*1 Appeals Texas Civil Eepoets, Yol. 50. Railway Company Emory El Paso & Southwestern A. Smith. Decided March 1908. —Damages—Proximate 1. Cause—Evidence. which, cause of an event is in a natural and continu- new, sequence cause, by any independent ous unbroken produces event, without which the event happened. would not have In a personal suit for in- juries repairer received a car duties, while in the considered, and held to negligence of the master proxi- was the injuries. mate cause of the —Negligence—Incompetent Servant—Duty 2. of Master. duty using ordinary care to select care, skill, servants of sufficient prudence to each good probable habits to make it they will not injury cause .other, and to dismiss servants who show such a want of qualifi- these as to ground apprehension cations reasonable injure will servants, personal master, their fellow are duties to the and cannot be dele- gated. 3.—Same—Assumed Risk. must not only A servant know of a instrumentality, defect in an inanimate, master, animate or furnished but must know or be charged use, knowledge danger may probably ensue from its before he the risk of be held to assumed such known can defect. —Charge—Evidence. 4. not, requested charge fact, A assumes the existence of evidence jury, is refused. before the —Servant—Reputation—Proof. 5. general reputation A servant’s is admissible pur- for the charging knowledge his master with of his pose and incompetency in employing retaining him in service. 6.—Evidence—Exclusion on Motion—Practice. Injurious not, testimony carelessly deliberately party elicited a will court, jury upon discretion be thereafter withdrawn party eliciting the same. motion
ON REHEABING. Cognizance. Law—Presumption—Judicial —Foreign 7. contrary, presumption is that of evidence In the absence on States and in other Territories as matter is the same law this organ- judicial Congress an Act of cognizance will take State. Courts Legislature passed of such Terri- of the laws Territory, but not izing of its courts. decisions tory, nor Principal. and Servant—Vice 8.—Master place to work in is a keeping safe employe charged with the An whom the rank the servant to regardless of the the master vice-principal of entrusted, negligence servant and the duty master. —Assignment Error. relied distinctly specify should error An itself, complete in ought ordinarily to judgment, and for a reversal ruling intelligent not, to an record is essential it is whatever but if it assignment. under the forth in the statement be set By.W. El Paso & S. Smith. 1908.1 —Evidence—Objection. *2 objection “incompetent, is irrelevant and imma- An Court, Appellate by an unless require too consideration indefinite terial” the plain is so objection real nature of the phrase to indicate it. is sufficient —Witness—Expert—Competency. testify expert ques- a qualified or not a witness as an Whether considered, support the rul- and held sufficient to the court. Evidence tion for expert upon the as of a witness court ing of the him perform the duties entrusted to employe of an master. Tried below El Paso County. Court of from the District Appeal Hon. M. Goggin.
before
J.
for appellant.
Patterson,
Woodson,
&
Buckler
'or
drunkard,
whether
or not Delevan was
habitual
to whether
and also as
all,
injury,
drank
time of
foreman
man to
he was then a
perform
fact, on
questions
track, were disputed questions
the rip
reasons the
contradictory, and
these
entirely
the evidence
been allowed
mere
opinion
Morris
not have
witness
102 S.
Gray,
United Oil & R. Co. v.
competency.
Delevan’s
v.
934;
Texas, 462;
67
Brown
Stillman,
Armendaiz v.
W. Rep.,
483-490; Gal
Mitchell,
veston,
Texas, 358;
Texas,
88
v.
66
Upson,
Vance
477;
4
Davis,
Civ.
17
Ry.
25
App.,
Cyc.
H.
A.
v.
Texas
& S.
57
v.
Procedure,
60;
Daly Mining
(Utah)
Law &
Stoll
298;
W.,
86
N.
N.
298;
Chicago
Ry., (Iowa),
v.
& W.
Pac.,
Mosnat
W., 837;
v.
Boettger
v.
Elec.
48 S.
(Mo.),
Ry.,
Southern
Langston
Co.,
W.,
Gutridge
A. Iron
is of in complained twenty-ninth error, read assignment of context, connection with the entire was and cor- eminently proper rectly stated principle law applicable to issues the case. 16. That the seventh is not ob- paragraph charge noxious to the objections urged against thirtieth assign- ment of error. The plaintiff’s petition Delavan “an alleged man for the position which he held and grossly negligent in the performance of his duties” and did not limit his incompetency to the cause of drunkenness. Struthers, And notice to the defendant’s vice-principal master mechanic, of no- such to the tice company. 17. The question as to whether Delevan suffi- gave cient fact warning of the removal of the flag, if the insuffi- ciency of such notice not shown by the evidence matter as a law, was one of fact for and the. court did sub- jury, not err such question for its determination. mitting evidence, It from the conclusively appeared undisputed Iíy. y. El Paso & S. W. Smith. Í908.'] Strutliers the court did not vice-principal, its informing jury charge. err in so 19. The court’s supplemental charge, when read connection charge the main special charge given defendant’s re- quest, objections is not open urged against thirty- error. third court’s response jury propounded made, after its retirement was such only as was to be proper jury view of the fact that had been all the fully instructed on in the case and evidence. arising issues pleadings There no judgment and affirmed. error
ON MOTION FOB REHEARING. If becomes the it ever a court to to counsel for apologize client, it has rendered their opinion spirit of this motion seems to we imply, beg tone to remind counsel error, their thirty-four assignments of insisted appellant brief, their were exploited by numerous which re- propositions than ordinarily more time consider quired deter- cage of a mination state appeal; humbly not with- (though contradiction) fear all considered, out and thoroughly conclusions reached expression deemed essen- *9 their was the disposition given tial to and that opinion, the proxi- of its of mate cause laconical of some disposing the assign- of ments was the of other pendency appeals who under parties the be law to entitled to thought their in court. day were teach a sought by fable the Aesop impossibility every- of pleasing body; and, but the old fellow was a poor consequence, slave little lesson; heed has been his for still men please like Therefore, judges lawyers. pleased, especially by way of further the of apology it counsel, with hope pleasing appellant’s far as so, will, is we motion, do of this legal disposing elaborate considered in the points original opinion express our rea- more for fully overruling error, sons the of assignments especially those counsel which assert were baldly given no consideration at all If further is demanded our reason for conclusion “that plaintiff’s injuries by were not caused proximately the negligence fellow-servant, a but direct result of of were the defendant’s negli leave to nowhere in gence,” beg we state that brief are of the pointed any part we fellow-servant record the as it obtains at law common doctrine existed the of territory Arizona at was In injured. the the ab plaintiff sence of such evidence the law should be presumption indulged that the the same as in injury where occurred this State. Tempel Texas, v. 89 69; Union, W., 262; v. Bankers 88 Whaley S. Dodge, Curtis, W., 567; Southern Kansas v. 99 S. Western Ry. U. Tel. Co. Sloss, W., v. 100 S. 355. While we take of judicial cognizance Territory of Arizona we Congress Act of organizing the charged are If, however, of laws its by with notice passed Legislature. it conceded common law proved Appeals Reports, Yol. 50. Civil Texas
20 of not, can Territory, proof, in that we absence rule of decision by Supreme the construction cognizance placed of take and must the construction Territory; presume Court of that a case like this facts law the common involved applicable Court by Supreme received either construction placed upon construing this United courts of State. States servant, held Supreme common law of fellow doctrine it is States, Court United as well as by Supreme Court with a safe Texas, duty keeping that an employe charged master, rank regardless vice place principal work Ry. Northern Pac. of the servant to whom the is entrusted. Daniels, ed., 29 v. Herbert, S., 647, 755; Ry. 116 L. Union Pac. v. U. Co., ed., 579; & P. Ry. 152 U. L. v. Texas S., Hough 38 612; 25 F. v. 85 S., ed., Louis, Ry. 100 U. L. S. George, St. Texas, Marcelles, Texas, 337; 59 Miss- 155; T. C. v. Ry. Houston & O’Fiel, W., Ry. Pac. 10 Texas & Pac. v. ouri Ry. James, Texas, common Wise, Under 489; Railway law thus Delevan was not fellow servant expounded, defendant; for he' was charged vice principal railway company duty, personal reasonably safe nondelegable, plain- keeping there, tiff, and other at work for them do work employes then, If as we held in our to do there their put employer. injury collision which resulted in original plaintiff’s opinion, flag caused Delevan’s removal proximately was inviting track, engineer engine upon negli- to drive fellow-servant, which caused not that of gence injury plaintiff’s itself. view of the defendant Under this negligence but the case, counsel, deference for expressing which we refrained out of motion, induced to expose by wholly and are now it is imma- the defendant was guilty employing terial the duties Delevan or whether or not. That this act of attributable to employment, negligence, fellow-servant, cause of a by any does admit the shadow doubt injuries, *10 law. elementary familiar with the addition principles one in original subject authorities cited opinion upon to the cause,” venture, the risk of we having pronounced at “proximate counsel, case to of Russell v. by cite Ger- appellant’s inapplicable A. Co., S.), 326, 10 R. where it is said: “What- (N. F. L. man Ins. maxim, meaning of original próxima have been the causa ever may line clearly by been settled long it has spectatur, non remota et by meant not that which proximate what is cause is decisions that that which at the merely activity not or place, last in is time is effi- the procuring, injury, consummation and cause.” cient desire, counsel, offense to we without to pass From this of our not. of this motion which ground complains which is: “The trial the eighth to error, assignment the seventh sustaining court defendant, evidence, objection over erred defendant’s bill of by excep- of Fred Morris as shown testimony y. Ry. Co. 21 Smith. & W. El Paso ¿90S.] to assignment referred in the bill of exception 3.” The tions No. required brief, as is under it in the statement not copied is distinctly should An of error assignment of this court. rules (art. judgment, a reversal of the upon relied specify complete to be ordinarily and 1895) ought 1018, Rev. Stats. es record else is not, something and there itself; if is and least, latter, should it, the at ruling intelligent upon sential to Robert assignment. under the brief statement in the embraced son Porter, 98 644; Civ. Poland Coates, Texas App., should therefore, doubted whether the may, It be. will record it to the all But considered at reference have been he Morris, testified "that witness, Fred had seen that after be knew the or sobriety to Delévan with reference George habits of April, prior his employment during drunkenness time; had seen him that he he deal of was drunk good of him taken care 3, 1903, had May drunk frequently prior duties; during perform drunk he could not least witness, was seen he, employed, duties,” testi could not he then twenty perform so drunk times “I believe I cap as follows: am fied, objections over of a man could who competency able judging foreman duties of of car perform repairers. safely Taking know of his habits the. circumstances, all facts and I consideration and what into 3d, him, I May last saw on up the time 1903, Delevan was man to George perform not ear Douglas yards.” indicated repairer objected marks was defendant’s counsel "for quotation immaterial, it was incompetent, the reason irrelevant qualified had not shown himself pass the witness be allowed to of Delevan.” It rule pass upon competency not that an is a made in trial court not objection can It also be considered on is well settled appeal. objection, immaterial and irrelevant” un “incompetent, specific enough, real objection less the nature plain is so general Ev., sufficient to phrase indicate it. Wigmore “Certainly sec. and cases cited 18. As there said, note p. it is not fair to allow such a ir general drag-net 'incompetent, relevant and immaterial’ to cast over bit evidence in every out, and then counsel, case which counsel would like to keep permit trial, careful narrative of the anatysis printed to formu error, time, thought late specification some which, attention, seasonably if called the court’s been might have avoided or corrected.” then, If we discard irrelevant and phrase “incompetent, im- require consideration, material” as too have the we had not shown (1) that the witness himself only objections to qualified of Delevan duties of pass upon competency perform of car yards; (2) foreman he should repairers Douglas reason, for that have been allowed to not, pass upon' such duties. At least this is of Delevan the proper perform *11 objection. is in propo- Whatever there analysis remaining Appeals Beports, Texas Civil Yol. 50. ob- assignment, sitions asserted under the which extends beyond analyzed, jection as thus can not The witness be considered. man, an old railroad done familiar character of work to yards, in defendant’s necessary knew the danger attending; to in precautions of a protect employes yard danger, the duties there, foreman the car work habits and repairers what qualifications should to be able to possess such efficiently discharge short, duties; an on such matters. His expert testimony taken as a whole shows Delevan’s clearly this. knew capacity He knew that he work, habits, character and an habitual drunkard, for he had him drunk and at frequently seen times drunk he could not take care of himself. This was to enough him as an an qualify expert give opinion upon a man of Delevan’s character and habits competent discharge duties him, entrusted to and it was not essential that he should state any opinion to his own capacity to an express opinion Delevan’s competency. This was a matter going competency of the witness to If, however, the court. determined it were essential that he should state his competency such opinion, statement, that- clear believed he was capable judging competency or of a man who could safely perform the of foreman of car he meant repairers, express opinion to his competency regard. matters disposes only raised objection testimony the witness—his or qualification as an competency expert testify to the Tt competency of Delevan. not objected that expert testimony was not issue of admissible Delevan’s the duties of competency foreman of defendant’s for the to the objection made repairers; testimony trial court admissibility admits the impliedly expert such an testimony upon issue, urges only the witness was give such However, testimony. we have doubt that no admissibility ex the issue was pert v. testimony upon United Oil competent. & F. Co. If Grey, appellant’s contention that testi mony could not be received issue upon the Delevan, could from the objection be evolved trial made court under consideration so as to require us to pass upon it, we the contention is say fully met and answered Wig Ev., secs. more on twenty-third motion, for a out in this rehearing, set court erred is, that its failure to consider pass eleventh, eighth, ninth, twelfth and thirteenth assignments of error. error is as follows: “The trial eighth court erred evidence over objection of defendant exceptions of Fred Morris as shown bill 2.” The referred to in . assignment as No “As bill of foreman the exceptions is: intoxica appears him, did tion he was not a incapacitate objection it, man when he was intoxicated.” as disclosed is; the Bill of “that it was irrelevant and exceptions, incompetent, witness, immaterial, and a 'conclusion mere the witness *12 By. & S. W. Paso El v. Smith. 1908.] an in to this matter.” When opinion regard to give was qualified not irrelevant,” of immaterial phrase “incompetent, we the dispose seventh holding the upon assignment, as did in passing we considered, of it embodies is too to none objection general the anything the has in assignment asserted under the propositions would be it, of them the to and to consider record one support in trial not raised the to the testimony an pass upon objection court. of as follows: “The trial court erred The assignment ninth error Morris, in of J. B. as evidence the shown admitting testimony in 5.” The referred testimony No. by defendant’s bill of exceptions “I to, in of did not think Dele as bill is: exceptions, the appears of the duties of fore van man for the performance was competent time yards man of the the Douglas ear repairers of but from his hurt, drinking; than his habit respects other I not think was.” done, objection what do actions and was, irrelevant testimony “That was incompetent, made the witness, witness immaterial, of states conclusion incompe as or competency has not shown himself qualified “In of Delevan.” will tency dispose general objection, We etc.;” as done we have competent, disregarding preceding determine We can from the statement assignments. appel f qualified brie witness was to give opinion upon lant’s whether the not, for a word Deleven’s or there is not stated competency required are not to search record question. brief We of whether the witness ascertaining qualified purpose subject, of absence a state give ment opinion brief of evidence to show witness was not will of favor of the trial presume, ruling we qualified, court, he was. We shown before the matter have testified might opinion was such as an expert upon. is, “The trial court tenth erred objection over the Andrew in defendant’s Cíenme, exceptions as shown bill No. 7.” The as shown bill of referred to is: “I am exceptions or the competency man judging incompetency capable duties safely properly perform could foreman of the who were required by such as Delevan in his capacity repairers, as into consideration the habits of said Taking foreman. him, I I do time was employed think during even hold man to such position The objection or perform safe of car repairing.” of foreman defendant irrelevant, it was immaterial, “that incompetent, witness, and the witness the conclusion not shown stated testify competency or incompetency himself qualified accident.” Discarding at the Delevan the phrase, incompetent, embodied in irrelevant and imma- objection considered, too terial, only we- ob- himself qualified witness had shown to- testify jection as- to the the time the witness qualification was one accident. Appeals Eeports, Civil Texas Yol. determine, and was cor- trial court to we believe it primarily incompetent year If Delevan rectly decided prior it. duties of time of the accident to same employment in, it was evidence he was engaged he was then occurred, accident and also *13 by' the exercise of would have of his ordinary care informed itself incompetency. eleventh assignment admitting trial court erred in is: “The evidence, E. objection over of J. testimony Sandlin as shown by defendant’s bill of No. 14.” The exceptions referred to as follows: “While was testimony, Delevan employed 27, defendant as foreman of car at repairs June Douglas prior to 1903, I did know Delevan George as being incompetent reckless man as foreman over the ivas em department which he and this his ployed, was general reputation shops among rail road he men; generally discussed as reckless drinking, upon man.” To this defendant testimony objected irrelevant, inadmissible, “that as the witness incompetent said he had been there nine and was only days qualified testify to as to the of Delevan or as to his competency reputation Douglas 27, think to 1903.” We court June held that prior to qualified witness was to his as to Delevan’s as testify awas car general reputation. Sandlin was at work repairer, 1903, yards defendant’s on June when the accident hap That he to only days time, had been there nine that did pened. prior time, not show that not, could become informed of during he duties, Delevan’s to discharge his as well of his gen eral as an reputation reckless man. twelfth complains of assignment the court’s evidence, over defendant’s objections, following “In'my witness Whitsit: to judgment the time prior plaintiff was I did injured, not consider Delevan a competent man to fill posi- tion of track foreman yards.” rip Douglas to addition advanced under error, the this one seventh propositions assignment of asserted: “The witness stated no facts which showed he was a judge ability of Delevan his competent perform to du- foreman; his ties as own rip shows had not a sufficient to learn of opportunity Delevan’s habits so as to ascer- tain whether or not he was a man for competent position foreman track or car repairs.” The propositions under which are this repeated assignment were our disposed of of the seventh assignment consideration of error. As original one it seems to us the witness’s shows he was as an form expert opinion ability Delevan’s foreman, his that he perform had sufficient oppor- of his and to tunity learn habits ascertain whether com- he was such, However, duties. perform these were matters petent the trial and -the determine rather court judge than ‘jury to decide. thirteenth error directed action in admitting, of the court over defendant’s objection, testimony of Simpsox de Bamirez. 1908-1 as follows: No. which is Morris, exceptions shown bill
Fred to so reference of George the habits Delevan “That he knew defendant prior his during employment drunkenness briety or time; deal of the drunk a good- Delevan was 1903, and that April, he taken care of him and had 3, 1903, May frequently prior him drunk had seen not perform drunk he could he was so when seen witness, employed, duties; time during he, times, perform drunk he could least twenty car repairs as foreman duties. That employed to that Douglas, prior left 3, 1903, until when witness May I builder, master inspector, time and he was also while This shows that twenty times.” have seen him drunk at least employment up drunkard while an habitual and, track or car repairs, made foreman of the rip he was with, testimony, in connection other was evidence knew, ordinary the exercise care dis account, on that of his drunkenness and incapacity, known him at defendant put the duties charge employment *14 well found it. The from such jury might a man such habits in a negligent employing posi defendant was his lives and limbs of its depended upon tion employes where the duties of employment. faithful of the six this motion assignments charged are disposes we and demonstrates that all considered were considering with not our the seventh original opinion passing and disposed of.in error, which involved the same questions practically raised them. notary, If one trouble to read the certificate of will take his signature, down to commencing caption continuing with the Morris, as it appears witness T. J. who took the deposition in over- found that the court did not err record, will be the deposition. defendant’s motion to ruling suppress of error assignments We believe that all insisted ap- upon by overruled, and motion should not pellant sustained is, therefore, It upon any ground presented. overruled. Affirmed. of error refused. Writ Simpson v. Antonia G. de Ramirez. James 25, 1908.
Decided March Surveyor. 1.—Boundaries—Evidence—Declarations deceased, competent surveyor, are of a since evidence as to Declarations (cid:127) him, survey having previously made declarations the boundaries been made while tract. surveying adjoining engaged of Owner. 2.—Same—Declaration owner, deceased, as corner and bounda- of an since The declarations surveyed been months after the same had made within a few ries of his land and falsify, inducement established, apparent was no a time there and at are evidence.