No. 5 If you answer special issue No. 4 in 1 dence that the same were overloaded. Ans. the affirmative, then what amount, if any, has The third, fourth, and fifth were partly the plaintiff been damaged in this cause, if dam- cause of the damage. aged? And in this connection you are referred to the rule for measuring damages, if any, in this cause hereinafter given you. We, the jury, find the plaintiff damaged to the amount of 100 head of sheep at market value at San Angelo, on December 4, 1916; this being $5.50 per head. No. 6. Did the plaintiff exercise ordinary care to attend to and look after said sheep while same were being transported from Big Lake to San Angelo? No. No. 7. If you answer special issue No. 6 in the negative, then was such failure, if any, the proximate cause of the injury, if any, to plaintiff's sheep? Partly so. Special Issue No. H. Had the defendant railroad company at and prior to the shipment in question exercised reasonable care to provide reasonably adequate and sufficient pens at Big Lake for such shipments of live stock as might have been reasonably expected to have been shipped from that point? Ans. Yes. Upon the proposition that the jury found plaintiff guilty of contributory negligence in answer to the sixth and seventh issues, appellant insists that plaintiff is not entitled to recover anything. The effect of the answers to 6 and 7 is that plaintiff did not properly care for the sheep during the haul from Big Lake to San Angelo, and that this was negligence, and they find that such negligence "partly" contributed to his damages. by special issue K the jury have found that three other things contributed to plaintiff's damages. And [1, 2] The latter question contains six distinct matters, and for that reason should not have been given (Telephone Co. v. Andrews, 169 S. W. 218), and since it was reSpecial Issue No. N. (1) Did the plaintiff negquested by appellant, we would not consider ligently overload the sheep or cause or permit this to be done? Ans. No. (2) If so, did this it reversible error of itself, nor do we think cause or contribute to plaintiff's damages, if it properly a finding of contributory negliany? Ans. No. gence upon the part of plaintiff, but it serves to increase the doubt as to whether the jury in estimating plaintiff's damages confined themselves to the damages occasioned by the negligence of defendant company which was the direct and proximate cause of the injuries to the sheep. Special Issue No. C. (1) Did the plaintiff, in tendering said sheep for transportation at the time when same were tendered and in the condition in which they were in, do that which an ordinarily prudent person would have done under like or similar circumstances? (2) If not, then was said act the direct and proximate cause of the injuries, if any, which plaintiff's sheep sustained? Answer 1: Yes. Answer 2: No. [3] Of course, if all the injuries to the Special Issue No. F. Was there any more in- sheep were the proximate result of any one jury to the sheep than that which, if any, nat- or all of the matters enumerated in special urally resulted to the sheep, considering their issue K, then plaintiff should not recover; kind, character, and condition, as a result of but if by dipping, or the weather, or holding confining them in freight cars as they were in unfit pens, or the failure to feed, or by and transporting them the distance these were shipped with the usual and ordinary stops, all combined, the sheep were caused to be bumping, and jarring incident to the movement in a weakened condition, the appellant havof a freight train when handled with ordinary ing received them for shipment, it was in care? Ans. Yes. duty bound to exercise ordinary care in fur-, nishing proper cars. This includes cars properly bedded for their transportation, and if guilty of negligence in this respect which Special Issue No. P. (1) Did the plaintiff, in placing said sheep in the pens at Big Lake on the night of December 2, 1914, and holding them therein until the next day, do that which a reasonably prudent person, in the exercise of ordinary care, would have done under like or proximately resulted in injury, it is liable similar circumstances? Ans. No. In determin- for the consequent damages. Texas Pacific ing your answer to the above question, you are Ry. Co. v. Dawson, 34 Tex. Civ. App. 240, 78 instructed that in the handling of the sheep S. W. 235. plaintiff was bound to exercise ordinary care therefor, and if you find and believe from the [4] It was error to exclude the testimony evidence submitted to you in this case that a of witness who showed himself sufficiently reasonably prudent person would not, in the experienced to express an opinion as to exercise of ordinary care under the circum-whether stances, have placed said sheep in the pens on the night of December 2, 1914, and have held them there until the next day, then and in that event you must answer said question "No.". If you answer the above question in the negative, then say (2) Did this contribute to plaintiff's damages, if any? Ans. In part only. whether or not the cars in question were properly bedded. This is the question upon which defendant's negligence rests as the case was submitted by the trial court, and if plaintiff's witnesses may testify that the cars were not sufficiently or improperly bedSpecial Issue No. K. If you should find that ded, then any witness shown to have had plaintiff's sheep were injured, as alleged by him, sufficient experience should be permitted to then were such injuries, if any, the proximate result of any one or more of the following caus- testify that they were properly bedded, and es: (1) The dipping of the sheep by plaintiff we do not think this comes within the rule prior to shipment; (2) the condition of the excluding opinion testimony because it insheep at the time they were accepted for trans-vades the province of the jury. Texas and portation at Big Lake; (3) the condition of the weather at and just prior to the time of Pacific Ry. Co. v. Timberlake, 192 S. W. 356. shipment; (4) the placing and holding of the [5, 6] By another assignment it is urged sheep in the pens at Big Lake on the night of that under the facts and pleadings the court December 2, 1914; (5) the failure of the plain- erred in refusing a special charge requested tiff to feed the sheep while at Big Lake awaiting transportation, if he did fail; (6) the over- to the effect that the plaintiff, being present dition of the bedding then in the car, accepted them as bedded, therefore he is estopped from setting up improper or insufficient bedding as cause of injuries. This was error, for this has been expressly held to be a matter of defense, and if the pleadings and evidence raise it the defendant is entitled to have it affirmatively submitted. T. C. Ry. Co. v. O'Laughlin, 72 S. W. 610; T. & P. Ry. Co. v. Edins, 36 Tex. Civ. App. 639, 83 S. W. 253. work, and that it would not be compelled to build a bridge or trestle across its right of way in order to close with the work done by the municipality. When the evidence had been introduced the appellee requested the court "to withdraw said cause from the jury and to render judgment in its behalf," which was accordingly done. The evidence showed that Purgatory creek was to the south of the roadbed, and while Guadalupe street was completed to the road For the errors enumerated, the cause is bed on the north, it became necessary to reversed and remanded for a new trial. WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court. trestle or bridge the creek on the south, which was crossed by the street at that point. The railway ran along the creek on the north over Guadalupe street and then crossed the creek just above the street. Guadalupe street was used up to the railroad on the north, and those who desired would deflect and go under the railroad trestle over the creek and then back into the street on the south. The street could not be used across the right of way on the south of the track, and had never been used for traffic. Appel1. RAILROADS 95(1)-STREET CROSSINGS-lee had built an abutment on the south that FAILURE TO REPAIR CROSSING-LIABILITY. CITY OF SAN MARCOS v. INTERNATION- (Court of Civil Appeals of Texas. San Antonio. May 29, 1918.) In city's action for penalty for railroad's failure to repair crossing after notice, the fact that in a condemnation suit by the city against the railroad the land involved was condemned did not estop the railroad from showing its true boundary which did not include part of the land, so that its repairing the street would not have connected with the city's improvements, and it was not liable for the penalty. 2. RAILROADS 95(8)-STREET CROSSINGS IMPROVEMENTS-PENALTIES. City seeking penalty for railroad's failure to construct street crossing under Rev. St. 1911, art. 1068, requiring railroads to keep roadbed and right of way at public street in proper condition, could not recover in the absence of demand for work on the roadbed as well as right of way, since one seeking benefit of penalty statute must bring himself strictly within its provisions. Appeal from District Court, Hays County; Frank S. Roberts, Judge. Suit by the City of San Marcos against the International & & Great Western Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed. See, also, 167 S. W. 292. R. E. McKie, of San Marcos, for appellant. Fisher & Fisher, of Austin, and Dabney & King, of Houston, for appellee. FLY, C. J. This suit was instituted by appellant to recover a penalty of $25 a week from appellee because of a failure to place and keep that portion of its roadbed and right of way, over or across which Guadalupe street in said city runs in proper condition for the use of the traveling public, due notice having been given that such work was needed. Appellee's defense as set out in the answer seems to be that, as the city had not done all that was necessary to be done to have the street ready for traffic, it could not compel appellee to perform its part of the extended out into the street, but had not made it so that it could be used for traffic because appellant had not connected with it. It does not appear from the record that the city of San Marcos fixed by ordinance the grade of the street, but it connected with the grade of the railroad on the north, and built a trestle on the south which necessarily fixed the grade. The evidence showed that an abutment had been built by the railroad company, about the width of the street and to a point south of the roadbed claimed by appellee, and established by the evidence, to be the south boundary line of the right of way of appellee. The trestle built by appellant failed to reach that south boundary line, and of course failed to connect with the abutment. The boundary line of the right of way on the south was not only fixed at a point at the end of the abutment, or perhaps at a point some inches north of the south end of the abutment, but Minert, a surveyor, who was a witness for appellant, stated: "I think there was a difference as shown on map No. 20 of 51% or 518/10 feet difference between the bridge that had been constructed at that time by the city and the right of way line of the International & Great Northern; in other words, there was a space of 516/10 feet that the city had to bridge up to connect with the property line of the International & Great Northern Railroad Company as I established it, up to the farm lot line, and the total distance from that abutment to the north end of the trestle built by the city would be something like 97 feet. Appellant sought to make the south boundary of farm lot No. 3 the south boundary of appellee, but a surveyor who testified for appellant stated that the profile made by the railway company "would be the best evidence for the location of a boundary." Appellee had the profile. [1] The facts that in a condemnation suit brought by appellant against appellee the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes land condemned for Guadalupe street was described so as to include land not claimed by appellee would not estop appellee from showing its boundary lines. The question of boundary was not adjudicated in the condemnation suit. The authorities cited have no applicability whatever to the facts of this case. The evidence in the case showed that appellee had done all that was required of it by the notice to put the street in condition for the use of the traveling public; and, if the street could not be used, it was because appellant did not complete its part of the street. [2] Article 1068, Revised Statutes, which never been adjudicated so far as appears from the record. The judgment in the condemnation suit did not contemplate the settlement of appellee's boundary lines. The court did not err in excluding the pe tition and other papers in the condemnation suit. They could not have had any bearing upon the issues in this case. The judgment is affirmed. TEXAS & P. RY. CO. et al. v. ARCHER et al. (No. 7944.) (Court of Civil Appeals of Texas. Dallas. May 4, 1918. Rehearing Denied June 1, 1918.) provides for the collection of a penalty of 1. SUBROGATION 7(1) — APPLICATION $25 a week for a failure on a part of a rail- RULE. OF Subrogation, as a rule, applies to principal and surety; the object of the rule of subrogaedies that the creditor has against the principal tion being to give the paying surety all the remdebtor. 2. MASTER AND SERVANT 389-WORKMEN'S COMPENSATION ACT-INSURANCE-SUBROGA TION. Under Workmen's Compensation Act (Act 33d Leg. c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, §§ 5246h-5246zzzz]), a casualty company which has paid compensation to an employé cannot intervene and be subrogated to the rights of the employé to the extent of compensation paid, in an action by employé against a third person whose negligence caused the injury, regardless of the provisions of its policy. Appeal from District Court, Dallas County; Kenneth Foree, Judge. Action by Mrs. Icedor Archer and others against the Texas & Pacific Railway Company. The Maryland Casualty Company intervenes. Plea of intervention was dismissed, and judgment had for plaintiff against defendant, and intervener and defendant appeal. Affirmed. Smith, Robertson & Robertson, of Dallas, for appellants. Carden, Starting, Carden, Hemphill & Wallace, of Dallas, for appellees. RAINEY, C. J. This suit was brought by appellees against the appellant Texas & Pacific Railway Company, to recover damages for the negligent killing of Milton W. Archer, appellees being the surviving wife and children of deceased, and William Archer, If the land condemned and paid for by ap- the father of deceased. Milton W. Archer pellant did not all belong to appellee, the was driving a two-horse wagon across Hawfact that it was condemned would not vest kins street in the city of Dallas, Tex., which title in appellee, and there is no element of was negligently struck by a Texas & Pacific estoppel that could be invoked to prevent ap- train, and he received injuries from which he pellee from showing the true lines of its right died. Appellant railway company answered of way. Appellee did not sell any land to with a general denial and contributory negappellant, but it took the land through the ligence on the part of deceased. Appellant exercise of the extraordinary right of emi- Maryland Casualty Company intervened in nent domain; and, if it took land that did the suit, and pleaded that deceased at the not belong to appellee, certainly the latter time of his death was in the employ of the cannot be held responsible for the mistake. Burton Lumber Company, a subscriber unAppellee clearly proved the location of its der the Workmen's Compensation Act of the southwest boundary line in Guadalupe street, state of Texas, and that it had paid to the whatever may have been shown in the con- legal representatives of the deceased the demnation proceeding. The question had compensation provided by law, and that by reason thereof it was subrogated to the rights of appellees as against the Texas & Pacific Railway Company to the extent of the amount so paid by it to said beneficiaries, and prayed for judgment accordingly. Both appellant, Texas & Pacific Railway Company, and appellees excepted to said plea of intervention, and ask that it be dismissed. Exceptions were taken to said dismissal, and notice of appeal taken by the said intervener and notice of appeal given. The trial proceeded as between the Texas & Pacific Railway Company and the appellees, which resulted in a judgment for appellees, and both the Texas & Pacific Railway Company and interveners perfected an appeal. After the perfecting of the appeal a compromise was entered into between the attorneys of appellant Texas & Pacific Railway Company and appellees, stipulating, among other things, as follows: "Now, therefore, in consideration of the mutual covenants and agreements herein contained, and with a view of effecting this compromise, it is agreed by and between the said Icedor Archer and the said Texas & Pacific Railway Company: (a) That the parties hereto waive the filing of briefs in this court; (b) that the said Texas & Pacific Railway Company will and does hereby waive all of its assignments of error filed herein; (c) that the said Texas & Pacific Railway Company agrees that the judgment of the district court may be by the Court of Civil Appeals modified and affirmed, so that the said judgment shall be against the said Texas & Pacific Railway Company as if originally entered in the sum of $11,000, of which $7,000 was apportioned to said Icedor Archer, and $4,000 to the said Nina Archer, a minor, together with all costs incurred in the district court and in this court up to this time, except those incurred by the Maryland Casualty Company; (d) that the said Icedor Archer will and does hereby agree to, and by this instrument does hereby, file a remittitur of said judgment in her favor in the sum of $3,000; and (e) that the said agreed judgment in favor of Icedor Archer and the payment thereof, whenever made, is and shall be subject to the opinion and judgment of the Court of Civil Appeals or to the Supreme Court, on the subrogation claim of the Maryland Casualty Company." Hence no briefs are filed by the Texas & Pacific Railway Company, and we will only consider the rights of the appellant the Maryland Casualty Company as to subrogation here presented by only one assignment of error, which complains of the court's action in dismissing the plea of intervention. The plea of intervention alleged, in substance, that intervener is an insurance corporation organized under the laws of Maryland; that it had a permit to do business in Texas, and that it was authorized to write workmen's compensation insurance; that Burton Lumber Company, a corporation, became a subscriber within the meaning and terms of the Workmen's Compensation Law of the state of Texas, being chapter 179 of the Acts of the Thirty-Third Legislature, and to whom intervener issued its policy of insurance; that deceased was in the employ of Burton Lumber Company, and while so employed he was negligently struck and kill ed by a train of the Texas & Pacific Railway Company; that by reason of the provisions of said Employers' Liability Act and workmen's compensation insurance it paid to the beneficiaries of deceased the sum of $2,225.70; that said Texas & Pacific Railway Company was negligent, and failed to use proper care to prevent the injury of the deceased; that the payment of said sum to said beneficiaries was caused by the negligence of said Texas & Pacific Railway Company; that the said policy provided for the subrogation of the intervener in the event of payment by it. It further alleged that the Compensation Act of Texas, in section 6 of part 2, provides: "The association shall, however, be entitled to recover indemnity from any other persons who would have been liable to such employés, independently of this section and if the association has paid compensation under the terms of this section, it may enforce in the name of the employés, or in its own name and for its own benefit the liability of such other persons." That by reason of the liability of the defendant to plaintiff heretofore set forth intervener is, under the Compensation Act, entitled to be subrogated to the right of said plaintiff as against the defendant to the amount of compensation so paid. Wherefore it prays for its interest in any judgment plaintiffs may recover from defendant in the premises, and that it have judgment against both plaintiffs and defendant for said amount. The allegations of said plea of intervention were full and sufficient to state a cause of action, if there existed any right of appellant to be subrogated by reason of its payment of compensation under its policy issued under the Compensation Act of the Thirty-Third Legislature. [1, 2] Subrogation as a rule applies to principal and surety. "The object of the rule of subrogation is to give to the paying surety all the remedies that the creditor has against the principal debtor." Faires v. Cockrell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528. Neither Archer nor his beneficiaries were indebted to appellant or the Burton Lumber Company in any way. Appellant for a consideration assumed the liability of the Burton Lumber Company for the amount so paid by it to the survivors of deceased. Under the Workmen's Compensation Act of Texas (33d Leg. c. 179), the appellant became primarily liable for the payment of said debt, and no right existed for reimbursement from any source. The Compensation Act of the Thirty-Third Legislature makes no provision for its subrogation to the rights of the Burton Lumber Company, if any it had, to recover from the Texas & Pacific Railway Company for its negligence in killing the deceased. As to appellant's rights respecting this claim appellant is governed by the provisions of the act mentioned. When the casualty company insured the Burton Lumber Company in principle it occupied the same position as regular insur There is no need for a further discussion of the different phases of this case with respect to the rights of subrogation. ance companies. Under the Compensation | Tex., of 89 bushels of wheat shipped in bulk. Act it is denominated an insurance com- A judgment was rendered for the amount pany, and we see no reason why the laws sued for, and upon appeal to the district and decisions of this state relative to other court, the same judgment was rendered. kinds of insurance do not apply to it. We The wheat was shipped by the E. G. Rall are of opinion that appellant in issuing this Grain Company in car No. 24280, S. P., to its policy of insurance took the risk of not hav- own order, with instructions to notify aping anything to pay, and, having lost it, pellee of its arrival. The bill of lading remust stand the consequences. cited that the weight of the wheat was 59,480 pounds, but contained a provision that the same was subject to correction as to rate, weight, and classification, and in the column wherein the number of pounds was stated there appeared under the word "Weight" the words, "Subject to Correction." The weight inserted in the bill of lading was obtained from the scale ticket prepared by an employé of the shipper, R. M. Wilhoite, who weighed the wheat at the shipper's elevator scales at the time it was loaded. This employé was licensed to serve as a weighmaster by the Western Weighing & Inspection Bureau, an organization main107-Loss oF GOODS-LIA-tained by the carriers, including the Inter The appellees have filed a remittitur of $3,000, which is allowed, and with this amount credited the judgment is affirmed. BAKER v. H. DITTLINGER ROLLER (Court of Civil Appeals of Texas. San Antonio. 1. CARRIERS BILITY. If a carrier receives the quantity of wheat stated in the bill of lading, and delivers a less quantity, it is liable for the difference. 2. CARRIERS 52(2)-Loss OF GOODS-BILL OF LADING-QUANTITY OF GOODS. Mere fact that weighing of wheat was done by a third person did not relieve carrier of liability when it delivered less quantity, where it accepted such weight and entered it on the bill of lading. 3. CARRIERS 132-Loss OF GOODS-LIABILITY-BURDEN OF PROOF. Weights of goods shipped stated in the bill of lading being prima facie evidence of the amount received, the burden is on the carrier to show that it did not receive such amounts. 4. CARRIERS 52(2)-Loss OF GOODS-LIABILITY-BURDEN OF PROOF. Where carrier proves that it delivered all the wheat received, which was carefully weighed and checked at destination, when it was found to weigh less than the bill of lading states, the carrier is not liable for the discrepancy. 5. CARRIERS 134-Loss OF GOODS-LIABIL ITY-EVIDENCE-SUFFICIENCY. Evidence held insufficient to show that there was no leakage in a car carrying wheat, so that the carrier was not absolved from liability for the discrepancy. national & Great Northern Railway Company, to supervise various incidental features directly connected with the shipment of merchandise, such as checking invoices, scale tickets, and other records in an effort to verify them and insure their correctness. There was testimony to the effect that scales authorized to be used in behalf of the Western Weighing & Inspection Bureau are tested and inspected, and that only competent persons are permitted to act as the representatives of said bureau in weighing and issuing certificates. The superintendent of the Goodwin Coopering & Inspection Bureau testified from records that the car in question was inspected and coopered and otherwise prepared for grain loading on July 19, 1915. After loading the side doors of the car were sealed by Wilhoite, under which seals the car reached New Braunfels, and was delivered to appellee's elevator for unloading. The chief joint car inspector for the Joint Car Association of railroads entering Ft. Worth testified Appeal from District Court, Comal Coun- from records that the car was inspected ty; Frank S. Roberts, Judge. Action by the H. Dittlinger Roller Mills Company against Jas. A. Baker, as receiver of the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. Fisher & Fisher and Robert Thompson, all of Austin, and Wilson, Dabney & King, of Houston, for appellant. Henne & Fuchs, of New Braunfels, for appellee. MOURSUND, J. Appellee sued appellant in justice's court for $112.35, including $10 attorney's fee, and interest, because of the alleged negligent loss during transportation from Ft. Worth, Tex., to New Braunfels, when received from the shippers' elevator and no evidence of any leak discovered. Currie, inspector for appellant at Mart, and Rush, inspector for appellant at Taylor, testified from their records that the car was inspected when it reached the places mentioned, and there was no leak, and no repairs made. They testified that cars, such as the one used, sometimes have a leakage which is not discernible while the car is standing still or moving slowly, but which permits the escape of wheat when the car is moving fast over rough road. It was agreed: "That defendant's physical and mechanical delivery thereof to plaintiff did not disclose any inspection of the car at New Braunfels before signs or indication of the existence of a leakage |