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§ 338 (Mo.) Where the negligence of a person struck by a train put him in a peril while still so distant from the approaching train that the trainmen could by warning or by stopping avoid the accident after the discovery of the peril, the company was liable.-Keele v. Atchison, T. & S. F. Ry. Co., 167 S. W. 433.
Where trainmen negligently failed to maintain a lookout or give signals or slack or stop the train on approaching a crossing, and decedent was struck by the train at the cross
ing, having negligently moved from a place of
safety to one of danger when the train was so near that the accident could not be averted, the humanitarian doctrine was inapplicable, and the doctrine of concurrent negligence operated to defeat a recovery.-Id.
A person who approaches a railroad crossing at an ordinary gait in complete control of his own movement is not in danger, within the humanitarian doctrine, until he takes the last few fatal steps, or is oblivious to his danger as to indicate a present intention to step on the track, and the engineer, seeing the person, may rely on the presumption that he will stop before stepping on the track before the approaching train until he discovers the contrary.-Id.
§ 348 (Mo.) In an action for the death of a person struck by a train at a crossing, evidence held not to justify a recovery under the humanitarian doctrine.-Keele v. Atchison, T. & S. F. Ry. Co., 167 S. W. 433.
§ 348 (Tex.Civ.App.) Evidence, in an action for injuries to an automobile in turning to avoid a locomotive at a crossing, held to show that the negligence of the driver in approaching at an excessive speed, in violation of Pen. Code 1911, art. 815, concurred with the negligence, if any, of the railroad company in causing the accident.-Houston Belt & Terminal Ry. Co. v. Rucker, 167 S. W. 301.
$350 (Ky.) Evidence held to make questions for the jury as to whether railroad employés in cutting a train standing at a crossing left the cars so that they obstructed a part of the highway, and whether this caused injury to, plaintiff. -Harvey v. Illinois Cent. R. Co., 167 S. W. 875. Whether driver injured at a crossing while attempting to hold his horse, frightened at a standing freight train partly obstructing crossing, from backing onto the main track in front of a passenger train was negligent held a question for the jury.-Id.
8 351 (Mo.App.) In an action for the destruction of plaintiff's automobile by collision at a crossing, where the ordinance involved only required that defendant's flagman should "give timely notice of the approach of trains," an instruction that it was not only the flagman's duty to give the warning, but also to stop the train or the persons crossing the track or both. held error calling for a new trial.-Botts v. Chicago, B. & Q. R. Co., 167 S. W. 1154.
$356 (Tex.Civ.App.) Where a railroad company acquiesced in the public's use of a path on its right of way for many years, there was an implied permission to use the path, which rendered the users licensees.-St. Louis Southwestern Ry. Co. of Texas v. Balthrop, 167 S. W. 246.
8 347 (Mo.) Where an action for the death of a person struck by a train at a crossing was tried on the theory that decedent was sui juris, § 395 (Ky.) Where plaintiff suing for neglievidence of the surrounding conditions and the gent death, did not specify the negligence relied decedent's knowledge thereof and of her attenon, but alleged in a general way that decedent tion being diverted was competent only on the was killed by the negligence of defendant in issue of decedent's negligence, and was imma-operating its train, it was competent for plainterial where it was admitted that she was tiff to prove facts bearing on the accident, inguilty of contributory negligence.-Keele v. cluding the use by pedestrians of the track.Atchison, T. & S. F. Ry. Co., 167 S. W. 433. Chesapeake & O. Ry. Co. v. Dawson's Adm'r, 167 S. W. 125.
(G) Injuries to Persons on or near Tracks. § 356 (Ky.) The question whether one struck by a train was a trespasser or a licensee while on the track does not depend on the fact that the accident happened in a city or incorporated town, but on the number of persons using the track at the place of the accident.-Chesapeake & O. Ry. Co. v. Dawson's Adm'r, 167 S. W. 125.
§ 381 (Tex.Civ.App.) In an action for injuries to plaintiff by being struck by a train in a city railway yard, plaintiff held negligent as a matter of law.-Chicago, R. I. & G. Řy. Co. v. La Grone, 167 S. W. 7.
$395 (Tex.Civ.App.) Where a licensee, while using a path near a railroad track, was struck by a piece of scantling hurled from a moving train and the negligence claimed was that the railroad company failed to remove the scantling from the floor of the car, evidence of the roughness of the track, which tended, with the motion of the train, to throw the scantling out of the car, was admissible.-St. Louis Southwestern Ry. Co. of Texas v. Balthrop, 167 S. W. 246.
$398 (Tex.Civ.App.) In an action for injuries to plaintiff's wife, hurt by a piece of scantling, which was thrown from a moving train, a finding that the railroad company was negligent in not discovering and removing the scantling from its car held justified under the evidence.St. Louis Southwestern Ry. Co. of Texas v. Balthrop, 167 S. W. 246.
A finding by the jury that plaintiff's wife was struck by a piece of scantling thrown from a moving train, as she was proceeding on a path adjacent to the tracks, held not in conflict with the physical facts.-Id.
§ 400 (Ky.) Where a railroad track in a town of about 350 inhabitants was used daily by about 100 persons going to and from the depot, the question, whether a person on the track was a trespasser or a licensee, was for the jury.-Chesapeake & O. Ry. Co. v. Dawson's Adm'r, 167 S. W. 125.
Whether a pedestrian on a railroad track struck by a train was guilty of contributory negligence held for the jury.-Id.
$ 400 (Ky.) In an action for injuries when the horse which plaintiff was riding became frightened at a train, evidence held to make questions for the jury as to whether the railroad employés failed thereafter to use ordinary care for her discovered plaintiff's peril, and whether they safety.-Millers Creek R. Co. v. Blevins, 167 S. W. 886.
$400 (Tex.Civ.App.) Where a licensee using a path on the right of way of a railroad com.
pany was injured by the active negligence of the company, recovery cannot be defeated because there was another way over which she might have traveled; the question whether she was guilty of contributory negligence in selecting the path being for the jury.-St. Louis Southwestern Ry. Co. of Texas v. Balthrop, 167 S. W. 246.
§ 401 (Tex.Civ.App.) In an action for injuries to a licensee who was struck while on the right of way of a railroad company by a piece of Scantling thrown from a moving train, an instruction on the negligence of the railroad company held not improper, as casting upon the company the burden of keeping its tracks in good condition for the benefit of licensees.-St. Louis Southwestern Ry. Co. of Texas v. Balthrop, 167 S. W. 246.
(H) Injuries to Animals on or near Tracks.
8411 (Mo.App.) Rev. St. 1909, § 3145, requiring railroad companies to maintain cattle guards sufficient to turn horses, only requires such guards as ordinarily will be sufficient to prevent horses from attempting to pass over them onto the right of way.-Miller v. Chicago, M. & St. P. Ry. Co., 167 S. W. 1160.
$413 (Tex.Civ.App.) Where a railroad company assumed the duty of keeping in repair a gate which, for the benefit of plaintiff, it placed in the fence along its right of way, plaintiff is entitled to recover for the value of a mule which escaped because of defects in gate and was killed on the right of way.-Missouri, K. & T. Ry. Co. of Texas v. Withers, 167 S. W. 5.
$413 (Tex.Civ.App.) One whose mule was killed on the right of way of a railroad company may recover, where it strayed through a gate placed by the company to afford access between two different farms owned by separate individuals, if the company did not exercise proper care to keep the gate closed.-International & G. N. Ry. Co. v. Humphrey, 167 S. W. 797.
8441 (Mo.App.) In an action for killing plaintiff's horse, alleged to have strayed onto the right of way by reason of a defective cattle guard, the burden is on plaintiff to show that the guard was insufficient and that such defect was the cause of the entry of the horse on the right of way. Miller v. Chicago, M. & St. P. Ry. Co, 167 S. W. 1160.
§ 443 (Mo.App.) That plaintiff's horse and two or three of its companions crossed defendant's cattle guard was not of itself sufficient to make out a prima facie case of insufficiency, but such fact, connected with proof of the construction of the guard, might be sufficient for that purpose.-Miller v. Chicago, M. & St. P. Ry. Co., 167 S. W. 1160.
$ 446 (Mo.App.) In an action for killing plaintiff's horse, which strayed onto defendant's right of way over a cattle guard, evidence as to the construction of the guard held to require submission to the jury of the question of its ordinary sufficiency to turn horses.-Miller v. Chicago, M. & St. P. Ry. Co., 167 S. W. 1160. Where a cattle guard was so constructed as to give solid support to animals attempting to cross it, and there was nothing to repel an animal except its serrated surface, no amount of opinion evidence or proof of the adoption of the plan of such guard would establish, as a matter of law, that it constituted a performance of the company's duty to provide sufficient guards, as required by Rev. St. 1909, § 3145.Id.
§ 446 (Tex.Civ.App.) In an action for the value of a mule killed by one of defendant's trains, where there was evidence of defendant's negligence in the particulars charged, the question of negligence was properly submitted to the jury.-Missouri, K. & T. Ry. Co. of Texas
§ 480 (Tex. Civ.App.) Proof that sparks escaped from a railroad engine and destroyed property by fire established a prima facie case of actionable negligence of the railroad company, and to escape liability it must show that the engine was equipped with proper spark arresters, and that the same were in good repair, and that the company exercised reasonable care to keep the same in good repair.-Texas & N. O. R. Co. v. Cook, 167 S. W. 158.
§ 485 (Tex.Civ.App.) Though a railroad company need only exercise ordinary care to equip its engines with suitable spark arresters, yet where, in an action for loss of property by fire set by sparks, there was no evidence by the company on that issue, it was not reversible error to charge that it was its duty to use suitable spark arresters.-Texas & N. O. R. Co. v. Cook, 167 S. W. 158.
$52 (Mo.) Where, on a trial for rape of a child below the age of consent, the prosecutrix testified to the assault, and there were no facts rendering her testimony uncertain, a conviction was justified.-State v. Hughes, 167 S. W. 529. Though the testimony of prosecutrix on a trial for rape of a child under the age of con
of prosecutrix to sustain a conviction should be convincing and leave the mind of the court free from doubt.-Id.
§ 52 (Tex.Cr.App.) The evidence amply showed that prosecutrix was under 15 years of age, where, though the year of birth was not named, it was fixed by an event the date of which was shown. Mora v. State, 167 S. W. 344.
Where penetration was testified to by the girl and admitted by appellant in his confession introduced in evidence it was sufficiently proven. -Id.
(C) Trial and Review.
§ 59 (Mo.) Instruction stating the elements of the offense of having carnal knowledge of an unmarried female of previous chaste character between 14 and 18 held not erroneous.-State v. Perrigin, 167 S. W. 573.
III. CIVIL LIABILITY.
§ 66 (Mo.App.) In an action for damages for rape, evidence held to support a verdict for plaintiff.-Williams v. Collins, 167 S. W. 1189.
See Carriers, § 26; Interest, § 37.
§ 59 (Tex.Cr.App.) Where there was no evidence that the intercourse was by consent, and See Pleading, § 22. the court charged that, if the jury had a reasonable doubt as to whether prosecutrix consented, accused should be acquitted, refusal to charge that consent would be presumed until the state proved the contrary was proper.Burge v. State, 167 S. W. 63.
See Executors and Administrators, §§ 131, 150; Frauds, Statute of, § 116; Mortgages, 884; Principal and Agent, §§ 171, 175.
See Criminal Law, § 789.
See Trial, § 62.
See Appeal and Error, § 874.
VII. ACCOUNTING AND COMPENSA-
§ 194 (Ky.) The allowance of $1,000 as fees to the attorney, in addition to $2,500 previously allowed, held excessive; the $2,500 being sufficient to cover any future services required of the attorney in the final settlement.-Stockholders of First State Bank v. First State Bank's Receiver, 167 S. W. 678.
While due consideration is given the affidavits of attorneys as to the fees to be allowed to an attorney, the court is not bound thereby, but will review the extent of the services and fix what it thinks is a reasonable fee under all the facts. -Id.
RECEIVING STOLEN GOODS.
RIGHT OF ACTION AND DEFENSES.
§3 (Mo.) Where part of a description is inconsistent with other parts, and the remaining part is sufficient to designate the land, a remedy is afforded at law by disregarding the false description and giving effect to the other calls, and a resort to equity for the correction of the description is unnecessary.-Walker v. Garner, 167 S. W. 955.
§ 16 (Mo.) Where, after correspondence looking to the sale of a store building adjoining another building owned by the vendor, a deed was made which by mistake included 24 feet of the
See Ejectment; Partition; Quieting Title; ground covered by the building retained, the unTrespass to Try Title.
doubted intention being to merely include the ground covered by the one building, the deed and a subsequent deed and mortgage by the purchasers containing the same description were properly reformed.-Fischer v. Dent, 167 S. W. 977.
See Criminal Law, § 508.
87 (Mo.) A charge of receiving stolen goods is not sustained by proof that the goods received were only embezzled.-State v. Gennusa, 167 S. W. 439.
8210 (Tenn.) While a receiver has no legal right to sue in a state other than that of his appointment, the privilege of doing so will be accorded, as matter of comity; the suit being neither inimical to the interest of local creditors, or of any one who has acquired rights under a local statute, nor in contravention of the policy of the forum.-Hardee v. Wilson, 167 S. W. 475.
RECEPTION OF EVIDENCE.
See Criminal Law, §§ 673-684; Trial, §§ 4884.
See Appeal and Error, §§ 501-714, 837; Criminal Law, §§ 1086-1122, 1186; Evidence, § 348; Mandamus, §§ 15, 187.
See Arbitration and Award.
REFORMATION OF INSTRUMENTS.
See Cancellation of Instruments; Pleading, § 69; Trial, § 194.
§ 28 (Mo.) A purchaser from parties whose deed included by mistake 24 feet of an adjoining building owned by the original vendor stood in no better position in a suit to reform the deeds than his immediate vendors.-Fischer v. Dent, 167 S. W. 977.
II. PROCEEDINGS AND RELIEF.
§ 44 (Mo.) Where a deed to a store building included 24 feet of the ground covered by an adjoining building retained by the vendor, the unquestioned possession by the respective parties to the line marked by the buildings measured their claim, and was evidence of their intention in a suit to reform the deed.-Fischer v. Dent, 167 S. W. 977.
§ 45 (Mo.) A reformation of a deed cannot be decreed on slight evidence, for the courts cannot deal lightly with the solemnly expressed terms of a written instrument.-Driskill v. Ashley, 167 S. W. 1026.
VIII. FOREIGN AND ANCILLARY RE- the reformation of an insurance policy, naming $45 (Tex. Civ.App.) Evidence in an action for CEIVERSHIPS. L. as the insured and K. as mortgagee and payee in case of loss, held sufficient to support a judgment reforming the policy by inserting plaintiff's name in the mortgage clause, on the ground of mistake.-Western Assur. Co. v. HillyerDeutsch-Jarratt Co., 167 S. W. 816.
In an action to reform an insurance policy, the evidence must be clear and convincing to overcome the presumption that the policy embodies the real intention of the parties.-Id.
See Criminal Law, §§ 338-364.
See Deeds, §§ 125, 133; Wills, § 616.
REMOVAL OF CAUSES.
See Venue, §§ 77, 78.
I. POWER TO REMOVE AND RIGHT
I. REQUISITES AND VALIDITY.
§ 17 (Ky.) A release which an injured servant was induced to sign on the representation that it was for his policy money from defend- See Railroads, § 72.
ant's relief department held no defense to an action for damages.-Wisconsin Steel Co. v. Dixon, 167 S. W. 682.
83 (Ark.) In an action under the federal Employers' Liability Act, the court properly denied a petition for removal to the federal court. -Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83.
REMOVAL OF CLOUD.
See Quieting Title.
See Landlord and Tenant, § 195.
See Pleading, §§ 174, 180.
See Pleading, §§ 174, 180.
See Criminal Law, § 982.
See Criminal Law, §§ 824-829; Trial, § 260.
See Cancellation of Instruments; Sales,
See Deeds, § 143.
See Judgment, §§ 565-717.
See Trusts, §§ 62-89.
II. CONSTRUCTION OF CONTRACT. $54 (Tex.Civ.App.) Where a buyer acquiesced in the seller's interpretation of a contract See Criminal Law, §§ 338-364; Evidence, $$ for the sale of cotton, the price of which was 123, 127.
to be determined with reference to the value of cotton thereafter, the courts will enforce the contract as construed by the parties; hence the refusal of an instruction correctly submitting the question as to the rights of the parties in case their minds never met was not error.Charles B. Smith & Co. v. Duncan, 167 S. W.
I. REQUISITES AND VALIDITY OF
$40 (Tex.Civ.App.) A statement of value of machinery sold is not ordinarily a material representation which, if false, will defeat a contract of sale.-A. S. Cameron Steam Pump Works v. Lubbock Light & Ice Co., 167 S. W. 256.
§ 61 (Tex.Civ.App.) A contract for the sale of orange trees in the seller's nursery, to be dug and removed by the buyer, held an executory contract of sale, under which the title to trees which had been frozen before they were removed did not pass to the buyer so as to make him liable for the price.-Alsworth v. Reppert, 167 S. W. 1098.
$71 (Tex.Civ.App.) A contract for the sale of a stipulated quantity of gasoline, or so much as plaintiff might require for its own consumption, held to include only such quantity as plaintiff might need for its own consumption, and not the full stipulated amount.-Gulf Refining Co. v. Brown-Lloyd Co., 167 S. W. 162.
§ 72 (Tex.Civ.App.) Contract for sale and delivery of orange trees held to require the seller to deliver them in a sound and healthy condition.-Alsworth v. Reppert, 167 S. W. 1098.
877 (Tex.Civ.App.) Where cotton was sold under an agreement that the sale price might be fixed at the market price of any day between delivery and the succeeding March, the seller, who notified the buyer's clerk, and attempted to notify the buyer, but was unable to see him, because of his illness, is entitled to have the sale price fixed as of the day he selected. Charles B. Smith & Co. v. Duncan, 167 S. W. 233.
Where cotton was sold under an agreement that the sale price should be fixed as the market price of any day selected by the seller tween delivery and the succeeding March, the buyer, who, because of illness, did not receive on the day selected notice of the seller's demand for settlement, ratified the selection by promising settlement after he finally was noti
Where cotton was sold under an agreement that settlement should be made on the buyer's basis limit at any time between delivery and March 1st, the buyer impliedly agreed to be in the market and to have a basis limit during that time, and could not preclude the seller from selecting a day on which he was not in the market as basis for settlement.-Id.
§ 88 (Tex.Civ.App.) In an action for the purchase price of a large quantity of cotton, which the seller claimed was to be fixed by the market price in a certain locality, evidence held sufficient to carry the issue whether that was the agreement between the parties to the jury. -Charles B. Smith & Co. v. Duncan, 167 S. W. 233.
III. MODIFICATION OR RESCISSION
(B) Rescission by Seller.
§ 97 (Mo.App.) Where sale is induced by the buyer's fraud, the seller upon discovery of the fraud may either rescind the sale or ratify it notwithstanding the fraud.-Long-Bell Lumber Co. v. Chicago, B. & Q. R. Co., 167 S. W. 1183.
(C) Rescission by Buyer.
8119 (Tex.Civ.App.) A contract of sale of jewelry, which provides that the seller, on receipt of any goods, will exchange them for any other goods, and that if at any time an article proves unsatisfactory it must be returned, and the seller will replace it with a new one, etc., does not limit the buyer's right to repudiate the contract in its entirety for the failure of the seller to deliver the kind of goods ordered.-Bixler v. Dolieve, 167 S. W. 1102.
defeat the purchaser's right to rescission.-Peterson v. Barbero, 167 S. W. 1180.
IV. PERFORMANCE OF CONTRACT. (C) Delivery and Acceptance of Goods. tract, the risk of loss of goods sold goes with $150 (Tex.Civ.App.) In the absence of conthe title.-Alsworth v. Reppert, 167 S. W. 1098.
§ 273 (Tex.Civ.App.) A manufacturer or dealbe-ery impliedly warrants that the same is suitable er who, without special warranty, sells machinfor the particular purpose for which it was plied warranty that it shall be equal to any manufactured or bought; but there is no imother make in design, operation, cost of operation, or the like.-A. S. Cameron Steam Pump Works v. Lubbock Light & Ice Co., 167 S. W. 256.
V. OPERATION AND EFFECT. (D) Bona Fide Purchasers.
§ 241 (Mo.App.) A sale of railroad ties was no protection to a bona fide buyer, if the seller was not the owner.-P. R. Walsh Tie & Timber Co. v. Chester, P. & S. G. R. Co., 167 S. W. 614.
267 (Mo.App.) Where there was a special contract of warranty imposing conditions precedent, the buyer could not plead and prove a breach of an implied warranty, and escape performance of the conditions precedent.-Brooks Tire Mach. Co. v. Wells, 167 S. W. 604.
§ 270 (Ark.) The seller of corn, which the buyer had no opportunity to inspect, impliedly warrants that it is reasonably fit for use. Thompson v. O. A. Crenshaw Grain Co., 167 S. W. 699.
§ 287 (Tex.Civ.App.) A warranty by a seller of machinery that the same shall work to the satisfaction of the buyer is a trial guaranty, and the buyer may, unless satisfied after a reasonable test, return the machinery.-A. S. Cameron Steam Pump Works v. Lubbock Light & Ice Co., 167 S. W. 256.
§ 288 (Mo.App.) Where a machine was sold under a warranty requiring the buyers to notify the seller within 10 days of any defect therein, and give an opportunity for repair or replacement, the buyers, having kept the machine eight or nine months without objection, could not defend an action for the price on the ground that the machine did not comply with the warranty.-Brooks Tire Mach. Co. v. Wells, 167 S. W. 604.
§ 288 (Tex.Civ.App.) Where a buyer under a time, manifest his dissatisfaction, that fact is trial guaranty does not, within a reasonable strong evidence of satisfaction, and where, afttains the machinery, he is estopped from setting er the expiration of a reasonable time, he reup damages for breach of warranty.-A. S. Cameron Steam Pump Works v. Lubbock Light & Ice Co., 167 S. W. 256.
VII. REMEDIES OF SELLER.
§ 353 (Tex.Civ.App.) A petition in an action upon a contract for lumber sold, though it showed that plaintiff had failed to deliver the amounts in the time prescribed by the contract, was not subject to general demurrer, where it also showed that defendant had failed to make the required payments, thus relieving plaintiff of the duty to deliver.-Fink v. San Augustine Grocery Co., 167 S. W. 35.
$ 126 (Mo.App.) The rule that a purchaser must promptly rescind upon discovering misrepresentations does not apply in the case of a rescission of the purchase of a horse which was not gentle as represented, where the vendor requested the purchaser to continue to try the animal.-Peterson v. Barbero, 167 S. W. 1180. § 133 (Mo.App.) Though a vendor refuses to accept a return of the article sold, that will not
§ 358 (Tex.Civ.App.) In an action for the price of sound and healthy orange trees which however were frozen before delivery, evidence that the term "sound and healthy" meant, among nursery men, such condition as was certified to by inspectors from the department of