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the court; to which ruling appellant excepted, and reserved her bill thereon, being bill of exceptions Nos. 2 and 3. Thereupon all parties announced 'Ready.' Trial was had before the court without a jury, upon an agreed statement of facts filed October 4, 1894, and approved by the court, whereupon the court found that the estate of Josephine Stuessy, deceased, consisting of said lots 11 and 12, block 29, division E, city of Austin, Texas, was subject to administration, and directed the administrator, M. C. Granberry, to proceed under his appointment by the probate court of Travis county, Texas, as administrator of said estate, to sell said property, and to pay out of the proceeds of such sale claims and allowances as follows: First, the costs of administration and preservation of said estate; second, the third-class claim of Charles Wolf, principal, interest, and attorney's fees; third, the first-class claim of M. A. Taylor for the sum of $344.50 and interest; fourth, the first-class claim of Monroe Miller; fifth, that the remainder, if any, after paying the costs of this suit, be paid to appellant, Mrs. W. J. Krueger, daughter of decedent, as an allowance to her in lieu of a homestead. It was further ordered that, in case appellant, W. J. Krueger, should pay off and satisfy the said claims of creditors above mentioned and costs, that said property shall be vested in her free from all other claims. To all of which the appellant, Mrs. W. J. Krueger, appellant herein, excepted, and gave notice of appeal. The administrator also excepted to the allowance of Mrs. Krueger, and gave notice of appeal. Monroe Miller also excepted and gave notice of appeal. It was further ordered that the officers of court have execution against the respective parties for the costs incurred by them respectively in said case. It was further ordered that said decree be certified to the probate court of Travis county, Texas. On October 2, 1894, the creditor Monroe Miller, who was the holder of a first-class claim, moved to set aside said judgment, and to render judgment so as to cause said judgment to give said Miller and Taylor's claim for funeral expenses and expenses of last sickness priority to the debt of Chas. Wolf, secured by special lien. Said motion was heard on October 27, 1894, and was overruled by the court, to which the parties to the motion excepted and gave notice of appeal. On November 1, 1894, appellant, Wilhelmine J. Krueger, perfected her appeal by filing an affidavit pro forma pauperis in lieu of an appeal bond."

The facts are as follows:

(1) That the intestate, Josephine Stuessy, departed this life on the 21st day of March, A. D. 1893, in Travis county, Tex., in which county she resided at the time of her death.

(2) The only property of which the intestate died seised and possessed by fee-simple title were lots 11 and 12, block 29, division E, in the city of Austin, Travis county, Tex.,

of the appraised value of $1,500, which property never formed any part of her homestead. (3) That before and at the time of the death of said Josephine Stuessy, and for many years previous thereto, she had resided, and did then reside, on lots Nos. 3 and 4, in block 30, division E, in the city of Austin, Travis county, Tex., which property she possessed by life estate, as appears in sixth subdivision below.

(4) That at the time of the death of said Josephine Stuessy, and for a long period of time prior thereto, to wit, on the day of, 1887, the applicant, Wilhelmine J. Krueger, then and until the 27th day of October, 1889, was the wife of William Krueger, and, living with him in such relation, together with her children lived in the house with said Josephine Stuessy on said lots 3 and 4, in block 30, division E, of the city of Austin, Travis county, Tex.; that on the 3d day of December, 1888, the said William Krueger was adjudged insane by the county court of Travis county, Tex., and so remained until the date of his death on, to wit, the 27th day of October, 1889, from which time until the said Josephine Stuessy's death the applicant, remaining unmarried, lived in the house with said Josephine Stuessy on said lots 3 and 4, block 30, division E, aforesaid, together with said Josephine Stuessy and applicant's children.

(4, continued) With the exception of about four months prior to Mrs. Stuessy's death. when Mrs. Stuessy occupied a room in the frame house adjoining the other house where she and applicant resided, to which she moved on account of the noise made by applicant's children, as Mrs. Stuessy was very irritable during her last illness. The said Mrs. Stuessy only moved her bedroom set to the room in the house adjoining, and left her kitchen furniture and other household effects in the house where applicant remained, both houses being on lots 3 and 4, block 30, division E, city of Austin, Tex., which was the homestead. The applicant, Mrs. Krueger, cooked all meals for Mrs. Stuessy, and waited upon her during her last illness, and when applicant was not present, her daughter, Alma, was present. Mrs. Stuessy's brother, who resided in Ohio, was requested by Mrs. Stuessy to come down and visit her, which was before her removal to the other house, and when she moved to the adjoining house he went with her, and occupied a room in the same house with Mrs. Stuessy, and also waited upon her. He is a very old man, and was unable to assist Mrs. Stuessy in her last illness very much. The house in which Mrs. Stuessy occupied a room before her death, as aforesaid, was situated on her homestead as aforesaid, and was usually rented out by her, and from the rent derived therefrom she partially sustained herself. At the time Mrs. Stuessy occupied said room she had several other rooms in said house rented out to tenants. The house Mrs. Stuessy occu

pied before her death was separated by a partition fence, in which there was a gate, which was used in passing from one house to the other. Applicant cooked all meals in the old house, and carried them to the other house through the gate. Mrs. Stuessy's brother sometimes cooked tea and toasted bread for Mrs. Stuessy in the fireplace of the room occupied by Mrs. Stuessy.

(5) That the applicant, Wilhelmine J. Krueger, was the daughter of the said Josephine Stuessy by her marriage prior to her last husband, Henry Stuessy, who died long prior to said Josephine Stuessy; that the said Josephine Stuessy left no other child or children or their descendants surviving her.

(6) That on the 6th day of May, 1875, the intestate, Josephine Stuessy, and her husband, Henry Stuessy, conveyed by warranty deed to Matt Stuessy and others, said lots 3 and 4, block 30, division E, aforesaid, reserving to themselves and the survivor of them a life estate therein, said instrument of conveyance designating said property as their homestead.

(7) That said lots 11 and 12, block 29, division E, aforesaid, was the separate property of Josephine Stuessy, as between Josephine Stuessy and her husband, Henry Stuessy.

(8) That shortly after the death of said Josephine Stuessy, the applicant, Wilhelmine J. Krueger, removed upon and occupied, and has since and now occupies, lots 11 and 12, block 29, division E, aforesaid, together with their children.

(9) That since the death of her said husband, applicant has never remarried, nor has she ever acquired a homestead or any landed property whatsoever, nor did she or her husband have or own such property at the date of his death.

(10) That on the 1st day of February. 1890, the said Josephine Stuessy gave her note for $300, payable on or before two years after date, to the order of Charles Wolf, at Austin, Texas, with 10 per cent. interest from date, payable annually, and, if not so paid, to bear same rate as principal, with an additional 10 per cent. for attorney's fees in case collected by suit. Said note was secured by deed of trust of even date on said lots 11 and 12, block 29, division E, in the city of Austin, aforesaid, to James V. Bergen, trustee, to the use and benefit of said Charles Wolf, duly executed, acknowledged, and delivered by the said Josephine Stuessy, filed for record on the 6th day of May, 1890, in the county clerk's office of Travis county, Tex., in the Deed Records of said county, in Book No. 33, page 601, said note being for borrowed money, which she received and used, and no part of which was ever paid, principal or interest. Said note, together with the following deed of trust, was duly sworn to by the said Charles Wolf, and presented to and allowed by the administrator of said estate for the full amount thereof, on

the 26th day of January, 1894, and were filed in the probate court of Travis county, Tex., on the 25th day of January, 1894, and approved on the 3d day of February, 1894, for the full amount thereof, to wit, $440, principal and interest, with 10 per cent. interest per annum thereon from date and $44 (collection fee), with 6 per cent. interest per annum thereon from said date, and all costs; claim classed as secured by a valid lien, and classed as third class by the probate court.

(102) That on the 2d day of February, 1892, the said Josephine Stuessy gave her note for $650, payable three days after date, to the order of M. A. Taylor, at Austin, Tex., together with interest thereon from date until paid at the rate of 8 per cent. per annum, value received. Said note was duly sworn to by the said M. A. Taylor, and presented to and allowed by the administrator of said estate for the full amount thereof on the 28th day of November, 1893, and was filed in the probate court of Travis county, Tex., on the 28th day of November, 1893, and approved on the 3d day of February, 1894, for the full amount thereof, to wit, $650 principal, with interest at 8 per cent. from February 2, 1892; claim classed as fourth class by the probate court. That from the 8th day of February, 1892, to the 21st day of March, 1893, inclusive, the said Josephine Stuessy received professional visits and prescriptions from the said M. A. Taylor as a physician, and became indebted upon an open account for said medical services, rendered as aforesaid, in the sum of $344.50. Said account, dated the 8th day of November, 1893, was duly sworn to by the said M. A. Taylor, and presented to and allowed by the administrator of said estate for the full amount thereof on the 26th day of November, 1893, and was filed in the probate court of Travis county, Tex., on the 28th day of November, 1893, and approved on the 3d day of February, 1894, for the full amount thereof, to wit, $344.50, as a first-class claim, by the probate court.

(11) That on the 22d day of March, 1893, Monroe Miller furnished the funeral case and box, funeral notice, fluid for embalming, hearse, and three carriages, for which he presented his account for the sum of $49. Said account is dated March, 1892, and was duly sworn to by said Monroe Miller, and presented on the 28th day of December, 1893, to and allowed by the administrator of said estate for the full amount thereof on the 26th day of January, 1894, and was filed in the probate court of Travis county, Tex., on the 26th day of January, 1894.

(12) That the estate of said Josephine Stuessy is, and was at the date of her death, wholly and hopelessly insolvent.

Hewlett & Von Rosenberg, for appellant. R. J. Hill and W. W. Moore, for appellee.

FISHER, C. J. (after stating the facts). The appellant being an unmarried daughter

of the decedent, Josephine Stuessy, and remaining with her at the time of her death, and the estate of the latter being insolvent, and the former having no home, the following provisions of the statute have application and control the disposition of this case: Article 1993, Sayles' Civ. St., provides that the court with jurisdiction of the estate of the decedent shall set apart to the use and benefit of the widow and minor children and unmarried daughters remaining with the family of the deceased all such property of the estate as may be exempt from forced sale by the constitution and laws of the state. Article 1994 declares that, if there are not among the effects of the deceased the articles exempt, it shall be the duty of the court to make a reasonable allowance in lieu thereof, to be paid to the "widow and children, or such of them as there may be, as hereafter directed." Article 1996, mentioning those to whom the allowance shall be paid, directs in subdivision 2 of that article that, if there be no widow, but children, and they of lawful age, it shall be paid to them, and, if minors, to their guardians. Subdivision 4 of the same article directs that in cases of homestead it shall be delivered to the widow, if there be one, and, if there be no widow, to the guardian of the minor children and unmarried daughters, if any, living with the family. Article 1995 says that the allowance in lieu of the homestead shall not exceed $5,000. Article 1997 provides that the allowances made in lieu of the exempted property shall be paid either in money or in any property of the deceased; that the widow or children, if they be of lawful age, or their guardians, if they be minors, may choose to take at the appraised value. Subdivision 2 of article 1998 directs that, if there be no widow, but children of age, such allowance shall be paid to them. Article 1999 provides that, if there be no property of deceased that the widow or children are willing to take for such allowance, or funds that may be used for that purpose, it shall then be the duty of the county judge, on application, to order sale of property of the estate in order to raise funds to pay such allowance. Article 2002 says that, should the estate prove to be insolvent, the title of the widow and children to all the property and allowances set apart or paid to them shall be absolute, and shall not be taken for any debts of the estate except as hereafter provided. Articles 2007 and 2008 state what are those debts that are "hereafter provided." They are for the purchase money of the property, and taxes due thereon, and those sums, if any, due for work and material used in constructing improvements thereon; and article 2008 provides that the exempted property, other than the homestead or allowance made in lieu thereof, shall be liable for the payment of the funeral expenses and the expense of last sickness, but such property shall not be liable for any other debts of the estate. These provisions of

the law give to the unmarried daughter remaining with the family a beneficial interest in the homestead, and, in lieu of it, those that provide for an allowance clearly apply to her. The only property of the estate are the lots in question, which were appraised at $1,500. The appellant expressed her wish and willingness to accept these lots at their appraised value. There being no homestead left by her deceased mother, nor other property or funds out of which an allowance could be made, she was entitled to have this property set aside to her if the value thereof did not exceed $5,000, and what would be, under the circumstances, a reasonable allowance. It is held in Childers v. Henderson, 76 Tex. 664, 13 S. W. 481, that a daughter once married, but a widow, living with her parent at the time of his death, is a constituent of the family, and is entitled to the homestead exemption. To the same effect is Lacy v. Lockett, 82 Tex. 192, 17 S. W. 916. In Zwernemann v. Von Rosenburg, 76 Tex. 523, 13 S. W. 485, and the two cases cited, some of the provisions of the statute in question were construed, and they, in effect, hold that when the estate is insolvent the constituent of the family remaining took the homestead, or allowance in lieu of it, free of the claims of creditors of the estate; and the title thereof vested absolutely in the claimant. There is a provision of the law (article 2000) which declares that no property upon which liens have been legally given shall be set aside to the widow or children as exempted property, or appropriated to make up the allowance made in lieu of exempted property, until such lien debts are paid. This provision evidently relates to solvent estates, for it will be seen by the other provisions of the law quoted which relate to the homestead rights of the widow and children and unmarried daughters, and the allowance in lieu of it, with the privilege they have of selecting property in lieu of the allowance at its appraised value, together with those provisions that relate to insolvent estates, and which burden such preferential rights of the widow and children with a certain class of claims, that neither the claims and lien of appellee Wolf and of the other appellees will prevail over such homestead right or allowance. Such is the effect of the decisions previously cited and of the following: Scott v. Cunningham, 60 Tex. 566; Horn v. Arnold, 52 Tex. 164; Rainey v. Chambers, 56 Tex. 20; Griffie v. Maxcy, 58 Tex. 211; Watson v. Rainey, 69 Tex. 321, 6 S. W. 840; Hoffman v. Hoffman, 79 Tex. 194, 14 S. W. 915, and 15 S. W. 471. Some of the cases cited arose under statutes prior to the adoption of the Revised Statutes, but the principle of the superiority of the claims of the surviving widow and children in the homestead or allowance in lieu of it in insolvent estates is the same under the former and present laws upon that subject.

It is apparent from the facts that the prop

erty in controversy is not of greater value than would be a reasonable allowance for the appellant in lieu of a homestead. Therefore we will here render such judgment as the court below should have rendered. The willingness of the appellant to receive the property in question in lieu of the allowance entitles her to the same, and under the facts of the case as shown by the record the lots in question are set aside to her as an allowance in lieu of a homestead, the title to which is vested in her free of the claims asserted by appellees. Judgment will be reversed, and is here rendered in accordance with this opinion. Reversed and rendered.

MISSOURI, K. & T. RY. CO. OF TEXAS v. COOK.1

(Court of Civil Appeals of Texas. Jan. 8, 1896.) CARRIERS-PERSONAL INJURIES STIPULATIONSWAIVER-EVIDENCE-HARMLESS ERROR-FAILURE OF CONDUCTOR TO WARN PASSENGER OF DANGER-EXCESSIVE DAMAGES.

1. In an action for personal injuries received by a shipper while riding in a stock car with a horse shipped by him, evidence of a custom on the part of defendant's conductors in permitting shippers of live stock to ride in the car with the stock is admissible to show a waiver by defendant of a stipulation in the shipment contract requiring plaintiff to ride in the caboose.

2. Defendant cannot complain of the refusal to give an instruction requiring him to use a greater degree of care than the instruction given in place thereof.

3. Where a passenger is injured, while riding in a stock car, in a railroad collision between the train in which he was riding and another section which ran into plaintiff's train, which was stopped on account of the air brakes getting out of order, if the conductor, in the exercise of reasonable care, should have known of plaintiff's danger and with the exercise of reasonable care could have warned him in time for him to avoid injury, his failure to warn plaintiff renders the company liable, though plaintiff was negligent in riding in the car.

4. In an action for personal injuries received in a rear-end collision, it appeared that the train on which plaintiff was riding, and which was stopped by reason of the air brakes getting out of order, was closely followed by the train which ran into it. As soon as the first train began to stop, the conductor sent the brakeman back to signal the other train. the brakeman jumped from the train, he fell down an embankment, and afterwards, while running back, fell in trying to pass over a small bridge. There was no evidence as to the amount of time lost by reason of his last fall. Held, that it was proper to refuse to instruct that defendant was not liable if the collision was caused by reason of the brakeman's falling in crossing the bridge, thereby preventing him from getting far enough back to signal the second train in time for it to stop, a general charge that plaintiff must show negligence on defendant's part being given.

5. A verdict for $10,000 in an action for personal injuries will not be set aside as excessive, where there is evidence that plaintiff, a man 25 years of age, and, previous to his injury, of good health, was, due to the injuries, confined to his bed for several months; that three years after the injury he was unable to get around without the use of crutches; that, due to the injuries, he was unable to sleep well; that his urinal and sexual organs were impaired,

1 For opinion on rehearing, see 34 S. W. 178.

and that he might never get well, and had symptoms of paralysis.

Appeal from district court, Williamson county; F. G. Morris, Judge.

Action by R. L. Cook against the Missouri, Kansas & Texas Railway Company of Texas. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This suit was brought by appellee to recover damages for personal injuries to himself and for killing his horse, resulting from a rear-end collision of freight trains, plaintiff riding in the car with his horse on the front train. Upon trial and verdict for plaintiff for $500, the value of the horse, and $10,000 for his personal injuries, judgment was rendered for him, from which the railway company has appealed. The case was before this court on appeal once before, and will be found reported in 27 S. W. 769-772, to which we refer for a better understanding of the issues now before us.

The facts are briefly as follows: Plaintiff lived near the town of Lampasas, Tex., and was 26 years old, and at times kept and raced fine race horses, attended the fair at Dallas in the fall of 1891 with a fine race horse, attending the race with the horse whose value is sued for. On November 3, 1891, desiring to return home, he shipped the horse on defendant's cars from Dallas to Temple, Tex. The horse was put in the car by himself. He signed a contract with defendant for the shipment of the horse after the horse had been placed in the car and the train was about to "pull out." He kept the contract and a first-class passenger ticket for his own transportation, which he had previously bought at Temple. The rules of the company were that, when only one horse was shipped, the owner or person accom panying the same had to purchase such tick

et. He then went to the car where his horse was already placed, found a man waiting there, who asked him for his contract, which he exhibited with his ticket. He also met another person there, who called for his transportation, which he again exhibited, and of whom he asked if the ticket was all right. The answer was "Yes," and he was told to get in. He got in the car with the horse, and closed the door, and in a few minutes the train "pulled out," he riding in the car with his horse. After arriving at Waxahachie, he was again asked by the conductor for his transportation, when he again exhibited the ticket. The conductor, after examining it, handed it back to him. to him. Between Waxahachie and Hillsboro two men got in the car. At Hillsboro the crew of the train was changed. After the train passed Waco, the conductor came around, and called for his transportation again. He showed the contract and ticket. This was in the nighttime, and the conductor had a lantern. The conductor handed him back the contract, and kept the ticket. Plaintiff was at this time, and had been all the time, in the car with his horse.

Between Waco and Temple, about 2 o'clock at night, while this train was stopped, it was run into from the rear by another train, and the car in which plaintiff was riding with his horse was crushed to pieces, the horse and four persons besides plaintiff riding therein were killed, and plaintiff was injured as alleged in his petition, because of which he incurred expenses as alleged. The horse was shown to be worth $500 or more. The train was a freight train, divided into two sections. The train was numbered 101, and the sections were called sections "First 101" and "Second 101." Plaintiff was riding on the first section, in the second car in front of the caboose. These sections were, by the practice and custom of the company, required to keep at least five minutes apart; and at that time there was a bulletin of defendant ordering freight trains not to exceed 23 miles an hour, and the distance between sections of freight trains running at that speed would be about two miles. The second section overtook the first at Grandview, Hillsboro, West, Eddy, and Waco stations. The second section came up behind at Eddy about 10 minutes after the arrival of the first section, and it was not seen again by the conductor of the first until it ran into it. In running section 1 over a curve, the conductor, from the cupola, observed fire flying from the wheels, and knew, he says, that the brake "was setting, and the air was being stuck"; that is, that the brake was tightening. "Turning the cock on the last air car, bursting a pipe, or breaking in two, will do it." He saw the train would stop. "The air stuck, and was locking the wheels, and the train was beginning to stop." The first thing the conductor did was to tell the brakeman to get his red light, and go back and flag the second section; and he, the brakeman, got off, and started back. The train was going, as the conductor testified, 15 or 18 miles an hour when the brakeman got off; and after this the train went on some 75 yards, when it stopped. The conductor woke up the occupants of the caboose, and went forward to the head brakeman, to see if he knew anything about the air. He got about to the third air car (the air cars are next to the engine), and was looking over them, to see what was the matter with them; had bled two, to see if it released the brakes; and while he was bleeding a car he heard the engineer and fireman or brakeman say, "Here they come, and they are going to hit us." He (the conductor) looked back, and saw the second section of the train coming, and it was about one-quarter of a minute from that time until it struck. Nobody was hurt in the caboose. The platforms were knocked off it, and it was knocked off both tracks and its trucks. The engineer of the second section could only see the first section after he got about half way into the cut, where the first section had stopped. There was a curve there, and he could have looked across and seen it.

It was a custom of defendant to allow persons in charge of fine horses to ride in the same car in which the horses were shipped to take care of them. There was a stipulation in the contract of shipment of plaintiff's horse "that the person or persons in charge of said stock under this contract shall remain in the caboose car attached to the train while the same is in motion, and that whenever such person or persons shall leave the caboose car, or pass over or along the cars or track, they shall do so at their own risk of personal injury from any cause whatever." This clause of the contract was pleaded by defendant in its answer. Plaintiff was in charge of his horse under the contract. Plaintiff read in evidence the following rules issued by defendant company to its train employés, and in force at the time of the collision: "Rule 22. When a train from any cause has to stop on the main track in such a position as to endanger it from approaching trains, it must be protected by torpedoes and red signals in the following manner: Flagman will place one torpedo on the rail at least twenty telegraph poles from his train; place one torpedo on the same rail at a further distance of ten telegraph poles from the first torpedo, and then take such position about midway between the two torpedoes to stop the train with red signals." "Rule 121. Freight trains in sections, or running near each other in the same direction, must keep five minutes apart, except on approaching meeting points, when they will run very carefully, and with trains under control." Stalker was the brakeman sent back by the conductor to flag the second section of the train. He noticed the fire from the wheels that had the air on them. next to the engine. This caused a jar, and the slowing up of the train, and the conductor instructed him to get a red light, and go back to flag the second section of the train. He got down as quickly as he could, the train running about 15 miles an hour, as he testifies. He took along torpedoes, a white light, and a red light. Got off by the rear steps of the caboose. got off, the bank being steep, be slipped, and slid down about 20 feet, but got up as quickly as he could, and got back on the track, and ran as quickly as he could, to stop the second section. He also fell into a wooden bridge, but recovered himself, and got up. He skinned himself on the bridge, and scrambled over the bridge, ran back as hard as he could, and got very near 10 telegraph poles (as near as he could remember). This carried him about the center of the cut; it being a deep cut. When he reached this point, he saw the headlight, and the engine was at this time at the north end of the cut, the cut being, as he says, about 12 car lengths. He could not tell the rate of speed of the train. He swung the light across the track, and the engineer called for brakes by a whistle,-one short whistle,-and heard the reversal of the engine. He says the only time he lost was

As he

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