold to Jones a car of similar illac automobile motor and engine No. 61174 model and engine and motor number as the by purchase from one Dees of the same local- car in controversy, and that plaintiff in error ity.

had insured same against and paid a loss The first ground of error assigned is the re- thereon for theft, and was entitled by the infusal of the court to permit plaintiff in error surance contract to be subrogated to Jones' to introduce in evidence a copy of the in- right of recovery. Jones' deposition was voice issued by the Cadillac Automobile Com- taken, wherein he testified substantially to pany to Jones covering the automobile and the facts recited. In said deposition he was certain accessories and charges. As predi- asked, “What became of said automobile?” to cate for the introduction of the copy of the which he replied, "It was stolen.” He was invoice plaintiff in error proved by the treas- also asked, "What was the cause of said comurer of the Cadillac Automobile Company of pany having to pay your loss on said autoBoston, from whom Jones purchased the car, mobile?” to which he replied, “The automo

" that said company sold to Jones a 1912 Cadil- bile having been stolen, the Federal Insurlac automobile of the same motor and engine ance Company paid me the indemnity upon number as the one in controversy, for which proof of claim. Amount paid $1,700.Upon no bill of sale was executed. The bill of lad- objection of defendant in error the statement, ing was delivered to the railway company, “It was stolen,” in the first answer and the and the original invoice for which was deliv- words, "the automobile having been stolen," ered to Jones. In connection with the fore in the second answer were, over objections of sping Jones testified that he bought from the plaintiff in error, excluded from consideration

Cadillac Automobile Company of Boston a by the jury, on the ground that the answers • car of the model and engine and motor num- were legal conclusions. In that connection, in

ber identical with the one in controversy, order for plaintiff in error to recover the paying therefor approximately $1,795, the automobile and receive the other relief amount shown in the copy of invoice exclud- sought, it was necessary to show that the ed, and for the loss of which plaintiff in error car in controversy was stolen, since its right paid him $1,700. It is urged by plaintiff in of subrogation was based on theft of the error that the copy should have been admit- car. Hence the purpose and importance of ted, since it appears from the foregoing the testimony is obvious. The statement by facts that the original had been lost. The the witness was, in our opinion, inadmissible purpose for which the invoice was tendered because purely a conclusion. To say that is not stated, but obviously it was only com- theft has been committed is obviously the petent to establish that Jones bought the conclusion of the one making the statement. car, and as a consequence was the owner, Whether the crime of theft has been commitand paid therefor the price indicated by the ted is to be determined by the facts attendinvoice.

ing the taking of the property. While the [1] It may first be said that the proof fail- plaintiff in error had paid the insurance as ed to show that the original invoice had been for theft upon the showing made by Jones, lost, and hence no proper predicate for admis- the conclusion of the latter, however consion of the copy laid, since the substance of scientious and however correct in basis, canthe testimony of McGregor was not that it not be the standard for establishing that was lost, but that it had been delivered to fact in court. The facts upon which the witJones. The delivery to Jones neither proves ness bases a conclusion, and not his concluthe loss of the invoice nor raises a presump-sion upon undisclosed facts, is the standard, tion in that respect.

since to admit his conclusion or inference [2] It may also be said that, while an in- from the facts is but to determine a given isvoice might be an incident to a sale of person- sue upon the reasoning of the witness, while alty, standing alone it did not evidence that the rule is for the witness to give the facts fact. An invoice “is a mere detailed state- and leave to the judge or jury the function of

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