effect of his claim is to assert that, prior to the conveyance through which he derives his right, the title was in the common source, and this is deemed sufficient to relieve the plaintiff from the necessity of proving that fact. The rule is just, useful, and convenient. But it is not broadly true to say, as is sometimes said, that when two persons trace title to same grantor each is estopped as against the other. Bige. on Estop. (4th Ed.) 335. The author just quoted also says: "The question is one of the burden of proof only.' Id. 336, note 1." In Rice v. St. Louis, A. & T. R. R. Co., 87 Tex. 90, 26 S. W. 1047, 47 Am. St. Rep. 72, Judge Gaines, in delivering the opinion of the court, said: "The rule as to the common source is that, when the plaintiff has proved that he and the defendant claim title to land from a common source, and that of the two titles emanating from that source his is superior, he shows a prima facie right to recover; and it may be conceded that it is a rule of evidence, and not of estoppel. Howard v. Masterson, 77 Tex. 41 [13 S. W. 635]. Notwithstanding the proof of the sufficiency of his title under the common source, the defendant may still defeat the action by showing that there is a title superior to that of the person or persons under whom both claim, and that he is the holder of that title; and, even without showing that he holds such superior title, it may be that his defense ought to prevail, provided he prove affirmatively, not merely that some one had the title anterior to that of the common source, but also that such previous title never vested in the common source." which the common source claims, is not sound, and is not supported by the authorities cited and relied on by appellant. The expression in the opinion in the case of Evans v. Foster, 79 Tex. 50, 15 S. W. 170, that the defendant could not question the validity of an administrator's deed under which the common source held, or any other link in the chain of title between the common source and the sovereignty of the soil, must be construed with reference to the facts of the case under consideration. In that case there was no attempt on the part of the defendant to show any title in himself, other than that held by him under the common source, and he could not show an outstanding title by merely showing that the administrator's deed was unauthorized; but to establish such outstanding title he was required to show at least prima facie that the superior title was never vested in the common source. This was not done by showing that the administrator's deed was not authorized, because, notwithstanding the invalidity of this deed, the presumption would exist that Brinson, who was the common source of title of the plaintiff and defendant, had in some way acquired the title to the land; there being no evidence that the title was in any other person. [3] In Rice v. Railway Co., 87 Tex. 94, 26 S. W. 1047, 47 Am. St. Rep. 72, it is held that mere proof that some other person than the common source at one time held the title attempted to be conveyed by the common grantor is not sufficient to show an outstanding title; and we think it clear that mere proof of the invalidity of a deed under which the common source claims is not sufficient In Story v. Birdwell, supra, the court say: for such purpose. Proof of either or both "Where the evidence, by whomsoever intro- of these facts cannot overcome the prima duced, shows that the defendant claims un- facie presumption arising from the defendder two or more titles, any of which do not ant's claim under a common grantor with spring from the same source as plaintiffs' | plaintiff that at the time such grantor contitle, it then devolves upon the plaintiffs to veyed he had acquired the title of all previconnect themselves with the state, or other-ous owners. If, however, proof of the invawise to show a superior title to that of defendant from whatever source derived. Hendricks v. Huffmeyer, 90 Tex. 577 [40 S. W. 1]; Starr v. Kennedy [5 Tex. Civ. App. 502] 27 S. W. 26; Howard v. Masterson, 77 Tex. 41 [13 S. W. 635]." In Starr v. Kennedy, supra, it is said: "The rule of common source is useful and convenient, when applied in a proper case, and is not to be lightly disregarded. It does not, however, possess the dignity of an estoppel, and preclude the parties from asserting any other title. On the contrary, either of the parties has the right to assert as many different, and even conflicting, titles as he may be able to produce." lidity of the deed under which the common source claimed is supplemented by proof that the title in fact never passed to the common source, but is held by the defendant, or is outstanding in some third party, the plaintiff cannot recover upon the title held by him under the common source. Ferguson v. Ricketts, 93 Tex. 565, 57 S. W. 19. [4] We cannot bring ourselves to believe that the purchase by Mrs. Julia Hurd of the void title acquired by Willis & Bro. at the execution sale was such an admission or ratification of the forged deed from Norman Hurd to Samuel Moore as would estop her and those claiming under her from denying the validity of said deed. This is one of the [2] The contention of appellant that a de- contentions of appellant which is urged with fendant will not be permitted to show a su- much insistence. The proposition advanced perior title to that held by the common is that, "where the purported maker of a source if, in order to make such showing, deed or his successor in estate subsequently he must attack the validity of a deed under | acquire and assert a new chain of title under such deed, those so affirming its validity are precluded from attacking it as a forgery in a suit brought by those having superior right under such deed." It seems to us that it would be unreasonable to hold that because Mrs. Hurd, who held under James G. Hurd a life estate in one-third of the land, saw fit to "buy her peace" by purchasing the claim of Willis & Bro., that she and the defendants, who subsequently acquired her interest in the land along with the title of James G. Hurd, have lost that title by estoppel. We know of no authority for such refinement of the doctrine of estoppel, and appellant has cited us to none. [5] We think the evidence before set out is sufficient to sustain the finding of the trial court that the deed from Norman Hurd to Samuel Moore was a forgery. [6] It may be conceded that the age of the record of this deed, the original record having been introduced in evidence, as well as a certified copy of the copy of the original record recorded in Tyler county, taken in connection with the long assertion of claim under said deed, and the presumption which must always be indulged in favor of innocence of crime, was sufficient to meet and overcome the burden of proving the genuineness of the deed cast upon plaintiff by the affidavits of forgery filed by the defendants, and that it devolved upon defendants to meet this prima facie proof of the validity of the deed. Defendants sought to do this by showing that the grantor, Norman Hurd, was not present at the time and place the deed appears to have been executed. If the evidence adduced by the defendants is sufficient to sustain the finding that Norman Hurd was not in Shelbyville on January 20, 1838, or January 25, 1838, the respective dates of the deed and its acknowledgment, the finding of the court that the deed was a forgery is sustained. As before stated, the distance from Galveston to Shelbyville is about 200 miles. There were no roads in this section of the state at that early date, and no means of travel across the country, except on foot or horseback, and the ordinary length of a day's journey at that time was 25 or 30 miles. Approximately one-third of this distance could be made by water transportation. The boats then in use for transportation traveled slowly, and it does not appear that there were any boats making regular trips from Galveston to any point in less than 150 miles of Shelbyville. We think this testimony sustains the finding of the trial court that at the date of this deed the time required to go from Galveston to Shelbyville was not less than five days. If this is true, it follows that if Norman Hurd was at Galveston with the brig Potomac, of which vessel he was an officer, on the 23d day of January, 1838, or the 27th day of said month, the court was authorized to conclude that he was not pres It ent at the time and place the deed purports to have been executed. The receipt from L. M. Hitchcock to Norman Hurd for $140, dated at Galveston January 23, 1838, tends to show that Hurd was in Galveston on that date. Hitchcock was a merchant, and the money was received by him to be sent to Hurd's wife, who lived in Connecticut. is true that the money may have been given to Hitchcock for Hurd by some other person, with directions as to its remittance, though the receipt states that the money was received "of Hurd," not for him, and no mention is made of any other person in connection with the transaction, other than Hurd and his wife, to whom the money was to be forwarded; but the most natural and reasonable inference is that Hurd himself delivered the money and gave the direction as to its remittance, and prima facie this transaction occurred on the date of the execution of the receipt. The written order, directed to Hurd by his superior officer and dated on brig Potomac, January 27, 1838, may not have been delivered to him on that day, or may have been forwarded to him at some other place; but there is nothing upon the face of the paper to indicate this. The rules of official business of this kind required that the order should be in writing, and if the order in question was handed to Hurd, or sent him on board the vessel by his commander, it would have been in the form it bears, and we think a court or jury, called upon to pass upon the question could reasonably conclude that it was given or sent to him on board the vessel. In addition to this, the pay roll of the vessel shows that Hurd received pay for every day during the month of January, 1838, and if he had been absent from his post of duty for the length of time that it would have required to go to Shelbyville and return it is not probable that he would have been allowed or claimed pay for that time. It requires no more evidence to raise the issue of an alibi, when such alibi is sought to be established for the purpose of showing the forgery of the deed, than when it is sought to be established for any other purpose. [7] The question to be determined in this case is whether the evidence is sufficient to sustain the finding that Norman Hurd was in Galveston on the date the deed in question purports to have been executed in Shelbyville, and the presumptions which obtain as to the genuineness of the deed have no weight in determining this question. In addition to this evidence of an alibi, we think the high character for integrity possessed by both Norman Hurd and his son, James G. Hurd, is a circumstance that should prop erly be considered upon the issue of forgery. It is entirely inconsistent with the reputation of either of these men to believe that Norman Hurd, after selling the land to Samuel Moore, should attempt to defeat Moore's [Ed. Note.-For other cases, see Negligence, Cent. Dig. 8 72; Dec. Dig. § 59.* For other definitions, see Words and Phrases, vol. 6, pp. 5758-5769; vol. 8, p. 7771.] 3. MASTER AND SERVANT (§ 190*) NEGLIGENCE OF FELLOW SERVANT-ACTS Of ForeMAN. title and defraud him of the land by selling | which ought to have been foreseen by a reasonit to his son, and that the latter should ably prudent man in the light of the attending circumstances. have joined with and assisted his father in the attempted perpetration of a fraud of this kind. The trial court found that the deed to James G. Hurd was one of gift, and that no consideration was paid by him to his father. While we do not think that there is any evidence to sustain this finding, if it be true that the deed to Samuel Moore was a forgery, the evidence authorizes the finding that if the Moore deed was not a forgery that James G. Hurd knew of its execution, and in such event it would be reasonable to conclude that the recited consideration in the deed to him was wholly fictitious and the transaction was simulated, for the purpose of defrauding Moore. This being one of the inferences which might be drawn from the evidence, proof of the character of Norman and James G. Hurd was admissible for the purpose of rebutting such presumption. [8, 9] There is no merit in the objection urged by appellant to the introduction in evidence of the pay roll of the brig Potomac. This was an official document, and came from the proper custody, and was, we think, material as tending to show that Hurd was in Galveston on the date in question. The objection that the pay roll was not admissible, because the logbook of the vessel was the best evidence as to whether Hurd was with his vessel at said time, and its nonproduction was not accounted for, is not tenable. Both of these records were primary evidence, and, besides this, we think the failure to produce the logbook was properly accounted for. The act of a foreman of a gang of workmen engaged in repairing a pipe line in throwing a match with which he had lighted a cigarette into a pool of oil, whereby an explosion of the workmen, was not in furtherance of the and fire ensued, causing injury to plaintiff, one duties of the foreman to the employer; and hence the latter was not liable. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 449-474; Dec. Dig. § 190.*] 4. APPEAL AND ERROR (§ 742*)—ASSIGNMENT OF ERROR-PROPOSITIONS. An assignment of error, not accompanied by an appropriate proposition, will not be considered. Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] [Ed. Note.-For other cases, see Appeal and 5. MASTER AND SERVANT (§ 150*)—INJURIES TO SERVANT-WARNING SERVANT. A corporation operating a pipe line and a telephone line above it and following its engaged in making repairs on the pipe line course was under no duty to warn employés that lightning might strike the telephone wires, pass down arresters on the telephone pole, and ignite oil standing in pools on the ground. Servant, Dec. Dig. § 150.*] [Ed. Note.-For other cases, see Master and 6. MASTER AND SERVANT (§ 258*)—INJURIES TO SERVANT INCOMPETENCY OF SERVANT- In an action for injuries to a servant, rein throwing a match with which he had lighted sulting from the act of defendant's foreman a cigarette into a pool of oil, causing an exThis disposes of the material questions pre-plosion and fire, an allegation of the petition, sented in appellant's brief. None of the asthat defendant was negligent in employing for foreman one who would strike a match and signments of error show any error which light a cigarette while standing in close prox would authorize a reversal of the judgment, imity to a pool of oil in which men were workand, without discussing them in detail, all ing, was insufficient, in the absence of aver are overruled, and the judgment of the court ment that the foreman was habitually careless to the knowledge of defendant, or that his below affirmed. carelessness was so notorious that defendant Affirmed. was chargeable with notice thereof, or that defendant knew that the foreman would strike a match under the circumstances stated in the petition. BUTLER v. GULF PIPE LINE CO.† 1. MASTER AND SERVANT (§ 97*)—INJURIES TO One operating an oil pipe line and also a telephone line on poles immediately over and following the direction of the pipe line was not required to anticipate that his employés, working about the pipe line in making repairs, would be injured by the ignition of oil by lightning striking the telephone wire and passing to the ground through arresters on the poles. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 835; Dec. Dig. § 258.*] 7. MASTER AND SERVANT (§ 170*)-INJURIES TO SERVANT-INCOMPETENT SERVANT. A master is only required to use ordinary care in selecting his employés; and the fact that an employé is negligent on one occasion is not sufficient to show that the master had not used that degree of care required by law in the selection and employment of competent servants. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 336; Dec. Dig. § 170.*] 8. MASTER AND SERVANT (§ 150*)-INJURIES ΤΟ SERVANT WARNING SERVANT-LAWS OF NATURE. An employé engaged in repairing a pipe line is chargeable with notice of the law of nature that gas arising from crude petroleum rarifies the air and produces a point of light resistance, so that a bolt of lightning descend [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. § 97.*] 2. NEGLIGENCE (§ 59*)-"PROXIMATE CAUSE." Negligence, to be the "proximate cause" of an injury, must be the natural and probable consequence of the negligent or wrongful act, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes Writ of error denied by Supreme Court March 27, 1912. ing to the earth will follow the trail of the gas, and that, if he is working at the point of origin of such gas, a pool of oil in which he is standing may be ignited by the lightning; and hence the employer is not required to warn him of such danger. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 150.*] said pipe line and collected in the holes and ditches along same. "That on the 21st day of July, 1908, and prior thereto, plaintiff was in the employ of defendant, together with several other men, engaged in making some repair on the said pipe line, and standing and working in a Appeal from District Court, Tyler County; pool of oil while so engaged, and which was W. B. Powell, Judge. Action by Joe Butler against the Gulf Pipe Line Company. From an order sustaining a demurrer to plaintiff's amended petition and dismissing the action, plaintiff appeals. Affirmed. D. Edward Greer and F. C. Proctor, for appellant. V. A. Collins and Joe W. Thomas, for appellee. McMEANS, J. Appellant, Joe Butler, plaintiff in the court below, filed this suit against the appellee, Gulf Pipe Line Company, to recover damages for personal injuries sustained by him while in appellee's employment. A general demurrer urged by appellee to plaintiff's amended original petition was sustained by the court, and, the plaintiff declining to amend, his suit was by the court dismissed, and from the judgment of dismissal plaintiff has appealed. con Plaintiff, after alleging that the defendant was a corporation and a common carrier, and owned and operated a pipe line running through Tyler county, further alleged: "That along beside said pipe line said defendant has constructed for its own venience a telephone, built and attached to poles at convenient distances, and as a means of conducting an overcharge of electricity, as, for instance, a bolt of lightning, into the ground a wire from said telephone wire is extended down every third or fourth telephone pole into the ground, which enters the ground at a distance of only six or eight inches from said pipe line. That crude oil or petroleum is a very inflammable substance, as is also the gas generated therefrom, and the striking of a match or the flash of lightning near or in close proximity of a pool of such petroleum oil will ignite the gas arising therefrom and instantly ignite the entire pool of oil, which cannot be extinguished till consumed. "The defendant's oil pipe, as is the case with all oil pipes, would often spring a leak, or at times clog up, and it would become necessary to unscrew or separate the joints to remove the obstruction, and, in either event, whether by leakage or uncoupling the pipe to remove obstacles within, oil in large quantities would run out of the pipes and collect in pools, and the defendant's employés who were engaged in repairs and improvements upon said pipe often had to stand and work in great pools of oil which had run out of the usual and customary and necessary way "That, if plaintiff is mistaken in how said lightning was conducted into said pool of oil, then he avers that lightning seeks the place of least resistance, and the gas arising from crude petroleum oil rarifies the air, and makes it produce a point of light resistance, and, if the lightning was not conducted down said wire into the pool of oil, then it came through the rarified air produced by the gas, and ignited the gas and oil, and this ignited plaintiff's clothing and his leg, and burned his lower limbs, as above alleged. But, if plaintiff is mistaken in his allegations that the gas and oil were ignited and caused to burn by the flash of lightning which was perceived just as the gas caught fire, then, in that event, plaintiff alleges that the defendant's foreman, Hardy Jenkins, who had full control and supervision over the plaintiff and other men doing the work that plaintiff was doing and of their work, and directing the same, he being vice principal of the defendant company, having been delegated full power and control as to said improvements and repair of said pipe line and the work on the said pipe line, and in and around said pools of oil that would and did usually ordinarily collect at and along said pipe line, was smoking a cigarette, and that he (the said foreman) struck a match and lit his cigarette, and threw the match down, and the gas was ignited from the burning match, which was known to him, or might, by the exercise of ordinary care, have been known to him, to be the effect of the striking of the match, as aforesaid. "That plaintiff was wholly ignorant of the nature of gas or petroleum, and was also ignorant of the fact that lightning might be conducted down a wire into the oil or gas, or that it is a frequent occurrence for it to strike pools of oil and fire them, when •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes resters), placed near the pipe line and pool of oil, and flashed to the gas arising from the oil, and set fire to the oil; (2) that the lightning came through the rarified air, produced by a current of gas escaping from the oil, and thus ignited the gas and oil; and (3) that the oil caught fire from a burning match carelessly thrown down near the pool of oil by the foreman, Jenkins, after he had lighted a cigarette. We will discuss, in the order named, the various grounds of negligence alleged, in so far as they are raised by propositions under appellant's general assignments. there is no other conductor than the air, rarified from gas arising from said pools of oil, or that it might be ignited from the dropping of a burning match within a few feet of a pool of oil; but plaintiff avers that the defendant knew of the dangers above enumerated, and knew that his work was very hazardous and dangerous, especially when the atmosphere was heavily charged with atmospheric electricity, and that in constructing its telephones, as above alleged, where the wires installed to conduct the electricity into the ground came so near the pipe and the escape of oil, and into pools of oil that would accumulate at and near said [1, 2] First, as to placing the lightning arpipe, and in not warning the plaintiff of the resters close to the pipe line, it is not aldangers to which he was exposed in working leged that there was anything wrong with while the lightning was flashing, and in em- the arresters, or that they had not been propploying for its foreman one who would strike erly constructed, or that the ordinary effect a match and light a cigarette while standing of their construction in proximity to the pipe in close proximity and within a few feet of a line would cause lightning passing from the pool of oil in which men were working, and telephone wires to the ground to flash along who was negligent and careless in and the pipe or on the surface of the earth; nor around pools of oil, known to it to be a most is there any allegation in the petition to dangerous agency, and who was incompetent show that a person of ordinary prudence in and negligent on such work as such foreman constructing the lightning arresters ought to of men at such dangerous work, said defend- have reasonably foreseen, or could have reaant was guilty of gross negligence, which sonably anticipated, that plaintiff, or some was the direct and proximate cause of plain- one similarly situated, would be injured by tiff's injuries, and the cause of his physical lightning coming down the arresters, not preand mental suffering; for plaintiff avers that, cisely in the way that plaintiff was injured, had he known of the dangers of being near but injured by lightning in some way, by a pool of oil when the lightning was flashing, reason of the placing of the arresters in or the dangers of wire as a conductor of such proximity to the pipe line. We do not lightning, or the quickness or ease with think that from the allegations of the petiwhich oil is ignited, or the defendant had tion, treating the allegations as true, that warned him of these dangers, he would have appellee, at the time it constructed the conremoved himself from the dangers. ductors or arresters, could have reasonably the defendant knew the place he was stand- foreseen that, by reason of their proximity to ing in the pool of oil was dangerous and the pipe line, the plaintiff, or some other made extrahazardous by reason of the light-person similarly situated, would be injured ning, and defendant was aware of his dan- by lightning as plaintiff alleged he was. If gers, he being ignorant thereof, which it knew, and the defendant was negligent and careless and in default in not warning him of such dangers and hazards so caused." That Appellant, by his several assignments of error, complains of the action of the court in sustaining a general demurrer to his amended petition. An analysis of the petition shows that plaintiff claimed the defendant had been negligent in four ways: (1) In placing wires or lightning arresters from telephone wires on every third or fourth pole down into the ground six or eight inches from the pipe line; (2) that defendant's foreman threw a lighted match down near the pool of oil in which plaintiff was standing; (3) in not warning plaintiff of the danger to which he was exposed in working while lightning was flashing; and (4) in employing for its foreman one who would strike a match while standing in close proximity to a pool of oil in which men were working. The petition alleges that the oil was set on fire in three different ways: (1) That lightning came down one of the conductors (ar placing the arresters in such proximity to the pipe line was negligence, then for such been the proximate cause of the injury comnegligence to be actionable it must have plained of. In order to warrant a finding that negllgence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances; and the question of probable cause depends upon the further question whether a reasonably prudent man, in view of all the facts, would have anticipated the result-not necessarily the precise injury, but some like injury produced by the same or some similar intervening agencies. Railway v. Bigham, 90 Tex. 225, 38 S. W. 162; Seale v. Railway, 65 Tex. 274, 57 Am. Rep. 602; Light & Power Co. v. Lefevre, 93 Tex. 607. 57 S. W. 640, 49 L. R. A. 771, 77 Am. St. Rep. 898; Railway v. Kieff, 94 Tex. 338, 60 S. W. 543; Dawson v. Metal Fireproofing Co., 94 Tex, 424, 59 S. W. 847, 61 S. W. 118; Railway v. Welch, 100 Tex. 121, 94 S. W. |