*1 Tеxas Civil Reports, Vol. 50. the injury, and confusing, it was indefinite and uncertain toas damages which plaintiff was entitled to recover. 2d. Plaintiff could not recover for loss of up time the time trial nor for loss in future, of time same claiming specifi- without cally in his petition, at least allegations making broad sufficiently to include in loss of time in past as well future. 3d. The petition being only damages decreased ability earn money in the business, and there he being had been in saloon earning money accident, since the business should court have told the jury estimating damages in the other lost time to take into consideration plaintiff what earned employment. 4th. The court undertaken to having specify all jury that the should consider in estimating defendant plaintiff’s damages, entitled to jury consider what the earned plaintiff had saloon, business, the not charge every- erroneous in giving thing that should be considered them in the amount at arriving plaintiff entitled to. There nothing double charge damages tends allow was plain the charge intelligible in all respects. petition alleged permanency injury; reason (cid:127) of it he has suffered and will continue to suffer the future great bodily pain mental anguish; that at time of his years age, a able-bodied man strong, healthy, $125 earning per month, which earning capacity with his have increased experience his foot ye^rs; that on account of the condition of crippled follow he is unable to his business of in which railroading, skilled, he is examination, unable to stand a physical and for this he has suffered great These pecuniary loss. allegations sufficient to warrant the court in sustained submitting damages by him up to the of the trial those date future. charge objectionable respect not calling specific attention The fact that plaintiff had some left. earning capacity authorized charge respect to time lost and earning capacity losses, sustained such further. Any amplification explanation of this if charge, desired, should have been asked. We are unable to hold that the judgment is excessive and it affirmed. Affirmed.
Writ of error refused. Express Continental Fruit v. G. C. Leas. 6,May
Decided
1.—Continuance—Discretion
of Court.
When
postpone
a motion to
a trial
ad-
day
a future
of the term is
court,
dressed to the discretion of the
the action of the court
be revised
will not
appeal
on
to
apparent
unless
the court abused its discretion. Motion
postpone
a trial
depositions
because certain
had not been received, consid-
ered
diligence,
held insufficient in the
matter
v. Leas.
1908.1
Feasor—Recovery Over.
Tort
—Parties—Joint
*2
refrigerator
company
to a railroad
company
A
which rents defective
cars
profits
company the
jointly
interested in
shares with
railroad
and is
of
company,
a
railroad
and each
operating
joint
is
tort feasor with the
right
No
severally
injuries
of such cars.
resulting
is
of
liable for
from
parties.
as
over exists
between such
recovery
Injuries—Liability
of Third Parties.
3.
—Master
Servant—Personal
company can not
to a railroad
evade
who furnishes defective cars
One
employe
an
railroad
injuries thereby resulting to
com-
responsibility for
not a
company,
employe
party,
to which the
pany
that
a contract with the
was
responsible.
company
alone should be
Car—Liability.
4.—Railroads—Defective
connecting
Ordinarily,
defective car has been received
a
railroad
when a
defect,
line,
responsibility for a
hauled over its
the owner’s
which is not
secret,
connecting
road has had full control over
an
ceases after the
for
responsible
it.
is not
a defect in
inspect
One
a car
opportunity to
railroad
A
proper inspection would not
proper
railroad which a
discover.
of another
inspection
connecting line.
of a
the whole
Liability.
5.—Same—Non-contractual
person
placed
position
circumstances
in such a
re-
Whenever
with
ordinary
every person
recognize
that
sense will at once
gard to another
that
regard
in his own
ordinary
not use
care
skill
conduct with
if he does
person
danger
property
he
cause
or
those circumstances
other,
skill to
a
arises to use
care and
avoid such danger.
Handhold—Charge.
Injuries—Defective
6.—Personal
personal injuries
upon
aby
freight
In a suit for
defective handhold
a
car,
approved.
charge, considered and
REHEARING.
MOTION FOR
ON
7.—Joint
Feasors—Evidence.
Tort
finding
held sufficient to sustain a
a
Evidence considered and
that
com-
refrigerator
transporta-
сars
a railroad to be used
pany which rented
in the
freight,
was
railroad
the car and
tion
profits
shared in the
of the business.
—Negligence—Handhold—Construction—Evidence.
fastening
question
freight
whether or not the
of a
handhold
nut,
lag-screws
negligence,
of with bolt and
was
instead
was one of
car with
personal
injuries resulting
for
for
jury,
suit
from
fact for
lag-screws.
away
fastened
Evidence considered
handhold
giving
of.
support
finding
lag-screws
that
the use of
for
sufficient
and held
purpose
lag-screws
approval
negligence,
association master
contrary notwithstanding.
car builders to
District,
Judicial
El Paso County.
the 41st
Tried
Appeal
J. M. Goggin.
Hon.
below before
The courterred
refusing
&
appellant.
give
Beall
Kemp,
follows:
“The
charge, Continental Fruit
special
defendant’s
on trial
you,
defendant
before
only
Express
defendant,
against
you are
finding
instructed
justify
does
defendant.”
Because the
evi
undisputed
to return
verdict
the Continental Fruit
common
was not a
showed
dence
railroad
furnished
merely
companies;
plain
but
carrier,
employ
com-
tiff
the time
at
58G
Reports,
Yol.
Civil
pany
car;
in
car at
time
hauling
jured
defendant,
the control
passed entirely
in the
and under
control of the
employing
hands
carrier
plain
tiff; and that
dam
this defendant was not liable
to the
either
ages resulting
original
defect
in the
construc
existing
¿are
handhold,
tion of
car with
from a
respect
want
regard
said handhold
inspection
keeping
S,
Galveston,
Nass,
safe
94
255;
condition.
H. & A. Ry.
Texas,
Co. v.
East
R.
Culberson,
Texas, 375;
Line & R.
Co.
72
Ry.
Cunningham
v.
Chambers,
v. I.
Co.,
& G. N.
51
&
Ry.
503;
K.
T. v.
Missouri,
487;
Texas, 387;
Tеxas Civ.
v.
Kahl
Kennedy
Embry, 72
Love,
Rabaud,
37 N.
L., 5; Perez v.
Heindirk v.
J.
Co.,
608; Gulf,
Elev.
C. & F.
Co. v.
W.,
Sliger,
Louisville
S.
S.
A.
W.,
Galveston,
Parish,
W.,
S.
&
H.
Co. v.
*3
682;
A.,
v.
Machine
R.
Co.,
305;
Huset
Case
61 L.
Good
Threshing
Co.,
lander
Co. v.
A., 583;
Mill
Standard Oil
27 L. R.
Bragdon v.
Co.,
109;
Litchfield,
87
42
Fed.,
351;
N.
Perkins-Campbell
Y.,
v.
Loop
Buchanan, 51
491;
v.
N.
Heizer
Y.,
Losee
Kingsland
Co.,
v.
110
Mfg.
Mo., 605; Burke
Co.,
Hun, 354;
v.
11
Sugar
DeCastro
Ref.
Barrett
545;
v.
1Co.,
Singer Mfg.
Sweeny,
Co.,
McCaffrey v. Mossberg Mfg.
381;
23 R.
Case Plow
v.
I.,
Co., Wis.,
Niles &
90
590;
Works
S.
Ed
Co.,
659;
wards
York & H.
50
Ry.
v. New
Am.
Freeman v.
Rep.,
E.,
39
1012;
Moore,
N.
&
Hunnewell,
Texas
Pac.
27
Ry.
W.,
v.
962;
Co.,
Cent.
Glynn v.
R. R.
17 Am.
R.
S.)
Cases,
R.
Eng. (N.
482;
Sawyer
&
33
Ry. Co.,
v.
St. L.
Am. &
394.
Minneapolis
Eng. Ry. Cases,
of
owner
cars furnished
railway
appli¿ation for
company
consideration of
cent
transportation
freight
one
a mile to be
while said car is in use
said
paid
as rental
is not
company,
employes
railway company
liable to the
of-said
said
operating
car hav-
who
be
inspection,
the control
ing
рower
may
injured on ac-
said car
count of
thorities.
conditions of
use.
Same au-
It was the
duty
railway company,
whose servant
at the time he received
to exercise
injury,
care to furnish
same,
him with
maintain
reasonably safe
and to
appliances,
if the said railroad
failed in this
company
duty, the master was liable
to its servant so
owner
injured through"
negligence, and the
car who rented the same
was not
company
liable to
because said owner had
opportunity of
inspecting
possession
while under the control and in the
of the railroad company
the same. The
duty maintaining said
with reasonably
devolved
by proper inspection,
safe appliances
railroad com
it on
line
operated
which received
of railroad.
pany
East Line
Culberson,
375;
72 Texas,
v.
H. &
Galveston,
Co.
S. A.
Ry.
Ry. Co.
Texas, 255;
I. &
Nass,
Ry. Co.,
94
v.
G. N.
Cunningham
v.
51
Chambers,
K. &
Co. v.
Missouri,
T.
17
503;
487;
Texas Civ. App.,
Kernan,
& G. N. Ry.
297;
Co. v.
78
International
v.
Jones
W., 693;
J.,
R.
Glynn
41
v. Cent.
R. N.
17
Shaw,
Am. and Eng.
483;
Locke,
v.
(new series),
Mass.,
Elmer
135
575;
R. R. Cases
cases
Mills,
Mass., 47;
v.
146
cited, Clifford
Atlantic Cotton
Sawyer v.
Co., Minn.,
38
& St. L.
Minneapolis
-
Express
587
v. Leas.
1908.]
A.
Falvey,
and T.
A car
appellee.
W. M. Peticólas
cars,”
which
patented “refrigerator
owns
numbers
large
which
States,
which
at various
the United
“parks”
points
maintains
is
financial
(for
profit)
compelling
its own
the business of
condi
railroads to use said cars on
to it and on
payment
mileage
cars;
which
tion
it will
allowed make
by icing
be
a profit
directs when
how
controls the
said cars and
transportation
carried;
arrival
agents
shall
they
employs
report
agents
to “hustle
employs travelling
departure
cars
cars
cars;
men
when
along,” which sends
with the
knows
railway employes;
will be handled by
knows
start
instrumentalities,
is
with the
charged
dangerous
liable
maintenance and is
original
jointly
safe construction
safe
whose
construc
injured
with the railroad
either
unsafe
employe
Leas v. Continental Fruit
Express,
tion
unsafe maintenance.
342;
St.,
v.
Ohio
Pennsylvania Ry.
Snyder,
Civ. App.,
Clark,
W., 1103; 15
E., 559;
v.
51 N.
60 Am. St.
N.
Schubert
St., 559;
St., 497;
20 Pa.
A., 818; 32 Am.
Peters v. Rylands,
L. R.
Mass., 283;
Downer,
Mills, 137
v.
Arlington
Wellington
Jackman
Mass.,
If Continental Fruit
owes a
construction and
safe
case,
maintenance
either and an
occurs as in
neglects
contributed
although
in not
defect.
might
negligent
discovering
remedying
also be
causal connection is not broken if
event
intervening
which
tirely
in
in the natural
as not
might,
things,
anticipated
course
en
defendant’s
еssential link
improbable,
Co.,
chain of causation. Markham v. Houston Navigation
*4
247; Gulf,
McWhirter,
F.
C. &
v.
Gal
H.
Civ.
veston,
Croskell,
& S. A.
Elmer v.
App.,
Locke,
the employ Appeals Reports, Texas Civil Vol. duties of one of discharging trains and freight brakeman handhold in employment a ladder one of the descending on he and he thrown which had was grasped pulled out car mashed and over, and by reason thereof and his hand run ground was fell by had to in he be The car amputated consequence. being and was belonged reason of thе handhold giving way en- corporation used in service of the Continental Fruit Express, suit railway joined with the who gaged, companies were in codefendants, in fruit and .in carrying perishable goods on busi- carrying owned and furnished railroads The hand- and the were companies engaged. ness in which awith lag- hold which side of was fastened to the pulled out nut, care screw instead of with a bolt and exercise of with bolt and nut instead fastening with required. lag-screws the wood around appellant, lag- was on part rotten, were fasten- rendering screws in which embedded insecure covered with thereby of the handhold defective and ing discovered by so that defect was concealed and could be paint- said railway and its car. Such defect compаnies employes operating the in the delivered existed when the handhold fastening appellant in the car be used busi- carrying companies railways in said knew engaged, ness knew knowledge or was charged thereof.. operated, defective handhold would intended car with the it should be so be when employes operated, anticipated and could use, for their it delivered at train employe engaged running time reason of injured way plaintiff placed might handhold; fastening appel- and insecure negligence and in said defective car guilty delivering lant was railway business it it in the using companies, and proximate the sole cause of them and the amount whereby damaged found injuries plaintiff’s jury. first Law.—1. The error upon, insisted Conclusions of оf the action of the court overruling appel which complains is that for the it to purpose enabling pro motion the trial postpone lant’s States, of certain witnesses resided in other testimony who cure and caused commissions interrogatories propounded whom in the for the purpose hands officers proper issued placed *5 to be as taken used trial. depositions upon their having as the exercise of the was such invoked discretion of the The motion and, it its action it was an court, apparent upon unless abuse of reviewed discretion, Texas, not be v. appeal. Neyland can such it ques 26 Texas Civ. 417. Therefore Lumber etc., Company, is, there abuse of this discretion? to be determined manifest tion filed, nоt record before us when this suit was It does appear 13 of District been observed Court by plaintiff’s it would rule as counsel filed his amended original petition, upon when second he tried, petition But case was 22, amended filed November 589 Leas. v. n 1908.1 upon acts with the charged appellant 1905, before, appellant If not in this action. recovery for relied plaintiff recovery right his based plaintiff allegations what knew then for them: against and defend meet have to would and that upon not can action, appellant cause disclosed a amended petition if the excuse upon trial case prepare failure to itself con- matters alleged not think the “I did saying: of fact issues court’s sus- me, upon relied action against a cause stituted made no prepara- and consequently petition, demurrer to the my taining demurrer overruled my until of facts issues upon for trial tion a cause had alleged the plaintiff determined that judicially and was on the excuse, part misapprehension If this were of action.” action, cause of takes to constitute what it law as to defendant facts, until upon a cause tried always prevent demurrer to plain- overruling court’s enlightened by became law, everyone though knows the The tiff’s presumption petition. as justice administration of acted fiction, upon must be pure knew on not only true. defendant absolutely it were though November make relied 1905, upon what allegation afterwards, then, knew did at time case, as well as it out its but and residences defense, and the names could what facts it" prove Yet, defensive matters. could witnesses whom it prove Paso, the conduct and charged at El did not inform its counsel names it could nor the defense, prove, of the facts management of its witnesses, until after the case was once tried residences of and the cause remanded its favor reversed on judgment appeal trial, then, and not four months District Court for new until knew the case would again judgment after the was reversed matters, In of these it seems us tried in the District Court. view on the diligence part there was such a lack defendant trial, said the trial court abused its case for preparing the trial. Hicks v. discretion in its motion to overruling postpone 437; Galveston, Walkеr, A. Porter, W., 85 H. & v. S. S. S. 76 W., 354; W., 228; Hahn, Busby, v. McMahan v. Ley Burleson, 25 Crow, 182; v. Hogan 66 Green v. Moore, Co., Texas, 558; 36; Watson v. Supp. Blymer Mfg. Stith Chisholm, Texas, 523. W., Falls Land Co. v. Though returned was asked were depositions which the postponement and filed before the of the court at case was tried had term which the continuance, as is shown from the expired, probable application made in this did not tend to the trial disprove judge, statement of motion, tantamount to a ruling grant it would be term; to the next for the of other on the docket continuance may trial cases all have in fact the time required term. remaining err, court did not in the second complained assign- error, demurrer the El Paso & Rock sustaining ment of Railway cross-action to recover dam- Company Island If compаny. jointly over interested against ages shared with the profits which caused in his alleged as is plaintiff’s injuries, peti- tort feasor and was joint much, codefendant tion, it *6 Civil 50. Reports, Texas Vol. if not more, responsible the which was negligence proximate cause injury railway of his over whose company track being therefore not to operated; appellant entitled recover over its against co-defendant recovered damages it for against an injury by caused which its wrong concurred in participation H. producing. Galveston, Ry. Nass, & A. Co. v. Caldwell, W., North Traction Co. v. If, however, there was error the court’s El sustaining of exceptions Paso cross-action, Rock Island Co. & to it was matter be- codefendant, tween appеllant its affect the of rights not 95 the H. City Pizzini, of appellee. 1; Galveston, San Antonio Croskell, & S. A. Co. v. Texas Civ. 3. The third of error complains that the erred in court refusing requested by an instruction appellant peremptorily charg- to return a verdict in favor. ing its The propositions asserted assignment beg under this question by assuming, as undisputed facts, carrier, that the not a appellant merely common but rented to railroad its cars to be over their operated lines respective railway they of under an agreement be operated to under the Master Car by rules established Builders’ Association, require each and in railway they case or inspect any appliances thereof are found out repair, or the same so repair safely used and handled might by employes railway com- and in the event cars should pany, of become defective or out appliances through its repair negligence railway com- an sustain pany, while such car employes thereof consequence railway, on its line of operated liability was railway company fixed so negligently failing to inspect car, and owner the car repair exonerated from any liability or railway servant employe for these company. Upon contained the first assumptions, proposition, predicated the if second, asserts that was the owner of defect in provide inspection repair any its appliances its use after it from its passed control arising into the hands still, аs company, undisputed railway shows the car before received by it was inspected company operating it, by inspectors, be liable competent plaintiff, because servant of the failing was the make cause proper inspection, proximate plaintiff’s in- jury. of one perceive We can not how servant of the railway companies or agreement understanding be affected between the could rail- operated and the latter’s under roads the rules Association, Car Builders’ the Master established failure an agreement to; was not a comply party servant of either to in and had no If no interest means there was such enforcing. it, and only it affected neither observ- parties to agreement аn liability would relieve either such servant ance nor violation the concurrent negligence, agreement no further notice of the between we will take both. So former’s and the railroads cars than to .the *7 Leas. 1908-1 made, it was observe that it the fact it appears, by the railroad companies, the operation interested that its cars the manner of sought operation it to control their prescribe and by contract, certain for their fasten rules prescribing operation, to the liability the railroad for its injury an to upon company servant caused failure with such by may its to rules. It also negligent comply seeks fix be remarked that the to of the agreement only liability its caused for an when the car was to servant operated over its railway by becoming its line out of repair negligence in its such appliances through railway com- it, to and its failure does not pany fix the inspect repair undertake to an for servant defect in liability by to the car or its was received before such appliances by railway existed it These, arise from however, or did not its company negligence. are not affect the for matters which do liability re- must be determined spective by law, to him parties not an by other agreement parties. between While it is in this the facts case apparent relation did not of master servant exist between former, appellee, strictly owed the speaking, latter no relation, duty from such and while it can no arising make differеnce case, far so as the particular rights parties concerned, in the term, strict sense of the whether appellant, regarded aas not, still does common carrier or it not follow that it owed no to railway of the as appellee company a servant while operating its for A must rest on some liability cars. to a railway em who, duties of discharge in the his ploye, employment, re car, not work on does quired belong his employer, but in a it is train and haul compelled place over its line in it can discovered by road the defect (if not be proper inspection by reason of. railroad) injured defect, and who resulting owner in its either construction or from its care to it in a failure exercise con safe dеlivered to for use when company dition to be carried over road, proper bj, when inspection line railway company has defect. liability to discover This should failed such be upon that one railway’s employe whose breach of has proximately caused when Ordinarily, a defective has been injury. received aby line, be hauled over its after road to connecting connecting road full it and has control inspect has the chance over the owners’ defect secret Missouri, for a which is not ceases. K. responsibility & Merrill, 59 L. R. A. 714. For consequences Co. v. of a T. defect which not be discovered connecting it is in road proper car or when it receives while inspection possession, liable; ordinarily not road is connecting making inspec its whole tion, duty. has Such inspection made of performed of which caused when was car, plaintiff’s injuries, defect re road El connecting by the Paso & Northeastern Bail- from its ceived employ whose when conse way injured Company, in defect, failed disclose inspection of such the defect quence shows, it was concealed because, covering the evidence fresh Appeals. Sepoets, Vol. SO. {May, Texas Civil made paint. It was shown that like inspection well as the road which delivered that received the car from for, and failed to reveal the defect it to the one plaintiff working excludes on the any which caused accident. This liability part and if the which caused companies; is traced the owner of the car reason can be accident perceived held why should In the consequences. responsible Q. Pender, Q. opinion 503, Heaven v. L. R. B. Div. B. L. J. N. 357, Brett, R., T. N. L. 47 J. P. 709 the M. after per discussing a number of cases purpose deducing principle liability rests, noncontractual for negligence said: *8 these is, “The proposition recognized suggest, cases and which them, therefore, to deduced from that whenever one by be person is in a regard circumstances such placed position to another that at once ordinary of sense thinks will everyone recognize who that if he in ordinary does not use care skill his own conduct with regard circumstances he would cause to those of to danger the person other, a arises of the to use care duty ordinary and skill property to avoid such The in which the danger.” reports opinion appears us, we not accessible to have made the from a quotation note to the Cleveland, C. C. & L. R. Co. R. case of St. L. A. 41. It Berry, us, on that seems to as we held prior appeal, principle, thus of most learned and by philosophical jurists of his enunciated to case under consideration. time, is directly applicable The ap of cars suitable for the monopoly a shipment of pellant practically by which it goods, protected in perishable patent right— fruit a that railroad in companies, such character order to dis monopoly carriers, as common duties to the were forced to public their charge in cars for own procuring terms transporta accept for kind of and alone freight designed tion of the the law to carry. compels While companies were suitable it, places virtue of a the control and by patent-right, carry freight, in which it can be in only kind of cars ownership transported it, and without attempting regu like the appellant railroads, owners of such free cars them, does the leaves as late its terms and conditions own by prescribing the public to prey their use—a more power withering for railway companies than frost June. fruitgrower killing in the interest blighting to railway its cars hiring companies, guise of contract Hnder mile it is in every carried its the freight with them it shares right and reserves the solе railway; icing lines of their cars over their while en route to destination goods with perishable loaded cars itself, being used its railway companies as profit enormous at an rata share goods appellant’s pro owner of from the to collect agent a company the cars. Such icing charges its freight of the of a common privileges all the enjoys all functions exercises who haul cars with the railroads contract carrier, it seeks while by its about short, brought circumstances In its liabilities. to avoid re in such a position has itself creation, placed the appellant own abso their trains railways operating servants to the gard in regard care and skill ordinary does use not knows that if it lutely Fruit v. Leas. Continental jddS.] causе, danger will reasonably safe furnishing operated, Hence, such trains. servants the companies duty danger—a care and to avoid its duty to not avoid contract with the with, law which it charges it the railroad given monopoly it is It companies. enough railroad companies kind of can be used by transport cars that only immunity goods; granted negli but it can not ing perishable gently limbs of railway oil the taking employes lopping lives cars and carrying freight while handling service engaged was, fact, of these cars it shares profits. operation evidence, business, by the the appellant’s plaintiff, as shown contract, engaged furtherance of servant though business when in to him while injured, and the his in like engaged as that of master to servant its service was 45 Texas Civ. Express, Leas v. Continental employment. St., 342, 60 Am. St., 700; Snyder, R. Co. v. Ohio Pennsylvania R. N. W. 15 L. A. Clark, Schubert v. W. Philadelphia, Atl., Hahn, & B. Ry. Co. v. sixth error complains fourth paragraph court’s is as follows: charge, “How, therefore, from a if believe preponderance discharge while in the brakeman train, a handhold or grab-iron Express on said grasped belonging defendant, Company, alleged *9 and that as the said handhold or him, alleged gave and grab-iron way and ground injured thrown to the without contributory he ivas negli- you his and further believe from gence part; on of preponderance defendant, that Continental Fruit Express, did evidence to one or both of the acts folloAving do or things or omitted either viz.: That fastened said grab-iron it or charged petition, handhold, way, the car instead lag-screw to with of with gave bolt, said having or that so fastened or handhold grab-iron a nut bolt, of with a instead nut side of with a lag-screw to safe reasonably same in of keep repair, failed state but per- it mitted was the wood which the embedded to lag-screw become rotten soft, and failed the same the same repair and make brakemen, and further you use believe that if such act or safe omission, done you omitted, find have been so or if was any, handhold way cause said with proximate giving were the plain- did, train, it and his thrown run tiff, being if hand crushed, and that said Continental Fruit Express, by over and both, failure guilty reason of act or part, was of negli- and that if was negligence, any, cause of gence, proximate way, handhold so then giA'ing injur}*, plaintiff’s unless will you return verdict for the hut so you event believe defendant:” will return verdict for the law charge presents arising pleadings Texas appeal our on the Civ. opinion prior (45 enunciated no for not to it. will 162), adhering we reason perceive We fifth whether disposing question add assignment, L. Civil—38. Yol. Civil 50. Reports, Yol. of the lag-screw was negligence was one of fact for the jury determine. The of this opinion court in El Paso & S. W. Ry. Co. Foth, Texas Civ. App., question, was approved Court Supreme (101 133), authority for sub- such issrie to the mitting jury. This also disposes of the seventh assign- ment of error. 5. The sixth of error is also assignment directed against the sixth of the court’s paragraph charge. it is Here contended that was duty railway company, whose servant plaintiff was when he was ordinary furnish injured, exercise care to him with reasonably safe and maintain the same, and if appliances it failed in this to its for an liable servant negligence, and the owner of the who rented it to liable, because control opportunity inspecting the car under while and in possession company operating the same. That is, this contention can not be maintained think, we demonstrated by have said in of the third disposing what we of error, and we deem further discussion the question unnecessary. As the evidence shows that case the lag-screw by which handhold fastened out on pulled the rotten, account of the wood being could and that as not have rotted during time between when the car delivered to defendant occurred, when the accident must necessarily been in such de- turned it fective condition when over the railroads use, rotten covered with paint and the wood so as to conceal such not such as defect, special evidence was charge, refusal error, the eighth assignment could complained did Therefore court not err refusal. upon. It predicated may be remarked the special charge here concedes- that it was exercise care to furnish the car rea- safe appliances. sonably Hor there in the court’s refusal error of appellant’s third if instruction; in the car when it was defect delivered special not, was such as could on account railway companies of being discovered paint, proper inspection by covered the rail Galveston, H. & S. A. roads, inspector failure Co. N. E. Co. to discover such concealed the El Paso & and of defect the a consequence not exonerate negli *10 car; railroads with defective the for in that furnishing in gence event, a car would be aggravated, furnishing negligence in railroads to by the discover such inability disproved,
rather than inspection. by making proper defect in have said other demon disposing assignments we 8. What does special charge not enunciate appellant’s sixth law strates that and that it case, was properly to this refused. applicable witness the admission Schourup, testimony which 9. The assignment, eleventh as the admissible by is complained to whether appellant the issue upon expert opinion exercised the handhоlds safe method of adopt fastening care Foth, & S. W. cars. El Paso supra. upon error which the court’s complains 10. The twelfth Express v. Leas. 1908-1 overruled, favor because a verdict in is refusal to instruct to determine. jury and evidence a case for the pleadings made and it is affirmed. is no error the judgment There rehearing. on motion As this motion the evidence is not sufficient sustain urged is it with finding appellant companies fell, and shared the car from appellee profits business, will recite more at facts length we It is the effect that has numerous we based such finding. appellant cars, which it in different cities. are patented tor cars refrigera These “parks” and tracks them in Los Cali Angeles, repair it maintains cars, fornia, and elsewherе. Railroads do use those° but can do only and, so If car stands still ho is mileage. mileage paying paid, therefore, Continental Fruit has at who agents icing points arrival and notify departure it of the and also men employs around and “hustle” who travel the cars sometimes sends along; with the cars. railroads mileage, men The and on pay mileage car was cars paid appellant. Refrigerator this must particular iced, and in this maintains icing there is em profit icing; points, for it. to ice cars ploys gets profit men Its States, all over United settles claims for operated cars; to fruit caused insufficient It on icing. pays repairs and, witness, to one cars are loaded and according shipped ap and routed their own pellant agents. of our Again, appellant complains finding that hand- fastening the hold instead of lag-screw with a nut and bolt was negligence, the rotten, wood around the lag-screw being rendering there- fastening insecure, the handhold by of and covered with paint, so defect was that the concealed and could discovered by not be the rail- road and that such defect company, existed when deliv- to the railroad ered the car to be used in carrying it and the railroad engaged, business knew or was with charged knowledge thereof. conten- found, tion that the could under charge, is from the the construction with a lag-screw negligence. Let foreman, us testifies: see. “The outside Schouroup, rip-track layer a box car is of material inch composed of nailed thick—planking; % sills, braces, rails side side to the belt what pieces call studding. box car is might lining composed of V2 material, 6-inch comes or 4 feet from floor. Hand- up holds are attached with nuts and bolts. When a lag-screws nut bolt and is used it inside of put through iron, grab on; the nut headed they then bolt put large washer; do not it) with this size do. The (exhibiting pur- of the washer pose is to the head from wood. keep pulling through the The bolt and handholds, nut is the safer method of attaching because there is more wood will decay using than pull through before the lag-screw—the out with least lag-screw pull will rottening. Bolts go through siding through lining; lag-screws only *11 Reports, Texas Civil Yol. sid- through board is inside go siding—sometimes small put hold 1-16 it firm. To in a bore a hole ing put lag-screw, two-thirds, drive screw, inch smallеr than the then screw In in. wrench; screw in times are driven clear they then lots 1905, railroads half half of screws January, using were about out, but in sev- bolts. I seen cars come in with lag-screws pulled have eral one come in nut years’ have never seen experience, bolt out.” pulled Leas testified: “The car the handhold out of was pulled 10316, A lag- No. had been freshly'- painted. car, final two with maybe screw is driven twist or except A on and through, put wrench. nut bolt nut then put The on the hammered so the nut won’t off. washer goes threads come If rotted The nut the safer. the wood im- inside car. and bolt is out; with it would the threads of a mediately lag-screw, pull around let the washer through.” nut and it would have enough bolt to rot on the conductor, out Kannary, testified: “The lag-screw pulled side; rotten. car the wood must been rotten—it was east was car, freshly bright looking painted.” Rosa, at Santa testified: “The Lynch, yardmaster lag-screw pulled The car had out, freshly around was rotten. been painted. the wood bolt; latest construction was with January, 1905, In the nut and they I is no chance for it to out. think pull is the safer—there E. half Willott lag-screws.” half and of bolts about using latest construction was with nut and January, testified: “In bolt; safer.” are the they The issue lag-screws negligence whether the use found they submitted to the their verdict that was. jury, That Car Builders’ Association authorized Master the use does not. show as a of law in construction matter lag-screws car them were used on the ordinarily fell. Not a court can take from a even appelleе when there is rea- evidence question decide jury and for a charged; of negligence to show the act sonably tending or authorization usage pre- no association reason stronger au- a question. usage Such jury determining clude thorization is, charge often be, tending negative evidence may from it in connection with but the must determine of negligence; was negligence. the act charged whether other evidence evidence that there contended Again, No other than railroad. conclusion was received
rotten when it out was rotten pulled from which the lag-screw the- part . be deduced time, can at that motion are discussed in sufficiently presented Other questions motion is overruled. original opinion. Affirmed. error refused. Writ of