(218 S.W.) Realty Company to Wendhausen was not | ing 160 acres of land, being the southwest quarsaid lot No. 4, which is the southeast quarter ter of said section." (Italics ours.) of said section 34, but that the land so conveyed was the southwest quarter of said section 34, and lot No. 3 of said Tolman subdivision. They further alleged that Summerfelt conveyed the land in controversy to John A. Owen, and that they hold title through and under Owen. They also alleged that the claim of plaintiff casts a cloud upon their title, and prayed for removal of such cloud, etc.. On the 13th day of February, 1911, John B. Summerfelt conveyed to John A. Owen lots Nos. 2 and 4 of the Tolman subdivision of said section 34, and in his deed described the same as lots 2 and 4 as shown by the Tolman map, and also described the same by metes and bounds, calling for the east boundary lines of lots 1 and 3 as the west boundaries of said lots 2 and 4; thus conveying to Owen the entire east half of section No. 34. It is further shown that defendants hold the land in controversy by mesne conveyances from and under John A. Owen. At the time of the sale of the whole of said section 34 by Nell McQuaid to Morris Stern, McQuaid owed Mrs. Eliza Kempner certain notes which were given in part payment for the same land which she had purchased from Mrs. Kempner. Among these notes were Nos. 3, 4, and 5. On the 5th day of March, 1910, Mrs. Eliza Kempner executed and delivered to Nell McQuaid a release reading as follows: The undisputed evidence shows that section 34 of the H. T. & B. Railroad survey of land in Brazoria county, Tex., contains 640 acres and that its boundaries form a square; that it was subdivided by one J. C. Tolman into four equal parts by running one line through its center from north to south and another from east to west; that Tolman made a plat or map of the subdivisions so made and thereon designated and marked the several quarters as follows: The northwest quarter as lot No. 1, the northeast quarter as lot No. 2, the southwest quarter as lot No. 3, and the southeast quarter as lot No. 4. All of these recorded in the county clerk's office of Brazoria "Whereas, by deed dated February 10, 1908. lots were conveyed to and became the prop-county, Texas, in book - page erty of one Nell McQuaid. On the 30th day of April, 1918, Nell McQuaid conveyed to Morris Stern all of the quarter sections just designated on the Tolman map; each lot was described separately and call was made for the Tolman map for greater description. On the 20th day of March, 1908, Morris Stern conveyed to John B. Summerfelt the whole of said section 34 which he had purchased from Nell McQuaid, and in his deed described the same by referring to lots 1, 2, 3, and 4 as shown by the Tolman map, and also described them by metes and bounds, placing the lots on the ground just as shown by the Tolman map. On the 23d day of February, 1910, John B. Summerfelt conveyed to F. E. Pye Realty Company a tract of land described as follows: "Lot No. 4 of the J. C. Tolman subdivision of section No. 34, H. T. & B. R. R. survey, abstract 554, Brazoria county, Texas, and being the southwest quarter of said section No. 34 and containing 160 acres." (Italics ours.) Eliza Kempner conveyed to Nell McQuaid lot No. 4, out of section 34, H. T. & B. R. R. Co. survey in Brazoria county, Texas, according to subdivision made by J. C. Tolman, which property is fully described in said deed to which reference is here made for all purposes, retaining therein a vendor's lien securing the payment of certain notes; and "Whereas, said notes and all interest thereon in full satisfaction of said incumbrance have been paid: "Now, therefore, know all men by these presents, that I, Eliza Kempner, being the legal owner and holder of the above referred to notes at the time of their payment, do hereby release the above-described property, to wit, lot No. 4, from vendor's lien aforesaid, and declare the same extinguished. "Witness my hand at Galveston, Texas, this 5th day of March, A. D. 1910." On the 9th day of May, 1911, more than a year after the above-mentioned release was executed and recorded, Eliza Kempner in writing transferred the vendor's notes Nos. 3, 4, and 5, above mentioned, to H. Masterson, and in said written transfer it is recited that notes Nos. 1 and 2 of said series had been paid. And on the same day he also conveyed to Pye Realty Company lot No. 1 of said Tolman subdivision, thus conveying to Pye Realty Company the entire west half of said section Nell McQuaid had given Eliza Kempner a 34, and on the 24th day of February, 1910, deed of trust on lot 3 of said Tolman subdiviF. E. Pye Realty Company conveyed to Her- sion before she sold to Morris Stern, describman Wendhausen the lot which was describing it by metes and bounds, which placed lot ed in the deed of Summerfelt as lot No. 4 of 3 in the southwest quarter of said section 34, Tolman subdivision, and as the southwest to secure the payment of the vendor's lien quarter of said section 34, under the follow-notes retained against said land. The vening description: dor's lien notes retained against lot 3, the "Lot No. 4 of J. C. Tolman subdivision of southwest quarter of said section 34, were section No. 34, H. T. & B. R. R. survey, ab- transferred by Eliza Kempner to H. Masterstract 554, in Brazoria county, Texas, contain-son on May 9, 1911. This deed of trust was foreclosed by sale by substitute trustee on June 6, 1911, and bought by A. E. Masterson at said sale. On October 20, 1911, Herman Wendhausen executed to Meek & Highsmith a power of attorney coupled with an interest to recover lot No. 3 of said J. C. Tolman subdivision, containing 160 acres, and being the southwest quarter of said section 34, and recites in said power of attorney, among other things, the following: "This southwest quarter of said section being deeded to me on the 24th day of February, 1910, by F. E. Pye Realty Company of Houston, Texas, said deed of record in the county clerk's office of Brazoria county, in volume 95, on pages 376, 377, in which deed F. E. Pye sold me said property for $3,200 cash, and which said deed described the property as follows: 'Lot No. four (4) of the J. C. Tolman subdivision, section 34, H. T. & B. R. R. survey, abstract No. 554, Brazoria county, Texas, containing one hundred and sixty (160) acres of land, and being the southwest quarter of said section." The description of this land made by F. E. Pye to me and described in said deed should have been lot No. three (3) instead of lot No. four (4); said lot No. three (3) being the lot which he sold me." Herman Wendhausen instituted suit in the United States court for the Southern district of Texas, through his attorneys, Meek & Highsmith, against A. E. Masterson for recovery of said lot No. 3, being the southwest quarter of said section. A. E. Masterson conveyed said lot 3 to Bassett Blakely, and Blakely conveyed the same to Masterson Irrigation Company, August 25, 1916. After acquiring title to lot 3, the southwest quarter of said section, involved in the suit of Wendhausen v. A. E. Masterson, appellant, Masterson Irrigation Company, on September 6, 1916, obtained a deed from J. V. Meek, C. C. Highsmith, and Herman Wendhausen, under the following description: pany to Wendhausen was the southwest quarter of said section 34, H. T. & B. R. R. survey, being lot No. 3 of said Tolman subdivision of said section 34. "Second. That the Masterson Irrigation Company acquired no title to the southeast quarter of said section 34, being lot No. 4 of said Tolman subdivision of said section, by its deed from Wendhausen and Meek & Highsmith, and cannot recover herein. "Third. That the defendants Frank Miller, George J. Miller, and H. V. Young own the property in controversy and are entitled to a judgment against plaintiff therefor." Judgment in accordance with such conclusions was rendered and entered of record. From this judgment Masterson Irrigation Company has appealed. The contention of appellant is that the trial court erred in holding that the land conveyed to Pye Realty Company, and by said company to Wendhausen, was the southwest quarter of said section 34, H. T. & B. R. R. survey, same being lot 3 of the Tolman subdivision, and in holding that Masterson Irrigation Company acquired no title to the southeast quarter of said section 34, it being lot No. 4 of said Tolman subdivision, by its deed from Wendhausen and Meek & Highsmith. This contention cannot be sustained. We think the evidence clearly and amply supports the finding and holding of the court. from Summerfelt to Pye Realty Company, There is no patent ambiguity in the deed nor in the deed from Pye Realty Company to Wendhausen, and by these deeds the land can be located on the ground as the southwest quarter of said section 34, without reference to other evidence. Any competent surveyor could, by the description of the land given in the two deeds, without other information, locate on the ground the land conveyed thereby. The Tolman map when introduced disclosed a latent ambiguity, as it showed that the southwest quarter is not lot No. 4, but is lot No. 3. This map is unrecorded and may be lost, but the designation "the southwest "Lot No. 4 of the J. C. Tolman subdivision of section No. 34, H. T. & B. R. R. survey, abstract No. 554, containing 160 acres of land. We also hereby sell and convey our entire interest in said section No. 34, H. T. & B. R. R. survey, abstract No. 544, unto the said Master-quarter" is certain, and by this description son Irrigation Company, its successors and assigns." The further description "being the southwest quarter of section 34," contained in the deed to Wendhausen, was omitted from this deed, and the clause conveying all interest in said section was inserted. Meek & Highsmith acquired no interest in lot 4 under the Wendhausen power of attorney, or from any other source, so far as shown by the evidence. The cause was tried before the court without a jury and upon the pleadings and evidence the trial court, at the request of appellant, filed his conclusions as follows: "First. That the land conveyed by Summerfelt to Pye Realty Company and by said com the land conveyed can be located without the aid of the map or any other outside evidence. We think the fact that on the same day Pye Realty Company purchased from Summerfelt lot No. 1, it being the northwest quarter of the section, he purchased another lot described in his deed as the southwest quarter of said section, is a strong circumstance tending to show the latter purchase was in fact the southwest quarter, which joins the first tract purchased so as to constitute a solid body of land containing 320 acres, the entire west half of section 34, while if the second tract was lot No. 4, the southeast quarter, the two tracts purchased would not lie contiguous one to the other and form one body of land. That Summerfelt by his deed to Pye Realty Company intended to convey (218 S.W.) lot No. 3 of the Tolman subdivision, the southwest quarter of section 34, there can GALVESTON, H. & H. R. CO. v. McLAIN. be no doubt, for in less than one year after (No. 7745.) (Court of Civil Appeals of Texas. Galveston. Oct. 24, 1919. Rehearing Denied he had sold, as he thought, the west half of his section of land to Pye Realty Company he sold the other, the east half thereof, to John A. Owen, and in his deed to Owen described the same as lots 2 and 4 according to 1. RAILROADS 282(5)—EVIDENCE SHOWING the Tolman map and as the northeast and southeast quarters of said section. Nor can there be any doubt that Wendhausen understood that the land conveyed to him by Pye Realty Company by deed of date February 24, 1910, recorded in volume 95, pages 376, 377, Deed Records of Brazoria County, was lot No. 3, the southwest quarter of section 34; for on the 20th day of October, 1911, about 18 months after he purchased from Pye Realty Company, he gave Meek & Highsmith a power of attorney coupled with an interest, in which he made the following recitals: "This southwest quarter of said section being deeded to me on the 24th day of February, 1910, by F. E. Pye Realty Company of Houston, Texas, said deed of record in the county clerk's office of Brazoria county, in Volume 95, on pages 376, 377, in which said deed F. E. Pye sold me said property for $3,200 cash, and which said deed described the property as follows: 'Lot No. four (4) of the J. C. Tolman subdivision, section 34, H. T. & B. R. R. survey, abstract No. 554, Brazoria county, Texas, containing one hundred and sixty (160) acres of land, and being the southwest quarter of said section.' The description of this land made by F. E. Pye to me and described in said deed should have been lot No. three (3) instead of lot No. four (4), said lot No. three (3) being the lot which he sold me." KNOWLEDGE OF DEFECTIVE CONDITION CAUSING INJURY TO INVITEE. In an action against a railroad by a warehouse company's employé caught on a sliver on a rail while engaged in moving a freight car on a side track, evidence held to show that plaintiff had full knowledge of the defect. 2. RAILROADS 275(1)—INJURIES TO PERSON MOVING CAR ON DEFECTIVE SIDE TRACK NOT ACTIONABLE. Where warehouse company's employé aware of the condition of a side track was injured when in pushing a car a steel sliver on a rail caught his clothing and held him until the car, pushed against another, moved back upon him, though it had knowledge and failed to warn the railroad was not liable for his injuries, him. Appeal from District Court, Galveston County; Clay S. Briggs, Judge. Action by Calvin McLain against the Galveston, Houston & Henderson Railroad Company. From judgment for plaintiff, defendant appeals. Reversed and rendered. Baker, Botts, Parker & Garwood, of Houston, John L. Darrouzet, of Galveston, and McMeans, Garrison & Pollars, of Houston, for appellant. James B. & Charles J. Stubbs and F. Spencer Stubbs, all of Galveston, for appellee. GRAVES, J. This is the second appeal Formerly it to this court in this cause. And thereafter Wendhausen instituted suit in the United States court for the southern district of Texas, through his attorneys, was here upon McLain's protest against an Meek & Highsmith, against A. E. Masterson instructed verdict below for the railroad for recovery of said lot No. 3, being the south-company. This time it comes upon the railwest quarter of said section. Appellant certainly cannot in good faith contend that it acquired any title to or interest in lot 4 of the Tolman subdivision by virtue of the purchase of A. E. Masterson at the trustee's sale, before mentioned, as there was no pretense that the deed of trust under which the land he purchased was sold covered lot 4, but, on the contrary, it specifically describes lot 3, the southwest quarter only. It is both unnecessary and unprofitable to further pursue this discussion, as we think it has already been shown, not only that the judgment of the court is amply supported by the evidence, but that no judgment other than the one rendered could have been sustained under the evidence. road company's complaint over a $7,500 verdict and judgment against it. Both litigants in their briefs now before us assert that the facts developed in the two trials below were essentially the same, and a full statement of them as first presented is found in this court's opinion, reported in 195 S. W. 292. The case as then presented to this court turned mainly on whether McLain was an invitee on the railroad track in doing the work he was engaged in when injured, or a mere licensee or trespasser, and on whether or not he was guilty of contributory negligence. It was held that the facts presented constituted him an invitee, and did not convict him of contributory negligence as a matter of law, but left that an issue for the jury. Whil this court then, after first finding the undis The judgment is therefore in all things puted fact to be that McLain not only knew affirmed. Affirmed. that the sliver that held him was there but had so known for some time before the ac For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes cident, went further and said the matter of [dition, in that the rails were splintered, with whether or not the railroad company was slivers sticking out from their sides, and the negligent in permitting it to remain there track was uneven from high and low places was for the jury, that question did not in in it to such extent that it was a hard fact particularly challenge attention because matter to move cars over it. not pressed for consideration. [1] This court must again find, and that upon his own direct and repeated admissions-corroborated to some extent at least by other testimony and by certain physical facts-that McLain at the time of and before his injury had full knowledge of these conditions. Upon the present appeal, however, it is made the principal issue; in other words, appellant now directly contends that it was not shown to be guilty of any actionable negligence toward McLain in allowing the railroad track to be in the dilapidated condition it was in with reference to low places It was shown by testimony, as well as and splintered rails, since he was an invitee through agreement of his counsel, that the thereon and had full knowledge of these de-appellee had sworn upon the former trial in fective conditions. This position is sustained, 1916 to have seen and known the condition and as a consequence the judgment is re- of the track and splinters there for some versed, and the cause is here rendered in time before he got hurt. On the present appellant's favor. trial, however, as above indicated, he went at length into the matter, at first qualifying this former admission about having seen the splinters there, indeed, flatly contradicting it; but on extended cross and redirect examination he thus finally concluded the whole subject: As stated, the facts are conceded to be substantially the same as before and need not be again detailed at length; but as the appellee upon this trial attempted to explain more at length about his previous knowledge of the low places in and the slivers on the track, thereby creating some apparent discrepancies in details between his two versions, the essentials of the uncontroverted proof this time made may be briefly epitomized: The railroad company's side track ran along Mechanic street in Galveston past the warehouse and platform of Stoltz & Peterson for whom McLain was working, and the company habitually placed cars for their use on this side track at some place adjacent to this warehouse. Beyond so placing them, the railroad company rendered no further service touching the cars, but Stoltz & Peterson's employés would then move them to the firm's conveyor or warehouse door to be unloaded. After a car was unloaded, it would be moved away so that another loaded car could be placed at the conveyor or warehouse door for unloading. On this occasion, as was customary when the empty could not be started with pinch bars, a "car puller"-or a drum and cable operated by electricity-was used, the loaded car being brought down against the empty one with sufficient force to start it, and, after it had rolled about 7 feet, several of the Stoltz & Peterson employés began pushing it, some from the side, and others, including McLain from a position on the track between the rails at the hind end. After they had thus pushed the empty about 7 or 8 feet, a sliver or splinter from one of the rails penetrated McLain's pants and held him until the loaded car, which had continued moving toward the empty car after bumping it, ran upon him; its movement having been accelerated just before reaching him by running down a low place in the track. The track and rails along where the accident occurred were in a dilapidated con "I testified I believe the first time, a little over a year ago, and also believe I testified the last time I testified in this case three or four months ago, that I knew that there were shivers and splinters on the rail, and that I had seen them there, those shivers and splinters on the rail, ever since I had been there. When I so testified I was trying to tell the truth. When I testified before that I had seen those splinters and shivers on the rail, on the ball of the rail, and had seen them there ever since I had been working for Stoltz & Peterson, and again testified to it at the last time, I was telling the truth. If I was telling the truth then and on the rail, and also testified on the last trial, swore then that I saw the shivers and splinters three or four months ago, that I had seen the shivers and splinters on the rail and had seen then there ever since I had been there, the reason I swear now that I had never seen the splinters there before that, before I got hurt, is I hadn't particularly noticed the splinters until that one had caught me. I had seen splinters and shivers along that track, the one that caught me I had noticed particularly, because it caught me and I could not get loose from it. "I remember telling you 20 or 30 minutes ago about seeing this bad track there and remember noticing this splinter there that had me, because it had me. I testified about 30 minutes ago that I noticed before I got hurt the high and low places of the rail, but that I had never seen or noticed any splinters or shivers on the ball of the rail, or side of the rail, until I got hurt. I testified that just awhile ago. I testified twice before that I had seen shivers and splinters on the ball of the rail ever since I had been there. In answer to your question, 'If you testified before that you had seen the shivers and splinters on the side of the ball of the rail ever since you had been working for Stoltz & Peterson, and you stated just now that that was the truth, then were you telling the truth when you testified about 30 minutes ago that you had never seen any splinters or shivers (218 S.W.) on the ball of the rail until you got hurt, which [ed to exist without timely notice to the public one is the truth? I answer, 'It is all the or to those who were likely to act upon such truth.'" invitation.' Redirect examination: See, also, Caniff v. Blanchard Navigation "I saw a splinter when I got hurt, the one Co., 66 Mich. 638, 33 N. W. 744, 11 Am. St. that had me. It is true that I did get hurt. I Rep. 541; Stamford Oil Mill Co. v. Barnes; seed the splinters on the rail at the time I had 103 Tex. 409, 128 S. W. 375, 31 L. R. A. (N. my leg. I seed it then and weeks before then, S.) 1218, Ann. Cas. 1913A, 111; Wells v. and months before then I had seen them. I had W. G. Duncan Coal Co., 157 Ky. 196, 162 seen the bad track. I had not seen them that S. W. 821; Stevens v. United Gas & Electric morning, but before that I had seen them, but I hadn't seen it that morning, but I did see it Co., 73 N. H. 159, 60 Atl. 848, 70 L. R. A. that morning because I got caught on it. I 120; O'Donnell v. Patton, 117 Mo. 13, 22 S. mean I seed that splinter that morning after it W. 905; 1 Thompson, Negligence, § 968. had me down and I was trying to get loose, after it had me and throwed me down, but not before that day, that morning, I didn't see any splinters there, I hadn't noticed them. I "I had been working there two months. had an opportunity to see the condition of the track, a chance to see the condition of the track; but I had never noticed the track. I had a chance to see the track because I was out there every day and every hour. My attention was directed chiefly to my work." Under this rule, even if it be held that the railroad company was chargeable-from the mere fact of owning and furnishing it for the purpose used with knowledge of the precise condition of the dilapidated track, it still may not be said, under the fact findings we have made, that it occupied any position of vantage over the appellee in that respect, or that it had any superior knowledge of the perilous instrumentality he was about to use, or of the danger that use might entail, because he too admittedly knew the same thing. Neither would a failure to warn under the facts here presented make any difference, for our own Supreme Court, in the Texas case cited, Oil Mill Co. v. Barnes, 103 Tex. at page. 415, 128 S. W. 378, 31 L. R. A. (N. S.) 1218, Ann. Cas. 1913A, 111, says: [2] If then, despite its irreconcilability in some respects, the only reasonable appraise ment of his entire testimony is that the appellee whether it dominated his consciousness at the very time he stepped behind and began pushing the empty car or not-did have full advance knowledge of the defective conditions he founds his cause upon, as we have concluded it is, could he sustaining only the relation of an invitee upon its track-nevertheless recover damages against the railroad company resulting as a conse-instructing and protecting him does not constibut that the omission of the defendant in not quence of its merely permitting him to come upon and use the track in the dilapidated condition he knew as much about as it did? We think not, concluding rather that a case of actionable negligence is not shown. In these circumstances the rule of liability to an invitee, as we conceive it, is thus stated in 20 Ruling Case Law, § 52, under the heading, "Invitees-Duty to Persons on Premises by Invitation": "Sec. 52. The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter, nor is there any presumption of negligence on the part of the owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises. The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to the person going upon the property. It is when the perilous instrumentality is known to the owner or occupant, and not known to the person injured, that a recovery is permitted. In the language of Mr. Justice Harlan (Bennett v. Louisville, etc., R. Co., 102 U. S. 577, 26 L. Ed. 235), "The owner is liable to invited persons for injuries occasioned by the unsafe condition of its approaches if such condition was known to him and not to them, and was negligently suffer "We do not mean that contributory negligence is to be charged to the boy as a matter of law, tute actionable negligence, since he had the knowledge which instruction would have given him and knew how to avoid this particular danger." In this instance, while that part of the record has not before been referred to, it was undisputedly and conclusively shown that the appellee knew how and might easily have avoided the danger here by of his colaborers did, instead of getting besimply pushing the car from the side as other hind it and between the rails for that purpose, as he himself did. No case has been cited holding a recovery to an invitee permissible when the condition of the premises causing his injury was fully known to him, and we apprehend that none can be. Those cited and relied upon by the appellee have application to different states of fact and relationship, as for instance G., C. & S. F. Ry. Co. v. Gasscamp, 69 Tex, 545, 7 S. W. 227, and Dooley v. Ry. Co., 50 Tex. Civ. App. 298, 110 S. W. 135. In the first of these, Gasscamp was not an invitee upon private property of the railway company using its facilities under any kind of inducement from it, but was a traveler over a public road, of which a bridge required by the state law to be kept in safe |