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of negligence, as substantially alleged in the still on. She said she did not hear the sta-
petition, was “that, during the trip, and long tion called, and I then told her that I would
before the defendant's train reached Ring carry her on to Bowie, where there were
gold, the passenger conductor came to the good hotels, and would bring her back the
plaintiff's wife and child, and took up their next morning, to which she made no objec-
tickets, and gave them no marked tickets, tion. I carried her back the next morning."
and at the time told Mrs. Boyles to take care In his statement that notice of the station
of her sick child, and trust to him (the con was announced four times, and that the train
ductor), and assured her that he would see was stopped at Ringgold, and that passen-
that she got off at Ringgold all right; that gers for that station left the train, the con-
she relied on his assurances, and depended ductor is corroborated by other witnesses.
on him to inform her when she arrived at On this issue of negligence, and the conse-
Ringgold; that she was busily engaged with quent damages, the court thus instructed the
her sick child, and did not hear the name of jury: "It is the duty of railway companies,
Ringgold called by anyone, and did not know in transporting passengers over their railway
when she passed the station, and the con lines, to have announced the names of the
ductor failed and neglected to notify her, as

different stations upon their line of railway he agreed to do, of the arrival of the train upon the arrival of their train, in such a at Ringgold; that she did not know or sus manner that persons using ordinary care will pect that she had passed the station until be apprised of the name of the station. And she was 15 or 20 miles beyond it, at which if you find and believe, from the evidence, time she called the conductor, and reminded that plaintiff's wife and child were passenhim of his promise, and of her earnest desire gers on defendant's train, as alleged in plainto be at Ringgold that night; and that he tiff's petition, and that she was carried befailed and refused to carry her back.” Theyond the place of her destination, but that evidence relied upon by the plaintiff to sus

the defendant, by its agents and employés, tain these allegations is the testimony of

did duly call out the name of the station, Mrs. Boyles, as follows: "My child was very Ringgold, upon the arrival of said train, you sick, and, when the conductor came around, will find for the defendant, unless you furhe noticed my child being sick, and told me ther find that, before the train reached Ringto attend to my child, and that he would see gold, the conductor in charge of defendant's me off at Ringgold, and I relied on his prom

train assured the wife of plaintiff that she ise, and was attending to my child when we might rely on him to notify her personally passed my station, and I did not know any when the train reached Ringgold, and that thing about it. If the name of the station she did rely on said assurance, and that she was called, I did not hear it, and knew no did not hear the name of the station called better until we had got some distance be out, and did not know when the train passed yond there. I didn't know we had passed the station, and that, by reason of being carRinggold until I heard the trainmen call ried beyond her destination, the wife of the 'Bowie,' when I found that we had passed plaintiff suffered, physically and mentally, as my place, and I then called the conductor, alleged in plaintiff's petition, and that the and told him about it, and he said for me to injuries, if any, were occasioned directly and stay all night at Bowie, as there would be no proximately by the negligence of the defendtrain back until morning, and he would bring ant's agents and servants. Then you may me back in the morning on the train. * * * find for plaintiff such damages as the eviI went to the train the next morning, and the dence may show to be fair and reasonable conductor carried me back to Ringgold, and to him for damages, as alleged in his petiI got to St. Jo that evening. If I had not tion.” That portion of the foregoing instrucbeen carried past, I would have got there in tion which imposed the duty upon the carthe morning.” The conversation, as detailed rier, on account of the promise of the conby Mrs. Boyles, with the conductor, conflict ductor, to give personal notice to Mrs. Boyles ed with the statement of the latter, who tes of the arrival of the train, we hold, under the tified as follows: "When I took up Mrs. condition of the evidence in this case, to be Boyles' ticket she asked me about the sta erroneous. Ordinarily, the duty of a contion she got off at, and I told her she would ductor, as such, towards a passenger has be notified in time to get off. I didn't tell ceased when the carrier has transported the her I would see her off, or help her, but that passenger in safety to his point of destinashe would be notified. And when we left tion, has announced the arrival of the train Terrall, the station before we get to Ringgold, at the station, and has afforded reasonable my brakeman called out twice, loud enough time and opportunity for the passenger lo to be heard over the car, “The next station is leave the cars. Hutch. Carr. § 614. If the Ringgold.' And then, when the whistle conductor undertake to do more, as to awaksounded, he called it out twice more, and the en a sleeping passenger, and to notify him people began to get off, and I went to the personally, it becomes a mere personal unfront end. There were several people got off, dertaking, as between the conductor and the men, women, and children, and I had no idea passenger, an undertaking beyond the scope but what this lady got off, till I went through of the conductor's duty, and in no sense the the car, after we left there, and found her obligation of the carrier. "So, it is said that

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it is, ordinarily, no part of the carrier's duty those damages may be recovered which may to see that passengers are awaked when the compensate the passenger "for the discomtrain reaches their destination, and that the fort, inconvenience, sickness, expenses, costs, company is not bound by the conductor's and charges which are shown, by the proof promise to so awaken the passenger. Ex- in this case, to have been the direct and ceptional circumstances might, however, im- proximate, natural and probable, result of pose the duty." Id. $ 617b. The court of the carrier's breach of duty." Railway Co. civil appeals for the Fifth district (Railway v. Terry, 62 Tex. 384. Only such a result Co. v. Kendrick, 32 S. W. 43) quotes, with should be regarded as "direct and proximate, evident approval, the decision of the supreme natural and probable," as could be held to court of Mississippi (Sevier v. Railroad Co., be within the contemplation of the parties to 61 Miss. 8), holding this rule applicable in the contract the breach of which is comcase of a promise made by a conductor to a plained of. Car Co. v. McDonald, 2 Tex. passenger asleep, even though his sleep is Civ. App. 325, 21 S. W. 945. Here the fact due to sickness. We are not disposed to give is neither averred nor proven that the carthe rule so broad an application. We think rier knew that the plaintiff's wife intended that circumstances, involving the considera- to go to St. Jo, or that the carrier knew tion of age, sex, or physical infirmity, may that she was to be met by her father at the bring that within the scope of the conduct- latter place, to be taken to her sister's home, or's duty towards a passenger which wouli, or that, failing to meet her father, and being otherwise, be beyond the limit of such obli- thereby deprived of the power of reaching gation. Hutch. Carr. 8 670; Railway Co. v. her destination from the morning to the aftFinley, 79 Tex. 85, 15 S. W. 266. But, to ernoon or evening of the same day, she create the exception, it should, we think, be would suffer keen anguish and disappointmade to appear that the conductor knew the

ment as a result, or that she would be defacts which give rise to its application. If, prived of the medical treatment to be adin this instance, the conductor, knowing the ministered by her sister to the sick child. helpless condition of Mrs. Boyles, due to the The record suggests that the action of the sickness of the child, and recognizing the court in the respect here indicated was probnecessity of her giving exclusive attention ably seriously detrimental to the rights of to it, had promised to give her personal notice the appellant. The judgment is reversed, when the train reached Ringgold, and to as- and the cause is remanded. sist her in alighting, we are of opinion that such a promise would be, at least, within the apparent scope of his power as a conductor, and that noncompliance with it would be

AUSTIN & N. W. RY. CO. v. McELMURRY. binding on the company. It will be noted, however, that this question of the conduct

(Court of Civil Appeals of Texas. Dec. 11,

1895.) or's promise to her was submitted without reference to his knowledge of the sickness

ACCIDENT AT CROSSING ORDINARY CARE - IN

STRUCTION-EXPERT TESTIMONYof the child, or of the necessity that might

ATTACK ON CHARACTER. require the mother's exclusive attention to 1. An instruction that if, at the time of its needs. We cannot say that the existence the collision, defendant's employés in charge of of such knowledge was undisputed, because

the train failed to give a signal as required by

law, but plaintiff, by ordinary care, would have the testimony of the conductor imports his discovered the train in time to have avoided inutter ignorance of the child's condition. jury, he could not recover, is rendered erroIn the instruction already quoted, the court neous by addition of the clause, unless failure to

give a signal as required by law was sufficient submits, under the allegations of the plain

to cause a man of ordinary care to relax his tiff's petition, and upon evidence admitted diligence, and that, as a matter of fact, such over defendant's objection, as an element of failure did cause his injury; it being implied damage to be considered by the jury, the

that under the circumstances enumerated plain

tiff need not exercise ordinary care. fact that the plaintiff had made arrange- 2. A physician who treated plaintiff after ments with his father-in-law to meet his wife he was run into by defendant's train, and who at St. Jo, thence to transport her and her

had stated that plaintiff complained of certain child to the wife's sister, in the country,

pains, may give his opinion as an expert as to

whether plaintiff was injured, and the nature where his sick child was to receive such and extent of his injuries, and whether, in his medical attention as it seems the sister was opinion, the complaints were real or simulated; peculiarly qualified to give. Whether in fact

but cannot give as a reason for his opinion his

confidence in plaintiff. the father-in-law was at St. Jo, in accord

3. That a physician, who has testified that ance with this arrangement, does not appear plaintiff complained to him of certain pains, and from the record. It might well be said that that, in his opinion, they were not simulated, adthe charge, in this respect, was without evi

mits on cross-examination that it is possible

for a person to simulate such complaints, and dence to support it; but, had it been proven, deceive a physician, is not an attack on plainit would not be a matter for the proper con

tiff's character, admitting of evidence in supsideration of the jury, under the pleading

port of it. and evidence in this case. Where a carrier Appeal from district court, Travis counhas violated its contract with the passenger ty; James H. Robertson, Judge. by carrying the latter beyond his destination, Action by J. D. McElmurry against the

Austin & North Western Railway Company 2. Dr. Field, who treated the plaintiff, tesfor personal injuries. Judgment for plaintiff. tified that he complained of deep and severe Defendant appeals. Reversed.

pains in his back, loins, and legs; and we

think it was proper for him to give his opinFisher & Townes, for appellant. Walton &

ion as an expert as to whether or not the Granberry and W. W. Wood, for appellee.

plaintiff was injured, and the nature and ex

tent of his injuries; and in so doing he could KEY, J. 1. The ninth paragraph of the state whether or not, in his opinion, the comcourt's charge reads thus: “But, on the oth- plaints referred to were real or simulated. er hand, if the jury find that at the time and But it was not proper, after he had stated place of the collision the defendant's agents that he did not believe the plaintiff was simuand employés failed to blow the whistle or lating, to state, in the nature of a reason for ring the bell, as required by law, but that such belief, that he had known the plaintiff the plaintiff, by the use of ordinary care, a long time. He could give any reason withwould have discovered the approach of the in the range of expert testimony for his opinion train in time to have avoided injury, the as to the reality of the plaintiff's complaints; plaintiff cannot recover, unless the jury find but he could not, as an expert, base his opinthat the failure to ring the bell or blow the ion on his confidence in the integrity of the whistle as required by law was sufficient to man. Such evidence would not be expert cause a man of ordinary care to relax his testimony, because any other person, who diligence and care, and that as a matter of had known the plaintiff the same length of fact such failure did cause his injury, in time, would be as well qualified to speak which case the defendant would be liable. concerning his honesty. Besides, this testiAgain, if the jury find from the evidence that mony tended to support the plaintiff's charafter plaintiff got upon the railroad track, acter for honesty, which had not been ator so near thereto that he could not extricate tacked by appellant. It is true that on crosshimself from danger, the defendant's em examination Dr. Field had been asked if it ployés in charge of said train discovered was not possible for a person to simulate such plaintiff's position of danger in time, by the complaints, and deceive a physician, and he use of ordinary care, to have stopped the had stated that it was. Proof that it was postrain in time to have avoided the collision, sible for a person to have sworn falsely or and failed to do so, then the defendant would acted dishonestly does not constitute an atbe liable.” The clause, “Unless the jury find tack upon such person's character; and, unthat the failure to ring the bell or blow the til his character is assailed, evidence is not whistle as required by law was sufficient to admissible in support thereof, and then the cause a man of ordinary care to relax his evidence pro and con must refer to the perdiligence and care, and that as a matter of son's general reputation, and not be the infact such failure did cause his injury, in dividual opinion of the witness. The inferwhich case the defendant would be liable," ence to be drawn from this evidence is that, carries with it an implication that, if the con in the opinion of the witness, the plaintiff ditions therein referred to were shown to was an honest and truthful man. We also have existed, the plaintiff was under no ob think it was improper to allow Dr. Field to ligation to exercise ordinary care. Such is say that he would not have treated the plainnot the law. It is true that under one state tiff if he had believed he was simulating, of facts a person may not be required to do though we do not say that that testimony the same thing to protect himself that would was such as would require a reversal of the be required under another and different state case. The statement is more in the nature of facts. But he is at all times required to of an argument; and while it may tend to exercise such care as a person of ordinary show that the doctor was honest and sincere prudence would have exercised under the in his diagnosis of the plaintiff's case, it does same or like circumstances; and, in law, not state any fact, and is nothing more than such care is denominated "ordinary care." the witness' opinion as to the course he would By that expression, as used in legal par have pursued had his diagnosis been differlance, is not meant such care as is usually ex ent. ercised under ordinary circumstances, or re 3. Complaint is urged against the sixth and gardless of circumstances, but such care as eighth paragraphs of the court's charge, on ordinarily prudent persons would exercise the ground that they permit the plaintiff to under the circumstances of the particular recover without reference to the question of case; and the duty to exercise this care is a his contributory negligence. Without holding continuing and ever-present duty, however reversible error in the respect under considmuch conditions and circumstances may eration, it is suggested that upon another change. The phrase above quoted should trial the charge be prepared with more achave been omitted from the charge. Its ten curacy, thereby eliminating the objection redency was to place an improper qualifica ferred to. tion upon an otherwise correct statement of 4. Concerning the objections urged to the the law of contributory negligence, and we plaintiff's petition under district court rule cannot say that the jury was not misled by 18, it would seem that appellant's alleged speit.

cial exception, charging that the petition is

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too vague, uncertain, and indefinite, must be Guilford v. Love, 49 Tex. 715; Martin v. regarded as a general demurrer only. The Burns, 80 Tex. 677, 16 S. W. 1072. If the petition is subject to each of these com- judgment recites valid notice, such recital will plaints, and as against a special exception it control the balance of the record, and preis not a good pleading. With this statement clude all further inquiry. If, as in Fowler from us, we take it for granted that it will V. Simpson, 79 Tex. 611, 15 S. W. 682, the be amended so as to relieve it from all the ob- judgment refers to and indentifies the notice jections urged against it, and therefore deem served on the defendants, and the notice so it unnecessary to decide whether or not it referred to is invalid, then, although the can be sustained against a general demurrer. judgment may recite due notice, it will be

5. There are several assignments of error held null and void. Also, where it is apparpresenting other questions, which we deem it ent there was not sufficient time to obtain unnecessary to discuss in detail. Suffice it service by publication, and the judgment reto say that, in our opinion, they present no cites such service, such recital will not be reversible error. Judgment reversed,

and

treated as conclusive. Stewart v. Anderson, cause remanded. Reversed and remanded. 70 Tex. 888, 8 S. W. 295. Although justices

of the peace courts are courts of general jurisdiction,-Williams V. Ball, 52 Tex. 603;

Holmes v. Buckner, 67 Tex. 107, 2 S. W. 452; HAMBEL et al. v. DAVIS et al.

Clayton v. Hurt (decided by our supreme (Court of Civil Appeals of Texas. Dec. 11,

court at its present term) 32 S. W. 876,-in 1895.)

Wilkerson v. Schoonmaker, 77 Tex. 615, 14 JUSTICE COURT JUDGMENT-COLLATERAL ATTACK

S. W. 223, where a judgment rendered by a -SERVICE OF CITATION-PRESUMPTION. justice of the peace contained no recital in

1. A judgment of a justice of the peace, regard to service of citation, it was held that though silent as to service of citation, will be

parol evidence tending to show that the depresumed to be valid, on collateral attack, un

fendant was not served with citation was adtil the contrary is shown, either from the record, by evidence aliunde.

missible. But, granting these exceptions to 2. Such presumption is not overcome by the general rule above stated, it is undoubtproof that a citation issued in the proceedings edly correct to assert that on a collateral atwas defective, if there was time for the service of another and valid citation, and no affirmative

tack a judgment rendered by a justice of the showing that such other citation was not served. peace, although silent as to service of cita

3. Act Aug. 13, 1870, authorizing service of tion, will be presumed to be valid, and to citation by publication, was not affected by the

rest upon legal service of citation, until the repeal of the printing act in November, 1871. 24 S. W. 972, affirmed.

contrary is made to appear, either from the

record, or by evidence aliunde. And the burAppeal from district court, Caldwell coun

den rests upon the person attacking such a ty; H. Teichmueller, Judge.

judgment to show that there was no legal Action by Hambel & Heasty and others

service of citation on the defendant. against Jefferson Davis and others to recov

Applying these rules to the case in hand, er Jand. From a judgment for defendants,

what is the result? August 3, 1874, a perplaintiffs appeal. Affirmed.

sonal judgment, silent as to service of citaM. R. Stringfellow and J. Nix, for appel- tion, was rendered by a justice of the peace lants. Storey & Storey, for appellees.

in this state, in a cause then pending before

him, the subject matter of which was within KEY, J. Appellants sue to recover a tract the jurisdiction of his court; and appellants of land. This is the second appeal. 24 S. admit that they are not entitled to the land W. 972. At the last hearing in the court be- sued for unless said judgment is null and low the case was submitted to the judge on void. Their contention is that the judgment an agreed statement of the facts, consisting should be held void because it is shown that mainly of documentary evidence, and judg- there was no legal service of citation on ment was rendered for the defendants. Ac- Kelley, the defendant in that suit, and becording to said agreed facts, which we adopt cause said Kelley was then a nonresident of as our conclusions of fact, the defendants hold this state. Concerning the latter contention, title under a judgment of a justice of the it is sufficient to say that, even if that quespeace of this state rendered August 3, 1874; tion can be raised by evidence aliunde the and appellants admit that, if said judgment record, we do not think the evidence relied on is not void, they are not entitled to recover by appellants to show nonresidence sufficient the land.

to overcome that tending to show that Kelley A judgment rendered by a domestic court resided in the state, aided as it is by the preof general jurisdiction, whether it recites the sumption in favor of the validity of the judgexistence of legal notice to the defendant, or

ment. is silent on that subject, is, when attacked Tbis narrows the case down to the issue of collaterally, presumed to be valid; and, where notice to the defendant Kelley, and, to show it does not otherwise appear from the record, that legal notice was not served on him, apit will be presumed that all the facts essen- pellants show that the suit was instituted tial to jurisdiction existed, and were made to June 8, 1874; that Levyson, the plaintiff in appear, when

when jurisdiction was exercised. the case, made affidavit that Kelley was a

transient person, so that the ordinary pro cided by this court, and in which the supreme cess of the law could not be served upon court refused to grant a writ of error. him; that a citation to be served by publica Our conclusion is that, conceding appellants tion, and alleged to be defective, was issued, contention that the citation and return in eviand returned; that after said return the jus dence were defective, and did not show tice of the peace made an entry on his docket, proper notice to the defendant in that suit, "Service in this cause having been made by still the presumption that said defendant was publication, the same is continued until the legally served with citation is not overthrown; next term of the court;" that at the next and the judgment under which appellees hold term the judgment was rendered, which, as is not void. before said, does not refer to the subject of We have considered appellants' reargument notice to the defendant. It was shown that of their contention that in 1874 there was no no attachment was issued against Kelley's law authorizing service of citation by publiproperty, but it was not shown that the cita cation in suits in justice of the peace courts. tion in evidence was the only citation issued We do not agree with the contention that the in the suit against Kelley. Whether all or repeal of the printing act in November, 1871, only part of the record in that case was in suspended or otherwise impaired the provievidence in this one, is not shown. Then if sion of the justice court act of August 13, it be conceded that the recital on the justice's 1870, authorizing service of citation by publidocket, made at the term before the judg- cation, and we adhere to our former ruling ment was rendered, establishes the fact that on that subject. No reversible error has ever the judgment was rendered upon service by been assigned, and the judgment of the dispublication, and not upon personal service, trict court is affirmed. Affirmed. and that there is no conclusive presumption in favor of the validity of the service so recited, and that the citation under consideration is defective in form and substance, still,

HAMILTON v. BEARD. unless all the record in that case was put in (Court of Civil Appeals of Texas. Dec. 11, evidence, or it was shown by testimony that

1895.) no other citation was issued, it was not made JUDGMENT LIEN-DEFECTIVE ABSTRACT OF JUDGmanifest that another citation, free from the

MENT. objections urged against this one, was not is

Where a judgment was rendered by a

justice against a firm and an individual member sued, and properly served by publication.

thereof, an abstract of said judgment, reciting And if the recital on the justice's docket, a merely that the plaintiff recovered judgment month before the judgment was rendered,

against the two persons therein named, did not that service had been made by publication,

show that a judgment was obtained against ei

ther the firm or said member, and the record does not preclude any presumption of per thereof did not create a lien. sonal service of citation when the judgment

Appeal from district court, Travis county; was rendered, then the fact that there was

James H. Robertson, Judge. no such service is not made to appear with

Trespass to try title by Peter Beard against that degree of certainty that should be re

G. F. Hamilton. Plaintiff had judgment, quired to invalidate the judgment. The en

and defendant appeals. Affirmed. tire record in the justice of peace court not being in the statement of facts, and there be Osceola Archer, for appellant. Hewlett, ing no affirmative proof that no other cita Rosenberg & Rosenberg, for appellee. tion was issued, how do we know that an

Statement of Case and Result of Trial. other citation, regular in every respect, was not issued on the 9th of June, 1874, and prop FISHER, C. J. On November 30, 1886, aperly executed by publication, before the entry pellant, G. F. Hamilton, recovered a judgmade on the docket, July 6, 1874, reciting sery ment in the justice's court of precinct No. ice by publication? Or, although the defend 3, of Travis county, Tex., in cause No. 893, ant was a transient person, was it not possi against W. P. Callaway and Henry B. Wilble for him to have entered the county, and son, composing the firm of Callaway & Wilbeen personally served with citation, between son, for $73.84, besides cost of suit, with July 6th and August 3d, the day on which the an order therein that execution might issue judgment was rendered? These queries in against said parties, and be levied upon the dicate wherein appellants' proof falls short, property of said firm, or upon the individual and it is no sufficient answer to them to say property of the said Henry B. Wilson, who that it is not probable that either course they had been served with process in the cause. On suggest was pursued. Proof stronger than this judgment the first execution issued on mere probability should be required of any December 11, 1886, and the same was reone who, in a collateral proceeding, attempts turned "Not satisfied.” An abstract of this to overthrow a judgment of a domestic court judgment was recorded in Travis county, in of general jurisdiction. The facts relied on its judgment lien records, in Book No. 2, to accomplish that result should be establish page 333, on the 28th of June, 1890, and on ed with manifest certainty. This case is the same day it was indexed. Henry B. quite similar, in the respect now under consid Wilson, the judgment debtor, deeded the lot eration, to Lyle v. Horstman, 25 S. W. 802, de in controversy, on the 15th of October, 1894,

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