(218 S.W.) said notes. Appellant answered by general [that after the death of the husband appellee demurrer and general denial. The cause hired him and paid him from $1.25 to $1.50 went to trial on the 16th day of December, a day for his work. Appellee testified to 1918, before a jury. When appellee closed the same effect. her evidence, appellant made a motion for an instructed verdict in its favor, which motion was by the court overruled, to which action of the court appellant duly excepted. When the evidence was all in and both sides had rested, the court, over appellant's objections and exceptions, charged the jury peremptorily to find for appellee in the full amount sued for. Appellant's motion for a new trial being overruled, it appealed. It is true the farm was rented and the ground planted in cotton was broken and bedded before the husband's death, but we do not think these facts of controlling importance in determining the question before us. The mere renting of the farm and bedding of the land to be planted in cotton by the husband was not sufficient, in our opinion, to fix the status of the crop planted, cultivated, and raised thereon by the wife after the [1] It is contended for the appellant that death of the husband, as that of community the trial court erred in directing the jury property. The status of its title, as belongto return a verdict in favor of the appellee ing to the community estate of appellee and and in overruling appellant's motion for a her deceased husband or to her separate esperemptory instruction to find for it, because tate, is determined rather by the planting of the undisputed evidence shows that the notes, the cotton seed and the cultivation of the to the payment of which the money sued for plant to the maturity of the crop, than by the was applied, were the community debts of bedding of the ground preparatory to such appellee and her deceased husband, and said planting and cultivation. The original propmoney, or at least a part of it, was the com- erty right in the cotton produced by the munity property of appellee and her deceased planting and cultivation of appellee does not, husband, and therefore, subject to the pay- we think, date from the mere bedding of ment of said notes; that said notes being the land, but from the sowing of the seed, community debts of appellee and her de- which, aided by appellee's cultivation, brought ceased husband, and the money used by ap into existence the cotton crop in question. pellant in the payment of said notes being If this view is correct, the original property their community property, and appellant hav- right was not acquired during the marriage ing said money on deposit and being the of appellee and her husband, and the cotton owner of the notes, had the legal authority in question was not community property, but to apply said funds to the payment thereof. the separate property of the appellee. We The appellee denies that the money on de- have examined the cases cited by appellant posit with appellant was the community prop-in support of its contention, but we believe erty of herself and her deceased husband, they are not applicable. The nearest in point but asserts that said money was her sep- is perhaps the case of Booker v. Booker, 207 arate property, not subject to the payment S. W. 675; but the present case is easily disof said notes, and therefore appellant had tinguishable from that in its facts. no right or authority whatever to apply the [2] But appellant contends that Even if the cotton crop raised by appellee during the year 1917 was her separate property, "the court erred in peremptorily instructing the jury to find for appellee for the full amount sued for, because the undisputed evidence shows that appellee's deceased husband had on deposit with appellant at the time of his death the sum of $60.97, for which amount, in any event, appellant was entitled to credit." same to the payment of said notes. The principal question for decision, then, is: Was the cotton crop raised by appellee on the farm which had been rented for the year 1917 before the death of her husband her separate property or the community property of herself and her deceased husband? We conclude the facts show the crop to be appellee's separate property and that the proceeds arising from the sale thereof were not subject to the payment of community debts. It is undisputed that appellee bought and planted the seed after the death of her husband, and thereafter, together with the aid of her children and Mr. Forrester, a hired man, cultivated and gathered the crop. Appellee testified without contradiction that after her husband's death she bought the cotton seed to plant, planted the seed, hired the work done, and made and "If I understand this bank book right, there gathered the crop, and that she herself was $60.97 in the bank at the time that Mr. "worked in the crop from early cotton chop-Cox died. It is styled there in the book, Mrs. ping time until August." The man Forrester Mollie Cox, March 26th, 1917, $60.97, and that who helped to make the cotton crop had been is what he had left in the bank, I suppose, and hired by appellee's husband, but he testified they transferred it from him to me." This contention we are not prepared to sustain. It is not at all clear from the evidence that appellee's husband had on deposit with appellant at the date of his death the sum mentioned. The proper construction of appellee's testimony on the subject is that she did not of her own knowledge know of any such deposit. She said: INGS NOT BASIS FOR JUDGMENT. A judgment for plaintiff should not be rendered, where the jury in answer to one special issue found that plaintiff did not exercise due care, and in answer to another special issue found that plaintiff did exercise due care; the two answers being utterly inconsistent. The bank book in question was furnished | plaintiff had exercised due care, on reversal of to appellee (not to her husband) by the ap a judgment in favor of plaintiff the appellate pellant, and the only deposit shown thereby court cannot render a judgment for defendant. corresponding in amount to the one she tes- 4. NEGLIGENCE 142 INCONSISTENT FINDtified about appears to have been deposited March 26, 1917, which was after the death of the husband. That the amount was in the bank at the time appellee's husband died and was by the appellant transferred to her account seems to be a mere matter of supposition on her part. Her testimony fails to disclose any personal knowledge of the transaction by her, and no officer or employé of the bank testified in regard to the matter. Looking to the bank book alone, the presumption would obtain that the deposit was made by appellee; but whether the amount constituted community funds of herself and husband, or was her separate property, nowhere appears. But however this may be, we think the testimony very conclusively shows that appellee drew out of appellant bank on September 15, 1917, all the money she then had on deposit, and that no part of the $60.97 was applied to the payment of the notes appellant held against appellee's husband, but that the entire sum appropriated for that purpose arose from the sale of the cotton crop she raised during the year 1917. Appeal from District Court, Harris County; Norman G. Kittrell, Sr., Special Judge. Suit by the Houston Undertaking Company against the Texas & New Orleans Railroad Company, in which the Georgia Casualty Company intervened. From a judgment in favor of plaintiff and the intervener, the defendant appeals. Reversed and remanded. Baker, Botts, Parker & Garwood and Mc Means, Garrison & Pollard, all of Houston, for appellant. Cole & Cole, of Houston, for appellees. set out a fair and comprehensive statement LANE, J. As appellant has in its brief of the nature and result of this suit, which has the approval of appellee, we adopt the same as our own: "Leo. H. Weadock and J. E. Price, doing business under the firm name of Houston Undertaking Company, were conducting in the city of Houston an undertaking business, and, as a part of said business, directing funerals, and also operated an ambulance for the purpose of conveying sick people to the hospitals, and similar work. "On September 16, 1916, Leo. H. Weadock, one of the members of the firm, was driving the ambulance on Gregg street in the city of Houston, and, while crossing the defendant's railroad, the ambulance was struck with great force by an engine attached to a passenger train being operated upon the track, and practically destroyed. In an action for damages to an ambulance "Plaintiffs brought this suit to recover the in collision with a train at a crossing, evi-value of the ambulance, alleging that the strikdence held sufficient to support a finding that ing of it was due to the negligence of the deplaintiff's driver was guilty of contributory fendant in the following particulars: negligence. "(1) In failing to keep a watchman at the 2. RAILROADS 327(1)-DRIVER OF AMBU- crossing to give notice or warning to persons LANCE GUILTY OF CONTRIBUTORY NEGLIGENCE AT CROSSING. A driver of an ambulance, who failed to use ordinary care to discover the approach of a train before he drove his ambulance so near the railroad track as to render it impossible to stop and prevent the collision, was guilty of contributory negligence. 3. APPEAL AND ERROR upon, or about to enter upon, the crossing of the approach of engines and trains. "(2) In operating the train at an excessive speed, and in violation of the ordinances of the city of Houston limiting the speed to six miles an hour. "The petition alleged other grounds of negligence of the defendant, but as the court did not submit them to the jury, of which no complaint 1177(8)—JUDGMENT is made by the plaintiffs and intervener, they are immaterial so far as this appeal is concerned, and are therefore omitted. NOT REVERSED AND RENDERED WHERE AN- In a negligence case, where the answer of the jury to one special issue was to the effect that plaintiff had not exercised due care, and the answer to another special issue was that "Defendant answered by general denial and general plea of contributory negligence, and specially pleaded contributory negligence upon the part of the plaintiff in driving the ambu For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) lance upon the track without taking any precaution by looking or listening to ascertain whether a train was approaching, and by heedlessly running upon the track at such a distance from the approaching train as to render it impossible for those operating it to stop it after they discovered the approaching ambulance and the imminent danger of a collision therewith. "Defendant pleaded in bar that plaintiffs had transferred their cause of action to the Georgia Casualty Company, which now owned the same, and that it, only, had the right to sue therein. "The Georgia Casualty Company intervened, setting up in substance that it had issued to plaintiffs a policy of insurance upon the ambulance; that the policy contained a clause subrogating it to any right of action that might accrue to the plaintiffs against any person causing the damage or destruction of the ambulance to the extent of the sum that it might pay to plaintiffs on account thereof; that it had paid to plaintiffs $3,000 upon the policy, and had taken an assignment of the cause of action equal to said sum; and, after adopting the allegations of plaintiffs' petition as alleging its cause of action against defendant, prayed for judgment against said defendant for said sum. "Plaintiffs, by supplemental petition, admitted having assigned to the Georgia Casualty Company an interest in their cause of action equal to $3,000, reserving to themselves their cause of action for any excess over that sum which might be recovered, and prayed judgment for such excess. "Upon return of the verdict the plaintiffs and intervener filed a motion for a judgment upon the verdict in their favor, and the defendant filed a motion for judgment upon the verdict in its favor. The court overruled defendant's motion, and granted the plaintiffs' and intervener's, and thereupon accordingly entered judgment in favor of plaintiffs for $3,000, and $340 interest, and in favor of the intervener for $150, and $17.02 interest, with interest on said sums at the legal rate, and for costs. From this judgment the defendant has appealed." It is in effect insisted by assignments 1 and 2 that the court erred in not rendering judgment for appellants upon the answers of the jury to the special issues submitted, instead of for the appellees, and in not setting the judgment so rendered aside upon the motion of appellant, for the reason that, in answer to special issue No. 3, the jury found that, as the driver of plaintiffs' ambulance approached the railroad crossing where the alleged accident and injury occurred, he could by the exercise of ordinary care have discovered or seen the approaching train, causing the injury, before it reached the crossing and in time for him to have stopped his automobile so as to have prevented the collision which resulted in the injury complained of; and because such finding is in effect a finding that such failure to exercise ordinary care to discover said train was negligence which contributed to bring about the collision and consequent damage to plaintiffs' automobile, thus con(1) That the negligence of the defendant instituting contributory negligence on the part running its train over six miles an hour was the proximate cause of the accident. "The case was tried before a jury, to whom it was submitted on special issues, and in answer to which issues they, by their verdict, found: (2) That the plaintiff was not propelling its ambulance at a rate of speed greater than 18 miles an hour. or of the driver, barring the right of plaintiffs to recover. Question No. 3 was as follows: "Could the plaintiff, or could he not, as he "(3) That the plaintiff, on approaching the approached the railroad crossing, by the exerrailroad crossing, could have discovered cise of ordinary care, have discovered or seen seen, by the exercise of ordinary care, the ap- the approach of the train before it reached the proach of the train before it reached the cross-crossing, in time for him to have stopped his ing, in time for him to have stopped his auto- automobile so as to have prevented the accimobile so as to have prevented the accident. dent? "(4) That the ambulance driven by the plaintiff at and just before the collision was operated at a speed in consideration of safety first, and at a speed no greater than was reasonable and proper, having regard to the traffic and use of the public streets and ways by others, so as not to endanger life, limb, or property of any persons using or attempting to cross said streets. "(5) That the plaintiff exercised that measure of care that an ordinarily prudent person would have exercised under the same or similar circumstances in the matter of approaching the track and going upon the same. "(6) That the failure of the defendant to have a flagman at said crossing was 'negligence' as that term was defined. "(7) That such negligence was the proximate cause of the injury to said ambulance. "Answer "He could,' or 'He could not,' according as you find the fact to be." To this question the jury answered, "He could." [1] There was ample evidence to support the answer of the jury, and, if such answer was the only finding of the jury relative to contributory negligence on the part of the driver of plaintiffs' ambulance, we would feel constrained to sustain the assignment and reverse the judgment of the trial court and render judgment for appellant. That the court erred in rendering judgment for appellees, in the face of the answer of the jury to issue No. 3, we have no doubt. The evidence shows that the train which col "(8) That the reasonable value of the ambu-lided with the ambulance approached from lance at the time of the accident was $3,350. the east, to the right of the driver of the "(9) That the plaintiff and the Georgia Cas- ambulance; that at a distance of 75 feet ualty Company suffered damages in that amount. from the railway track, on the side from to do either; and we also understand that the appellate courts of this state have never held that a failure on the part of one approaching a railroad crossing to stop, look, and listen, or to do either, in order to ascertain whether or not a train might be approaching, would, as a matter of law, constitute contributory negligence. But such is not the point here raised, and which we are discussing. which the ambulance approached the cross-railroad crossing to stop, look, and listen, or ing, a train approaching from the east could be seen at a distance of 750 feet; and that one at a distance of 30 or 40 feet of such train could see the train at a much further distance. Weadock, the driver of the ambulance, testified that he did not see the approaching train until he was within 10 or 15 feet of the crossing, and that at that time the train was 50 to 75 feet from him; that at that time he was approaching the crossing at a speed of about 10 to 12 miles an hour and could have brought his ambulance to a stop within 15 to 20 feet; that when he first saw the approaching train he said to Owen M. Peterson, who was with him in the ambulance, "We are gone." He testified that he drove right on the railway track before he discovered the approaching train, and that the reason he did not stop the ambulance before he attempted to cross the railway track was because he knew the trainmen had to ring the bell and blow the whistle, and was relying on them to do so. Owen M. Peterson, who was riding with the driver, Weadock, testified, among other things, that when he first saw the train it was about 75 to 100 feet from the point of the collision; that he could have seen the train before they drove so near the railway track, and the reason he did not see it was because he was looking to the left. In other respects this witness testified substantially as did the witness Weadock. [2] To our minds the answer of the jury to issue No. 3 was amply supported by the evidence, and the facts thus found, together with the further fact that the driver of appellee's ambulance approached within 10 to 12 feet of the railway track before he discovered the approaching train, and that it was then impossible for him to stop the ambulance from going upon the track in front of the train which was then only 50 to 75 feet from the point of the collision, all of which was shown by the undisputed evidence, convict appellee's driver of negligence, in that he failed to use ordinary care to discover the approach of the train to the point of collision before he drove his ambulance so near the railway track as to render it impossible to stop said ambulance and prevent the collision which resulted in the damage complained of. St. Louis S. W. Ry. Co. v. Harrell, 194 S. W. 971; Ry. Co. v. Boyd, 101 Tex. 411, at page 415, 108 S. W. 813; Ry. Co. v. Dean, 76 Tex. 73, at page 76, 13 S. W. 45. There are expressions in the opinion of the case of Railway Co. v. Harrell, supra, which are so applicable to the facts and law of this case that we shall quote therefrom at some length, as follows: "We agree with the contention of appellees' counsel, to the effect that there is no statute in this state which requires one approaching a "We understand it to be the rule in this state that all adult persons, at all times and places, are required to use at least ordinary care for their own protection and safety, and if we correctly interpret the rule, as laid down by the Supreme Court of this state in many cases, a person approaching a railroad crossing is required to use ordinary care to ascertain, by some means, whether a train might be approaching such crossing, with a view to avoid contact with such train, and if such person about to make such a crossing, by the use of ordinary care in looking for the approach of a train to such crossing, can discover the approach of the train to the crossing in time to avoid contact and injury therewith, and fails to use such care, and the state of the evidence be such that it must follow that such failure must be held to have caused or contributed to the injury sustained, then such person is barred from recovery on the ground of contributory negligence." In this cause the court defined "contributory negligence" and "proximate cause" as follows: "Contributory negligence' is the want of ordinary care on the part of the person injured, that is to say, the want of such care as an ordinarily prudent person would have exercised under the same or similar circumstances, which, concurring with the negligence of the defendant, if any, proximately caused the injury. "By 'proximate cause' is meant a cause without which the injury would not have happened, and from which that injury or some like injury might reasonably have been anticipated in the light of attending circumstances, as a natural and probable consequence." [3] While we have reached the conclusion that the trial court committed reversible error in rendering judgment for appellees upon the answers of the jury as a whole, and in not setting aside such judgment on appellant's motion for a new trial, still we overrule the contention of appellant that judgment should have been rendered in its favor upon the answers of the jury to the special issues, because of answer to special issue No. 4, reading as follows: "Did or did not the plaintiff exercise that measure of care that an ordinarily prudent person would have exercised under the same or similar circumstances in the matter of approaching the track and going upon the same? "Answer 'He did,' or 'He did not,' according as you find the fact to be." To which the jury answered, "He did," thus creating a conflict in their answers to issues No. 3 and No. 4 upon a vital point in (218 S.W.) the case. Both answers cannot be true, for, | his share the two partners divided the remainder in our opinion, the answer to one destroys the answer to the other. We now come to the consideration of the contention made by appellant in its third and fourth assignments, which in effect is that the judgment in favor of appellees should be reversed and the cause remanded for the reason that the answers of the jury to special issues Nos. 3 and 4 are in direct conflict and inconsistent with each other, on the question of contributory negligence. [4] We think this contention should be sustained. We think that the answer of the jury to special issues Nos. 3 and 4, as hereinbefore shown, are utterly inconsistent with each other, and that, under the rule established by many decisions of this state in such cases, no judgment should have been rendered upon the verdict. Waller v. Liles, 96 Tex. 21, 70 S. W. 17; Trice & Ludolph v. Cone, 163 S. W. 587; Ry. Co. v. Denahy, 165 S. W. 529; Ry. Co. v. Milam, 191 S. W. 571; Ry. Co. v. Walsh, 183 S. W. 19; St. L. S. W. Ry. Co. v. Harrell, 194 S. W. 971. In the case last cited, from which we have hereinbefore quoted, the Supreme Court has granted a writ of error. Counsel for both appellees and appellant in their briefs call our attention to the fact that in granting the writ the court made upon the application a note as follows: of the crop, each share became the individual property of the partner taking it, and one could mortgage his share as security for a loan, and which could transfer its interest to a third perinsure it for the benefit of the mortgagee bank, son who paid the partner's debt to it, this despite any secret agreement between the partners that the mortgaging partner's share should be subject to a charge for sums due in favor of the other partner, so that the insurance money on loss was properly payable to the third person who discharged the debt. Appeal from District Court, Bee County; M. A. Childers, Judge. Application by Enoch Edwards for writ of garnishment directed to the Commercial Union Assurance Company, as debtor of H. S. Cheney, wherein R. B. Jones and E. B. Hall intervened. From judgment for the intervener Jones, plaintiff or applicant appeals. Affirmed. H. Snodgrass, of Beeville, for appellant. ham, all of Beeville, for appellees. Dougherty & Dougherty and H. S. Bon FLY, C. J. Appellant filed an application the Commercial Union Assurance Company, for a writ of garnishment directed against alleging that a suit instituted by him against H. S. Cheney for $1,012.35 was pending in the district court of Bee county, that the debt was just, due, and unpaid, and that Cheney had not property in his possession sufficient to satisfy the debt, and that appellant had reason to believe that the corporaFor the error pointed out, the judgment is tion was indebted to Cheney. It was agreed reversed, and the cause remanded. Reversed and remanded. "Application granted. We are inclined to think that, in view of the record, the Court of Civil Appeals was in error in rendering judgment rather than remanding the case." by the parties that the assurance company was indebted to Cheney in the sum of $500, which was paid into the registry of the court. R. B. Jones and E. B. Hall intervened in the suit, claiming the entire $500. EDWARDS v. COMMERCIAL UNION AS- The court heard the case and adjudged that SUR. CO. et al. (No. 6322.) (Court of Civil Appeals of Texas. San Antonio. Jan. 14, 1920.) 1. PARTNERSHIP 69-ON DIVISION OF CROP SHARE BY PARTNER TO SECURE INDIVIDUAL Where partners in raising a crop of broom Where a crop of broom corn was raised by a partnership, and after the landlord was paid Hall recover nothing, that Jones recover $407.72 of the $500, and that the remainder, $92.28, be adjudged to appellant. There is no statement of facts in the record, and the court adopts the following facts found by the trial judge: "Enoch Edwards was in partnership with H. S. Cheney in the broom corn business during the broom corn season of 1918. "Said Edwards furnished money for the employment of labor in addition to Cheney's labor and furnished a portion of the supplies for such laborers for the raising of the broom corn in question and that Cheney had general oversight and management of such laborers and of the work of raising said crop of broom corn. wards was to have a one-half interest in said crop, and to be repaid by Cheney one-half of the money he had advanced for raising the crop. Ed "After the crop of broom corn had been gathered, threshed, and baled, a certain number of bales were turned over to the landlord for rent, and that thereafter Cheney and Edwards divid For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |