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furnished the chief attraction which induced | grounds of error relied on, as required by Rev. children to visit that inclosure, there should St. 1895, art. 1018, and court rules 24-26 (142 S. W. xii).

be no liability attached to the conduct of the appellee in placing other objects there on which did not furnish any attraction for children to resort to that place. The argument is based upon a misconception of what we think is the underlying principle upon which the liability of the appellee in this case must rest. It is true that the evidence does show that up to the time of the appellant's first visit to that place the pecans were the only attraction, and that on that occasion he went inside only in response to an invitation from Cowen's boy. But it is also true that large numbers of children did visit that grove in search of pecans, and did so without any permission from any one. This created a condition which even the owner of the premises could not wholly ignore in casting away or depositing thereon dangerous objects possessing special or unusual attractions to such children. Certainly the right to so incumber the premises with such dangerous and attractive objects would be still less available to one who had no legal right to so use such premises. The proof in this case does show that, on the occasion when those explosives were obtained and carried away by the appellant and his companions, they were attracted to that place by these objects alone. If the conduct of the appellee in depositing them in that particular place should not here be held as tantamount to an implied invitation to enter the inclosure, it must be due to the fact that appellee had no authority to extend such an invitation. It did, however, extend an invitation, in so far as one may be implied from casting away such toys and playthings, to all children who might be upon those premises from any motive or purpose. There can be no hard and fast rule laid down by the courts for determining common-law liability resulting from personal negligence. Each case must be determined by its own facts. The question presented is: Would a person of ordinary prudence have deposited such objects at such a place under the circumstances detailed by the evidence in this case? We adhere to the holding that the evidence presented a question which the court should have submitted to the jury, and

the motion is overruled.

SULLIVAN et al. v. HOUSTON &
T. C. R. CO.

(Court of Civil Appeals of Texas. El Paso. Nov. 21, 1912.)

1. APPEAL AND ERROR (§ 732*)—ASSIGNMENTS OF ERROR-SPECIFICATIONS-SUFFICIENCY.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.*]

2. APPEAL AND Error (§ 742*)—ASSIGNMENTS OF ERROR-PROPOSITIONS REQUISITES. error, which only refers to propositions under A proposition following an assignment of other assignments of error, violates court rules 30, 33 (142 S. W. xiii), providing that each point under each assignment shall be stated as lar grounds relied on. a proposition, which shall refer to the particu

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 3. APPEAL AND Error (§ 742*)—ASSIGNMENTS OF ERROR-PROPOSITIONS.

Where the proposition subjoined to an assignment of error complaining of a paragraph of the charge copied in the assignment complains of the charge for failure to instruct on matters raised by the evidence, but fails to disclose the evidence, and the only statement following the proposition is a quotation from the petition, the assignment cannot be considered, in view of court rule 31 (142 S. W. xiii), providing that to each proposition there shall be subjoined a statement of the proceedings in the record necessary to support the proposition. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 4. APPEAL and Error (§ 742*)—ASSIGNMENTS

OF ERROR-PROPOSITIONS.

Where the propositions following an assignment of error complaining of the giving of a special requested charge do not point out wherein the charge is erroneous, and the subjoined statements to the propositions do not disclose error, the assignment will not be considered.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. 742.*}

Appeal from District Court, Grimes County; S. W. Dean, Judge.

Action by Mrs. Anna Sullivan and others against the Houston & Texas Central Railroad Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

of Navasota, for appellants. T. C. Buffington and T. P. Buffington, both Parker & Garwood and Jno. T. Garrison, all Baker, Botts, of Houston, and Geo. D. Neal, of Navasota. for appellee.

MCKENZIE, J. Mrs. Anna Sullivan, for herself and minor children, sued the Houston

& Texas Central Railroad Company, in the district court of Grimes county, to recover damages for the death of her husband, W. A. Sullivan, alleging that the accident occurred at a bridge, which bridge was constructed over a bar pit at or near the railroad crossing upon the defendant's right of way. The deceased was in his buggy, driving across said bridge, and while crossing the horse which he was driving backed, with the buggy, off of the bridge; the horse falling upon the

An assignment of error that the court err-deceased and inflicting injuries which caused ed in denying a new trial for the reasons in his death. The negligence alleged was that the bill of exceptions, based on errors in the

charge, and in granting special charges, cannot the said bridge, which was constructed by be considered, because it fails to specify the the railroad company on its right of way

leading to the crossing, was constructed so shall be stated as a proposition, unless the that the floor formed a steep incline, and assignment itself may sufficiently disclose

that the bridge was without banisters; that both the incline of the bridge and the lack of banisters rendered said bridge unsafe for travelers in going over same to reach the crossing.

Appellee urges objection to the consideration of each of the appellants' assignments of error. We will treat of these objections in their order, as we consider the respective assignments of error.

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the point, in which event it may be sufficient
to copy the assignment." Rule 33 (102 Tex.
xxviii, 67 S. W. xvi) provides that "in a
proposition relating to error of the court in
overruling a motion for a new trial or to ar-
rest the judgment, in which there are several
grounds, the particular ground or grounds
should be referred to with the appropriate
explanation.
As to the required
statement which must be subjoined to the
proposition, rule 31 (102 Tex. xxviii, 67 S. W.
xvi) requires that "to each of said proposi-
tions there shall be subjoined a brief state-
ment, in substance, of such proceedings, or
part thereof, contained in the record, as will
be necessary and sufficient to explain and
support the proposition, with a reference to
the pages of the record.

ing the assignment violates rules 30 and 33, supra, and is insufficient, also, because it only refers the court to propositions to be found under other assignments of error, which is not permissible. San Antonio Foundry Co. v. Drish, 38 Tex. Civ. App. 214, 85 S. W. 440. By reference, however, to the propositions under said assignments, we find as many separate propositions as there are assignments of error, dealing with different subjects. This is not permissible. McAllen v. Raphael, 96 S. W. 760.

[1, 2] Appellants' first assignment of error is as follows: "The court erred in refusing to grant plaintiffs' motion for a new trial, filed by plaintiffs herein on the 15th day of June, A. D. 1911, and in refusing to set aside the verdict and judgment entered in this case. Said motion for a new trial should have been granted, because of the reasons set forth in plaintiffs' bills of exceptions from It will be observed from the foregoing that 1 to 6, being errors in the general charge of appellants have flagrantly disregarded the the court, and in granting certain special statute and the rules of the court in preparcharges asked by the defendant; and be- ing their cause for submission: First. The cause of the errors so committed plaintiffs assignment is not sufficient, in that it fails did not have a fair and impartial trial of to distinctly specify the grounds, as required this case the errors so committed being by article 1018, supra, and rules 24, 25, and prejudicial to plaintiffs' rights before the 26, supra. Second. The proposition followjury." To this assignment is the following proposition: "Same proposition, statement, and authorities as under third, fifth, sixth, seventh, and eighth assignments of error." This proposition is not followed by any statement. The assignment of error cannot be considered by the court, because it does not distinctly specify the grounds relied upon, as required by article 1018, Revised Statute of 1895. It appears that the assignment, as well as the proposition, also violates the rules which govern this court. See Rules, 102 Tex. xii, 67 S. W. xi. Rule 24 (102 Tex. xxviii, 67 S. W. xv) requires that the assignment shall distinctly specify the ground relied upon; and it is provided by rule 25 (102 Tex. xxviii, 67 S. W. xv) that, “to be a distinct specification of error, it must point out that part of the proceedings contained in the [3] The fifth assignment of error comrecord in which the error is complained of, plains of the eighth paragraph of the general in a particular manner, so as to identify it. charge of the court, which paragraph is And rule 26 (102 Tex. xxviii, 67 S. copied in the assignment. The proposition W. xv) provides that "assignments of error following the assignment does not complain which are expressed only in such general that the charge of the court is incorrect, but terms as that the court erred in its rulings rather as omitting to charge upon matters upon the pleadings, when there are more which appellants contend were raised by the than one, or in its charge, when there are evidence. The proposition subjoined to the a number of charges, or the verdict is con- assignment fails to disclose what this evitrary to law, or to the charge of the court, dence is; and the only statement following and the like, without referring to and iden- the proposition and assignment appears to tifying the proceeding, will not be regarded be a quotation from plaintiffs' petition. Cerby the court as a compliance with the stat-tainly the allegations in the petition cannot ute requiring the grounds to be distinctly be considered by this court as evidence. The specified, and will be considered as a waiver statement fails to explain and support the of errors, the same as if no assignment of proposition as made, and is therefore in vioerrors had been attempted to be filed." As lation of the requirements of rule 31, supra. to the kind of proposition required, it is Nothing is stated under the assignment and provided in rule 30 (102 Tex. xxix, 67 S. W. proposition in appellants' brief which dis

We overrule appellants' third assignment of error. The charge of the court as complained of, when taken in connection with the other part of the charge, is quite sufficient, and certainly the jury was not misled thereby.

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court to grant or refuse a second application It is within the sound discretion of the for a continuance, which is not strictly a stat utory application.

[Ed. Note. For other cases, see Continuance, Cent. Dig. §§ 69, 79, 85, 87, 88, 118, 128, 130, 132, 135, 141, 147; Dec. Dig. § 51.*]

jured in the manner by the charge; nor does | 2. CONTINUANCE (§ 51*) - SECOND APPLICA it show that the charge as given did not TION. cover fully all the issues as raised by the evidence. We are not warranted, therefore, in considering further this assignment. Wirtz v. G., H. & S. A. Ry. Co., 132 S. W. 513. [4] Under the sixth assignment complaint is made to a special charge requested by the defendant and given by the court to the jury. We have examined the two propositions in appellants' brief following the assignment, and neither of said propositions points out wherein the charge is erroneous; nor do the subjoined statements to the propositions disclose error, so far as we are able to determine. The evidence set out in the statement

under the second proposition fails to disclose harmful error in the charge; and certainly we would not be required to go to the record and there search for some proof which would render the charge complained of inapplicable. We are of opinion, for the reasons as given, that this assignment should not be further considered.

The eighth assignment of error, complaining of a special charge given by the court to the jury, is not considered, because the appellants merely refer us to "same proposition as under the sixth assignment of error." This is not permissible. San Antonio Foundry Co. v. Drish, supra. The statement subjoined fails to disclose wherein the charge, as submitted by the court to the jury, was not wholly justified.

Having considered the assignments of error as presented in appellants' brief, and finding no error which would require a reversal of this cause, we are of opinion that the case should be, in all things, affirmed. Affirmed.

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COURT.

Defendant caused depositions to be taken, which were duly returned to the district clerk on November 16, 1910, during the November term of court. About May 8, 1911, defendant's counsel discovered that the depositions could not be found in the district clerk's office, and wired to the notary taking them, who informed counsel that the depositions had been mailed to the clerk as instructed, whereupon defendant applied for a continuance for want of such depositions, stating the facts. A previous continuance had been granted for another cause. The depositions were merely cumulative of evidence given somewhat fully at trial. Held, in view of counsel's delay in not inquiring whether the depositions had been returned, that there was no abuse of discretion in overruling the appli

cation for a continuance.

[Ed. Note.-For other cases, see Continuance, Cent. Dig. §§ 74-93; Dec. Dig. § 26.*]

On Motion for Rehearing. 3. COURTS (§ 116*)-RECORDS-JURISDICTIONIN VACATION.

An order of the judge, made in vacation, rating certain depositions in the record, was after trial and adjournment of court, incorpo without authority and ineffectual for that pur pose.

Dig. §§ 369-373; Dec. Dig. § 116.*]
[Ed. Note.-For other cases, see Courts, Cent.
4. CONTINUANCE (§ 26*)—DILIGENCE.
If defendant's counsel were advised by
letter in November, 1910, from the notary pub-
lic, who took depositions for use at trial, that
the depositions had been taken and mailed to
the clerk of court, counsel could assume that
the depositions were on file, and were not guilty
of a lack of diligence in not inquiring until the
time of trial, in May, 1911, as to whether the
from moving for a continuance because of their
depositions were on file, so as to preclude them
loss, first discovered at the trial.

[Ed. Note. For other cases, see Continuance,
Cent. Dig. §8 74-93; Dec. Dig. § 26.*]
5. APPEAL AND ERROR (§ 671*) - PRESENTA
TION BELOW.

An appellate court is only required to pass upon the action of the trial court as shown by the record, so that, in determining whether an overruled, it can only consider the facts stated application for a continuance was properly in the application, as shown by the trial court's record.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. §¡ 671.*]

Appeal from District Court, Angelina County.

Action by Joe Wilroy against the Continental Lumber & Tie Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Mantooth & Collins, of Lufkin, and Lane, Wolters & Storey, of Houston, for appellant. W. J. Townsend, Jr., of Lufkin, for appellee.

REESE, J. This suit was instituted in the district court by Joe Wilroy against the Continental Lumber & Tie Company to recover a debt alleged to be owing to plaintiff by defendant, being the contract price for a lot of ties sold by plaintiff to defendant. The defense was that a large portion of the ties were not first-class ties, as were contracted for. A trial with a jury resulted in a judgment for plaintiff for $1,121.97, from which this appeal is prosecuted.

[1] There are three assignments of error in the brief of appellant, all presenting the same question, to wit, the error in overruling appellant's application for continuance. No question is raised on the facts by the assignments. As appears from the bill of exceptions, the application for continuance was

ositions; his testimony being substantially the same as that of Blair and Thompson. Dunlap seems to have testified only as to the photographs taken by him. Coale appeared in person and testified for appellant on the trial, at considerable length and very fully, and in substance to the same effect as Blair and Thompson.

the second application made by appellant. | to whom the ties had been contracted to be The facts pertinent to the question, as shown sold. On the trial Wagstaff testified by depby the bill of exceptions and the record, are as follows: The suit was instituted by filing the original petition on the 19th day of February, 1910. It does not appear when service was had on defendant; but it filed its original answer, presenting a valid and meritorious defense, on May 5, 1910. The terms of court in the county began on the first Mondays in May and November, respective- [2] The above are the material facts to be ly. It does not appear why the case was gathered from the record. The application continued at either the first or second terms; being the second one, and not strictly a statbut at one or the other of them the case utory application, it was within the sound was continued on the application of the de- discretion of the court to grant or refuse it. fendant, as shown by the fact that the ap- We think the record shows such want of plication for continuance under considera- diligence on the part of appellant as justition, made at the May term, 1911, was its fies the action of the court. At least, we second application. In June, 1910, appellant cannot say that his action was such an had an inspection made of the ties by Wil- abuse of his discretion as would authorize liam Blair and A. T. Thompson at Clifton, this court to reverse the judgment, in the Ariz., to which point they had been shipped, circumstances stated. It will be seen that and in June, 1910, at the same time, it had appellant made no inquiry as to the return certain photographs taken of some of the of the deposition from November 16th, when ties. About the 12th of November, 1910, ap- they were returned and filed, until the case pellant filed interrogatories to Blair, Thomp- was called for trial on May 8, 1911. They son, and Dunlap, and had their depositions had not even been opened. It seems to us taken in answer thereto. The depositions that the most ordinary diligence, in the cirwere duly returned to the district clerk on cumstances, the case having been once conNovember 16, 1910, which must have been tinued on its application, required appellant during the November term of the court. to learn whether these depositions had been About May 8, 1911, counsel for appellant taken and returned, at least after the lapse discovered that these depositions could not of a reasonable time for doing so. If such be found in the district clerk's office, and inquiry had been seasonably made, it would on that day they wired to the officer to have disclosed the loss of the depositions in whom the commission had been sent, in- ample time for appellant to have again filed quiring whether the depositions had been interrogatories and taken the depositions. returned. The telegram states that the case If it be urged that the missing photographs was then on call. In reply to this message could not have been again procured, that is the officer wired that the depositions had no answer, because the continuance, if grantbeen mailed as instructed. The case being ed, could not enable appellant to do so. called for trial, appellant made application While we cannot agree with appellee that in the usual form for continuance for want the mere fact that the testimony is merely of these depositions, stating the facts about cumulative of that of Wagstaff and Coale, their taking and return, and attaching to and several other witnesses who testified for the application, as part thereof, a copy of appellant as to the character of the ties, the answers, which we presume had been would of itself justify the overruling of the procured from the officer, who stated in his application, in case proper diligence had message that he had such copy. The tes- been shown, still this fact must also be taktimony was material to the defense set up en into consideration in determining whethin the answer. The photographs were at-er there has been an abuse, or a proper extached to Dunlap's deposition. The appli-ercise, of discretion on the part of the trial cation was made and overruled on May 12, 1911. After the adjournment of the May term of court the depositions were found in a box in the district clerk's office, unopened. After stating the facts with regard to the taking, return, and loss of the depositions, the application states in the usual form that it was not made for delay, and that the testimony could not be procured from any other source. It is shown by the depositions of these witnesses that George A. Wagstaff and George M. Coale were present when the inspection referred to in Arizona was made, and participated therein; Coale being an officer of appellant, and Wag

court.

We are of the opinion that the assignments of error present no grounds for reversal, and the judgment is therefore affirmed.

On Motion for Rehearing.

[3] On motion for rehearing appellant insists strenuously that the opinion in this case imposes upon attorneys duties entirely too onerous, and that it would require of them, in the exercise of proper diligence, to keep track, by daily inquiry of the clerk, of important papers filed in the case. If this be the effect of the opinion, it is clearly wrong;

such construction, it would be promptly with- | lant's counsel had been advised by the nodrawn, and this motion granted. It is not tary on November 12th that the depositions necessary here to restate the facts as they were made to appear to the trial court in the motion for a continuance. We may say here that, as the depositions were not found until after the notice for continuance had been overruled, the case tried, and the court adjourned, there is no way that we know of by which this fact could be incorporated in the record or considered by us on this appeal. The order of the judge, made in vacation, directing the depositions, together with the fact with regard to their having been found, to be incorporated in the record, was made without authority. It is not an order of the court.

[4] But, aside from this, counsel for appellant, in this motion for a rehearing, show that in fact the notary who took these depositions advised them by a letter of date November 12, 1910, which was the day the depositions were taken, and which letter was promptly received by them, that the depositions had been taken, and had been that day mailed to the clerk. The letter, which is appended to the motion, also states that copies of the answers are inclosed. This puts an entirely different aspect upon the question of the diligence of counsel. Having been advised that the depositions had been taken and returned, and having copies of the answers, counsel for appellant could safely assume that they were on file with the papers of the case, and their failure to inquire for them, in these circumstances, until they were needed on the trial, was the exercise of proper diligence. Certainly an attorney, who has once informed himself that depositions have been taken and filed, has a right to assume that they will be safely kept by the clerk, and is not required by subsequent inquiry to keep himself informed whether the papers have been lost or mislaid, unless there be some special circumstance, not present in this case, to call for such inquiry. Now this is the case made by the motion for rehearing. Appellants had a copy of the answers, and therefore did not need to cause the depositions to be opened until needed at the trial, unless there was some informality in their taking and return, which could only be discovered by inspection. But no such thing appears to be present here.

had been taken and returned, and that a copy of the answers had been then sent to them; but, on the contrary, the application has attached to it the telegram received from the notary on May 8th, when the case was on call, in reply to a telegram from counsel to the notary, making inquiry as to whether the depositions had ever been taken and returned. It is stated in the motion filed May 12, 1911, that "defendant has reason to believe and does believe that the depositions of said witnesses were taken on the 12th day of November, 1910, at Clifton, Ariz., and duly returned into this court." There is attached to the motion the following telegrams:

"May 8, 1911.

"To T. B. Inglis, Clifton, Ariz.: Did you return depositions to Lufkin, Texas, in case Joe Wilroy v. Continental Lumber & Tie Company. Attorneys there report they have not been received. Case on call. Please answer immediately."

"Your wire received depositions in case of Wilroy versus Continental Company mailed to Lufkin, Texas, as you instructed have duplicate on file if you want it.

"T. B. Inglis."

There is no reference in the application to the most important fact, as showing diligence on the part of appellant's counsel, that they were relying upon the information conveyed to them by the letter of November 12, 1910, that depositions had been taken and returned, and a copy of the answers then received by them. There was sufficient time from the date of the telegrams of May 8, 1911, to the date of the application, May 12, 1911, for the notary to have sent to appellant's counsel the copy of the answers which he then advised them he had.

It was a reasonable conclusion-in fact, the only reasonable conclusion-to be drawn from the facts stated in the application for continuance that after mailing the interrogatories and commission to the notary, about November 12, 1910, appellant made no further inquiry even to learn whether the interrogatories had been received by the notary, or whether they had been taken and returned, until six months later, when the case was actually on call for trial. This is the [5] But can these facts, now shown for the case presented to the trial court, and to this first time, avail appellants? We are called court, by the record on submission, and by upon to pass upon the action of the trial the briefs. The actual facts, as presented by court. The appellee is required to respond the motion for rehearing, may-in fact they to such errors as are assigned, upon the rec- do, in our opinion-exonerate appellant's ord as presented. If the trial court erred counsel from any charge of negligence, or in overruling the application for continuance, want of diligence, in their failure to sooner a new trial should be granted. But how can learn of the loss of the depositions in the we say that the trial court erred, unless such clerk's office. But these facts are presented error is shown by the record in that court. for the first time on this motion for rehearThe case presented by the application for ing. How can we say that, in the light of continuance is shown by the opinion. No these facts, the trial court erred in overrul

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