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tempt to show that he was ruptured before clearly sets out the law upon the subject. that time, and upon this issue both sides in- Railway Co. v. McClain, SO Tex. 97, 15 S. W. troduced testimony. Witness McGayhreen 789; Dillingham v. Harden (Tex. Civ. App.) testified that while fishing with appellee with 26 S. W. 914; Railway Co. v. White, 80 Tex. a seine in May, 1891 (prior to the injury), he 205, 15 S. W. 808; Railway Co. v. Crenshaw, was wearing a truss. There was testimony 71 Tex. 345, 9 S. W. 262. upon this point on both sides. The newly- 5. The fifth assignment is that the verdict discovered testimony is all for the purpose of the jury was excessive. The testimony of corroborating the witness McGayhreen as was sufficient to sustain the amount of the to the date of the fishing. There were coun- verdict. We find no error in the judgment, ter affidavits filed by appellee, and, if the and it is affirmed. court had granted a new trial on the ground of such newly-discovered evidence, it is not likely that it would have changed the result, as the evidence was merely cumulative, and GOLDSTEIN et al. y. MANNEY et al. not upon a leading issue, or of such impor- (Court of Civil Appeals of Texas. Jan. 15, tance as would be calculated to change the

1896.) result of the case. Walker v. Brown, 66 Tex.

APPEAL-Review-MOTION FOR New Trial.. 556, 1 S. W. 797; Railway Co. v. Wood, 69

Where a mortgage in an action to foreTex. 679, 7 S. W. 372; Oil Co. v. Thompson, close was admitted, over objections of variance 76 Tex. 235, 13 S. W. 60.

and uncertainty, and then, without notice to

plaintiff, was left out of consideration, and judg4. The fourth assignment of error com

ment was rendered for defendant, when there plains at the following charge of the court:

was no reason why, if the mortgage was admis"(5) A servant has the right to presume that

sible, judgment should not be for plaintiff, the

error can be reviewed without motion for new the appliances furnished to him by the mas

trial, the variance being such as could be cured ter with which to perform the duties of his by amendment, and the uncertainty being exemployment are reasonably safe, and it is plainable by evidence, and the facts by which not the duty of the servant to examine such

the error in pleading the mortgage could be cor

rected being disclosed by the record. Key, J., appliances before using them to see whether

dissenting. such appliances are reasonably safe, unless the defective or unsafe condition of such ap

Appeal from Williamson county court; D.

S. Chessher, Judge. pliances is so obvious or apparent that any

Action by Goldstein & Davis against J. person of ordinary prudence would notice such defective and unsafe condition when he

Manney and others. Judgment for defend

ants. Plaintiffs appeal. Reversed. came to use such appliances." In connection with this charge we will consider the sixth, John W. Parker, for appellants. R. L. which was as follows: "(6) When the de- Penn, for appellees. fective or unsafe condition of the appliances furnished by the master to the servant is so FISHER, C. J. At a former term we afobvious or apparent that a person of ordi- firmed the judgment of the court below. The nary prudence would notice such defective purpose of the suit by appellants was to reor unsafe condition when he came to use cover on a debt due by one of the appellees, them, and the servant uses such appliances, and to foreclose a mortgage on certain prophe assumes the risk of being injured by rea- erty to secure the debt sued on. Two of the son of said defective or unsafe condition of appellees were joined because they asserted such appliances, and cannot recover of the some claim to the mortgaged property. The master any damages for an injury if he re- court below rendered judgment in favor of ceived such injury by reason of such de- appellants against defendant Manney for the fective or unsafe condition of such appli- debt, and refused to foreclose the mortgage ances.” Appellant objects to the fifth charge lien as against the other defendants. Upon in its first proposition, on the ground that it the trial of the case the appellants offered in is upon the weight of the evidence, and in its evidence a mortgage covering certain propsecond proposition on the ground that the erty, which was objected to by the defendcourt tells the jury that the unsafe condition ants claiming the mortgaged property, beof the appliances must be such that any man cause they were not parties to the mortgage, of ordinary prudence would notice it. The and it could not be admitted in evidence first ground is wholly untena ble. The sec- against them until its execution was proven; ond ground might be of some weight if it and because the mortgage offered in eviwas not manifest from the entire charge dence was different and variant from that dewhat the court really intended to say, which clared upon by the petition and made an exis fully set out in the sixth charge; that is, hibit thereto; and because the instrument when the unsafe condition is so obvious that was void for uncertainty, as it could not be a person of ordinary prudence would notice determined from its face, whether it was init, the servant, if he uses the appliances, as- tended to secure a debt due to appellants or sumes the risk of such condition, and cannot to one Goldstein. The first ground of objecrecover. We do not see how the jury could tion was cured by evidence proving the exehave been misled by the charge complained cution of the instrument. The court overrulof, as the charge, taken as a whole, fully and ed the objections, and admitted in evidence the mortgage. If the mortgage was admis- | its ruling, render judgment in their favor. sible in evidence in the face of the objections The record discloses the facts by which the urged to it, the court should have foreclosed error in pleading the exhibit or mortgage it against all of the defendants, as from the may be corrected; and these facts, as well as facts in evidence the appellants were entitled the surprise at the ruling of the court in ento recover on this branch of the case. But tering judgment against the appellants after after the court admitted the mortgage, and admitting in evidence the mortgage, appear during the time it was deliberating upon the as errors of law, and, such being the case, case, it evidently concluded that the mort- the majority of this court are of the opinion gage was not legally admissible for either or that the question may be presented to this both of the two reasons last stated; and that court for its ruling without being based upon in arriving at a judgment he concluded to not a motion for new trial in the court below. If regard the mortgage as before him, for other- the question was one of fact, a different rule wise there is no other theory that can arise would prevail. Our judgment heretofore affrom the evidence that the judgment of the firming the judgment of the trial court is court can be based upon. The action of the set aside, and the judgment below is reverscourt in admitting the mortgage in evidence ed. and cause remanded. Reversed and rewhen objected to, and then not considering manded. it when making up its judgment, was calculated to operate as a surprise to appellants, and KEY, J. (dissenting). I do not agree to the reflect injury upon their cause; for, conced

disposition made of this case. The mortgage ing that both objections are tenable, they in evidence not being the one sued on, it was could, if the court had excluded the mortgage, correctly disregarded in rendering judgment. have been easily remedied,-one by an Appellants did not ask the county court to amendment under leave of the court, correct- set aside its judgment and allow them to ing the matter of variance; and the other by , amend, and therefore, in my opinion, they are evidence .explaining the discrepancy in the not entitled to have the judgment reversed. names of the mortgagees, as such matter was simply an ambiguity or uncertainty that may have been remedied by explanatory evidence. Or, failing in either of these particu

GULF, C. & S. F. RY. CO. v. CLEVELAND. lars, the appellants could have taken a nonsuit, and, upon reasonable showing, reinstat- (Court of Civil Appeals of Texas. Dec. 14, ed their case. But the ruling of the court cut

1895.) them off from all of these privileges. Eyi. CARRIERS-FAILURE TO STOP FOR PASSENGER-Exdently, from the manner in which the matter

CESSIVE DAMAGES. is shown by the record, it appears that the

1. Where one who has purchased a ticket

on a night train, on failure of the train to stop announcement by the court of its judgment

for him, without any necessity therefor, walks was the first intimation of an adverse ruling

to his destination that night, and suffers no bad as to appellants' rights under the mortgage. effects therefrom, and it appears that he could

have been taken there by private conveyance The ruling coming at this late stage of the

that night or the next morning, in time for busitrial was too late for appellants to avail

ness, and could have procured lodging for the themselves of the remedies to meet the objec- night near at hand, the measure of damages is tions to the mortgage. When objections

the cost of hiring such a conveyance, procuring

lodging, and what his time was worth, and a were urged to the admission of the mortgage

verdict of $200 is excessive. in evidence, the court should have then 2. An instruction that plaintiff could not promptly ruled against its admission, and recover if he "voluntarily exposed himself to

the walk, * * * should not have reserved the right to ex

when, by the exercise of

ordinary care, he might have avoided it," and clude it from consideration when making up

making the measure of damages such damages the judgment. Such a practice has nothing as resulted from the walk, is insufficient. to commend it, and, on the other hand, is

Appeal from Johnson county court; F. E likely to occasion confusion and surprise, and

Adams, Judge. would often, doubtless, result in the defeat

Action by Mason Cleveland against the of meritorious actions, which would not be

Gulf, Colorado & Santa Fé Railway Comthe case if the parties were given the op

pany. From a judgment for plaintiff, defendportunity to meet the objections when first

ant appeals. Reversed. urged. The grounds upon which we reverse the case were not called to the attention of

J. W. Terry, for appellant. 0. T. Plummer, the trial court by a motion for a new trial,

for appellee. but it is plain from the record that the ruling of the court in rendering judgment against RAINEY, J. Appellee brought this suit the appellants after admitting the mortgage against appellant to recover damages in the in evidence was calculated to operate as a sum of $500, alleged to have been occasioned surprise to appellants, as they had the right by reason of appellant's failing to stop its to conclude that, as the court admitted the train at Rio Vista, in consequence whereof mortgage, and as no defense or reason was plaintiff had to walk to Cleburne, a disshown why it should not be foreclosed, the tance of eight miles. On the trial judgment court would, in order to be consistent with was rendered in favor of appellee for the

sum of $200, from which this appeal was, while at Rio Vista.” The court charged the taken.

jury that if appellee “voluntarily exposed The first assignment of error, in effect, is himself to the walk, and in consequence of that the verdict is excessive, and not support- such exposure, annoyance, etc., as set out in ed by the evidence. The evidence shows that his petition, when, by the exercise of ordithe plaintiff went on appellant's train to Rio nary care, he might have avoided such walk, Vista, and, after the transaction of some exposure, etc., then it will be your duty to business there, he bought a return ticket to find for the defendant company, and so say Cleburne. The train going to Cleburne passed by your verdict.” The court evidently conRio Vista at night. When the train reached cluded that the matter contained in the speRio Vista, the station agent signaled it to cial charge requested was included in his stop, but it failed to do so. When the train general charge. We do not think such to be passed, the agent of appellant refunded ap

the case. From the evidence the jury evipellee the money he paid for his ticket, and dently concluded that appellee's walk back appellee, in company with a tramp, started to Cleburne was not voluntary, but was for Cleburne, and walked the distance in two forced upon him by reason of the train not hours. It was a clear night, and a norther stopping to carry him back. So believing, blowing. Plaintiff was a young man, 25 they did not feel justified in finding for the years of age, and in good health. Plaintiff defendant. The only measure of damages took no cold from the exposure, and was not to govern the jury in finding for the appellee made sick from the walk; but, he not being under the court's charge was the damages rein the habit of walking, it made him some- sulting from the walk. The true measure of what sore for a few days. He had no fami- damages, under the evidence, however, was ly, and there was nothing demanding his embodied in the special charge asked; and, presence at Cleburne until next morning; and if it had been given, the jury would probahe testified that he would have taken the bly have assessed the damages as therein insame walk in like weather, at the same time dicated. Under no phase of this case could of night, for $10, provided he had not gone the appellee have recovered more than the to Rio Vista, and expected to come back on damages indicated in the special charge rethe train, and had bought his ticket to return quested by appellant's counsel. It was inon it. The evidence also shows that he could cumbent upon him, when the train passed have obtained lodging in a few hundred without stopping at Rio Vista, to ascertain yards of the depot, could have been taken whether or not he could get lodging at or back to Cleburne that night by private con- near the station until next morning, when he veyance, or could have been taken there next could have gone to Cleburne on appellant's morning by a train in time to have attended train, or, if his business was such as required to his business affairs, and that plaintiff could him at Cleburne that night, it was his duty have gotten all necessary information in ref- to inquire and ascertain whether or not he erence to lodging and conveyance by asking could get private conveyance; and if he could the railroad agent. When the train passed,

have found lodging, or private conveyance appellee left for Cleburne, without making to Cleburne, if necessary, he could only reany inquiry whatever. We think the ver- cover for the expenses he would have been dict in this case is clearly excessive, and for out, and for the value of the loss of his time. this reason a new trial should have been See Railway Co. v. Cole, 66 Tex. 563, 1 S. granted.

W. 629; Railway Co. v. Smith, 63 Tex. 322. On the trial, appellant requested the follow- The evidence fails to show what the exing charge: “The defendant requests the l 'penses of appellee would have been had he court to instruct the jury that if they find hired a private conveyance, or stayed all from the evidence that the plaintiff, on the night at Rio Vista, or what the value of his evening that the train failed to stop and take time was; and consequently we have no crihim on at Rio Vista, could have procured terion upon which to base a judgment for the a suitable place at or near Rio Vista, con- damages sustained, and therefore cannot revenient for him to stop at that night, or that quire a remittitur. he could have conveniently that night or the For the reasons indicated, the judgment is next morning procured a private conveyance reversed, and the cause remanded, to have brought him to Cleburne, to have attended to all business necessary for him to have attended to that morning,-if you find such to be the facts, then you will find for

HAWLEY V. WHITAKER. plaintiff such sum as it would have cost him

(Court of Civil Appeals of Texas. Nos. 9. to have hired a private conveyance to have

1895.) carried him to Cleburne either that night or

WHO MAY APPEAL-NOMINAL PARTIES. next morning, in time for him to have reach

R., discovering a defect in plaintiff's title, ed Cleburne in time to have attended to any procured from the original owner of the premand all business that was necessary for him ises a deed to himself, acting as agent of a corto have attended to, together with such sum

poration; and, in a suit against R. and the cor

poration, plaintiff recovered judgment against as his time was worth, and such sum as he

both defendants for the possession of the land, would have had to pay for lodging and meals and against the corporation for damages. Held, that R., being merely a nominal party, was not company, and he held the land in trust for injured by the judgment, and could not appeal.

said company. It appears from the foregoAppeal from district court, Marion county; ing facts that Hawley was a mere nominal John L. Sheppard, Judge.

party to the suit, as such interest in the land Action by J. S. Whitaker against the Lone

as was acquired by the conveyance from Star Iron Company, a corporation, and R. C.

Cummings to Hawley was really for the Hawley. From a judgment for plaintiff, de

benefit of the iron company. It follows that, fendant Hawley appeals. Affirmed.

as Hawley had no real interest in the land,

he is not injured by the judgment of the Armistead & Prendergast, for appellant.

court below. Hawley having no real interTodd & Todd, for appellee.

est in the land, and the iron company being

a party to this suit, and not having appealRAINEY, J. In 1892 appellee, Whitaker, ed, we will not review the action of the brought suit in the district court of Marion court at the instance of appellant, Hawley. county against the Lone Star Iron Con The judgment is therefore affirmed. pany, a corporation, and R. C. Hawley, for the title and possession of 1,04842 acres of land, and for damages to same. The case was tried by the court without a jury, and

NIAGARA STAMPING & TOOL CO. v. judgment was rendered for plaintiff for a

OLIVER. one-half undivided interest in the land, and

(Court of Civil Appeals of Texas. Dec. 7, right of possession against both defendants

1895.) for all the land, and judgment against the

SEIZURE OF PROPERTY BY MORTGAGEE-LIABILITY Lone Star Iron Company for $800 damages. TO OWNER-Filing BILL OF EXCEPTIOXS. R. C. Hawley alone appeals. From the evi- 1. A mortgagee out of possession, who has dence it seems that one Carter was the com- the property seized by writ of sequestration, is

liable for the value thereof, --it being destroymon source of title. He sold to one Cum

ed after seizure,-to the owner, who is entitled mings in 1868. During the latter part of to possession, subject only to a foreclosure of said year, Cummings conveyed the land, in the mortgage. trust, to one Williamson, to secure judgment

2. A bill of exceptions not filed till after

adjournment of the court cannot be considered debts due one Nall, Welham, and Walworth,

on appeal. and empowered Williamson to sell the land,

Appeal from district court, Dallas county; and apply the proceeds to the payment of

Edward Gray, Judge. said debts pro rata. Walworth's heirs sold

Action by Niagara Stamping & Tool Comtheir interest in the land to Whitaker In

pany against T. J. Oliver, assignee. Judg1887. Whitaker also claimed the interest of

ment for defendant. Plaintiff appeals. AfNall. In March, 1891, the Lone Star Iron

firmed. Company, through their agent, Hawley (appellant herein), endeavored to purchase the Smith & Monroe, for appellant. Geo. H. land from Whitaker. Whitaker was unable Plowman, for appellee. to secure the Welbam interest, but agreed to sell his interest therein. Upon an exam- RAINEY, J. Appellant brought this action ination of the title, the iron works discov- to recover certain property of appellee, which ered that Whitaker did not have title to the property was seized by virtue of a writ of land, and that his only right to the land was sequestration at the instance of appellant. under the deed of trust given by Cummings The petition alleged that appellant owned the in 1868. After ascertaining this fact, in property, and that the appe.lee had wrongfulJuly, 1891, the iron company's agent, Haw-ly, and without the consent of the plaintiff, ley, hunted up Cummings, who was still liv- taken said property from the possession of ing, and, for the sum of $100, induced Cum- appellant, and converted the same to his own mings to convey to him (Hawley) the land. use, etc. Appellee pleaded the general deIn August of the same year, Cummings exe- nial, and reconvened for damages for the cuted a deed of trust to George R. Beard, value of the property. On the trial the apconveying the land, as contained in the orig- | pellant introduced in evidence a mortgage on inal deed of trust, for the benefit of plaintiff the property executed by one Zeigler to apherein, and with the same powers as were pellant. Appellee claimed the property as asgiven to Williamson in the original deed of signee of the Dallas Stamping Company, who trust. During negotiations between the iron owned said property by virtue of a purchase company and Whitaker for the sale of the from said Zeigler. Appellant not having inland, the iron company entered upon the troduced any claim to the property, except by land, and cut timber thereon, which they virtue of the mortgage, the court instructed continued to do after Hawley received the the jury, in effect, that the appellant was not deed from Cummings, but none was removed entitled to recover, and that appellee was enfrom said land until after the deed was titled to damages for the amount of the value made to Hawley. The value of the timber of the property levied upon, as the property so cut and removed by the iron company had been destroyed after it was seized by was $800. In taking the deed from Cum- virtue of said writ. It is well settled that a mings, Hawley acted as agent of the iron mortgagee out of possession cannot sue to re

v.3: s.w.no.6—44

cover mortgaged property, as the owner thereof. Appellant did not have possession of this property, nor was it the owner thereof. Under the facts, no right existed in the appel lant to the title. Appellee was the owner and entitled to possession of the property, subject only to a foreclosure of the mortgage, which is not attempted in this suit. The property having been lost after its seizure by the writ of sequestration entitled appellee to damages for the value thereof. The court's instructions, under the evidence, were proper.

Appellant assigns as error the refusal of the court to permit it to prove that the goods in controversy were stored by the sheriff for appellee, and subsequently destroyed by fire, and that appellee received the insurance money for said goods. This assignment cannot be considered, for the record fails to show that the bill of exceptions was taken and filed within the time prescribed by law. We find in the statement of facts what purports to be a bill of exceptions to the action of the court in excluding this evidence, but the statement of facts shows it to have been filed nine days after the adjournment of court. It is well adjudicated that a bill of exceptions, in order to require the consideration of this court, must be filed within 10 days after the trial of the cause, and before the adjournment of the term. The bill of exceptions in this case having been filed after the adjournment of court is of no effect. Schaub v. Brewing Co., 80 Tex. 637, 16 S. W. 429. No error appearing, the judgment is af. firmed.

a bridge, and injured himself, and sued to recover damages of appellant. Judgment was rendered in favor of plaintiff for $250, from which appellant railway company prosecutes this appeal.

The testimony shows that the train did not stop at the usual stopping place at Wyatt Switch on this occasion, but ran about 500 yards beyond; and, when the train stopped, plaintiff got up and started towards the door, to get off, when the conductor in charge of the train said to him, “We have passed our usual stopping place, and are up about the dirt road.” Plaintiff replied that it was "all right," and got off at that point. It was in the nighttime, and dark, and where the train stopped was about 250 yards from where the dirt road crossed. In going back towards Wyatt Switch, plaintiff fell through the bridge and was injured, as above stated. Upon this state of case the court charged the jury that: "If, you shall further believe from the evidence that the train was, by the conductor, stopped about 500 or 600 yards from and beyond the usual place of stopping said train at such place, and that when the train was so stopped the plaintiff was requested by the conductor to alight from the train, and that said conductor at the door informed the plaintiff that the place where he was requested to alight from said train was at the dirt-road crossing of said railway, and that, relying upon such information so communicated, the plaintiff did alight from the train," etc. Appellant complains that this charge assumes that plaintiff was requested to alight at that point, and that the train was at the crossing of the dirt road which crossed the railroad, and that said charge is not warranted by the evidence. While the charge is not an assumption that such state of facts existed, yet it instructs the jury to find for plaintiff if they believed a certain state of facts which were alleged in plaintiff's petition to exist, but which in fact were not substantiated by the evidence adduced on the trial. The evidence does not disclose that the plaintiff was requested by the conductor to alight, nor does it show that he stated that they were at the dirt-road crossing. This being so, the charge was erroneous.

It is further complained by appellant that the verdict is not supported by the evidence, which assignment we think well taken. From the evidence it will be seen that there was no request by the conductor to plaintiff to alight; but, from plaintiff's own testimony, it is shown that the train stopped, and he started to alight without invitation from the conductor, and as he passed out of the car the conductor informed him he was "about" the crossing of the dirt road, which remark was sufficient to put plaintiff on notice that the conductor was not certain as to the exact point at which they had stopped. From the evidence, we think it is clear that plaintiff knew he had passed Wyatt Switch, and there is nothing to show but what he

GULF, C. & S. F. RY. CO. V. JORDAN. (Court of Civil Appeals of Texas. Nov. 30,

1895.) CARRIERS — INJURIES TO PASSENGERS – CARRYING

PASSENGER BEYOND STATION.

Plaintiff, who was a passenger, at night, alighted from the train, which had passed beyond his station, without objection, after being told by the conductor that the train had passed the station, and was "about" a certain place. Held, that plaintiff could not recover for injuries received by falling through a bridge in attempting to return to the station, as he assumed the risks incident to getting off where he did.

Appeal from Johnson county court; F. E. Adams, Judge.

Action by W. S. Jordan against the Gulf, Colorado & Santa Fé Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

J. W. Terry, for appellant. Henry, Patton & Brown, for appellee.

RAINEY, J. The appellee, Jordan, took passage on appellant's train at Alvarado to go to Wyatt Switch, on appellant's road. Upon reaching Wyatt Switch the train ran about 500 yards beyond the switch. Plaintiff alighted therefrom, and in walking back towards Wyatt Switch he fell, while crossing

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