landlord an outstanding title with which he did not connect himself, and that when the plaintiff established the tenancy of the defendant he showed a right of recovery which the defendant had not met by proof of a superior title with which he did not connect himself. It is strongly implied that the defense would have been good if defendant had shown that he owned the superior title to the land.

The application for writ of error omits all issues except the right of Rogers as a lessee of plaintiffs to defend against this action (to recover possession of and title to the land), by showing a superior title in himself. The application admits that the plaintiffs have no title to the land, and the undisputed evidence shows that Rogers has the title to the Clark survey, the land in controversy. In accordance with the authorities before cited we hold that Rogers presented and sustained a valid defense to the plaintiffs' action. The Court of Civil Appeals properly held that the trial court erred in refusing to give defendant's special charge. It is therefore ordered that judgment be here entered that plaintiffs take nothing by their suit, and that Rogers go hence without day and recover all costs.

fendant's part, and does not apply where the facts shown are equally consistent with the hyligence of the injured person, or by that of depothesis that the injury was caused by the negfendant, or by both combined.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 218; Dec. Dig. § 121.*]

Error from Court of Civil Appeals of Second Supreme Judicial District.

Action by Frank Kowsikowsiki against the Texas & Pacific Coal Company. for plaintiff affirmed by the appellate court Judgment (118 S. W. 829), and defendant brings error.

Reversed and remanded.

WILLIAMS, J. This is a judgment rendered in favor of defendant in error for damages sustained by him from the death of his son, Mike Kowsikowsiki. The facts are thus stated by the Court of Civil Appeals (118 S. W. 829): "The deceased was engaged as a trapper in one of appellant's coal mines at Thurber. The coal, as mined, was loaded on cars drawn by an electric motor operated by a motorman along lateral tunnels, and thence along main tunnels, which terminated at the hoisting point where the loaded cars were taken to the surface, unloaded, and returned. The deceased was employed in

TEXAS & P. COAL CO. v. KOWSIKOW- the north main entry, which extends north

SIKI.

(Supreme Court of Texas. Feb. 16, 1910.) 1. MASTER AND SERVANT (8 265*)-DEATH OF SERVANT CAUSE OF ACCIDENT-RES IPSA LOQUITUR.

Where, in an action for the death of a servant in a coal mine, caused by the derailment of a motor, the cause of the derailment was not shown, and it did not appear that the particular thing which caused the injury was in the exclusive management of the defendant, but the derailment might have resulted from the negligence of deceased, as well as of defendant, a verdict for plaintiff was not sustainable under the doctrine res ipsa loquitur.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 881; Dec. Dig. § 265.*] 2. MASTER AND SERVANT (§ 265*)-Death of SERVANT-INFERENCE OF NEGLIGENCE.

and south. From this main entry along each side there were a number of lateral tunnels, and it was the duty of deceased, who was but about 16 years old, among other things, to observe approaching trains, to arrange the switches to and from the laterals, and see that no train from a lateral was allowed to enter the main tunnel while a train on the main tunnel was running, or about to run, to or from the hoisting point. The switches were constructed of adjustable iron points some 18 inches or 2 feet long, fastened at the larger end on the inner sides of the main track by a rod or spike driven into the wooden cross-ties. The points were loose and adjusted to the rails, working on the rod or spike as a pivot, by the hand of the trapper, so as to keep the main track clear, or to admit of an entrance from the laterals, as the occasion should require. At the time in question the deceased was at the junction of the main entry and the third lateral tunnel on the west. On the lateral track a train of coal cars had approached and stopped within about 6 feet of the main track. At the southern terminus of the main entry, some 300 or 400 feet away, a train of coal cars was startThe part of the rule res ipsa loquitur that, where defendant is in a position to clear away ing for the hoisting point. The deceased was all doubts as to its alleged negligence, and fails observed doing something with the switch to do so, it would be presumed that negligence point that was adjustable to the east rail of existed only applies where plaintiff has proved the main track. It must have been defective a state of facts which, while not free from question, is yet sufficient in the absence of explana- or out of order in some way, as the deceased, tion to justify an inference of negligence on de-after pounding or striking upon it several

Evidence that a switch point on a tramroad in a coal mine did not work just prior to the derailment of a motor by which decedent was killed was insufficient to justify an inference of defendant's negligence, in the absence of proof that the point had ever failed to work before, or that defendant's attention had ever been called thereto.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 877-887; Dec. Dig. 265.*]

3. NEGLIGENCE (§ 121*)-RES IPSA LOQUITUR -APPLICATION.

a hand in the management of the switches, and also in controlling the movements of the car, in so far as it depended on the giving of signals. Negligence is not to be imputed either to him or to the defendant's other servants without proof; and a state of facts in which the cause of the accident cannot be found does not warrant a conclusion that one, rath

times with a rock, or something, picked it up and dropped it in the middle of the track, then hurriedly turned to the west, and endeavored to do something, not shown by the evidence, with the west switch point, when, to avoid the approaching train from the south, he jumped to the west at or near the front of the motor car standing on the lateral. He would thus have escaped injury buter than the other, produced it. We cannot for the fact that the train on the main line was derailed at this point, and the deceased was caught between the two motors and so injured that he died. The evidence fails to show affirmatively what, if anything, was wrong with the west switch point, or how long the east switch point had been out of order, or whether report of any defect had ever been made to the mine boss whose duty it was to repair. It also fails to so show the speed of the train on the main track save that the only eyewitness who testified said: "He come pretty quick." Nor does it affirma- | tively appear whether the deecased gave any signal, or whether the train on the main track gave any warning of its approach."

The Court of Civil Appeals, in affirming the judgment based upon these facts, thought it was warranted by the principle stated in the case of Washington v. M., K. & T. Ry. Co., 90 Tex. 314, 38 S. W. 764, and in other cases as follows: "Where the particular thing causing the injury has been shown to be under the management of the defendant, or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evi dence, in the absence of explanation, that the accident arose for want of care." This would probably be an eminently just conclusion if the assumption upon which it is founded were just, viz., that the evidence shows that the particular thing which caused the death in question was under the exclusive management and control of the defendant. The derailment of the car, unexplained, is a fact which by its very nature may be admitted to suggest something amiss, a want of proper precaution somewhere. But what was the cause of the derailment? Until we can answer that question, we think it must be adImitted that it is not shown by the evidence that the particular thing which caused this injury was in the exclusive management of the defendant. If everything that could reasonably be assigned as the cause of the derailment had been wholly under the control of servants of defendant other than the deceased himself, it might be inferred that the cause, whatever it was, consisted in some negligent act or omission of theirs. But we have a track, with its switches, and a motor car, defects in, or negligent management of, any of which might have brought about that

presume in favor of one and against the other. Evidence must be brought by a plaintiff, having the burden of proof, sufficient to justify an inference of negligence on the part of the defendant, and none such can be drawn from an occurrence which, while indicating negligence somewhere, is as consistent with the hypothesis that it was his own, or that of one in whose right he sues, as that it was that of the other party.

It is said by the Court of Civil Appeals that the action of deceased with reference to the east switch point shows that it was defective or out of order in some way. All that his action indicates is that the switch point did not work as it should have done at that time. Does that justify an inference of negligence on the part of the defendant? Is it not the reasonable inference that the switch had been satisfactory up to that moment? The cars were constantly passing over it, and it appears that, if one of these simple contrivances became defective, all that it was necessary to do to have it put in order at once was for one of the motormen to notify the boss, which any of them would do upon being informed of the necessity by the trapper. No one can say from this evidence, therefore, that this switch point had ever failed to work properly, except at the moment before the derailment came, or that, if it had done so, the deceased ought not to have called attention to the fact. Besides there is an utter absence of evidence that any supposed condition of the switch contributed in any way to the derailment.

Again it is said that the defendant was in a position to clear away all these doubts. This consideration has force where a plaintiff has proved a state of facts which, while not free from question, is yet sufficient, in the absence of explanation, to give rise to an inference of negligence on the part of defendant. But it has no application where the facts shown are equally consistent, as they are in this case, with all these hypotheses, viz., that the injury was caused (1) by the negligence of deceased, or (2) by that of defendant, or (3) by that of both deceased and defendant. 6 Thompson on Neg. § 7698 and cases cited. The defendant certainly is not called upon to account for the conduct of the deceased.

The judgment will be reversed, but the cause will be remanded.

"In view, therefore, of the public imporCertified Questions from Court of Civil Ap-tance of an early disposition, and of the depeals of Second Supreme Judicial District.

"The above entitled and numbered cause is now pending before us on appeal from the "See Wilson v. State, 37 Tex. Cr. R. 373 district court of Nolan county from a judg- [35 S. W. 390, 39 S. W. 373], Ex parte Murment against the appellants and in favor phy, 27 Tex. App. 492 [11 S. W. 487], Wilson of appellee for the total sum of $1,260.35. v. State [37 Tex. Cr. R. 373] 38 S. W. 624, The judgment was rendered upon certain Womack v. Womack, 17 Tex. 1, St. Louis

& S. W. Ry. Co. v. Hall [98 Tex. 480] 85 | terms of the district court for the year 1909, S. W. 786, and Pat Nobles v. State, by the it is without effect, and leaves the act of Court of Criminal Appeals, yet officially unpublished [123 S. W. 126]."

"This suit was brought by plaintiff in error against defendants in error, in the form of an action of trespass to try title, to recover possession of a certain parcel of land described as lot 15, block 103 of Campbell's addition to the city of El Paso, Tex., or, in the alternative, to recover $175, with 6 per cent. interest thereon from March 15, 1904. The defendants pleaded not guilty and the This is an important question, and one ten-year statute of limitation. The case was that is fraught with trouble. We therefore tried without a jury, and judgment rendered deem it best to acquiesce in the ruling of in favor of defendants upon their plea of the Court of Criminal Appeals upon the limitations, and in favor of plaintiff on his point, and therefore answer the first ques- alternative demand. The nature of the case tion: That, in so far as the act in question will more fully appear from the following failed to provide Borden county with two conclusions of fact and law, which we adopt

as our opinion, filed by the trial judge, Hon. | the judgment and sale, and continuously up J. M. Goggin.

"Conclusions of Fact.

to the present, they have been in possession of said property, occupying, using, and enjoying the same as aforesaid as their homestead. That plaintiffs claim under said tax title alone. That plaintiffs show no possession of the land in controversy at any time.''

"'First. I find that, some time during the year 1894, defendant Minor took possession of the lot sued for herein, erected a substantial dwelling thereon, into which he then The only question involved in this litigamoved, and that about seven months there- tion depends for its solution upon the effect after the defendant Rojas, having built on to be given to the following provisions of the said lot an addition to Minor's house, moved Constitution and the statutes of the state: into same, and that both said Rojas and Section 15 of article 8 of the Constitution Minor have continued to reside thereon with- reads: "The annual assessment made upon out intermission up to the present time; that landed property shall be a special lien thereduring said time they continuously occupied, on, and all property, both real and personal, used, and enjoyed said lot as their home-belonging to any delinquent taxpayer shall stead, and have always claimed the same as be liable to seizure and sale for the payment their property; that the possession from the of all the taxes and penalties due by such time of their entry in 1894 until the present delinquent; and such property may be sold has been continuous, exclusive, and hostile to for the payment of the taxes and penalties the claim or claims of the unknown owners, due by such delinquent, under such regulaand to that of all other persons who might tions as the Legislature may provide." Artihave or did assert an interest in said prop- cle 5086, Sayles' Ann. Civ. St. 1897, reads as erty, and that during said occupancy they follows: "All taxes upon real property shall claimed the same as their joint property and be a lien upon such property until the same homestead. shall have been paid." From article 3351, Sayles' Ann. Civ. St. 1897, we quote as follows: "The right of the state shall not be barred by any of the provisions of this chap

"Second. That, the taxes on said property not having been paid for the years 1889 to 1900, inclusive, the state, on the 6th day of September, 1902, acting through its at-ter." torney, filed suit for taxes, costs, etc., against the unknown owners, perfected service by ci

tation by publication, and on the 15th day of

December, 1902, obtained judgment against

the unknown owners of said property for taxes, costs, etc.; that thereafter, on the 15th day of March, 1904, the sheriff, in pursuance of an alias order of sale issued out of said tax judgment, sold said property to satisfy same, and the property was regularly bid in and knocked down, and regularly deeded by the sheriff, to one Daniel P. Holland; that said judgment, among its oth. er recitations, contained one to the effect that the unknown owners had been duly and legally cited by publication as the law direct ed; that thereafter by quitclaim deed the said Daniel P. Holland, joined by his wife, conveyed said lot so purchased by him to George M. Patton, as executor of the estate of Carrie C. Higgins, and the said Patton is now claiming said property, and sues herein for same under said alleged tax title. The defendants claim against said title under the statute of ten years. I further find that said Holland bid in said property at said sale for the amount of $175, which was paid as stated in his tax deed executed to him by the sheriff.

The trial court and the honorable Court of

Civil Appeals held that, because the unknown

owner of the property in question could not

have recovered against the defendants in this suit, therefore the purchaser of the property at a sale made by the state for taxes cannot recover of the possessor of the said property in whose favor a period of 10 years' occupancy had expired prior to the institution of this suit. We are of opinion that the courts erred in that holding.

Reliance is placed upon Jordan v. Higgins, 63 Tex. 150, in which Judge Stayton, for the court, said: "Under this state of facts, the appellant's action was barred at the time he brought this suit, just as would have been the former owner, had the tax sale not been made and had the action been instituted by him." We are not inclined to agree to the conclusion announced by the learned judge in that case. In the facts, the two cases are clearly distinguishable; but the same principle underlies that decision that controlled the Court of Civil Appeals in its decision in this case. In Jordan v. Higgins the sale of the land was made by a tax collector without judicial proceeding, while in this case the sale was made under a judgment of the "Third. That neither of the defendants district court upon regular proceeding acwere ever cited, or had notice of any char-cording to the statute. In the Higgins Case acter of the pendency of the suit for fore- the statute of limitation was complete beclosure of the tax lien by the state, nor knew anything of the judgment obtained in that case, until they were notified to vacate shorty before the institution of this suit; but as aforesaid, at the time of the institution of

fore the sale was made, while in this case the sale was actually made and the property deeded to the purchaser before the expiration of 10 years as claimed by the defendants.