Colorado & S. Ry. Co. v. Rowe

224 SOUTHWESTERN REPORTER .at .bond, 'judgment against to property.” or he to account Article 7112 reads as the sureties ’the $8S0 plevin rent. upon revenue, hire, ue of the February 6, 1919, Litchfield to the date the value of-such from the time of the that Litchfield exceed $800.” sureties for 236. tomobile from of the trial “In suits for the enforcement ^[4] The recitations in the ^[3] replevy least lien Fuller, fruit, revenue, hire, opinion is The Appellees judgment for he was indebted his same, bond upon property, proper independent that sum. for the bond could judgment against sequestered upon but this an that under arises were, property, the date amount in their brief fruits, hire, Litchfield properly upon Civ. fruits, hire, revenue, But the rent exemption of trial. theory follows: rendered the time replevin property he in excess sureties shall not be »it App. and rent of the article judgment upon shall defendant, chargeable only liability revenue replevin shall not Litchfield But we of a bond, rendered also contend replevied of the against his notes upon the sureties replevy “the automobile 78 S. W. ed mortgage the date does required replevin indicate or rent his are of R. fruits, bond. apply trial, utes, with wit, val- the that for au for re- S., below. heretofore made that presented thereby the eleventh formity terest ment brief of Rountree, versed, is such made in overruled. tion. statute, plevin exception Ann. Civ. against In The Under the lower Fitzpatrick against by question presented the court view accordance with the recovery is is also numbered at the rate of Acts judgment bond last In all other the sureties for with the and these appear eliminated. certain date is the there St. heretofore Hilgartner, assignment had assignment. here rendered court is undisturbed. judgment against the reformation which will to the sum of erred is of the judgment provided sequestration c. is covered no art. 59, the condition of the respects judgment The same noted, merit the sureties per breached. With the lower court in favor § 1984a). and Dunne rendering judgment 11. The judgment is in con- sequestration (Vernon’s Sayles’ cent, per sum because $300, it tenth are therefore statutes. in the court is appellant’s is judgment judgment Johnson, with to limit question sureties, asserted true conten- annum assign- ruling stat- re- in- re- be manifestly pro- is intended to This article RY. v. ROWE. COLORADO & S. CO. right prop- mortgagor tect a erty in whom the (No. 1688.) rentals, liability for is vested Appeals (Court of Texas. Amarillo. Civil etc., property is sold under foreclo- until the Rehearing Motion for June and 1920. On sure. Litchfield was 1920.) Findings, Additional Oct. proceeding brought de- foreclosure Fitzpatrick re- in the cross-action to fendant' @=>285(7), 286(13)— Master and servant 1. upon purchase-money freight Negligence ques- notes cover brakeman held lien, mortgage and we tion of chattel foreclosure Employers’ applies In federal that article 7112 action under 8657-8665) Liability (U. Comp. Act up- §§ St.. protects Litchfield and the sureties freight brakeman, for death of a run over against being required replevin bond on to account for the the train from which fell when a car ahead he fruits, hire, revenue, or track, causing coal on the air from the date it was rent of the automobile suddenly, brakes to evidence held sufficient set replevied of trial. In until the time theory case to to take the Mayfield, connection' see Fawcett negligent failing provide railroad was 111. fastening dump safe and for the door on the fourth [5] Under was the cause of urged the accident. no sufficient there was basis judgment, the court did Negligence @=134(2), 136(25) —Proximate jury any question respecting submit question fact, provable by cause circum- mortgage or reference to the chattel stantial evidence. upon the ordinarily question RT. Tex.) & S. CO. v. COLORADO ROWE (224 S.W.) falling his train 10. Master a death @=>289(18)— brakeman’s Evidence servant whena defective car dumped him ahead of neg- insufficient to take issue of brakeman’s impossible track, ligence jury. where it coal on the just position how exact his show his Employers’ In an action federal under the held, caused, as to render not such Liability (U. Comp. 8657-8665) Act St. S. §§ negligence in the submission of the issue for death of a ahead when a car brakeman spe- erroneous, general cial a and warrant terms to the consideration dumped track, him coal evidence held excluding require jury insufficient to submission to uncoupling of to the the facts as negligence having of issue of of brakeman in bouncing air hose and the the train and the stepped pin on the a lifter of ear. position. deceased in his coal strike @=>265(14) 11. Master servant —Burden prove contributory negligence on master. @=>106(3), 124(4) Master and 4. servant —Du- proof The burden of ty accepting was on defendant em- applies cars of care to railroad ployer, servant, in suit death of on the for its from another. presump- negligence; issue of the servant’s general duty furnish the master to being against tion such fact. Only reasonably equipment appliances as applies particular use safe @=>291(8) 12. Master and servant —Contribu- transportation acceptance cars com- negligence tory sufficiently pleaded not to re- ing charged dinary another, is dis- to one railroad from quire submission of issue. accepting or- railroad exercises Employers’ In an action under the federal being inspect cars, lia- care to Liability (U. Comp. 8657-8665) Act St. §§ ble for latent defects. for death aof brakeman car when a defective dumped track, him ahead of negligence his coal on the — @==>291(4) 5. Evidence Master and servant stepping pin on the special require is- held not submission insufficiently plead- liftef between cars held injury liability sue to brakeman require negligence submission of ed foreign car. doing so. conclusively'that Evidence held not to show of defendant the car caused the death Appeal @=>1062(2) 13. and error —Failure foreign car, though a railroad’s brakeman was specifically submit more issues of accident and road, as it was called the car of another servant’s harmless. special is- to sue submission of defendant’s against In an action a railroad for death foreign liability injury a car. dump- of its brakeman when a him car ahead of track, coal on ed failure to submit @=3 (4) 6. Master and servant lent —Car specifically the accident and regarded railroad as car. its tributory negligence defend- held harmless to another, in A car one railroad to lent ant railroad. regard- respect employés, latter’s @=>234(7) 14. Trial car. ed its —Instruction confusing. proof not @=>265(9) presum- Master 7. and servant In an action for death of a brakeman when —Car part equipment. ed dumped railroad’s track, a car ahead instruction that himof coal on the proof of de- Where evidence to the extent the burden of on each special having fendant control of car which railroad’s issue was on the the af- firmative, coupled brakeman within defendant’s killed its with the refusal the trial knowledge, contrary showing informing to the absence instructions presumed jury specifically it will be the car was con- the the burden was on equipment. issues, confusing. trolled defendant as of its as to certain held @=>297(1) — Appeal Appellate 15. Master and servant @=>930(3) —Refusal against issue as may appellant to whether door car was assume decision proper. fastened wire on issue whose submission to re- quested. Employers’ In an action under the federal Liability 8657-8665) (U. Oomp. Act St. fact, §§ If there issue of the Court Appeals for death of a brakeman when defective Civil the trial court assume dumped track, against ahead of him al to submit coal refus- is- decided defendant request issue as to whether the the chain on the of the sue, in the for its absence submission fell as result of dump breaking, or door as the @=>351(5) bailing spe- wire, proper; 9. Trial submit door tied held —Refusal error, where cov- plaintiff’s right being dependent cial issue on accident not to recover not specific finding ered. that the door was fastened by bailing In an action a railroad wire. for death of brakeman, dump- its ahead of him when track, ed coal on the trial court’s Rehearing and for Additional On Motion failure to submit an issue of accident Findings. general charge, spe- rail- refusal its to submit @=>291(10) requested by Master servant cial issue thereon —Instruc- road, tion on burden erroneous. error; was not the affirmative answer to In an under the federal the issues of action (ü. Oomp. involving necessarily of accident. negative Liability §§.8657-8665) Act St. of the issue of a brakeman when defective for death Digests @c»For topic Key-Numbered and Indexes otter cases see same in all KEY-NUMBER 224 S.W.—59 SOUTHWESTERN track, appellant company. instruc- with ahead tion ting coal on the put- alleged burden of held erroneous petition in her on June showing that on defendant burden of employ Rowe was car was in condition. appellant company the freight brakeman Colo., Trinidad, running train Appeal <§=>232(3) Objection from 17. to and error — charge Texline, Tex.; insufficient on burden of held was while said train point to raise rapid speed of error. traveling at a rate of one against railroad In an action defendant bottom one train doors of of the cars for of its car ahead death of brakeman when a dropped op’en large dumped amount dumped track, neither ob- coal on cars; coal on the track jection charge the court’s on burden engaged said at du- was time his Rowe proposition nor sufficient thereunder ties on coal train, train on one the cars near said was errone- raise the n car, was fall from the caused to putting ous as defendant railroad killed; no and was run over prove ahead in a reason- that the car was moment, one saw the said Rowe at exact out ably safe condition. so that set the exact cannot < =284 — Objection made to 18. Trial alleges killed, manner in that the he which was. but track charge at time waived. falling caus- coal on objection Under Rev. art. St. uncouple, set- ed the air hose of the train to the instruction the trial made suddenly unexpectedly, ting the brakes at the time was waived. jarred and so and shook the train that — Appeal Appellate <§=>750(1) and error causes contributed to and was one reasons in courts confined to Edgar fall; coal said Rowe’s that said germane propositions. and struck said bounced considering Appellate courts, assign- Rowe, Edgar also contributed said error, reasons as- ments are confined jolted fall; by run- his ning the cars were signed as either contained track, said and this over said coal on germane propositions or in the themselves thereunder. to fall fact contributed to from said said Rowe car; great dust caused that a was <§=>278(6) and servant Master —Evidence track, falling on arise from the coal issue raise of accident. Rowe, and and choked the said blinded In an action under federal Li- for fall; said “that each also contributed (U. Comp. ability 8657-8665) St. Act §§ proxi- alleged everything herein and mate cause of his said Mm car ahead of death of a brakeman when fall, all, tak- dumped track, held suffi- coal together, cause of said of said en of accident. cient to raise killing;” fall and the door said insecurely fastened, and it was Court, County ; Appeal ear was Potter from District Judge. of the defendant Henry Bishop, transport same use said ear train against & Suit Ada Rowe the Colorado condition. Defendant answered Railway Company Et. Southern Worth & general denial, pleas by exceptions, City Railway Company. Denver contributory negligence. risk, and assumed against it, judgment Erom undisputed met the said Rowe It appeals. Affirmed. first named 15, 1916, p. m. June his death about 10:45 being See, also, 205 S. W. 731. oper- alleged, over, as train run Denver, Thompson, Whitted, Colo., appellant, E. E. which he was brake- ated man. The tween Des time. There was Worth, Iliner, Barwise, & of Et. proceeding Wharton south be- train was Amarillo, appellant. Dooley, Clayton, M., Turner & Moines and N. at Reeder, Barrgtt heavy grade & and Reeder & Childers to descend - Amarillo, appellee. customary places, all and it was between said up grade reached to turn before this Appellee, administratrix, BOYCE, J. as air retainers was described as what purpose ears, benefit herself and for the and two minor of this certain number brought children, operation being this suit the Colo- air to assist Railway Company and rado Southern & of the train while control brakes and City Railway Company, grade. descending & Denver Et. Worth occasion On this damages under the federal Em- to recover a cer- instructed to turn Rowe had been Liability Comp. ployers’ (U. Act St. the cars retainers on §§ tain number husband, 8657-8665) appears death train, and, of her from our further state- railway companies evidently ment, task. Rowe. The about set had partners, per- proceeding were sued as there was a the rate train While the emptory per instruction for the sud- Ft. Worth Den- all brakes were & miles hour about 20 Railway Company; ques- set, City and, automatically denly no train train ver lengths. stopped tion arises in connection its elimination a few car within case, investigation refer no need further to found that one the crew on allegations attempted to make it described liable bottom of a doors in the topic Digests Key-Numbered same cases see Indexes in all other KEY-NUMBER <©s»For Tex.) & S. RY. CO. COLORADO v. ROWE (224 !.W.) i brakes, Southwestern coal which is -from 7 to 10 inches dropped dumped roadbed, (cid:127)No. had down and above the that was would the coal so level off dumped about four tons of coal across the east rail that it could not reach the body coupling of the track. Rowe’s dead was found hose so as affect it. prepared say, however, under the train near where the coal had been are not dumped. badly probability He mutilated his evidence excludes the of the air being uncoupled face was black with coal dust. His lantern hose under the circumstances burning, setting upright was coal described uncoupling found on the without the of the train itself. the southwestern corner of a coal car occurs to us that the effect of the wheels car, being an hose, Erie the car several feet front of air just running track, train behind said El Paso Southwest- over obstruction on the whip ern certainly car whicli the coal. The air tendency up hanging retainer on this Erie car was either on the throw the air hose near down car, side end of car near the the southwest end of the the be and that the train corner, being uncoupled way. there some conflict ex- its in this The evidence uncoupled by act location. This retainer had been turned shows that train the could be up. raising coupler There in is some conflict the evidence as the on one of the cars about conveniently inches, coupler one could safe- whether and 9' as this would lift one out of ly up engagement top other, this, turn this retainer from the with the platform course, the about one foot wide ear. loaded There was a could the the near- wheels coupler running something est being in front of the over height stand and one could retainer on raised to a sufficient this and reach the to have this However, effect. it. The air the evidence that retainer shows uncoupled way, El Paso Southwestern not in had been the cars this & up, coupling pin place, turned but the retainers on in several cars would and it be left up. impossible couple behind the car had Erie been turned The would be for the cars to by impact. air hose between the Erie So this seems to exclude the uncoupled, uncoupled Southwestern cars it was clusion that the train was such uncoupling manner; the brakes between the two cars was of this air hose that set the it not shown that the cou- automatically. coupling proper pling pin jolted up The could so as to release properly engaged. coupling. coupling pins the trolled The The were con- pin provid- The El Paso & Southwestern car a device known lifter. pin ed with doors in the bottom of the car so ear lifter Erie was fastened dumped. platform its could be contents This to the front face of little al- dumping process shaft, ready to, was controlled a referred and stood out several inch- operated by crank, platform, a from which shaft es from the and was several inches %- top inch chains extended to the The was made to doors. When below of it. device up by pin open coupler. these chains were wound the shaft lift the When they doors, by using pin coupler opened closed the and when lifter the the chains dropped pin position coupling were unwound the doors down. is left such automatically impact. There is evidence sufficient be made There midway conclusion that the chains to the about between the cou- northeast was pin hanging pling and northwest doors of car were and the side of the car at which the this shaft, operate by from the loose unwound and discon- be caused to down- lifter could doors; pressure theory nected from the and it was the of -the ward northwest up by baling wire, stepped door was fastened trainmen that Rowe had fallen or baling place way pin broken wire was found such and in on the the lifter at this door, dumped. cars; uncoupled northeast the one that had air hose was coupling, pulled apart The evidence also shows that it would not at their be thus proper fastening recoupled by impact coming or secure manner of such train on the two sec- baling up together. door train crew to tie with a wire. The tions gave jury found, response it as their is- uncoupled submitted, had train between the Erie El Paso & South- sues the EHPaso & Southwestern car and car was not in had western coal recoupled by impact, uncoupling transportation and that the in the train at condition injury; furnishing of the air hose was the result of the uncou- the time pling of the train. the said defendant such of condition testimony negligence, proxi- Considerable was offered and was the possibility becoming injury Edgar of the air hose un- and death of mate cause Rowe; coupled uncoupling without It the said Rowe was not train. general opinion contributory negligence, guilty was the of the train and that crew injuries this would occur. It risk was shown did not assume the he hung Damages coupling, that the air hose down at at were assessed sustained.. uncoupled by apportioned raising .$15,000 could be between the sum of coupling hose or that it could be and two children. pulled apart. theory suggested [1, It is the fun 2] these wit- that there is first nesses that sand board between the in the refusal of the damental error SOUTHWESTERN circumstantial conclusively it ligence so as to caused in such fendant infliction tion ion we hold 55 N. W. of ed 533); Hurley in 242 U. Li the cases struction. cally emptory lent “the K. 637; 906; lished cided which the case trial court did v. 731 ities Northern the is waukee ed does not doctrine of res sufficient to think, be as warrant Co., by Co., the U. S. G. 24, emergency City give appellant’s ceased, ^[3] provide ordinarily under Ry. Colorado out in our C., plaintiff had coal could have caused 48 proximate propriety Minn. train. coal, (writ 233 it was jolting abilities as to whether 133 314, Railway claimed The first Washington M., Thompson 469, on a claim that the submission of M. L. Ed. Supreme was, U. & St. instruction, Minn. cause the deceased these whether the Rowe” reasonable conclusion same 38 S. W. Pacific to show referred to no one or the depend circumstantial a safe & 24 brakes, This finding furnishing caused former McDade, establishes that O. the reasons arise, one of fact v. Illinois enveloped L. Ed. 20 L. R. A. former 184, Co. cause evidence. 96; Meyrs 157 N. W. manner. To be more question cause of the Southern result of a Paul ipsa eight give 203, Ry. question alleged fastening giving Court was reversed suggestion injury, sudden 37 considering v. v. Carriers, 34 765; by too Minneapolis was caused denied). contributed to and loquitur. such appeal 158 Stalcup, Ry. 256, Sup. opinion, plaintiff’s assignments 191 U. Sup. facts are following general. acted a defective contention. the Central that such result subjected in the Ft. Worth case, K. stated N. W. but the evidence. for the instruction. Co. 1005; application application Co., proven Ct. cars v. Ct. law injury. that the evidence injury Starr, § & T. proximate S. presents peremptory On 167 saw the actual Pittsburg Co., v. 244, established inquiry 64, 561, United States cloud Roberts Federal running certain in such that was Railway Co., & St. L. because 42 fall, though It is assert Lillstrom v. Kellogg, facts could Ry. jury. act of (cid:127) 24 Minn. dump 205 S. conclusion 194 cause, are based 61 L. Ed. fall from & 58 Ed. facts As It (affirmed car C., case, in specific, the vio Sup. of dust the de Denver author the de Co., failure practi L. is, estab S. W. point death all of Rowe ways ques opin coupled Coal O. door 279; over neg was twelfth was dence per special Mil Ry. the western the are de to have struck Ct. in 90 94 & before the issue by appellant evidentiary cause these minute more than one act of wholly position he was caused lished held that gence that there the facts produced comment on the we do sion ascertainment. The cases cited there could be ation of falling act possibility train could not tions as to the under But even if the consideration of such are not manner of the was the exact any train; running clude the between deceased could the on the eliminating eral terms that ning committed on the (2) [4-8] have this car or- the the coal dust jury. position some negligence of these not of issues general language to find whether over the it from combinations to make us. pin not think (4) insufficient to platform coal assignments complain instructions could not be determined what the air hose. over the coal was caused affected requisite consideration have of these were If submission itself lifter manner was a causal stated, point. They error in support cars the could not have facts jury, ninth, court should result, provided car was as to warrant the exclusion -the ultimate have coal, bounded facts, appellant consideration of such an issue evidence were sufficient no submission from the the deceased evidencq. deceased was and thus these the court should have evidence does show that there was and which could or on one of the coal cars: fall. from the consideration recovery but such is not the case in whioh the the El Paso do details uncoupled by merely court is not it does not exclude requested by appellant, submitting caused to fall tenth, negligence the El The facts referred alleged assignments reasonable conclusion Based or been thrown If fact, Erie the issue thereon, are all cases where injury. train: connection uncouple either could not agree If the have are of the issue. sufficiently jolting could & issue, reasonably refusing may eleventh, car, Paso of the submis uncoupled way; acts of contends that impossible Southwestern required excluded the the issue by appellant that the evi- error in arisen so (1) step these asser- required these Under facts facts were negligence have or plaintiff’s of course & just consider- are excluded case, The coal required between position matters alleged, (3) or it was South estab- train. found negli- facts, been only safe how run- gen- find top the the un- car ex- be- ex- as^ of who

duty again inspected mining responsible the was loaded pany, the same would make its condition for use more mitted fendant ed delivery by It was delivered facts that, if there are latent the Colorado servant which crete Baltimore key, 624; L. defects are remedying nary Southern at Ludlow and ered to the tation over its this trains, known portation 18 to that coverable cable thereto. ers, T. acceptance equipment of the defendant eral account and, are dence erable Civ. rier Tex.) If the foreign car, Sup. transport R. A. in this connection. The contention furnishing from another for founded be carrier, duty 63 Fed. App. 542, if such defects were 157 duty found the issues submitted are the said a road care to P. appropriate M., facts at conclusively Kernan, facts they the issue with coal. That regions. as an Ct. exercises submit certain premise U. Ludlow, Colo., the master K. & T. applies did such & are them; 777, found, nothing wrong inspection defendant, loaded, before connecting inspect foreign discharged proper inspection, and, Potomac call for 22 Am. St. 101 S. W. this 91, A., line; premise transportation 78 Tex. inspection, very appliances 42 L. Ed. 1190. at sound, Southeastern so as to conform to the con injury resulting therefrom. inspector specific It on which these depended. would Paso & 11 C. C. A. 439. is that-the Ry. defects transportation 15 either ordinary T. was a shows Archibald, case, putting premise? said car said cars nature through transportation. Sup. & the court findings Co. v. subjected. mines at Railway was to exercise it with the Colorado acceptance inspected S. F. defendant, remedy on June certainly road in rules of law extending up found, the refusal of rejecting furnish defects train, coming Rep. foreign car, follows Southwestern car. of the Ct. the master is COLORADO S. with reference such cars is, It is the care to 14 S. for defects Harris, evidence shows duty such condition seems to have of such cars 491, I. & The car was this that the and whether either However, Co. v. used Hastings, it. to one 12th, before this hazardous, defendant, the use the car the issues U. S. from this applicable This have sub such issue to the W. for trans empty, delivering 39 G. N. empty, transpor business, liability defects; request 45 Tex. if such theDo general eign” It was of accident. There is specific inspect the de discov L. Ed. to refuse in its appli deliv Com Mac ordi & RT. CO. been gen My car (224 evi dis Ry. to company, it 9 I !.W.) batt tion were which was the jury. it was merely present few miles from the was involved tifying nor as to what was to be its final destination. in such the car and appears the car was Paso & Southwestern car ments closed the defendant first If 'the car was deceased was a death, by yards again inspected by cisions, eastern, &rado er the defendant L. R. A. dent, be the 587, wards. We do not think Labatt on employés, ing, to submit an issue of accident submit the whether character, Southwestern been leased or loaned extent of its control K.O. sence of a charge, cided the absence sufficient to Miller, by clusively Spaulding there was ^[9] this presumed appellant. analogy). said Colorado appellant without a appellant’s 34 N. E. 1134. found. The car came back to the on Master car. which we The affirmative answer to these issues at Texline a week or 10 at Des complain 98 from their records that picked up by Southern No details of the manner of presumption but that an affirmative case as to the movement of the car until v. ROWE June 100, necessarily train to shows that the negative but, shown; v. W. we thirteenth be Master The-fact that was called an showing found O. K. submission of an car was of the would, make note; & Railway Company may 14th, may owned We do not Moines, regarded showing If the facts were request brakeman on the & Ludlow, by issue of fact as to its true knowledge, and, N. Southeastern, of the failure of the from if owned doubt, appellant Servant of the issues as wheth & Texline, it assume 83 S. W. 182 stated, loaded Flynt Mfg. Co., to another road the facts were G., issue' in refusal to the to the The evidence the train on which the Servant no of its N. M. It was carried the Colorado South défense, inspectors merely to the for the submission foreign negative respect C. & S. issue of fact as to inspector guilty doubt, as the car was within some such such facts do not thereon, requested fourteenth with coal and was- handling was controlled (2d this evidence that the court de the evidence dis contrary; and was contrary, on this the El Nothing appellant’s whence equipment. of the ,car (2d Ed.) appellant, Ed.) they inspected and no but constitute under our de F. inspector (in point only indicate the evidence of the issue it night sufficient was a “for days in the ab appellant’s of the negligence Ry. 159 Mass. as to the 1068; & for load it as an issue, the face railway of acci general further inspec assign defect of his Co. v. found came, after- 1074; Colo have con car. tes La in 41 if 224 SOUTHWESTERN jectural the re- this act was require it, as to whether case were submitted accident, negligence general charge, sult of his or the or of own would on a subject. jarred by of his so on this instruction

entitled to an running his de- recently to lose However, case train over the coal as we step pin-lifting balance or fall on Insurance Association of Texas negli- finding 121, paragraphs vice. Downing, 14 to We do not'think a 218 S. W. gence conjectural court, facts based would in the submission presumption required special issues, sub be warranted in face of case on negatives deceased, competent issues that mere of the mit who issues experienced negligent brakeman, already question need not was not submitted. We discuss here, opihion case refer to that such matter. We further of further hut subject. pre- plead our views this that the statement of not so did prob specific negligence sought proper sent to be complain case the defendant here In a act of charge fairly ably ato on accident be entitled submitted as to be entitled connection be considered the court to sub- refusal of opin pleaded neg- in the the ion submitted. As mit issues the issue. The defendant cited, holding ligence length, free great our is not in the the deceased at pleading taking In addition authorities to the from conflict. of this issue alone about opinion, holding eight typewritten con pages cited of the transcript.^ C., trary, K. & O. Rail Notwithstanding great plead-' the case of M. we add detail way Swift, ing, We over specific negligence 204 S. di- of all, except act oth rectly for this as rule well mentioned reasons, possibly will be stated connection inferred, er be obscure from an indirect and assign next two of the paragraph with our discussion reference contained Answer, ments. presenting devoted requested the sub specifically negli- [10-12] The other acts and facts gence, to whether the deceased pleader mission of was pin negligence, fact in mind. had this guilty stepping objections charge The defendant’s of of lifter the Erie and whether occupy typewritten pages the court found, caused contributed transcript. in- fifteenth, injuries; six to his structions and issues. These and the ex- complain ceptions refusal teenth to the action of the court thereon The is submit issues. of the court to occupy pages transcript. w¿s submit specific sue of the deceased’s issue, case, if it was in the of the court in issues ted 6 and pleading obscured manner follows: as objections charges multitudinous presented Edgar guilty of that to the court that Rowe “Issue No. 6. Was of appellant ought urge the sole be entitled to to guilty Was Rowe No. death? Issue 8: the refusal submit it a of as negligence?” contributory of reason reversal the case. of opinion [13] We that are also of under not believe the We do facts sufficient particular case, the facts there was of required the to have sue of submission of the is failing no harm to event submit on the of the deceased. specifically the issues of accident and Ry. Gentry, T. & Co. 163 U. S. P. contributory negligence. It was incumbent 191, 193; Sup. 1104,41 L. Ed. Ct. Central Ver on could be from to show facts White, mont Co. v. 238 U. S. that fall concluded Sup. L. Ed. Ct. Ann. Cas. ing way of some City Ry. resulted 1916B, Ft. Worth & Denver deceased’s from train. Stalcup, (writ 167 S. W. of error very general nature the case a Supreme conclusion by in this case was denied just far by as to this was about aS Supreme as Court of the United this state and Court issues jury expected go, could and we States); C., Ry. be cannot K. M. & O. any harm Starr, believe that could have resulted 194 S. W. 637. require trial court proof in the refusal was The burden on the defend- presumption jury go issue, further entirely as mat the ters which were impossible into details ant on such and the conjectural fact; finding a such that the deceas- stepped answer. We negligently of definite do not pin ed on the lifter would understood, however, holding, wholly conjectural. as wish to be be The fact that he appellee stepped to think we have pin the- Seems lifter is either fell ought cases, conjecture, that the court to sub in other matter itself a ly sole- and based jury gen on mere abstract cases to mit on the trainmen that only ought to Ultimate issues uncoupled eral issues. not have been ex- air hose would cept by submitted, uncoupling these should but descend of the train itself in generalities, come way. down abstract But if we assume train that the particular very uncoupled by of the case and rules stepping facts was deceased’s or fall- applicable lifter, them. But pin wholly ing law it is still Tex.) RY. CO. & S. COLORADO v. ROWE :.w.) (cid:127) (224 í wire,” peculiar that see “bleed we cannot which the witness in other facts tlús case parts testimony occasionally man- from the of his harm have resulted could refers rod”; fastening a ner the as in which the case submitted to “bleed was did tight up not hold the door if it were jury up chains; -inch charged by regular the connected [14] The court proof that weight burden out her case make when was on the cars are loaded considerable by preponderance fastenings, the evi carried on the dence; proof upon require the B£ also that C. B. the burden rules the doors special hav be closed each issue was chains. We do not %-inch ing plaintiff’s right if the that the affirmative and .that thereof to recover would dependent any special prov specific finding affirmative ed issue “is not preponderance evidence, you up by baling the door The was fastened wire. nega issue in answer evidence is have warranted By eighteenth finding up tive.” the seventeenth and a by the door not fastened complains proper connecting chains, of error wire, baling of this manner of the submission of the bur have been fastened bleed wire, manner; den of and of the refusal of the court or in some other unknown requested instructions and the circumstances sufficient to war .are jury specifically finding would have been informed rant a failure defend plain regu that tiff as to certain the burden was on ant to have the door fastened with the designated appliances provided ref lar and safe for such purpose But, negligence. erence to their of manner number. While this even if informing jury plaintiff’s depended showing on a proof might, confusing (Q., cases, fastening in some the defect in the in us consisted Novit, 496), ing baling up door, A. P.& 199 S. W. wire fasten possible proper submitting not think do method of the issue would finding could this been confused have been to as to whether particular instance. the door was so fastened and caused there The matter dump, embraced in should not be just and referred to the nineteenth deciding forced to the alternative sufficiently Further, submitted to the how it was fastened. we are not jury, general charge. prepared to hold that there would be no issue assignment complains negligence, [15] The twentieth even if it be found of the refusal of breaking the court submit the fol the door fell as a result lowing special issue, requested by appellant: very the chain. The- fact that such chain large precipitated broke and coal amount of coal, “Did the which fell track, an unusual and hazardous Southwestern car at the time any, happening, chain, as the the door would there was some show break, breaking, or shaft if it did did fastening. defect in the It was not shown fall as the result of said or shaft door use, long how this car had been nor when baling wire, tied if it tied? In inspection very appliance and how answering you this issue will state which.” holding provided for These were all matters within the of for. doors knowledge prop do not think it have been the defendant. there are authorities And er for the court to have submitted this issue support which would the conclusion that alleged plaintiff in this form. The that the these circumstances would be sufficient to guilty provid of defendant was ing in negligence. McCray G., make issue of fastenings insufficient for the on door Ry. Co., 168, & A. Tex. 34 H. 89 S. W. specifically plead the and did 97; Washington M., Ry. Co., T. K. & just what the defect The consisted. brake 314, Gammage 38 S. v. Gamer W. up, man who fastened the door after the (Com. 389; M., App.) 209 S. K. & T. dumped, pro was the train coal and before Cassady, S. W. 796. Writ way, on its ceeded that the chains testified case, Supreme was refused in this Court and the supposed up were hold the which two opinion, in wrote a short which it was of El rear doors the Paso Southwestern that decisions of this character did declared hang broken off from doors the depend application of the doctrine down, unwound, showing ing that the doors ipsa loquitur, holding that of res but chains; been had not fastened particular “the circumstances a accident of the which had was door fastened proof negligence.” themselves furnish of baling wire, up baling with a broken holding case of This was the dumped. the was on door which had wire Stalcup, supra, which case the Su witness, inspected defendant’s who the The preme Court the United States denied a day, of Tesline on the next testified However, place do not our writ of error. we broken, say was he did the chain but holding ground, the reasons it was whether unwound from the shaft or- baling wire, announced. not; first that he saw no but the twenty-second twenty-first assign- -ineh then with a door was fastened SOUTHWESTERN jury proof upon plaintiff, burden of was ments of error assail tiie verdict of proof special was to what issues the burden of contrary, and as as awarding defendant; upon charge is, court, damages. think excessive We singled out have should findings evidence is sufficient to upon special of the proof issues burden which the of the upon plaintiff, have was should assigned We error which have found no jury proof instructed burden requires case, of the in our reversal issues, plaintiff upon was relative to said judgment will affirmed. have done so relative should likewise special upon which burden upon - proof I-Ience the was this defendant. Rehearing

On and for Additional Motion for error of the court.” Findings. which we ment. have All earnestly urged been been preponderance and discussion: ments are the affirmative ruling answer such were instructed that— original opinion, ponderance of quested such affirmative of by ments of affirmative sue make cumstantial In “The burden “The burden Appellant’s The second subd. of the submitted -sufficiently discussed, presented, preponderance concluded out the seventeenth charge original opinion. in reference thereto. extended statement argument contentions her error, an have motion, issue in the evidence, burden reference to motion any special reads as paragraph of the decision you carefully special issue except evidence,” said written and complaining court’s evidence, entirely it should presented special proof, either follows: special presentation upon affirmative, is on both, rehearing as to two issue is not These two further considered eighteenth evidence, charge, etc. than we made you each positive new instruction re- which issue. charge of the be overruled. think, negative.” therein of our over- issue proved subdivision will paragraph oral special statement and if the has you requires matters of that proof refusal it,- answer assign- assign- or cir- proved If the having argu-. have been pre- has is- for the tiff’s court, lows: in the manner and on the road not in a in the instructed the train at the time and to new undertook question pointed tive to- burden burden which was specially requested sought give in was and, on these sues, the defendant was 19½ contained special “Because the court herein erred “Was Special ^[16] practically assignment trial, relative upon petition, No. reads nineteenth The seventeenth to instruct the proposition issue No. special out just quoted].” charge reasonably four in the court’s issue upon proof furnished to upon crew haul it? Answer Yes says prove in a jury issues, the same issue No. paragraph itself. follows: No. special E>, paragraph of instruction negligent; and, under this plaintiff submitted that the upon which were plaintiff Southwestern given, for the crew in jury eighteenth issue assignment place proof, language condition; and, main the burden submitted submitted special charge prove relative to car furnished herein .this Rowe No. cured No. over which alleged charge plaintiff. assignment safe condition the burden material 19½, defendant’s said refusing to as that prove that motion relative to handle [referring charge of is correctly No.”, as fol burden special plain- which issue; proof error rela- they And car,, No. is- is is Objection made to this argument the motion [17-19] On para- language reproduced in the nineteenth suggested rebearing first time is for the graph in the motion for trial the new charge proof as that quoted on burden of the the court, eighteenth lower is the as- which erroneous, positively in that above is signment appeal; assign- error on this submis as the of the manner the being ment as follows: proving burden sion of that first the issue the in condi the was instructing the erred in “Because court the upon put jury We 2, paragraph tion was the defendant. in his main section jury contended, charge, charge wherein the instructed the as now court the and erroneous upon special proof sufficiently the burden of each is- point the if is raised the party having sue submitted was the case brief to entitled to consideration issue; special affirmative being assignments. on must be reversed these jury being unlearned in the law charge objection ad- in effect The to the probably could not and did not upon understand terms, charge was correct mitted that but, affirmative of whom the issue generality fact on of its account court, true, bé. This said section law, might jury that the was unlearned 2, paragraph 1, specifically in- have' objec- jury, special not be understood which structed the to what y. Tes.) & RY. S. COLORADO ROWE 937 (224 I.W.) believe, think, appellate thought, settled, be un still It is well we tion we error, courts, assignments considering statement method of tenable. This quite generally assigned used is one con- burden of by confined to the reasons evidently judges, did and it the trial themselves tained either in the or in K. attorneys M., germane propositions to the court or occur thereunder. peculiar Ry. of the sub Maxwell, manner of the on account T. 104 Co. v. application 1147; Id., App. of one of the issues 130 mission of the den Tex. Newman, 143 W. Civ. 59 affirmatively place charge the bur 728; did Tex. Civ. S. W. Ariola v. 51 party. wrong not think So do App. 617, 157; we on Union Western 113 S. W. charge proposi objection par. or the Telegraph Vance, to the Co. v. 151 W. to raise 872; are sufficient Elliott, tion thereunder St. McCall v. 159 S. point. having objection, made been This Railway Drahn, 357.W. Louis Co. v. time, charge at the to the waived of the court conclude, therefore, We should be overruled. appel (article 1971, S.), C. R. . right is considered have it further lant’s dependent expressed original opinion [20] In the we question as to the on the answer suffi doubt as to whether the evidence cquld sev raised under to whether it accident, cient the issue of raise assignment, refusal based enteenth' the correctly appellant complains make our failure to instruction, special did which finding an this matter. affirmative of of burden law as to the state the find such a think the entitled to is the Courts Some of on this issue.’ ing, after a review of the Appeals failure since the have held that Civil raise is sufficient to concluded that object charge court to the incorrect engineer way. The issue of accident amounting approval waiver, to an is a of the train that the coal testified charge, between be a conflict there would fell, and about a mile back of where Rowe charge, special charge general the if point he where had all “rolled out fell.” This to the object failing given, cannot with not in accord evidence is assign error on the refusal witnesses, that of other of course would instruction. the correct right to have have the Barnes, N. and I. & G. Co. S. W. tendency pass the the truth. The on its Bartek, Ry. are illustra S. W. evidence of this witness was show holdings. Bartek Case tive coal, dumping immediate which was the dissented, Key and the Commis Chief Justice sion of ed only negligence charged against result of the Appeals deciding intimat defendant, had no connection had instruction deceased, fall of the and to show that such charge presented “should time such due the result of some other cause. objection court’s to the held charge as an sufficient presumption, course, against is There subject, though even the existence of objections charge.” I. & G. file failed to deceased, of the to caused App.) (Com. N. S. W. v. Bartek fall, held, and we have adhere still heretofore This court has dissented rule which 190 S. W. ruling, to that the evidence does those Barnes Case and announced in the part. raise issue of on Rowe’s Co., Smith it. Rabinowitz follow presumptions thus This evidence and Alcorn, 199; Railway 178 S. tending eliminate the for other causes for we feel bound to consider W. 833. So fall, remaining one to account as the seventeenth if it is raised accident, theory it patible com is and this is any proposition signment, thereunder. facts, being with the other assignment itself reason stated separation to account for the the train and charge why it error to refuse the as to was: hose, the air etc. While concluded we have presented by that the dence, thus evi it would have cured the error “That merely neg still think that was ques- main tained in the court’s tion of ative of the issue submitted as to whether the pointed proof, and proxi negligence of the defendant was appel- (being of paragraph herein out deceased mate cause eighteenth error).” assignment lant’s very general train. The fact that a denial assignment pleading proposition under the is a sufficient issue which to base Appel- proves do add itself. this. We not care to the same as the eighteenth assignment lant, presenting anything what further to we have said on subject original opinion is “in 17.” our states that it aid of and presented by opinion So it will seen that the in the case of Texas be propositions Downing, both these Association v. 218 W. Insurance same; is, 121, paragraphs 14-16. thereunder is the in effect requested charge, terms, correct in motion while We are for addi- jury, findings copy by opinion be or fact to misunderstood and our tional objection urged presented by typewritten pages paragraph now is not these the five any proposition answer, pleads thereunder. which the or 224 SOUTHWESTERN Rowe, evidence, affirmatively clearly, deceased, distinctly, and jury, submitted to the erred in and the court pleading in our and which we said giving party’s request than a more particular only act of obscurely stated general instruction limitations. as to sought to negligence upon which defendant <S=o253(3) also 4.Trial are to We refuse have submitted issues. —Error charge omitting undisputed to mention facts. findings defend- asked to make certain trespass try title, In to erred in not court objections exceptions the court’s to ant’s and giving claiming tions party requested by an instruction comply re- charge. quests. We decline to Our statements as to such 10-year under the statute limita- matters merely to because omitted prej- fact, findings and will are not finding property, where, mony, enjoyment use, cultivation, right our to udice 'undisputed testi- mat- pleading and such construction of enjoyed the land had for and used Supreme necessary if Court period; only ters corrected whether or not the use adverse. court should conclude that we in our conclusions. Appeal Court, testi- District Milam Coun- point out the also asked to are ty; Davis, Special Judge. C. mony there to effect witness any jarring cars as of the- against Suit L.A. Green others and track, running o'r of testimony the coal on over Judgment Mrs. Lula Cass and for others. tendency effect plaintiffs, appeal. and Reversed defendants’ running coal would over the wheels and remanded. whip up hose, hanging some down to the air Morrison, Cameron, appel- W. A. for attention wheels. Our distance behind such any lants. testimony of has not been called to the Henderson, Kidd, Henderson, of Cam- facts, witness to these but we eron, api>ellees. ap- such conclusions deducible from the plication men, laws, of natural known ter all wife, KEY, to C. J. A. L. his Lu- the facts evidence. Green and Hood, findings Hood, Hood, requests cile are as to Elorine John R. other and plaintiffs, brought evidentiary facts, mere do not as this suit Mrs. County necessary Lula pany, and Lumber Com- consider it Cass Milam to set out. trespass seeking try title, statement, re- With this referred both motions alley, cover a 10-foot and have restored are overruled. such, to its use as its rental and to recover value; or, alternative, damages plaintiffs sustained obstruction account alley by the defendants. 6164.) (No. al. CASS et al. v. GREEN et plea guilty, Mrs. Cass filed and pleaded years’ and of limi- statutes (Court Appeals of Civil of Texas. Austin. tation, sought alley to have located April 6, 1920. On Motion for Rehear- opened strip along on and of land dif- ing 3, 1920.) Nov. plaintiffs, ferent from that sued for possession Five-year 1. Adverse stat- <§^>68 upon — latter. The land claimed only purports ute available where deed to other defendant filed a disclaimer. convey title. . jury, In its the trial court 5-year Limitation under statute of limita- explained 10-year statute of defined party tions is available when the assert- limitation, and then submitted ing vey purporting it claims under a deed issues, two which were: property claimed, apply and does not street, “(1) plaintiffs’ to land the deed than 90 feet from a when Is the of action purports convey only recovery 90 feet. barred of the. land sued 10-year Yes Answer statute of limitation? No.” Rehearing. On Motion for per “(2) an- value is the What reasonable <s=>40(I)— 2. Boundaries insufficient Evidence any, num, plaintiffs L. Green and A. boundary jury. raise issue for line alley Green, as an for the use Fannie A. a trespass try strip title to a lying strip fence on the land between the by limitations, land claimed property south line of their 'north boundary, to raise issue of did not property?” the Cass refusing to issue to err in submit such upon were also instructed issue submitted the burden the first < »45(I)—Limitations try Trespass title Cass, upon the defendant Mrs. rested clearly affirmatively submitted upon the second issue the by pleadings evidence. raised plaintiffs A. L. trespass rested Green try an action A negative jury gave by limitations, claiming wife. The an- title, entitled to and pleadings issue, issue, per as raised first annum $25 swer to the Digests topic Key-Numbered and Indexes other cases see same KEY-NUMBER in all ®^>For due notes to' the the amount Proximate attorney’s request fact, fee. No submit established circumstan- tial evidence. was made court. .testimony respecting the' amount due is (4)— <§=>291 Master and servant Instructions clear, appeal presumed furnishing defective car held questions that by of fact are all found warranted. the court in such manner as will an action under the federal judgment. Comp. S., Liability (U. 1984a, 8657-8665) Article R. as add St. Act §§ Digests topic Key-Numbered other see same in all oases KEY -NUMBER Indexes

Case Details

Case Name: Colorado & S. Ry. Co. v. Rowe

Court Name: Court of Appeals of Texas

Date Published: Jun 30, 1920

Citation: 224 S.W. 928

Docket Number: No. 1688.

Court Abbreviation: Tex. App.