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Bank, and that on the 10th day of August, | action of the First National Bank of Worth1905, the Collin County National Bank return- am. The point made is that the default on ed the plaintiff's drafts and bills of lading to the First National Bank of Wortham, and I find that the plaintiff, Turner, received nothing from the sale of the said oats, and was paid nothing on account of said drafts, and that by reason of the act of the defendants the plaintiff lost the entire value of said two carloads of oats. I find that the oats sold as above stated at sheriff's sale in Breaux Bridge, La., for as much as the amount of plaintiff's two drafts.

"I find that the market value of the oats contained in said two cars was at the above-mentioned date the sum of $640.50, and that the interest thereon from August 10, 1905, at 6 per cent., amounts to the sum of $305.20, making a total of $945.50, to which sum plaintiff is entitled to a judgment against each of the defendants; said judgment to bear interest from date at the rate of 6 per cent."

G. R. Gough and W. R. Abernathy, both of McKinney, for appellant. R. C. Merritt, of McKinney, and W. J. Bryant, of Wortham, for appellee.

the part of the Collin County National Bank occurred, under the facts, either on July 31, 1905, or on August 10, 1905, and that the plaintiff did not set up conversion until the amended petition of July 18, 1913, and that the First National Bank of Wortham did not file its cross-action until September 16, 1907. The original petition of the plaintiff was filed on the 8th day of August, 1906, and averred the facts concerning the acts and conduct of the Collin County National Bank in respect to detaching the bills of lading and the loss occasioned thereby. The court sustained certain special exceptions directed to the allefiled making more specific the allegations of gations, and an amended petition was then the original petition. The original petition was admittedly filed within time to stop the running of limitation; and as the averments therein were sufficient, as against a general demurrer, to set up default or conversion, and asked for damages therefor, the plaintiff's cause of action could not be said to be barred by the statute of two years' limitation. And if it could be said that the First National Bank of Wortham was seeking on its crossaction in its own right and name to recover independently for the loss of the oats against the Collin County National Bank, then it would not be doubted that appellant's contention that the cross-action was barred should be sustained. But the First National Bank of Wortham is not seeking a recovery on any independent cause of action, but by the cross-action is seeking recovery only against the Collin County National Bank as its agent, for whatever sum it may have to pay on the plaintiff's cause of action against it as principal. And in this view of the cross-action of the First National Bank of Wortham, limitation would not run in favor of the Collin County National Bank until the First National Bank of Wortham had paid the judgment against it. City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518.

The sixth and seventh assignments are overruled as constituting no reversible error. See Houston v. Blythe, 60 Tex. 506.

[4] The measure of plaintiff's damage prima facie was the face of the drafts, which represented to appellant's knowledge the contract amount payable by the grain company for the oats. And there is no pretense in the evidence that the amount payable by the drafts was incorrect. As a fact the court entered judgment for the market value as found by him, which was less than the face of the drafts. The eighth assignment is overruled, as showing no injury and as not warranting reversal.

The ninth and tenth assignments are overruled.

The judgment is affirmed.

LEVY, J. (after stating the facts as above). [1] By the first assignment of error the contention is made that the petition of the plaintiff does not support a judgment in his favor against the Collin County National Bank. The amended petition of the plaintiff, filed July 18, 1913, and on which the case was tried, alleges, as material to be stated, that the Collin County National Bank received and accepted drafts with bills of lading attached, and indorsed in blank by the plaintiff, from the First National Bank of Wortham, together with the plaintiff's written instructions that the bills of lading should be delivered to the Southwestern Grain Company only upon the immediate payment of the drafts by the grain company, and that the Collin County National Bank, in violation of the instructions, and without authority, permitted the bills of lading to be detached from the drafts and attached to different drafts drawn by the grain company on A. Steen of Breaux Bridge, La., and as so attached forwarded the bills of lading to a bank at Breaux Bridge, thereby placing the apparent legal title to the cars of oats in the grain company and enabling and causing creditors of the grain company at Breaux Bridge to attach and sell the oats as the property of the grain company. The facts found by the court are in accordance with the allegations. If the Collin County National Bank by its independent and unauthorized acts, as alleged and proven, caused the loss or conversion of the oats, it would be liable to the plaintiff as for conversion for the damages occasioned through the unauthorized acts done by it. The assignment is therefore overruled.

[2, 3] The second and third assignments presented the contention that the cause of action in favor of the plaintiff was barred by limitation of two years. And by the fourth and fifth assignments the same contention is made by appellant in respect to the cross

being caught under the engine in case of the

MISSOURI, K. & T. RY. CO. v. WALLACE. wreck of the engine, jumped off the engine (No. 1308.) to the ground and sustained grievous bodily (Court of Civil Appeals of Texas. Texarkana. injuries, for which he sues. The negligence April 30, 1914. Rehearing Denied alleged in the petition is: (1) Failure on the May 21, 1914.) part of the operatives of the freight train to observe the rules of the company to sidetrack the freight train 10 minutes before the fast passenger train following it was due, and, failing in that, to post and put out a flag to notify the operatives of the passenger train that the freight train was on the main line and not on the side track in the clear, and to enable the passenger train to stop in time to avert a collision; and (2) failure on the part of the employés of the passenger train to approach the station with the speed of the train reduced and under control, and in failing to keep necessary and proper lookout for flags and for the freight train. The defendant pleaded denial, contributory negligence, and assumed risk. The verdict of the jury was in favor of the plaintiff.

ACTIONS

1. MASTER AND SERVANT (§ 286*)
FOR INJURIES-QUESTIONS FOR JURY.
In an action for injuries to the fireman
of a passenger train, sustained in a collision
with the caboose of a freight train, evidence
held to make a question for the jury as to
whether the freight train employés were guilty
of negligence proximately causing the injury in
failing to post and put out a flag at a suffi-
cient distance to give a sufficient warning to
the passenger train.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]

ACTIONS

2. MASTER AND SERVANT (§ 293*)
FOR INJURIES-INSTRUCTIONS.
In an action for injuries to the fireman of
a passenger train, sustained in a collision with
the caboose of a freight train, where the only
acts of negligence alleged were the failure of
the freight train's crew to side-track the train
10 minutes before the passenger train was due
or, failing in that, to send back a flagman a suf-
ficient distance to stop the passenger train be-
fore it could run into the caboose, which had
broken loose from the freight train, and the
only evidence offered by plaintiff as to negli-
gence referred to these acts, an instruction
that if the employés in charge of the freight
train were guilty of "negligence," as that term
had been defined, in causing the two trains to
run together, and if such negligence was the
proximate cause of plaintiff's injury, the jury
should find for plaintiff, was not so erroneous
as to require a reversal, though it did not ex-
pressly state the particular acts that might be
considered by the jury as negligence.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.*]

3. TRIAL (§ 296*)-INSTRUCTIONS-ERRORSCURE.

An instruction, in an action for injuries to the fireman of a passenger train, that if the employés in charge of a freight train were negligent in causing the two trains to run together, the jury should find for plaintiff, if erroneous as failing to state the acts of the freight train's crew that might be considered as negligence, was not ground for reversal, where the special charges for both parties confined and defined the particular acts of negligence upon which the jury could make a finding.

[Ed. Note.-For other cases, see Trial, Cent.

Dig. §8 705-713, 715, 716, 718; Dec. Dig. 8 296.*]

Appeal from District Court, Grayson County; W. M. Peck, Judge.

Action by J. A. Wallace against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

[1] The evidence establishes that the passenger train on which appellee was the locomotive fireman was a fast train, known as the "Limited," running north bound at the time, from Muskogee, Okl., with destination of Parsons, Kan., and was moving at the usual high rate of speed of from 40 to 60 miles an hour. Hulwe is a station on the railway between Muskogee and Parsons, and switches and passing tracks are maintained there; but it is not a station at which the Limited train stops. One mile south of Hulwe the railway crosses Big Cabin creek. The track south of Big Cabin creek is curved and is downgrade, going north to where it crosses the creek, and is upgrade from the creek to Hulwe Station. As the passenger train was approaching Hulwe, and at a point about one mile south of Hulwe, and just after the engine crossed over the creek, the engine of the passenger train ran into the caboose of a regular freight train which had previously broken loose from the train line. The freight train was also north bound. It appears that the freight train of between 30 and 35 cars arrived at Hulwe Station about 17 minutes

ahead of the passenger train, and when it

slowed down for the switch the slack of the train running back caused the caboose to break loose and roll slowly back downgrade to the creek. The conductor and a brakeman of the freight train went back to flag the pas senger train. The conductor says he went back eight telegraph poles, and the brakeman, according to the evidence, went forward of the caboose about 100 yards. It was proven that rule 99 of appellant, set out in detail in the statement of facts, requires the flagman, in case of accident or obstruction of the track, to go back with danger signals and remain at a point 20 telegraph poles, or 1,000 feet, from the rear of his train, or, when on a curve or downgrade, a distance of 20 tele

Appellant's fast passenger train, known as the "Limited," collided with the rear end of a regular freight train on the main line. Just before the collision, and about a car length before the passenger engine reached the rear of the freight train, the appellee, Wallace, who was the fireman of the passenger engine, in order to escape the danger of

graph poles further than above provided, to give approaching trains ample time to stop. There was testimony that the flagman had 13 minutes' time in which to put out a flag before the collision occurred, and that a flagman in such time could have gone down the track the distance of 25 telegraph poles, and if he had done so in this case the engineer of the passenger train could and would have seen him and would have had time to stop the train before it struck the caboose. As the passenger train was rounding the curve just south of the bridge over Big Cabin creek, the engineer discovered the front flagman, and at once answered by two short blasts of the whistle and applied the air brakes in the emergency; but, before the train could be stopped, the collision inevitably occurred. The collision was forcible, and wrecked the caboose and damaged the engine.

The evidence warrants the findings of fact, which are here made, that appellant through its employés was guilty of negligence proximately causing the injury in failing to post and put out a flag at proper and sufficient distance to give the approaching passenger train warning in time to avert the injury, as pleaded, and that appellee was not guilty of contributory negligence, and did not as a fact assume the risk of injury; and the amount of damages awarded by the jury is warranted by the evidence.

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the only two acts of negligence charged against the freight crew was the failure to side-track the freight train, as required by appellant's rule, 10 minutes before the passenger train following it was due, and, failing in that, to send back a flagman a distance far enough to stop the passenger train before it could run into the caboose broken loose from the train line of the freight train. And the only evidence offered by the plaintiff as to negligence on the part of the freight crew was in reference to the alleged acts. In view of the pleading and evidence, the charge could not properly be said, we think, to be so erroneous as to require a reversal of the case. And, further, if the court's charge is subject to the objection of being general in respect to the issue of negligence on the part of the freight crew, it would not afford ground for reversal, for the special charges of appellee, together with the special charge of appellant, given by the court, as shown in the record, served to confine, as well as define, the particular acts of negligence that the jury could and would make the finding upon. The assignment is overruled.

The second assignment complains of special charge No. 2, tendered by appellee and given by the court. The special charge authorized a verdict for appellee upon the finding by the jury that the flagman sent out in this case for the purpose of flagging and signaling the operatives of the passenger engine negligently failed or refused to go back the necessary or proper distance to give the approaching passenger train ample time to stop and avoid the collision. The objection to the charge is that it measures appellant's liability by a failure to comply with its rules formulated for conducting its business. The charge, we think, required the jury to measure the act of the flagman entirely from the standpoint of being negligence vel non, and is not subject to the objection made.

There was no error in refusing to peremptorily instruct a verdict for appellant under the evidence in this case, and the assignments numbered 3 and 4 are overruled.

Assignments Nos. 5, 6, and 7 present no error affording ground for reversal, and are overruled.

It is a fair deduction from the evidence, that the jury were authorized to make, that appellee will never be able to perform the labor of a fireman in the future, and will never have the strength in his right arm that he once had. After a careful consideration of the case, we do not feel warranted in disturbing the verdict of the jury on the amount of damages awarded. Assignment No. 8 complaining of excessive verdict, is overruled.

The objection made to the charge is that it does not refer the jury to the negligent acts alleged or the facts proven, but leaves it broadly for the jury to say whether or not negligence caused the collision. The charge does not, it is true, expressly state to the jury the particular acts on the part of the freight crew that may be considered by them as negligently causing the collision. The charge, though, does refer and restrict the jury to the evidence before them to determine the question of negligence on the part of the freight crew in respect to the collision. According to the pleading of the plaintiff, The judgment is affirmed.

two tracts of land described as 320 acres of

GULF, C. & S. F. RY. CO. v. BRANDEN- the Sharrock survey and 23 acres of the BURG et ux. (No. 1288.) Bledsoe survey situated in Dallas county. (Court of Civil Appeals of Texas. Texarkana. The appellant disclaimed as to all of the land April 22, 1914. Rehearing Denied described in the petition, except a strip 100 May 7, 1914.) feet wide running through the two tracts,

1. WILLS (§ 559*)-PROPERTY DISPOSED OF and used as a railroad right of way. It was ELECTION BY SURVIVING WIFE.

alleged by the appellant that on the 8th day of April, 1881, its predecessor, the Chicago, Texas & Mexican Central Railway Company, acquired this strip of land by purchase from Mrs. M. C. Merrifield. It also pleaded a title to the land, and to the right of way as an easement, by prescription based upon an adverse claim and possession for more than ten years.

Where a will is uncertain as to whether testator disposed only of his own property or included that which belonged to his wife, the I will will be construed to simply dispose of his estate, and the wife, taking under the will, does not thereby relinquish her fee-simple title to her community share in the property disposed of by the will.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1207-1209; Dec. Dig. § 559.*] 2. WILLS (8 559*)-CONSTRUCTION-PROPERTY DEVISED.

A will whereby testator "lent" unto his wife for life all of his estate, and after her death all his property should be divided among his legal heirs, disposed only of his community interest in the estate, and the wife, electing to take under the will, did not relinquish her fee-simple title to her community share..

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[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 5-17; Dec. Dig. § 3.*] 4. ADVERSE POSSESSION (§ 10*) RIGHT OF WAY-ACQUISITION BY RAILROAD.

Const. art. 1, § 17, providing that no person's property shall be taken for a public use, without adequate compensation first made, does not prevent a railroad from acquiring by adverse possession title to land occupied by it as a right of way.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 58-64; Dec. Dig. § 10.*] 5. TENANCY IN COMMON (§ 11*)-CONVEYANCE BY TENANT RIGHTS OF GRANTEE AS AGAINST COTENANTS.

Where a grantor conveying a permanent easement or a title had only an undivided interest, the grantee taking possession could assert only the rights of a tenant in common; but his right to retain possession could not be made dependent on payment of the entire value of the land.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 23, 28; Dec. Dig. 11.*]

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by B. F. Brandenburg, Sr., and wife, against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Terry, Cavin & Mills, of Galveston, Lee & Lomax, of Ft. Worth, and E. M. Browder, of Dallas, for appellant. W. H. Clark, of Dallas, for appellees.

The evidence adduced upon the trial shows that the two tracts of land referred to were formerly owned by Wm. Merrifield and his wife as a part of their community property. Merrifield died in 1880 and left a will, from which we quote the following as the only portions material to be here considered:

"And whereas, the property which I now possess have been chiefly acquired by the joint industry of my dear wife, Martha Catherine, and myself, I therefore, the better to enable her to live with convenience and comfort, do therefore, by this my last will and testament, lend unto my said wife during her natural life all of my estate without reserve, both real and personal, and after the death of my wife, Martha Catherine Merrifield, I then wish and devise an equal division of all my property, both real and personal, among all my legal heirs, and lastly my express will and meaning is, and I do pute, question or controversy shall be named, hereby order and desire if any difference, disarise or happen concerning my gift, bequeath or other matter in this my last will and testament, that then no suit or suits in law or equity, or otherwise, shall be brought, commenced or prosecuted for and concerning the same, but the same shall be referred wholly to the award and determination of my friends, and what they shall order, direct or determine therein shall be binding and conclusive to all and every person and persons therein concerned. My desire and intention is that no action be taken in the probate or county court in relation to the settlement of my estate further than the probate and registration of this my last will and testament and the return of an inventory of the estate and also that no security be required of my executrix but that she have full control of my whole estate. And, lastly, I do hereby constitute and appoint my dear wife, Martha Catherine Merrifield, my sole executrix of this my last will and testament, revoking and annulling all former wills by me heretofore made, ratifying and confirming this and none other to be my last will and testament."

At his death Merrifield left eight children surviving him. On the 8th day of April, 1881, Mrs. Merrifield executed a conveyance, which is as follows:

"The State of Texas, County of Dallas.

"Know all men by these presents, that for and in consideration of the enhanced value to be given, and is contemplated to arise to my lands and other property, by the location and construction of the Chicago, Texas & Mexican Central Railway, and for the consideration of in hand paid, the receipt of which is hereby one hundred and fifty-six ($156) dollars to me acknowledged, I, Margaritt C. Merrifield, of

HODGES, J. The appellees, Brandenburg and wife, brought this suit in the form of an action of trespass to try title to recover

the county of Dallas and state of Texas, have granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey, to the Chicago, Texas & Mexican Central Railway Company a strip of land one hundred feet in width over the tracts of land particularly described as follows, viz.: A tract in Dallas county, state of Texas, known as part of the original headright of Geo. W. Sharrack, patented to himself, for three hundred and twenty acres on Five-Mile creek 82 miles south 40 west from the city of Dallas, and purchased by William Merrifield of John M. Froman, who purchased of said Sharrack, and which I hold under the last will and testament of said Merrifield, being the same upon which I now reside; reference being made for a more certain description of said strip of land to the map of the route of said company on file in the office of the said railway company. "To have and to hold said above-described under the Constitution of Texas a railway strip of land as a right of way for the said Chicago, Texas & Mexican Central Railway, corporation cannot acquire by limitation the with all the rights, privileges, and easements in-fee-simple title to land for right of way purcident thereto, or in any wise connected there- poses. with, to the said Chicago, Texas & Mexican Central Railway Company, its successors and assigns forever. And I, the said M. C. Merrifield, for myself, and my heirs, do covenant and agree that I will warrant and defend the abovegranted right of way in the quiet and peaceable possession of the said Chicago, Texas & Mexican Central Railway Company, its successors and assigns forever."

Then follow some immaterial conditions. The Chicago, Texas & Mexican Central Railway Company was a Texas corporation, authorized to acquire and hold lands for railway purposes. In November, 1882, Mrs. Merrifield died intestate, and was survived by her children. During the years 1881 and 1882, and prior to the death of Mrs. Merrifield, the Chicago, Texas & Mexican Central Railway Company constructed its line of railway from Cleburne to Dallas, passing over the two tracts of land before referred to, and continuously operated trains over that line until about the 10th day of July, 1885, at which time it conveyed all of its interest and right of way, including that acquired from Mrs. Merrifield, to the appellant, the Gulf, Colorado & Santa Fé Railway Company. From the date of that conveyance the appellant has continuously made a similar use of the property. Mrs. Brandenburg is a daughter of Wm. and M. C. Merrifield, and after the death of the latter Brandenburg purchased the interests of the other heirs in the Merrifield estate. Brandenburg testified that the railway company fenced its right of way about the year 1895; that prior to that time he used all of the land, including the right of way, as a pasture for his stock. It is to be inferred from his testimony that the right of way was within his general inclosure. He also stated that, after the right of way was fenced, he used a part of it as an orchard; that he had planted a number of fruit trees inside of the railway inclosure. It also appears from Brandenburg's testimony that for several years after the death of Mrs. Merrifield there was some dispute between him and the officers of the railway company as to who owned the right of way. He states that in

they conceded that he was entitled to an undivided half interest in that land, and that No they offered to purchase this interest. settlement, however, was ever made, and this suit resulted.

The court concluded, as a matter of law, in substance as follows: (1) That the will of Wm. Merrifield undertook to dispose of the entire community estate of himself and wife. That Mrs. Merrifield, by accepting under the will, was estopped from claiming more than a life estate in the land, and that her conveyance to the Chicago, Texas & Mexican Central Railway Company in legal effect transferred only her life interest in the strip of land used as the right of way. (2) That

The court then submitted to the jury the following interrogatories, which we quote together with the answers returned:

"First Question: Was the possession of the Gulf, Colorado & Santa Fé Railway Company to the 100-foot strip of land described in its answer exclusive (as the term 'exclusive' has been defined herein) for ten years next preceding the filing of this suit in 1904? Answer: No. John F. Giles, Foreman. "Second Question: said railroad continuous to the 100-foot strip Was the possession of of land described in its answer for ten years next preceding the filing of this suit? Answer: Yes. John F. Giles, Foreman.

"Third Question: Did said railroad assert adverse claim of right, as that term is above defined for you by the court, to the said 100foot strip of land for ten years next preceding Answer: Yes. John the filing of this suit? F. Giles, Foreman.

"Fourth Question: Did the said railroad make to the plaintiffs any claim of title to the said 100-foot strip of land during the ten years what interest did defendant claim? next preceding the filing of this suit? If so, Answer: Yes; all of the 100-foot right of way. John F. Giles. Foreman.

that plaintiffs had any title in and to said 100"Fifth Question: Did said railroad recognize foot strip of land for and during the ten years next preceding the filing of this suit? Answer: No.

it recognize plaintiffs owned? Answer: None. "If so, what interest in said strip of land did John F. Giles, Foreman.

"Sixth Question: Did plaintiffs use said strip of land from the time said railroad was built, in 1881 or 1882, until it was fenced in by the railroad, in 1892 or 1894? If so, how and when? Answer: Yes; by grazing. John F. Giles, Foreman.

100 (foot) strip of land from the time it was "Seventh Question: Did plaintiffs use said fenced in until the filing of this suit? Answer: Yes; part of it.

"If so, how and when? Answer: As orchard entire time. John F. Giles, Foreman."

There were seven other interrogatories propounded and answered; but they relate to the value of the land, and to the amount of damages occasioned by the construction of the road and the appropriation of the right of way. Those are matters not material to be here considered.

Upon the answers above given the court

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