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when he slipped and fell through the bridge. He did not return, but went on to flag the passenger train that was following this section of the train. He got about three-quarters of a mile, when the rear brakeman of section 2 came back, and relieved him, for the purpose of flagging the passenger train. He says that when he saw the engine of the second section it was about 10 telegraph poles from the caboose of section No. 1. Section 2 was a coal train of 18 cars. It was not supplied with air brakes. He says it was impossible, in the distance between the two sections, to stop section 2, from the time he signaled it, before it struck the caboose, without air brakes. From 30 to 32 telegraph poles make a mile; so he was nearly one-third of a mile back from the cabocse when he flagged the train. He says it was about two minutes after he left the caboose before he saw the rear section of the train. Was not certain that it was not as much as 5 minutes, but testified that 21⁄2 minutes nearly cover the time. But he does not swear that the time is accurately fixed.
The foregoing are all the facts that need be stated at this time. We will state any other facts necessary in discussing the 'ssues raised by the assignments of error.
West & Cochran, for appellant. John W. Parker, for appellee.
COLLARD, J. (after stating the facts). Appellant contends on this appeal, as it did on the last trial before the court below, that the written contract permitted the plaintiff to ride in the car with his horse, but that he agreed to assume all risk of riding elsewhere; and, therefore, that the court below erred in admitting testimony showing that it was the custom and practice of defendant to allow persons in charge of fine horses to ride in the car with them, as such testimony would be immaterial; and that the court erred in instructing the jury that the object of such testimony was to show that the provision of the contract relied on by defendant as to riding in the caboose and assuming the risk of riding elsewhere had been waived; and that the court erred in not giving instructions asked by defendant to the effect that the legal effect of the contract required him to ride in the caboose; and that, if he saw fit to ride in the car with his horse, and it was more dangerous than riding in the caboose, he assumed the risk; and that, if he had remained in the caboose, and would not have been injured, the jury should find for the defendant.
1. We think our former opinion correctly states the law as to the custom of permitting parties situated as was the plaintiff to ride elsewhere than in the caboose, in violation of the contract, and we refer to that opinion on this subject. We then held that the testimony as to the custom was clearly admissible to show a waiver of the contract prohibition to ride elsewhere than in the ca
boose. The testimony was admissible, notwithstanding the construction of the contract by defendant, that it expressly allowed the plaintiff to ride in the car with his horse. Indeed, the charge requested by defendant construed the contract to mean that it required plaintiff to ride in the caboose. We therefore think it was not error for the court to advise the jury that the testimony of custom was admitted for the purpose stated. We also think defendant cannot consistently contend that plaintiff was permitted by defendant to ride in the car with his horse, and yet, that if he did so, defendant would be relieved of liability for its own negligence in case he availed himself of the permission. The contract, taking its provisions together, amounted to a prohibition of riding elsewhere than in the caboose, and this prohibition might have been waived by the consent of the company permitting the thing prohibited. Custom showed this consent or waiver. It could not be said that, if the company could have been present in person, and, being so present, consented to plaintiff's riding in the car with his horse, it would not have waived the contract prohibition. In the management of its affairs it could have legally waived the contract stipulation, and, having done so, it cannot say that plaintiff assumed the risk of doing so from every cause. It cannot, in such case, be heard to say that it would be relieved from its own negligence. The position of appellant on the point, it seems to us, cannot be approved by the courts.
2. It is insisted by appellant that the court below erred in the fifth paragraph of its charge in not limiting the care demanded of the carrier to the highest degree of care consistent with the practical operation of railroad trains. The charge of the court only required the company to use ordinary care, and the court did not say a word about the highest degree of care. The court's charge expressed a correct principle of the law, after defining ordinary care, in stating that "the exigencies of the particular case dictate and measure the care required." Defendant requested a charge which limited the care of the company to the highest degree of care consistent with the practical operation of its trains. Defendant cannot complain of the court's refusal to give the charge, as it was more onerous on it than the charge given by the court. The charge given only made defendant liable for its failure to use ordinary care. The court's charge was correct, and needed no explanations as asked by defendant. The fourth paragraph of the court's charge is as follows: "You are further instructed that if you believe from the evidence that when the train in which plaintiff was riding came to a stop that there was danger of the same being run into by the second section, and that plaintiff's life and limbs were thereby put in peril; that the conductor in charge of the said train knew of the said danger and of the said peril to plaintiff, if any,
in the car with his horse. There is no conflict in the testimony upon this point. The conductor warned other persons in the caboose, and the jury were clearly right in finding that, if he had also warned plaintiff, and had ample time to do so, he would not have been hurt. The court did not charge that the facts stated would be negligence. The charge carefully advised the jury that it was necessary to find the conductor was not exercising ordinary care in knowing the danger, and in failing to warn the plaintiff, to justify a verdict for plaintiff on this branch of the case. The charge was the law as to proximate cause, telling the jury that they must find that plaintiff would have escaped without injury if he had been warned, before defendant would be liable. There is, however, no objection to the charge as to proximate cause. The charge was not erroneous as stated in the assignment of error addressed to it.
or as a person of ordinary care and prudence | no doubt, and this was a result of his being should have known of the same, and you believe that plaintiff was ignorant of such danger, if any, and had not equal means with the defendant, the Missouri, Kansas & Texas Railway Company, and with said conductor, of knowing thereof, and you believe that suid conductor, after he became aware of said danger and peril to plaintiff, if he became aware thereof, or after he should have become aware thereof, as a man of ordinary prudence, had ample time by the exercise of reasonable effort to warn plaintiff of the said danger; and you believe that as a man of ordinary care and prudence, under the circumstances, it was his duty to warn plaintiff; and you believe from the evidence that, had he warned plaintiff, that plaintiff would have escaped without injury,-you will find a verdict for the plaintiff, even though you may believe he was violating said provision of the contract by riding in the car with his horse, or that by riding therein he did that which a man of ordinary care would not have done under the circumstances. By 'ordinary care,' as herein used, is meant the care and prudence which a person of ordinary care and prudence would have used under the same or similar circumstances." This charge is objected to because it is said to be a charge upon the evidence, and directed the attention of the jury to particular evidence presenting a theory of plaintiff as to defendant's liability; that it instructed the jury that the conductor was required to notify plaintiff of the fact that the train had stopped without regard to the question of whether the failure to warn was negligence, and that it was erroneous, in that it instructed the jury that the state of facts therein set out would constitute negligence as a matter of law. We do not believe any of the objections made to the charge should be sustained. If plaintiff were guilty of negligence in riding in the car with his horse, and the conductor knew it, or ought to have known it by the exercise of ordinary care, and that his position was one of peril under the circumstances, and the conductor knew this fact, and the plaintiff did not know it, it was the duty of the conductor to use ordinary care to warn him of his danger; and if, by so warning him, plaintiff would not have been injured, defendant would be liable for the injury. This was a separate and distinct ground of recovery set up by plaintiff in his petition, and it was proper to submit it to the jury.
was not subject to the criticism that it selected particular parts of the testimony as a subject of recovery. The testimony warranted the charge. The conductor did know that plaintiff was in the car with his horse, and in that position he was in imminent danger, -a fact that the conductor ought to have known; and the testimony warrants the conclusion reached by the jury that, if he had been warned in time, he would not have been injured. That he was injured, there can be
Defendant asked the court to give the following charge, which was refused: "That if you believe from the evidence that the accident of the second section by which the plaintiff was injured, if injured in the accident, was the result of the flagman not getting back far enough to give the proper signal to the engineer of the second section, and if you believe that the failure of the flagman to get far enough back to give the proper signal was the result of his falling into or through a bridge, and that in so falling there was not any want of care on his part under the circumstances, then you are instructed that if the accident was the result of such failure of the flagman to get far enough back, and was not from any other cause, the defendants are not liable in this case." In our opinion, the testimony did not warrant the charge. When he got off the caboose, the flagman fell down the embankment about 20 feet, “but," he stays, "I got up as quick as I could, and ran back," etc. "I also fell into that wooden bridge, but recovered myself, and got up. I skinned myself, and scrambled over the bridge, and ran back as hard as I could, and got north very near ten telegraph poles, as near as I can remember." Again, he says in another part of his testimony, "The only time I lost was when I slipped and fell through the bridge." The conductor testified that: "Right at the wreck, Harry Dane [the locomotive engineer of section 2] asked me why I did not have the flagman back further, and I says, 'How far back was he?' and he says, 'He was not back over ten-I think ten-telegraph poles;' and I asked Stalker why he was not back further, and he said when he got off he slipped, and fell down the dump. There is a little dump of 6 or 8 feet. And when he started to run back he fell into a little bridge, and then got up, and started from the bridge on a run, and he got back right in the edge of the cut." It is not shown that any appreciable time was lost by
the brakeman at the bridge, upon which the charge asked could have been based. Some time must have been lost in slipping down the embankment 20 feet, and in getting back on the track. The stumbling into the bridge could not have been the only cause of the accident. The testimony would have authorized the conclusion that the second section of the train was running too close to the first section, or the negligence of the company may have consisted in failure to have the air brakes of the first section of the train in repair, or in failing to move it on out of the way after bleeding the cars provided with air brakes. At all events, we are satisfied the testimony does not indicate that the time lost by the brakeman in getting over the bridge should be made the sole cause of the collision, and it would not have been proper to submit the question to the jury. No witness estimates the time, and the circumstances do not indicate that the collision should be attributed solely to trouble in crossing the bridge,-a "little bridge." The general charge of the court that plaintiff must show negligence of defendant causing the injury before he could recover was sufficient. The defense could not, under the testimony, rest solely on the time lost at the bridge by the flagman; and the court should not, by giving the charge asked, have intimated to the jury that they could so find the fact.
Appellant asks a reversal because the verdict is excessive, and not supported by the evidence as to the item of damages for personal injuries, because the proof did not show that plaintiff was incapacitated to follow his business of horse racer, and showed that he had during the three years since the trial been following said vocation regularly; and the amount awarded plaintiff for such personal injuries was far in excess of a proper and reasonable allowance to him for the injuries sustained. All the facts were before the jury, and we think they abundantly sustain the verdict. We will not presume that the jury failed to give due consideration to facts tending to show the ability of plaintiff to engage in horse racing as he had done before his injuries. Plaintiff testified: "I was lying down in the car where my horse was. I suppose it was between 2 and 4 in the morning. I had been asleep, and was probably dozing. I found myself thrown, with pieces of timber that were flying and sliding together, down the embankment. The car I was in was crushed to pieces; all broken up. There were four other persons in the car. They were all killed. I think there was one car between my car and the caboose, and the length of the car was 34 feet. There was about 34 feet intervening between the car I was in and the caboose. I was thrown with the pieces of the car, the horses, men, and all. We seemed to slide down the embankment under timbers. I could not see anything; timbers were striking me. I was struck on the head, v.33s.w.no.6-43
back, legs, and all parts of the body. There was scarcely a place on me that was not bruised. The skin was nearly all knocked off my hands. I got up by climbing till I got on top of the mass. The first thing I saw was the men killed that were in the car with me. It was a few seconds or minutes from the time the car struck till I was out on top of the mass of broken timber of the car. I was bruised on the head, face, hands, back, legs, arms, and all over my body. I don't know how I got from the car to the caboose. I became insensible. When I became conscious, the first thing I knew 1 found myself in the caboose. That was some time in the day, about 7 or 8 o'clock. Daylight had come. I don't know how long I remained in the car. At times I roused up, and remembered things. I was taken to Temple, and from Temple home, to Lampasas. From the caboose I was taken to a wagonette by men who lifted me up by taking hold of my legs and body, and laid me on the long seat in the wagonette. From this wagonette I was taken to the doctor's office. He worked with me some time. I don't remember how long, nor what he did. There were times when I did not know anything that was done. From there I was sent to the depot in a hack, and carried home on the train. The train reached there in the early part of the night, the next night after the collision. I was carried to a hack from the train, and laid on a seat, and from there I was hauled home. From the hack I was taken to my room, and laid on my bed. I sustained personal injuries in the wreck. My head was bruised. The back of my head was all bruised; part of my neck; my body was crushed, and I seemed to be bruised inwardly. I spit blood. My back was wrenched, and awfully. My legs were bruised. My feet and hands were bruised. There was hardly any skin left on my hands at all. I remained in bed a number of weeks after getting home. Dr. King waited on me. He dressed my wounds, examined me, and gave me medicine. He came to see me twice a day for a number of days, as much as two weeks. After that he came once a day; occasionally twice a day. * * * I was confined to my bed a number of weeks before I was out at all. It was about six weeks before I was out of bed. After getting out of bed, I was set in a chair several times. For quite a while I would sit up for a few minutes, and then go to bed again. After that I would walk with the aid of crutches. It was three or four months before I got out of the house at all. When I went out, it was with the aid of crutches. I have used crutches ever since. Developed soreness in my backbone and pain in my head. I have been spitting blood for a number of months; had a cough and spit blood. It seemed to be the left lung that was injured. *** My eyesight has been injured. It weakened it. I could not scarcely read at all at night. I
can only read for a short time. When I read for any length of time the words run together and glimmer. My eyesight was good before the accident. My lungs and chest were in good condition, and my general health was good, before that time. was very strong and active, and had good health; was sound in limb and body, and had no infirmity or deformity. My legs are weakened. I have a feeling of numbness in them, a pin and a needle feeling, like they were asleep, and at times a burning and tingling pain. I cannot direct the movement of my legs as I could before the injury. I cannot walk a step without the aid of my crutches, and have not been able to since the injury. I cannot rise without holding onto something, nor sit down without support. At times my urine seems to collect, and I have to pass it right away. If I don't, it comes itself. At other times I may go, and feel a desire to go, and it is only a dribbling, and don't amount to anything. This was not the case before the accident, but has been ever since. After first lying down at night, I often draw water two or three times before going to sleep at all. My sleep is very bad. I scarcely ever rest well. I will sleep one or two hours, and then lie awake a long time." Being asked about his sexual powers, he testified that before the accident they were strong, but since has had very little,-no desire, or scarcely any; and that there was no impairment of these organs before the accident. He is now scarcely ever well. Has been under treatment of doctors since. Has paid to them about $300, and has never been free from pain since his injuries. He was before engaged in and was looking after a farm, raising stock, buying and selling horses, and getting them in condition to sell. His average earnings up to that time were about $75 per month, and since he has not been able to pursue any business, and has earned "scarcely anything." He has no profession; not well educated; can read and write, and make ordinary calculations. The last trial was on the 7th day of January, 1895. He was then 29 years old. past. Was born September 24, 1865. Physicians testifying corroborate the statement of plaintiff as to his injuries, and show that he has now symptoms of paralysis in his lower limbs, and that he will probably never fully recover from some of his injuries. He is not a married man, and lives with his father and family. He attended fairs in the state with race stock. He entered his horse (that was killed) in the races at the Dallas fair. He some- | times bets on the races, and made some bets on the side in the races at the Dallas fair. Has farmed and gardened some on a small scale, and raised fruit. Lived with his father, who is 70 years old, and head of a family. Had other younger brothers; and he had charge of the whole place before his injuries. He was at Dallas at the last fair before the trial.
Our conclusion is that the facts warrant the amount of the verdict. The charge of the court presented the law of the case, was full and clear upon the issue of negligence on the part of the defendant and contributory negligence on the part of plaintiff. We find no error in the charge or other ruling of the court below assigned by appellant, and the judgment is affirmed. Affirmed.
PERKIEWIEZ et al. v. FIRST NAT. BANK OF OKLAHOMA et al.1
(Court of Civil Appeals of Texas. Dec. 11, 1895.)
VENDOR AND PURCHASER-BONA FIDE PURCHASER.
In an action to foreclose vendors' liens on four lots it appeared that B. conveyed the lots to M., reserving vendors' liens for payment of two purchase notes, and that thereafter M. conveyed two of the lots to T., reserving a vendor's lien, and that T. conveyed such lots to L., who paid their market value in cash. Prior to the deed to L. one of the notes given by M. to B. was assigned to plaintiff, but the assignment was not recorded, and on the date of L.'s deed, B. released the vendor's lien against M., who also released his lien against T. Inquiry as to the state of the title was made by L., who was a nonresident, before his purchase, through an attorney, who caused the releases to be made, but who failed to obtain any knowledge of the transfer of the note to plaintiff, and its existence and transfer were unknown to L. Held, that L. was a bona fide purchaser.
Appeal from district court, Tarrant county; W. D. Harris, Judge.
Action by B. Perkiewiez and another against the First National Bank of Oklahoma, J. T. Smith and wife, and others, on promissory notes, and to foreclose vendors' liens. From a judgment dismissing the action as to the bank and others, and declaring part of the land free from liens as against defendants Smith, plaintiffs appeal. Affirined.
Husbands & Carlowitz, for appellants. J. C. Randolph, for appellees.
FLY, J. Appellants sued on a note for $5,000, executed by W. J. Bailey, and on one for $7,433.33, executed by W. R. Moore and R. E. McAnulty, to W. J. Bailey, as part of the purchase money of lots 7, 8, 15, and 16 in the city of Ft. Worth. Judgment for $5,000 was asked against W. J. Bailey and against Moore and McAnulty for the amount of the note and a foreclosure of the lien on the lots named. The First National Bank of Oklahoma, T. N. Sandidge, C. J. Swasey. Mary J. Smith, and J. T. Smith were joined as parties defendant, the allegation being made that they were setting up a claim to the land, and a foreclosure of the lien was asked as against them. Mary J. Smith, joined with her husband, J. T. Smith, answered that she claimed the land as the sole heir of H. R. Littell. deceased, who was a bona
1 Rehearing denied.
fide purchaser for value of lots 7 and 8 in block A, C. Daggette's addition to the city of Ft. Worth, described in the petition; the full facts in regard to his purchase being pleaded. The matter of subrogation, pleaded by the Smiths, does not, as the case is viewed by the court, require notice. Moore and McAnulty pleaded that the plaintiffs had released them from payment of the note, and that Bailey had failed to place numerous credits on the note. Bailey filed a general Bailey filed a general denial to the petition and to the cross bill of Moore and McAnulty. The suit was dismissed as to the bank, Swasey, and Sandidge. The court instructed the jury to find a verdict in favor of appellants against Bailey for the amount of the $5,000 note sued on, and against Moore and McAnulty for the amount of the $7,433.33, less the proper credits, and in favor of Mary J. and J. T. Smith that there was no lien, as against them, on lots 7 and 8. The latter were the only lots about which there was any contention, the evidence showing that the lien had been theretofore foreclosed on lots 15 and 16 in a suit in which appellants were parties. The facts show that lots 7 and 8, among others, were, on October 25, 1888, conveyed by Cameron and Tatum to W. J. Bailey. On January 7, 1890, Bailey conveyed lots 7, 8, 15, and 16 to Moore and McAnulty, reserving a vendor's lien to secure the payment of a note for $5,000, due August 25, 1890, and of another for $7,433.33, payable October 10, 1891. On January 9, 1890, Moore and McAnulty conveyed lots 7 and 8 to Trice, the consideration being a note for $4,650, due in 12 months. Trice conveyed the lots to H. R. Littell for $6,000, which was their fair market value, which was paid in cash by Littell. This conveyance was made on December 31, 1891, and was acknowledged and filed for record January 6, 1892. The other conveyances were duly acknowledged and recorded about the date of execution. On April 10, 1890, W. J. Bailey executed a note to Perkiewiez for $5,000, and at the same time indorsed and delivered to him, as collateral security, the note for $7,433.33, executed to Bailey by Moore and McAnulty. There was no evidence of the transfer of the note placed upon record. On December 31, 1891, Bailey executed a release of the vendor's lien on lots 7 and 8, evidenced by his deed to Moore and McAnulty, the consideration being the payment by them of $4,500. This was duly acknowledged and filed for record January 6, 1892. On the same day that the above release was executed, a release from Moore and McAnulty to C. E. Trice was executed, and was acknowledged and filed for record, January 6, 1892. Littell lived in Kentucky, and had no notice whatever that the $7,433.33 note was in existence at the time of his purchase, or had ever been transferred by Bailey to any one. Littell employed J. C. Randolph, Esq., an attorney at law, to investigate the title to the land, and instructed
his banker not to pay over the purchase money for the lots to Trice until Randolph said the title was clear. Randolph had no knowledge that Bailey had assigned to appellant the note of Moore and McAnulty, but believed the land free from all liens, and so advised Littell. Trice procured the releases from Bailey and Moore and McAnulty. Mary J. Smith is sole heir of Littell, deceased.
There is, as admitted by appellants, but one point in issue in this case: Was the trial judge justified by the evidence in instructing the jury to find for appellees Mary J. and J. T. Smith? There was no assignment of the note on record, and not the slightest circumstance in proof that tended to show that Littell or his agents had any notice whatever that Bailey had assigned the note to appellants; but, on the other hand, appellees established clearly that there was no notice, actual or constructive, of the assignment or transfer of the note. Furthermore, due and diligent inquiry was made by Littell, through his attorney, as to the status of Trice's title. We are therefore of the opinion that the court properly instructed a verdict for appellees. Moran v. Wheeler, 27 S. W. 54, 87 Tex. 179; Patterson v. Tuttle (Tex. Civ. App.) 27 S. W. 758.
There is no force in the contention of appellants that Littell was not an innocent purchaser because the releases were not executed when negotiations for the purchase began. This fact would merely emphasize and accentuate the facts indicating diligence on the part of Littell. Through his attorney he was investigating the title to the land, and found that no release of the liens were on record. He would not pay for it until this matter was arranged. Trice obtained the releases from Bailey and from Moore and McAnulty. This was a declaration on their part that the note was paid, and upon this Littell acted. The law protects him as an innocent purchaser. The judgment is affirmed.
DAY et al. v. JOHNSON, County Judge.
(Court of Civil Appeals of Texas. Dec. 18, 1895.)
PLEADINGS-DESCRIPTION OF PARTIES.
A suit by R., "County Judge," on a bond payable to plaintiff in such capacity, sufficiently shows that he sues for the benefit of the county, and warrants a judgment in his name, for the use of the county.
Appeal from Tarrant county court; Robert G. Johnson, Judge.
Suit begun in the justice's court by Robert G. Johnson, county judge, against G. H. Day and others, on four convict bonds. Appeals were taken to the county court. where the causes were consolidated, and from a judg
1 Rehearing denied.