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when he slipped and fell through the bridge. | boose. The testimony was admissible, notHe did not return, but went on to flag the withstanding the construction of the contract passenger train that was following this sec- by defendant, that it expressly allowed the tion of the train. He got about three-quar- plaintiff to ride in the car with his horse. ters of a mile, when the rear brakeman of Indeed, the charge requested by defendant section 2 came back, and relieved him, for the construed the contract to mean that it repurpose of flagging the passenger train. He quired plaintiff to ride in the caboose. We says that when he saw the engine of the therefore think it was not error for the court second section it was about 10 telegraph poles to advise the jury that the testimony of cusfrom the caboose of section No. 1. Section 2 tom was admitted for the purpose stated. was a coal train of 18 cars. It was not sup- We also think defendant cannot consistently plied with air brakes. He says it was im- contend that plaintiff was permitted by depossible, in the distance between the two sec- fendant to ride in the car with his horse, and tions, to stop section 2, from the time he sig- yet, that if he did so, defendant would be naled it, before it struck the caboose, without relieved of liability for its own negligence air brakes. From 30 to 32 telegraph poles in case he availed himself of the permission. make a mile; so he was nearly one-third of The contract, taking its provisions together, a mile back from the cabocse when he flagged amounted to a prohibition of riding elsewhere the train. He says it was about two minutes than in the caboose, and this prohibition might after he left the caboose before he saw the have been waived by the consent of the comrear section of the train. Was not certain

pany permitting the thing prohibited. Custhat it was not as much as 5 minutes, but ton showed this consent or waiver. It could testified that 212 minutes nearly cover the not be said that, if the company could have time. But he does not swear that the time been present in person, and, being so presis accurately fixed.

ent, consented to plaintiff's riding in the The foregoing are all the facts that need car with his horse, it would not have waived be stated at this time. We will state any the contract prohibition. In the management other facts necessary in discussing the issues of its affairs it could have legally waived the raised by the assignments of error.

contract stipulation, and, having done so, it West & Cochran, for appellant. John W.

cannot say that plaintiff assumed the risk Parker, for appellee.

of doing so from every cause. It cannot, in

such case, be heard to say that it would be COLLARD, J. (after stating the facts). relieved from its own negligence. The posiAppellant contends on this appeal, as it did tion of appellant on the point, it seems to us, on the last trial before the court below, that cannot be approved by the courts. the written contract permitted the plaintiff 2. It is insisted by appellant that the court to ride in the car with his horse, but that he below erred in the fifth paragraph of its agreed to assume all risk of riding elsewhere; charge in not limiting the care demanded of

the carrier to the highest degree of care conadmitting testimony showing that it was the sistent with the practical operation of railcustom and practice of defendant to allow road trains. The charge of the court only repersons in charge of fine horses to ride inquired the company to use ordinary care, and the car with them, as such testimony would the court did not say a word about the highbe immaterial; and that the court erred in est degree of care. The court's charge exinstructing the jury that the object of such pressed a correct principle of the law, after testimony was to show that the provision of defining ordinary care, in stating that "the the contract relied on by defendant as to rid- exigencies of the particular case dictate and ing in the caboose and assuming the risk of measure the care required." Defendant reriding elsewhere had been waived; and that quested a charge which limited the care of the court erred in not giving instructions ask- the company to the highest degree of care ed by defendant to the effect that the legal consistent with the practical operation of its effect of the contract required him to ride trains. Defendant cannot complain of the in the caboose; and that, if he saw fit to court's refusal to give the charge, as it was ride in the car with his horse, and it was more onerous on it than the charge given by more dangerous than riding in the ca boose, the court. The charge given only made de he assumed the risk; and that, if he had re- fendant liable for its failure to use ordinary mained in the cabcose, and would not have care. The court's charge was correct, and been injured, the jury should find for the de- needed no explanations as asked by defendfendant.

ant. The fourth paragraph of the court's 1. We think our former opinion correctly charge is as follows:

charge is as follows: “You are further instates the law as to the custom of permitting structed that if you believe from the evidence parties situated as was the plaintiff to ride that when the train in which plaintiff was elsewhere than in the caboose, in violation riding came to a stop that there was danger of the contract, and we refer to that opin- of the same being run into by the second secion on this subject. We then held that the tion, and that plaintiff's life and limbs were testimony as to the custom was clearly ad- thereby put in peril; that the conductor in missible to show a waiver of the contract charge of the said train knew of the said danprohibition to ride elsewhere than in the ca- ger and of the said peril to plaintiff, if any, or as a person of ordinary care and prudence | no doubt, and this was a result of bis being should have known of the same, and you be- in the car with his horse. There is no conlieve that plaintiff was ignorant of such dan- flict in the testimony upon this point. The ger, if any, and had not equal means with conductor warned other persons in the cathe defendant, the Missouri, Kansas & Texas | boose, and the jury were clearly right in findRailway Company, and with said conductor, ing that, if he had also warned plaintiff, and of knowing thereof, and you believe that suid had ample time to do so, he would not have .conductor, after he became aware of said dan- | been hurt. The court did not charge that ger and peril to plaintiff', if he became aware the facts stated would be negligence. The thereof, or after he should have become charge carefully advised the jury that it was aware thereof, as a man of ordinary pru- necessary to find the conductor was not exdence, had ample time by the exercise of rea-ercising ordinary care in knowing the dan:sonable effort to warn plaintiff of the said ger, and in failing to warn the plaintiff, to danger; and you believe that as a man of or- justify a verdict for plaintiff on this branch dinary care and prudence, under the circum- of the case. The charge was the law as to stances, it was his duty to warn plaintiff; proximate cause, telling the jury that they and you believe from the evidence that, had must find that plaintiff would have escaped he warned plaintiff, that plaintiff would have without injury if he had been warned, beescaped without injury,--you will find a ver- fore defendant would be liable. There is, dict for the plaintiff, even though you may however, no objection to the charge as to believe he was violating said provision of the proximate cause. The charge was not ercontract by riding in the car with his horse, roneous as stated in the assignment of error or that by riding therein he did that which a addressed to it. man of ordinary care would not have done Defendant asked the court to give the folunder the circumstances. By 'ordinary care,' lowing charge, which was refused: “That if as herein used, is meant the care and pru- you believe from the evidence that the accidence which a person of ordinary care and dent of the second section by which the plainprudence would have used under the same or tiff was injured, if injured in the accident, similar circumstances.” This charge is ob- was the result of the flagman not getting jected to because it is said to be a charge up- back far enough to give the proper signal to on the evidence, and directed the attention the engineer of the second section, and if you of the jury to particular evidence presenting believe that the failure of the flagman to get a theory of plaintiff as to defendant's liabil- far enough back to give the proper signal was ity; that it instructed the jury that the con- the result of his falling into or through a ductor was required to notify plaintiff of the bridge, and that in so falling there was not fact that the train had stopped without re- any want of care on his part under the cirgard to the question of whether the failure cumstances, then you are instructed that if to warn was negligence, and that it was er- the accident was the result of such failure roneous, in that it instructed the jury that of the flagman to get far enough back, and the state of facts therein set out would con- was not from any other cause, the defendants stitute negligence as a matter of law. We are not liable in this case." In our opinion, do not believe any of the objections made to the testimony did not warrant the charge. the charge should be sustained. If plaintiff When he got off the caboose, tue flagman fell were guilty of negligence in riding in the car down the embankment about 20 feet, "but," with his horse, and the conductor knew it, he stays, “I got up as quick as I could, and ought to have known it by the exercise of ran back," etc. "I also fell into that wooden ordinary care, and that his position was one bridge, but recovered myself, and got up. I of peril under the circumstances, and the con- skinned myself, and scrambled over the ductor knew this fact, and the plaintiff did bridge, and ran back as hard as I could, and not know it, it was the duty of the conductor got north very near ten telegraph poles, as to use ordinary care to warn him of his dan- near as I can remember.” Again, he says in ger; and if, by so warning him, plaintiff another part of his testimony, “The only time would not have been injured, defendant I lost was when I slipped and fell through would be liable for the injury. This was a the bridge.” The conductor testified that: separate and distinct ground of recovery set "Right at the wreck, Harry Dane [the locoup by plaintiff in his petition, and it was motive engineer of section 2] asked me why proper to submit it to the jury. The charge I did not have the flagman back further, and was not subject to the criticism that it select- I says, 'How far back was he?' and he says, ed particular parts of the testimony as a sub- 'He was not back over ten-I think ten-teleject of recovery. The testimony warranted graph poles;' and I asked Stalker why he the charge The conductor did know that was not back further, and he said when he plaintiff was in the car with his horse, and got off he slipped, and fell down the dump. in that position he was in imminent danger, There is a little dump of 6 or 8 feet. And -a fact that the conductor ought to have when he started to run back he fell into a known; and the testimony warrants the con- little bridge, and then got up, and started clusion reached by the jury that, if he had from the bridge on a run, and he got back been warned in time, he would not have been right in the edge of the cut.” It is not injured. That he was injured, there can be shown that any appreciable time was lost by the brakeman at the bridge, upon which the back, legs, and all parts of the body. There charge asked could have been based. Some was scarcely a place on me that was not time must have been lost in slipping down bruised. The skin was nearly all knocked the embankment 20 feet, and in getting back off my hands. I got up by climbing till I on the track. The stumbling into the bridge got on top of the mass. The first thing I could not have been the only cause of the ac- saw was the men killed that were in the car cident. The testimony would have author- with me. It was a few seconds or minutes ized the conclusion that the second section of from the time the car struck till I was out the train was running too close to the first on top of the mass of broken timber of the section, or the negligence of the company

I was bruised on the head, face, hands, may have consisted in failure to have the air back, legs, arms, and all over my body. I brakes of the first section of the train. in re- don't know how I got from the car to the pair, or in failing to move it on out of the caboose. I became insensible. When I beway after bleeding the cars provided with came conscious, the first thing I knew 1 air brakes. At all events, we are satisfied found myself in the caboose. That was some the testimony does not indicate that the time time in the day, about 7 or 8 o'clock. Daylost by the brakeman in getting over the light had come. I don't know how long I bridge should be made the sole cause of the remained in the car. At times I roused up, collision, and it would not have been proper

and remembered things. I was taken to to submit the question to the jury. No witness Temple, and from Temple home, to Lamestimates the time, and the circumstances pasas. From the caboose I was taken to :1. do not indicate that the collision should be wagonette by men who lifted me up by takattributed solely to trouble in crossing the ing hold of my legs and body, and laid me bridge,-a "little bridge." The general charge on the long seat in the wagonette. From of the court that plaintiff must show negli- this wagonette I was taken to the doctor's gence of defendant causing the injury before office. He worked with me some time. I he could recover was sufficient. The defense don't remember how long, nor what he did. could not, under the testimony, rest solely on There were times when I did not know anythe time lost at the bridge by the flagman; thing that was done. From there I was sent and the court should not, by giving the charge to the depot in a hack, and carried home on asked, have intimated to the jury that they the train. The train reached there in the could so find the fact.

early part of the night, the next night after Appellant asks a reversal because the ver- the collision. I was carried to a hack from dict is excessive, and not supported by the the train, and laid on a seat, and from there evidence as to the item of damages for per- I was hauled home. From the hack I was sonal injuries, because the proof did not taken to my room, and laid on my bed. I show that plaintiff was incapacitated to fol- sustained personal injuries in the wreck. low his business of horse racer, and showed My head was bruised. The back of my head that he hall during the three years since the was all bruised; part of my neck; my body trial been following said vocation regularly; was crushed, and I seemed to be bruised inand the amount awarded plaintiff for such wardly. I spit blood. My back was wrenchpersonal injuries was far in excess of a ed, and awfully. My legs were bruised. My proper and reasonable allowance to him for feet and hands were bruised. There was the injuries sustained. All the facts were hardly any skin left on my hands at all. I before the jury, and we think they abun- remained in bed a number of weeks after dantly sustain the verdict. We will not pre- getting home. Dr. King waited on me. He sume that the jury failed to give due consid- dressed my wounds, examined me, and gave eration to facts tending to show the ability me medicine. He came to see me twice a of plaintiff to engage in horse racing as he day for a number of days, as much as two had done before his injuries. Plaintiff testi- weeks. After that he came ouce a day; ocfied: "I was lying down in the car where casionally twice a day. * * * I was conmy horse was. I suppose it was between 2 fined to my bed a number of weeks before I and 4 in the morning. I had been asleep, was out at all. It was about six weeks beand was probably dozing. I found myself fore I was out of bed. After getting out of thrown, with pieces of timber that were fly- bed, I was set in a chair several times. For ing and sliding together, down the embank- quite a while I would sit up for a few minment. The car I was in was crushed to utes, and then go to bed again. After that pieces; all broken up. There were four oth- I would walk with the aid of crutches. It er persons in the car. They were all killed. was three or four months before I got out of I think there was one car between my car the house at all. When I went out, it was and the caboose, and the length of the car with the aid of crutches.

of crutches. I have used was 34 feet. There was about 34 feet inter- crutches ever since. Developed soreness in vening between the car I was in and the ca- my backbone and pain in my head. I have boose. I was thrown with the pieces of the been spitting blood for a number of months; car, the horses, men, and all. We seemed had a cough and spit blood. It seemed to be to slide down the embankment under tim- the left lung that was injured. * * * My bers. I could not see anything; timbers eyesight has been injured. It weakened it. were striking me. I was struck on the head, I could not scarcely read at all at night. I

v.33s. W.no.6-43

can only read for a short time. When I Our conclusion is that the facts warrant read for any length of time the words run the amount of the verdict. The charge of together and glimmer. My eyesight was the court presented the law of the case, was good before the accident. My lungs and full and clear upon the issue of negligence on chest were in good condition, and my gen- the part of the defendant and contributory eral health was good, before that time. I negligence on the part of plaintiff. We find was very strong and active, and had good no error in the charge or other ruling of the health; was sound in limb and body, and court below assigned by appellant, and the had no infirmity or deformity. My legs are judgment is affirmed. Affirmed. 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

PERKIEWIEZ et al. v. FIRST NAT. BANK of my legs as I could before the injury. I

OF OKLAHOMA et al.1 cannot waik a step without the aid of my

(Court of Civil Appeals of Texas. Dec. 11, crutches, and have not been able to since the

1895.) injury. I cannot rise without holding onto

VENDOR AND PURCHASER-Bosa Fide PURCHASER. something, nor sit down without support. At

In an action to foreclose vendors' liens times my urine seems to collect, and I hare on four lots it appeared that B. conveyed the to pass it right away. If I don't, it comes it

lots to M., reserving vendors' liens for payment self.

of two purchase notes, and that thereafter M. At other times I may go, and feel a

conveyed two of the lots to T., reserving a vendesire to go, and it is only a dribbling, and dor's lien, and that T. conveyed such lots to L., don't amount to anything. This was not the who paid their market value in cash. Prior case before the accident, but has been ever

to the deed to L. one of the notes given by M.

to B. was assigned to plaintiff, but the assignsince. After first lying down at night, I

ment was not recorded, and on the date of Ľ.'s often draw water two or three times before deed, B. released the vendor's lien against M., going to sleep at all. My sleep is very bad.

who also released his lien against T. Inquiry I scarcely ever rest well. I will sleep one

as to the state of the title was made by L., who

was a nonresident, before his purchase, through or two hours, and then lie awake a long

an attorney, who caused the releases to be time." Being asked about his sexual powers,

made, but who failed to obtain any knowledge he testified that before the accident they were

of the transfer of the note to plaintiff, and its

existence and transfer were unknown to L. strong, but since has had very little,-no de- Held, that L. was a bona fide purchaser. sire, or scarcely any; and that there was no

Appeal from district court, Tarrant county; impairment of these organs before the accident. He is now scarcely ever well. Has

W. D. Harris, Judge.

Action by been under treatment of doctors since. Has

by B. Perkiewiez and another paid to them about $300, and has never been

against the First National Bank of Oklahofree from pain since his injuries. He was

ma, J. T. Smith and wife, and others, on before engaged in and was looking after a

promissory notes, and to foreclose vendors farm, raising stock, buying and selling

liens. From a judgment dismissing the ac

tion as to the bank and others, and declarhorses, and getting them in condition to sell. His average earnings up to that time were

ing part of the land free from liens as about $75 per month, and since he has not

against defendants Smith, plaintiffs appeal.

Affirmed. been able to pursue any business, and has earned "scarcely anything." He has no pro- Husbands & Carlowitz, for appellants. J. fession; not well educated; can read and C. Randolph, for appellees. write, and make ordinary calculations. The last trial was on the 7th day of January,

FLY, J. Appellants sued on a note for 1895. He was then 29 years old, past. Was $5,000, executed by W. J. Bailey, and on one born September 24, 1865. Physicians testi

for $7,133.33, executed by W. R. Moore and fying corroborate the statement of plaintiff

R. E. McAnulty, to W. J. Bailey, as part of as to his injuries, and show that he has now

the purchase money of lots 7, 8, 15, and 16 symptoms of paralysis in his lower limbs,

in the city of Ft. Worth. Judgment for and that he will probably never fully recover

$5,000 was asked against W. J. Bailey and from some of his injuries. He is not a mar

against Moore and McAnulty for the amount ried man, and lives with his father and fam

of the note and a foreclosure of the lien on ily. He attended fairs in the state with race the lots named. The First National Bank of stock. He entered his horse (that was killed)

Oklahoma, T. N. Sandidge, C. J. Swasey. in the races at the Dallas fair. He some

Mary J. Smith, and J. T. Smith were joined times bets on the races, and made some bets

as parties defendant, the allegation being on the side in the races at the Dallas fair.

made that they were setting up a claim to Has farmed and gardened some on a small

the land, and a foreclosure of the lien was scale, and raised fruit. Lived with his fa

asked as against them. Mary J. Smith, jointher, who is 70 years old, and head of a fam

ed with her husband, J. T. Smith, answered ily. Had other younger brothers; and he

that she claimed the land as the sole heir had charge of the whole place before his in

of H. R. Littell, deceased, who was a bona juries. He was at Dallas at the last fair before the trial.

1 Rchearing denied.

fide purchaser for value of lots 7 and 8 in his banker not to pay over the purchase block A, 0. Daggette's addition to the city money for the lots to Trice until Randolplı of Ft. Worth, described in the petition; the said the title was clear. Randolph had no full facts in regard to his purchase being knowledge that Bailey had assigned to appleaded. The matter of subrogation, plead- pellant the note of Moore and McAnulty, but ed by the Smiths, does not, as the case is believed the land free from all liens, and so viewed by the court, require notice. Moore advised Littell. Trice procured the releases and McAnulty pleaded that the plaintiffs from Bailey and Moore and McAnulty. Mary had released them from payment of the note, J. Smitu is sole heir of Littell, deceased. and that Bailey had failed to place numerous There is, as admitted by appellants, but (redits on the note. Bailey filed a general one point in issue in this case: Was the denial to the petition and to the cross bill trial judge justified by the evidence in inof Moore and McAnulty. The suit was dis- structing the jury to find for appellees Mary missed as to the bank, Swasey, and Sandidge. J. and J. T. Smith? There was no assignThe court instructed the jury to find a ver- ment of the note on record, and not the dict in favor of appellants against Bailey slightest circumstance in proof that tended to for the amount of the $5,000 note sued on, show that Littell or his agents had any noand against Moore and McAnulty for the tice whatever that Bailey had assigned the amount of the $7,433.33, less the proper cred- note to appellants; but, on the other hand, its, and in favor of Mary J. and J. T. Smith appellees established clearly that there was that there was no lien, as against them, on no notice, actual or constructive, of the aslots 7 and 8. The latter were the only lots sigament or transfer of the note. Furtherabout which there was any contention, the more, due and diligent inquiry was made by evidence showing that the lien had been Littell, through his attorney, as to the status theretofore foreclosed on lots 15 and 16 in a of Trice's title. We are therefore of the suit in which appellants were parties. The opinion that the court properly instructed a facts show that lots 7 and 8, among others, verdict for appellees. Moran v. Wheeler, 27 were, on October 25, 1888, conveyed by Cam- S. W. 51, 87 Tex. 179; Patterson v. Tuttle eron and Tatum to W. J. Bailey. On Jan- (Tex. Civ. App.) 27 S. W. 758. uary 7, 1890, Bailey conveyed lots 7, 8, 15, and There is no force in the contention of ap16 to Moore and McAnulty, reserving a ven- pellants that Littell was not an innocent purdor's lien to secure the payment of a note chaser because the releases were not executfor $5,000, due August 25, 1890, and of an- ed when negotiations for the purchase beother for $7,433.33, payable October 10, 1891. gan. This fact would merely emphasize and On January 9, 1890, Moore and McAnulty con- accentuate the facts indicating diligence on veyed lots 7 and 8 to Trice, the consideration

the part of Littell. Through his attorney he being a note for $4,630, due in 12 months.

was investigating the title to the land, and Trice conveyed the lots to H. R. Littell for found that no release of the liens were on $6,000, which was their fair market value, record. He would not pay for it until this which was paid in cash by Littell. This matter was arranged. Trice obtained the conveyance was inade on December 31, 1891, releases from Bailey and from Moore and and was acknowledged and tiled for record McAnulty. This was a declaration on their January 6, 1892. The other conveyances part that the note was paid, and upon this were duly acknowledged and recorded about Littell acted. The law protects him as an the date of execution. · On April 10, 1890, innocent purchaser. The judgment is afW. J. Bailey executed a note to Perkiewiez firmed. 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 evi- DAY et al. v. JOHNSOX, County Judge. dence of the transfer of the note placed upon

(No. 727.)1 record. On December 31, 1891, Bailey ex

(Court of Civil Appeals of Texas. Dec. 18, ecuted a release of the vendor's lien on lots

1895.) 7 and 8, evidenced by his deed to Moore and McAnulty, the consideration being the pay

PLEADINGS-Description of PARTIES. ment by them of $1,500. This was duly ac

A suit by R., “County Judge,” on a bond knowledged and filed for record January 6,

payable to plaintiff in such capacity, sufficiently

shows that he su?s for the benefit of the coun1892. On the same day that the above re- ty, and warrants a judgment in his name, for lease was executed, a release from Moore the use of the county. and McAnulty to C. E. Trice was executed,

Appeal from Tarrant county court; Robert and was acknowledged and tiled for record,

G. Johnson, Judge. January 6, 1892. Littell lived in Kentucky,

Suit begun in the justice's court by Robert and had no notice whatever that the $7,133.

G. Johnson, county judge, against G. H. Day 33 note was in existence at the time of his

and others, on four convict bonds. Appeals purchase, or had ever been transferred by

were taken to the county court, where the Bailey to any one. Littell employed J. C.

causes were consolidated, and from a judgRandolph, Esq., an attorney at law, to investigate the title to the land, and instructed 1 Rebearing denied.

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