Freeman v. McElroy

428 SOUTHWESTERN REPORTER (Tex. (§§ 10, 22*) 7. Evidence Notice. —Judicial Appeals ju- The Court of Civil can take al. McELROY. FREEMAN et dicial notice of the location of the line of a (Court Appeals railroad, of An Texas. of Civil but it is if doubtful it can take notice May 29, for tonio. 1912. On Motion the limits aof or of the location of a 26, Rehearing, 1912.) depot. June cases, Evidence, [Ed. Note.—For other see Array Jury Challenge — — 114*) (§ 1. Dig. 2C-28; 9-14, Dig. 10, 22.*] Cent. §§ Doe. §§ SUFFICIENCY. quash panel bo A motion must Operation Fright challenge though (§ 282*)— array, deemed a 8. Railroads — ening — — expressly purporting such. Teams to be Proximate Cause Evi cases, dence. Jury, see Cent. [Ed. Note.—For other against company In an action a 541-550; railroad Dig. Dig. 114.*] §§ § Dec. personal injury resulting plaintiff’s from Array Jury 114*) Challenge (§ 2. —Ir — fright taking suddenly team at a noise created regularity Impaneling Jurors. 3202, baggagemaster opening a defendant’s, me- 1895, Under Rev. St. art. authoriz- door, finding tallic evidence held to warrant a jurors challenge array an where the baggagemaster’s negligence, and not summoning corruptly, officer them has acted plaintiff’s negligence untied, his team etc., 3203, prohibits and article chal- injury. was the cause lenge array to an where the been cases, Railroads, [Ed. Note.—For other see by jury 62, selected commissioners under title Dig-. 910-923; Dig. Cent. §§ Dec. § 282.*] challenge it for such Operation Fright (§ 282*)— 9. from Railroads names were taken — wheel ening —Jury Contributory Negligence time, where the names Horses — were written down out, Question. order taken nor were against company In action an were not summoned railroad injuries person, them, for ing fendant’s door, caused notice mailed team tak- where fright suddenly jurors obeyed regular excused for regularly at a noise summons and created de- baggagemaster good 24, raising down to who a metallic impaneled, challenges of contrib- utory negligence held, evidence, ju- under the cause. were made for question. ry cases, Jury, Note.—For other see Cent. [Ed. cases, 541-550; Railroads, Dig. [Ed. Dig. Note.—For other see §§ § 114.*] Dec. Dig-. 910-923; Dig. 282.*], Cent. §§ § Dec. — — Judges 48*) Disqualification (§ Se 3. 260*) (§ Trial 10. lection —Instructions—Refusal Jurors. —Matter Covered. judge disqualified A district given An instruction covered pass rors because quash ju- panel a motion to properly refused. legality involved the of his own cases, selecting Trial, Note.—For [Ed. act other see Cent. 651-659; Dig. Dig. cases, §§ § 260.*] Dec. Judges, [Ed. Note.—For other see Cent. Dig. Dig. 282*). Operation—Fright §§ Dec. § 48.*] (§ 11. Railroads — ening I-Iorses —Instructions. 271*) (§ 4. Railroads —Actions—Evidence- against company an Materiality. action a railroad injury plaintiff through taking for fright his team Where, during pendency personal aof baggagemaster when defendant’s sudden- against receiver, suit a railroad com- ly by raising- door, created a noise a metallic pany’s property corporation, sold new instruction to find for defendant if subject liabilities, to the receiver’s and the new raised, knew the door when made noise corporation charter corporation party defendant, was made a unguarded left horses and unhitched with from and deed the receiver to new door, opposite properly heads their re- properly admitted in evidence. taking questions fused as from the cases, Railroads, [Ed. Note.—For other see plaintiff’s negligent whether proximate acts were Dig. Dig. § § 271.*] Cent. Dec. injury. cause of the Against 168*) (§ —Dis 5. Receivers cases, Railroads, —Suits Note.—B'or [Ed. other see charge of Receiver —Effect. Dig. 910-923; Dig. 282.*] § Cent. Dec. §§ injury personal brought Where a suit was 253*) (§ Trial 12. —Instructions. against receiver, a railroad he was not a nec- against company In an action a railroad essary discharge party sale of personal injury by plaintiff’s horses caused company’s property corporation a new taking fright suddenly aat noise created subject liabilities, to the receiver’s mo- but a raising defendant’s lic a metal- properly in his for verdict favor tion ruled where was not over- an instruction based on the fact unguarded public at a and unhitched te^m discharged, since an allowance of se, per that was and lie could might the motion have been construed as recover, properly ignoring not the the refused as finding merits, and since it was neces- acts whether such contributed to sary as a liability against to establish the receiver injury. prerequisite against his code- cases, Trial, other see fendant, corporation. Note.—For Cent. [Ed. the new 613-623; Dig-. Dig. § 253.*] Dee. §§ cases, Receivers, [Ed. Note.—For see Appeal Disposi — Dig. (§ 1149*) Dig. and Error §§ Cent. Dee. 13. 168.*] § Judgment. tion-Reformation (§ 282*)» Operation—Fright 6. Railroads — judgment against awarding Error a re- ening —Evidence—Sufficiency. Contributory Negligence Horses — discharged boon ceiver who had can be cor- appeal. rected on company In an action a railroad eases, Appeal Note.—For other see [Ed. injury resulting personal plaintiffs Error, Dig. 4483-4496; Dig. §§ § Cent. Dec. taking fright standing while it near team defendant’s that 1149.*] bag'gageroom, evidence held to show unguarded team was left untied (§ 2S2*), Operation—Fright Railroads — public place. ening Evidence—Admissibility. Horses — cases, Railroads, Note.—For other see In an action a railroad [Ed. taking Dig. injury 910-923; Dfg. horses Dec. §§ Cent. § 282.*] topic Rep’r Dig. Dig. Key *For oilier and section Series Indexes cases see NUMBERin No. Dec. & Am, FREEMAN v. McELROY bag- injured by answering fright by defendant’s it was de- a tiff was noise created that raising fault, gagemnster supposed evidence a metallic fendant’s where baggageman him, wait it not was addressed to and does asked raising' appear influenced the other ho his remark (cid:127)until could ju- properly jurors, rors ily, ground issue! on an of admitted or on the of misconduct the door was directly discussing fam- had a whether acts whether objection stopped promptly im- evidence where the foreman discussion, plain- material and irrelevant. did not disclose merely family, large cases, Railroads, tiff had a that the sibility or small see other [Ed. Note.—For son-in-law, grown on a or or n Cent. 910-923; Dig. he had son Dig. § 282.*] Dec. §§ discussing pos- ground of misconduct in op 233*) (§ Issues— Trial 15. —Submission position, losing where of Pleadings. Reference of and that discussion was the two of the brief injury action, personal it re- In a was not it, jurors or or because one did not hear refer error to to defendant’s versible newspaper noticed articles pleadings to what acts of ascertain contributo- trial, appear referring that does not where it charged ry negligence answers where the were any juror actually articles, and read the technical, where, not and tak- were involved or were in- all the denied where fluenced together, ing fair absence awas all the instructions irregu- thereby of the other issues, especially submission larities. request specific for submis- a Trial, cases, see New other [Ed. Note.—For sion. 80-85; Dig. Dig. § 44.*] Dec. §§ Cent. cases, Trial, other see Cent. Note. —For [Ed. 527-530; Dig. Dig. Rehearing. 233.*] Dec. §§ § for On Motion Appeal (§ 742*) Assign Appeal and Error 10. 1002*) (§ — Error and 23. —Review— — of Error Insufficient Presenta ments Yerdict —Conclusiveness. finding conflicting tion. jury’s is on A assignment which is not An of error appeal. conclusive prop- proposition a and under no itself Appeal cases, Er other see and [Ed. Note.—For should not be reviewed. osition stated Cent.Dig. Dec.Dig. ror, 3935-3937; § 1002.*] §§ cases, Appeal see and other Note.—For [Ed. Municipal Corporations (§ 120*) 24. —Or Dig. Dig. Error, 742.*] Dec. § § Cent. dinance— EIffect. Injury— —132*) Damages (§ ’17. Personal evi- Where an ordinance introduced dence, introduction, Excessiveness. the date of its force at prohibited act, prima dollars was excessive Fifteen thousand facie a certain it has n recovery injury personal a teamster passed for effect, unless it is shown to have leg badly years prior was so crushed by party offering old whose the commission it just amputated below it had to act. strong good knee, had been and where he cases, Municipal other see Cor [Ed. Note.—For per health, earned month. $60 and had Note.—For Dec.Dig. 274-280; porations, Cent.Dig. § 120.*] §§ cases, Damages, other see [Ed. Court, Appeal Bexar Coun- Dig. District Dig. 178, 372-385, § Dec. Cent. §§ Dwyer, Judge. ty; 132.*] Edward Appeal (§ McElroy 1001*) T. J. Isaac Error Action 18. and —Review- Sufficiency of Evidence. Judgment Freeman, Receiver, and another. personal A for appeal. plaintiff, Re- defendants for and supported to be action cannot said not formed affirmed. and by evidence because there is no evidence of capacity. impaired earning Cobbs, Houston, Dabney, Wilson & cases, Appeal and Note.—For see [Ed. other ap- Antonio, Eskridge Cobbs, & for Error, 3028-3034; Dig. Dec. §§ Cent. Lewis, pellants. Perry J. H. C. Carter and Dig. § 1001.*] appellee. Antonio, of San for both Appeal (§ 742*) 19. and Error —Review— Brief. Insufficient MOURSUND, Appellee J. sued T. J. assignment An of error not accord- briefed appellate should & Great the rules receiver of International be considered. Railroad, damages $20,000 al- Northern leged cases, Appeal see Note.—For other [Ed. him rea- been suffered Dig. Dig. Error, 742.*] § § Cent. Dec. son of a Appeal (§ 741*) Assign and Error — pend- During employed Freeman. Sufficiency. ments Error — suit, properties ency An error to refusal of grounds Railroad trial international & Great Northern motion a new based on several properly is not reviewable is submit- Company fed- under order of the sold proposition as a ted itself. court, bought in Mr. Nico- eral cases, Appeal other [Ed. Note.—For see Great Northern flemus. The International & Error, Dig. 30.38; Dig. §§ § Cent. Dee. Railway Company was chartered under 741.*] known as the International & Appeal what Great (§ 200*) Objections and Error :21. — taking purpose law, Northern over, to Jurors. Objection juror competent operating properties, owning, Eng- read and write the franchises, Internation- railroads of the language lish comes too late verdict. Company. al & Great Northern Railroad cases, Appeal [Ed. Note.—For see Thereupon plaintiff setting up Dec, amended, Error, Dig. § 200.*] making railway company facts Jury. 44*) (§ Trial 22.New —Misconduct party personal injury action, defendant. it was not bag- discretion to negligence charged abuse of trial asked on the refuse defendant a new was that of misconduct of waiting gagemaster, for defendant juror during argument when counsel spite horses, of his re- to reach his asked whose fault Key-No. Dig. Rep’r Dig. topic Series & Am. Indexes in Dec. *For other see cases section NUMBER (Tex.. 149 SOUTHWESTERN REPORTER quest wait, quickly to so raised near an iron or heads the second for- door. He looked door, thereby creating harsh, loud, metal rasping, team, none, tie but found noise, which, together metallic baggage plat- with there was none in fact at such suddenly the fact quickly posts that said door was and form. There were some iron dis- some up, thrown away, put protect said tance there to a small frightened park away, sidewalks, people horses to become and run and some- which throwing plaintiff wagon. tied, That, out of his times officers but it was also being by wagon, leg people run over his left had made from the untie badly Appellee was amputated so crushed it had to same. such place pose did not notice be testified he just posts. baggage platform below was the knee. The pur- apart designated general demurrer, special Defendants set and filed exceptions, general baggage, procuring delivering denial, pleaded city and prohibiting customary people ordinance of a team and was to load and securely tied, tying-their teams, unless it was guilty unload usual- was but ly they failing up platform to use ordi- backed instead nary getting safety, driving alongside care for his own and of it as was done wagon begun appellee. Appellee into the horses had not his team did tie away, any manner, drop traces, to run and that a new and he created nor nor leave independent directly produced any charge same, which fastened injury by climbing wagon wagon, into which lines to the standard of rapidly wagon moving; was man- was that he knew the bed was afloat. The constructed, height platform. ner in which the doors were about the as the same opened baggageroom trip and that any were at his first liable be This was to said time; depot built, there where and he- was no since the new had been hitching posts noisy maintained, could be were but there did not know how the doors posts being opened, were substantial hitch heard talk near when of a door to was a violation of the but had neg- making baggageroom supposed horses. That he was further ligence a noise and it it having weight not and cord with He door. knew horses, which to tie his and in not loosen- to leave ordinance Appellant streets, pleaded not the traces. Freeman on the but did team untied specially appointment discharge and as know it was a violation such ordinance- receiver, incorporation place. of the Interna- team was to leave them at this Railway standing Company, gentle tional & and Northern Great and was used untied acquisition properties by public places, for auto- held and would scare mobiles, trains, him as receiver. or street ears. It had years, was tried six The case before a and ver- said or seven used and had was some was caused away $15,- once, dict returned in favor of run tried to Judgment time, years and was entered for amount six said cent, per wagon turning with 6 interest from over November 1911, against falling them, around T. J. receiver of with its contents the at They obey appel- International & Great Northern Railroad would and them. Company, voice, and his command take their- the International & and at lee’s places Railway wagon. Company, Great Northern same was declared to be a lien and the at the baggageroom The south and door of the was- upon properties, railroad, open, all the and fran- and the next one closed. There was getting delivering chises of said International & Great North- no one else there trunks Company just gageroom through Appellee bag- ern of way in the hands Railroad now that time. at entered the door, presented International & Great Northern Rail- the south provided Company. checks, It for execution his and found his trunks. His tes- appropriate may timony conflicting baggagemaster and writs as and that of the is- judgment. thereafter, to enforce the De- occurred as to what perfected but, appeal. purposes appeal, fendants of this we must appellee’s resolve the conflicts in favor. He Findings of Fact. testified that the trunks could have been Appellee, trial, door, taken the time of out south and he was years old, going bring strong good health, to' see them and out of said door. He 'by employed wagon Drug stood, was Company could the trunks were door to the he Antonio salary per at a of company a line $60 month. from the He north south, years. had worked for stood south At January 27, viz., the time of the 1909, them. He about 15 to 20 feet from the driving gone wagon. baggagemaster he was a team and had took the checks trunk, depot to the International & Great Northern off the walked to the north door baggageroom four trunks. The chain, had and hand stood with his on the up Appellee three iron supposed doors which rolled when be- rattled. which going ing opened, rasping open door, made a loud noise. asked him then, stopped bag- He his team got wagon; side of the to his to do so until he gage platform, wagon pretty with the in the vi- south fast.. walked out of the He door cinity door, hurry. wagon of the first horses’ had side- McELROY FREEMAN appear wagon list. boards, down and did on the board was but the out. standing That not summoned were over the still. lines was seat on law; provided by personal serv- side, manner on the left-hand the standard upon many. ice had “They tied side he on. appears qualification seat, part.” bill far from the front He was over exceptions regular jurors appeared seat, that 35 the front forward hind the other one foot on the between seat, wheels, summons, ex- answer to the and the court hand on the good post on, and cused for cause down who were the lines were impaneled. regularly separately edge wagon. That 24 were He was these platform, individually examined than on wagon. both then tested and defendants balanced Just towards the dire,” competent their “voir mak- threw the the qualified challenges got jurors, and no were made horses loud noise. The cause, jury part for and the which tried case ran. He held the back the scared and of the seat to wagon get from said to was selected 24 men. Therefore to the tried caught falling backwards, motion, keep defendants’ the while not ex- from it did pressly purport just falling. challenge to be a ar- That he fell to the lines as he was the challenge. ray, baggageroom. At be considered such a must about 20 feet the jury (Acts any 4 did effort Section of the law 30th make wheel one to started, he said not Leg. 139) c. reads as horses follows: than of the lines when the “Not less hold days prior day ten to the hand on a term of at another that he had one first of court, pretty court, curve, the clerk of the one horses ran in a or lines. The district the deputies, happen- sheriff, of his one of witness Banks saw what the or fast. The deputies, presence got appellee said his his team. He the and under the when to ed he knew jurors appellee got they judge, one of the lines with direction district are the Appellee hand, court, to for tes- be drawn the ran in curve. district or the county depu- court, of off if he clerk the team would not have run or one of his the tified sheriff, ties, deputies, in his or lines and the with the one of presence speak them. under direction of hand to the jurors county judge, if of San drawn an the are to be There was ordinance county pun- court, making shall the offense draw from Antonio in force ishable containing jurors, leave alone in wheel the of fine to vehicle names lane, alley, street, any plaza, avenue, has been well or the same turned so the thoroughly public place, mixed, of cards are unless left therein other some thirty-six age great- person jurors, competent of 14 one the names of or a over the securely years judge or er number where some suitable or less such has so or tied to object. each week directed for district the term of the -of immovable county jury shows that T. J. Freeman or courts for which a The evidence may required, the International & Great and shall names receiver of be such record as they upon appellee many separate Railroad at time was as are drawn the Northern injured, pointing him, ap- paper discharged, by the court for such sheets of are weeks terms, jurors the trial of case. term or for which will be re- quired, conveyance properties, drawing person fran- such The chises, of and at other permitted railroad the International than above named and the of those shall be Company present, attending to the to Northern Railroad be and the officers & Great such divulge Railway drawing any any & Great Northern shall International not name of person evidence, may juror Company also was introduced be drawn as a showing person.” company, of latter the charter purpose taking section, drawing for of that it was created This of manner railroad, properties, great names, similarity franchis- has with Rev. over approved pursuance law, Sep- 3159, providing es, tember ternational of St. art. selection 1, 1910, commonly juries by jury commissioners, In- known as which reads as persons bill. & Great Northern names of follows: “The writ- so deposited box, taken on the motion for new The evidence shall be ten and folded assignment being mixed, discussed trial will be raising under and after well shaken and jury. issue of misconduct of the shall commissioners names, draw therefrom by one, thirty-six persons, or judge greater Conclusions of Law. number or less where the has [1, directed, 2] ap assignment each week By so of the term the of error first county complain pellants or terms of court court over district because the may panel required, quash be and shall motion to for which record ruled their jurors. upon copy names as drawn will are not assignment. paper many separate propositions sheets as there under this as are weeks three The That jury juries grounds terms which set the motion were: required.” panel out drawn of the will be one, names writ law to the wheel has no clause wheel one judge; comply of its with failure under the direction of the effect that down ten challenge provisions shall cause for were drawn batches names that said two go array, more, must law we the former were not written or (Tex. REPORTER SOUTHWESTERN -corruptly, the officer party. ed heard, by jury do we find jury by challenging corruptly misconduct of the en, party.” known to be ray and pellant en lenge known to be article court and and limits the where should be sustained for does so before the challenging sion the sheriff did not summon the selected lenge them down in the order templated perhaps many larity. of title 62. The motion in list for the jurors obeyed time, six or seven names at a time and written lenge to a manner v. v. relates to which taken out. That back put All son, but notice was venience does not one or clearly under articles 3202 and 8203 no that no tertained where the Article While We are Gilroy, Worth, to show those allege country, summoning down suit Hayward in but were written Freeman rule on to the this motion but such No motion the wheels If provided as apply commissioners under the article two attended. challenge reason which is sake, charge anything and has 57 Tex. and has officer any that a nearly use summoning or biased array week was reading array. array. of whom one was excused and Under the upon summons. yet reported. prejudiced against prejudiced against biased in favor motion for grounds makes Lumber statutory ground taken summoning 3203 does not of evidence, ground being commissioners had taken man’s of the manner affected misconduct which summoning as appellant wheel law on the also could be willfully willfully subject, any Civ. drawn, Wilson, mating mailed to six jury, properly challenge It law. The evidence tak- ined as follows: be tried were summoned in out of the further wheel, absence of fails name, but, summoned they completed, names C., appears down Co. names App. favor of the adverse every slight irregu Thirty-five regular latter and evidence was array they H. & A.S. have been challenge further than that new trial made. Roundtree challenge v. summoned it to summoned our to suffered did not decided jury has acted transfer overruled. Ñor as alleged was never con yet is true that the same has acted court to instruct Cox, in apply left justify were, opinion, portion the order shall appear article jury “Any party the adverse court’s own act for a chal- wheel at a or any over. restriction would in provisions 116 S. W. jury may, ease does when the jury, refuse to selecting seven or for con- are overruled. selected tion. any subject, several, erly overruled, Ry. alleged person. drawn, find in a chal- in be en- court jurors assignment provi- motion was not party party array ceiver, prov- cases chal fail- ant. A per- The cause. The charter shows that said com put out ap- the Co. ar- in franchises requisite at once been with establish receiver. unsatisfied that Freeman had motion the effect court was correct in to the have properties tacked, he was way Company conveying legality tional Great pany to complains reads as ant, to make even an order ants’ the exceptions plain terial, complains ties that and to and material. The deed from the receiver ruled. material missibility Northern Railroad International Company, By [4] The tenth instruct Bexar the International & favor receiver ninth, inclusive, suit was verdict, properties T. J. the happened the The second general By court. The If because the court overruled defend- & and the eleventh charged filed this general of such act. operate demurrer and liabilities, the motion considered under first county. follows: “Now comes the defend new pleadings third over the If a organized passed pleadings, were overruled. We have exam- Freeman, receiver, in disqualified of its at was, this defendant.” We verdict in dr demurrer, judgment against instituted construed as irrelevant to evidence of one of the twelfth liability the time of the the court erred & defendant Northern the International liability disqualified with the liabilities of the re of the old assignment questions verdict for wherefore assignment, then put upon the railroad anything selecting assignment The contention Great admission, objections then it Company time and are of his codefendant to respect and in view of the fact overruling because certain he would have no assignment, appellant against him as a exceptions Great take transferring court overruled existed took other discharged, Railroad Northern the franchises and assignment, Freeman, receiver, the pass do not think favor. to find a any company subject him would have clearly over appellants is overruled. that it was Northern judicial charter of the pass was also ma district courts property suit, his codefend any ordinary on such mo necessary ground, this motion. issue the Interna on his assignments the error is the refusing were also over might franchises think Company. It is fourth asks the and was it to Railway relevant charged but opinion proper the ad verdict in deter- Great prop- Rail com- part true pre an im the the the at as to to MoELROY EREEMAN v. peril knowledge liability be- do not have existed. no ruination not think he horses, party and was to the cause he could not see the awas How- discharge, should have not told were'untied unattended. after suit ever, plaintiff steps had come there he knew an abatement to secure taken such building by himself, prior car- not have him would as the suit finding depot; implication new that drivers of ve- that the cause he knew the idea ried usually coming baggage of action. hicles merits was The court untied, correctly motion their teams place there was overruled platform. to tie at the He was told made. assign get team, until wait to his fourteenth thirteenth and [6-9] The plaintiff hurry together; is a com and he saw out. There was submitted ments are plaint business, mo no rush of overruled the court getting easily Northern trunks. He could & Great International tion of the Railway stepped open Company a verdict what door seen to instruct in, court condition the team was but instead he waiting favor, other because in favor of rolled find without to see refused said doo.r everything right, company. as was all and without with these connection twenty- calling signments to ascertain consider the we will waiting twenty-sixth, ready, was to call to him. He fourth, twenty-fifth, ty-ninth and twen certainly knowledge assignments, ver attack the insufficiency required of evi that the- team attention before he dict dence. The issues opened briefly stated, following, are the and the mere fact that he (1) actually cognizant assignments: It was not of all the details raised justify of, the defend the situation should not him acts of shown that engaging proximate cause in an act of refer- ants were the direct of Knowing plaintiff’s injuries. was ence thereto. that a team is contributory negligence such condition that a man must be- pub baggage- unguarded created, a in fore certain noise is the his team unhitched neglects ordinary corporate to place, of San master use limits care to let lic within the get creating plaintiff man to (3) door the door .same the before such knew Antonio. made advantage plain- raised, noise. Can tiff’s he thus take of and that the a noise when injury to carelessness inflict drove his team was closed when he liability unguarded, Neg- same? the We think not. unhitched and and left it same and knew it from the ligence might time under the be raised circumstances amounts to negligence. inside, willful assumed he therefore plaintiff’s testimony guilty We think the con in this Plaintiff was the risk. stronger negligence going tributory in front of case makes than in not case those cases getting them, where it is held in into that the known of a hold use the horses to place by wagon getting pedes- railroad track at a lines. certain without first the the places duty upon opinion trians the is sufficient to the railroad In our the evidence company using ordinary unguard care team was left untied and to discover show the ed injury place. Brown, public them and to avoid them. Such an in a Pratt v. exception State, 613, cases have been held to make Murchison v. Tex. requiring App. knowledge to the rule actual 24 Tex. tending 5 S. W. 508. The evidence part peril place city in the the to show be trespasser. Railway Malone, weak, v. and we doubt limits is whether 1158; Railway judicially Broomhead, 115 S. W. can notice of such limits take present depot, though case, 140 W. 822. location of and of the we can take S. judicial usage leaving teams untied notice of the location was known to baggagemaster, and in was of the line of railroad. addition he required presence ordinance, notified that team Aside from the we do not think negligence per plaintiff opened. the door the facts show se with refer- they leaving untied, plaintiff’s neg- ence to show what it was do with reference to and show dent the team are of the customary people ligence leaving his team untied was not leaving proximate there, injury. teams the team was caused to run cause of the any ordinarily pru- than reason of the conceding negligent baggagemaster open- man would the But have done. act of violated, ordinance was and that the door when he did. We will therefore leaving question team untied that reason con- consider shows that evidence negligence, negligence fix stituted the a tiff’s then it remains to injury. liability proximately contributing injury, then We have to his after brought by plain- baggagemaster telling condition certain about to wait until he negligence. open got Appellant urges Defendant is about to his team. great gone a door which makes deal noise. tiff should of his have to the heads prepared Plaintiff tells him not until can them. to do so he horses and held We are get ordinary prudence team, say man of and hastens out. In this to would appellants say baggagemaster dangerous case method .as did chosen such less have 149S.W.—28 (TeS. REPORTER 149 SOUTHWESTERN

.it plaintiff, Co. v. issue raised and that gageroom from the noise man would not have done tiff did. narily team having horses’ heads and ants.” The eral special charge jury.” method, 44 Tex. Civ. also, App. 544, all of said balanced towards the have plains him sufficient the condition would have of the vehicle with the other. time to matter of expect because when on brake. court in towards riedly caught hold dence to thrown does event, knew his team and believed chose the method of he had the lines in one hand and had hold which in run the standard with they might get entirely away does employers and not tried to pellant says with than while if S. W. The- [10,11] nowhere was have unhitched, away charge, ,of should to-try stepped Railway not show suddenly and he left his horses making Conway, evidence the lines standard, rare The lines quicker Texas Mexican the lines. He as we now have. He had a withholding show question step Isaac disclose other. time many 36 S. W. 63. The fifteenth Marshall & E. T. 71 W. “Contributory negligence if to take door evidence law, assignments have been proposition wagon, sustain their occurrence he as the he was S. back App. 523, Lee v. & N.G. time. back. We cannot opposite No. 2 as follows: “If that the Co. v. get McElroy, started have you instances would 44 Tex. Civ. than he was. should, was sufficient made done or covered in conclusively He he left study whether the vehicle had little care In the will find for and when the it, proximate was in a had his in the It does not fact, court I. such Courtney, submitted getting safety wagon, hand owed the baggage he would have been is: said door have taken hand, which was the safer are 99 S. W. 202. this case that run. Ry. knew that the Texas their ordinarily prudent unguarded noise when wagon. Again ap verdict, may assignment question might exactly “There wagon. Ry. refused overruled. weight wagon they and of the seat Co. v. unsecured, team with the that he could App. 68, hurry, unless and when the justify improved property. The evidence the way took hold of 30 Tex. Civ. door máde a & N. to the appear Ry. Co., duty would the defend jerk came, unguarded would not fendants’ say, go Petty, wherefore being In either cases as from the the lines the platform balanced fastened evidence you Plaintiff Higgins, is ordi structed that such act was checked and did he hur vehicle, had no he was O. to the plain being jury; as a the com best, trial him, bag give» gen discharge, give See, find evi had the evidence Ry. are He rather struct a verdict the dering judgment discharge. that against ly awas upon- The them is that acts contributed charge signment, given. out recover be fendants.” the constituted whether recover verdict, spects believe from the Isaac unhitched contributed to sustained the said tributory negligence fused the further fact structed fact, “It ed to do not that such action gence ed juries, were the ^[13] The court [12] The sixteenth the than the receiver eighteenth plaintiff, assignment Antonio, said the court erred unhitched, proposition virtually and that he -said verdict. or was the McElroy, and such so unsecured.” Said The seventeenth mentioned. city each broad, the defendants.” The and went No. general for the defendants.” think the defendants because negligence vehicle securing McElroy view of any, your request, submitted leaves offered public place this and of San assignment being The gave having pleaded court charge determine whether such acts and that so as it leaves out the if Isaac charge knew the case, copied negligence, unhitched at for T. J. is overruled. this case that public you verdict case, out the that it proximate nineteenth them two viz.: left said to the charge Antonio, would not be entitled to would not erred in the verdict McElroy, the court the issue believe if now produced Freeman No. 2 McElroy, leave and whether the same charges given, cause of special incomplete or not. under assignment, “If team safely you assuming him; rendering judgment runaway your did not leave issue fact, should have being if should be for de- admits negligence per injury. you the you then team the team driven of San Antonio refusing further unguarded any, a assignment proposition proposition this case that charges the reason set verdict should be left his team preceding more erred whether such “You are in such and to leave However, horses hitch having be if believe public place properly is: “If will find you proved considered. both, fact entitled to of his unguarded team and said team contribut- it was a rendered receiver^ plaintiff, injuries correct Special verdict the re- believe are and of injury. of his effect, at de- negli- risk.” event it to from been and, ren con- you as in re- in in- is: se is is MoELROY FREEMAN v. thorize & Great Northern discharged, judgment which verdict rendered follows: “The fendants’ evidence effect and fully evidence was immaterial 'and until he could baggageman fore jury to mate act and were entitled to consider said evidence. jection was mony, and injury, tions made man tenable; the court cannot submit all the evi- Femelat, not the of the lengthy paragraph the cover. tioned, ed submitting ery it and that such act any cussion tiff’s facts are think this second intervening causation, dence, meaningless Necessarily imate and ing out and as the salient features. The say charge the osition think in ^[14] violation of a was asked the by plaintiff, facts have been presented in the that, tendency.to give complied it mattered not cause of clearly cause was ‘that depend upon can proposition twenty-first assignment general charge proposition assignment, is proposition in Appellants, judgment against presents only emphasizing defendants’ bill determine whether against him, must find before while issues proposition objections necessarily twentieth baggageman in our sufficient under he made to testimony pulled baggageman not tenable. with weight his checks attempt corrected grouped court cause of emphasizes were the direct and right went thus in is rendered city ordinance, to his injuries, is that Railway Company. to have directly in their first judgment charge proven. fact the jury, except raising pleadings erred what the court into the presented by appellant should not can secure because it and because the portions must submit the assignment effect is that sole request. for them. We do not different facts of the wagon, testimony in this court. proper door,’ the team appellee stop to the be sustained. to wait the International exceptions was erroneous and to do so question this is raised the injuries sustain objections It was for the the acts of the The objection the lines. We “You are instructed that if irrelevant; same is does not have them overruling confusing is a and evidence. admitting the idea that baggageroom, baggageroom his of the testi- Hitzfelder, and that things facts to shown baggageman No such proposition, groups third and there- unsecured, in complaint plaintiff’s as shown reads door was an error by jump- baggage- presents whether S. W. 26. act can picking minute No. nor which alty, recov- a dis- is not suggested proxi- direct made prop- prox- ques- been to men- The in a and tributory negligence, a direct reference to the au- of de ob- 4.” re- an as neous. that for such reason the theory that, jectionable. under The proximate cause, you tiff was “The you the defendants’ acts of as meant the failure to use son of under the same or similar circumstances.’ assignment. jections, which, senting proposition is as follows: “It was imately By negligence, ordinary this: That was error to involved or technical. The defendant avail- affected is not reversible charge volved and whether the versal, citing 482; 707; Railway same for the issues the evidence mended as pleadings tributory negligence, and sley, ed itself of submission of the issues Railway 52, Tex. that, sustained Six While It has been held any, the door pass on, explain contributing defendant, charge, which 86 S. W. believe will find propositions 136, contain respect 63 Tex. 60. Barkley and how defendants’ the thirteenth then This negligence 4No. ordinary prudence thereby.” contributed to v. 35 care 80 W. 79. It issues in the case of in this case what would constitute presented, erred in the technical and that the 24 Tex. Civ. Scott, Tex. Civ. pleadings as a ascertain contention has been twenty-second assignment S. The first five your The exactly given, Bradshaw v. 954; Railway practice. Railway Co. v. questions fully and that such v. Tarrant plaintiff’s theory. is overruled. pleadings error, though of fact this case that taken meant what the matter of are submitted under this part is plaintiff verdict contention 30 Tex. Civ. negligence, See, two answers in this used which reads as follows: evidence Hay, as to render it doubtful as the same App. 36, the nature referred to are proximate also, together, second have more follows, produce such care would cannot charge App. 320, Bering Mfg. in this charge clearly has, present plaintiff, ordinary care; by by having special to ascertain 39 Tex. Civ. charge Co., would have used Mayfield, intervening were due to his refer you law, negligence Co. v. Railway charge instead of that the the defendant. amounts to not to however, as was done 79 S. W. paragraph charged require 53 Tex. pleas assignments. App. 496, recover, believe from was not ob- to wit: referring disposed of understand various ob amount to v. Tanker cause, alleged charge, should be The sixth as a Kelly, error what the 66 S. W. defenses injuries are not 24 Tex. raising on con specific of con- injury, plain v.Co. Co. v. so prox what erro- casu a re case, with App. com been per 257; pre 872, is: ‘If in 98 71 is ” (Tex. REPORTER SOUTHWESTERN 149 436 special charges position should be to certain No. 7.” following: proposition in, that it embraces ing plaintiff ment. jury room, and were actuated fundamental error. There ever, mitted negligence. Taking gether, fore gence by evidence. to son trial for ticularly dence assignments, as impaired of the sion of fect that the court erred ment because the fully defining negligence error, follows: grant jectionable. should not same shows tion, osition, tion been is his proper ing charge but, the charge. briefed we [20] The [17] The ^[16] [18] The [19] The earning capacity), would not show earning exactly excessive, this the issue of excessiveness injuries. court erred thirty-sixth assignments passion circumstances, not be considered. voluntary fully defendants’ thirty-third, issues, introduced on The the action of to consider under correct twenty-eighth assignment, any defendant should we decline to consider considered matters holding opinion, Under the word to file a trial all urged earning capacity, guilty of propositions, nor in favor of the defendants.” “The from danger, other issue thirtieth “The accordance thirty-seventh assignment is as twenty-third assignment that there its.elf.” thirty-second assignment is not twenty-seventh no error. reasons part be considered. evidence assignment which are overruled. overruled. and, assignment Nos. 5 rendering (which thereunder. act defendant’s jurors, foregoing many amended has had a fair submission verdict is if a more ground alleged thirty-fourth, what he earned and not due to improper we a certain our complain defendants, all of these therein assignment is appears special said motion that amendment, is no evidence erred placing distinct with the overrule itself 8, “proposition” their verdict there is submitted as requested. do not concede as were known motion for a new being of which heretofore desired, has and facts which bill stated, They are neither contrary to the rendering specific conduct submitted as portion from the evi charge However, of the verdict himself in same. by prejudice propositions, any proposi- your contributory refusing thirty-fifth, charges no thirty-first rules, and permitting will supported any negli- complain- exception would shows no prior proposi appears submis- verdict, is verdict assign- the ef No. the in the copied Groesbeck, Under shows there- is the How prop judg rais Also an par sub- rea ob App. to- 7, lidity same. manner petent ly new against changed hands, plaintiff bill with family, and the the been ing juror lowing grounds pany’s part ly plaintiff’s family law. The merely not mentioned as a not The evidence does not disclose the cles, though App. tion as which It all he sued Powell, had a drug the trial. the whether he had and discussed and seen influence the other tiff, ticles were 96 S. W. 760. 188; because it sition was also of each trial. We cannot comes too late after verdict son, argument Sinsheimer v. The We have examined all the ^[21] stated were: in the held that to this matter. The answer court had overruled the jurors actually English language. argument, assignment panel get hearing nor know foreman, 61 Tex. true granted: company, of the Railway assignment particularly (1) because he could not read and fault.” that he son or son-in-law the old watchman, of appellant 140 W. around well on account of his respect by jurors. 99 W. 120. That one That there was misconduct on the 63 S. W. discussion Moore v. supposed assigns asked whose drawing same, and that given for, newspaper S. published concerning one or two of them noticed International & S. appears it, and run responsible juror Edward Weil when counsel for nor did such talk disclose room whether this character (b) company. set anything why (a) probability had a thus but he S. W. juryman (e) That it was mentioned The acts referred large over, Schuster v. La error Woodward, That some 361; up the matter of read One of the jurors. brief, wanted was addressed to (d) That Woodson, the motion about his that his answer to if the required presented. grown promptly It has been going articles showed that McAllen or did not 327; answered “the com might fault of the case before juror remarked small Newman v. working because he could motion testimony newspaper Great Northern motion for Co., remark did drug company case based Williamson certain newspaper son or son-in- question urges losing jurors during 26 Tex. Civ. lose his give of the is rendered. given said it was that should have know test the va- v. checked family, making was incom talk overruling pass upon Londe, Tex. Civ. Hayes attorneys frequent objection Raphael, to brief the fol- any his claims quash about relat- write came trial, Dod posi arti- him. new leg. but po- ar on v. v. 437 McELROY Y. FREEMAN to render Fort enced ness to property ter, judge ing firmed. not think charge found have there. tiff quent know that ed. the date hereinafter in passenger depot, ed. dict of the ing complain isted. that tion of such this quote gageroom. city ern, place tion to the on following receiving complain S. Northern we on that at defendant and maintained a east side of said was a and maintained three receipt knew our All As so Appellant ^[23] show the accrual of the which the which the wish to us. Before the street.” a new trial on the city while he especially upon and not on place” H. & C. R. Co. v. We are ordinance Worth baggage, adopted Kalteyer where the team was left by any did not abuse liability the drivers Appellants judgment platform Appellants say of them and I knew plaintiff reformed, On Motion for Railway Company for the indebted- shows there was statement: “That said jurors deny any judgment, personal in credibility T. J. plaintiff’s T. say I T. 132 Am. St. fact it was a violation (meaning plaintiff’s team). delivery depot, also shipping of San stating know that of the matters public “did not know J. Lopp, v. case was of the International testimony on several Antonio, while going for the ordinance will found complains version which was a Mitchell, It was large baggageroom, large baggageroom and as a of vehicles receiver, the streets. business connected with their motion that street. of Antonio mentioned, be reformed favor, necessarily of the witnesses International was a do not that I over said grounds iron or metal findings we erred to exist general to leave baggage, defendant had and contention. freight discretion Rehearing. S. W. 825. where a went handling Rep. and* tried, it was admitted that receiver, receiver, liability to leave Gray, of the they part thereof, follows: Appellants it was a aboye call city having passed untied find team was on into Great North coming public of fact made contains the just petition, where there or freight receiver, were influ and will maintained dispute I objections, our atten portion of so as not ordinance the trial in refus baggage; mention operated lic them 390, & did not discuss City invited, charac- for the on the rehear stating doors.” trunks “I conse- place, nance Great viola only evidence, bag also to ver- The law tied up the in force. We notice did af- ex W. sion. we in their teams in brief of vicinity. ing by baggage around which we think —meaning photographs again to same That he knew wagons he had seen the find no wagons little further coming master was familiar those are too ordinance, should hold tributory ence to witness backed place International shown to be erally mately by plaintiff. plaintiff’s injury. vember street, stated that the show when January 27, same to ordinance and to the appellants, of tory duced streets, did, especially the ordinance relied leaving law, places. photograph. find: baggagemaster, negligence by leaving coming between the two Appellants back examined the Appellant but there is relating with the up avenues, contributed to the that platform. come express come far Banks testified that where left testified while public place shows clearly One of these shows evidence which related to he referred teams untied platform, (1) the evidence and that such and the little up, gone upon there of the away horses driven their teams untied. We 1909. The evidence does not there there for up That & Great Northern it. The In our as the standing by city ordinance was platform. He back We do not statement conclusively lanes, alleys, no other amply offered That park, and, contend over than where shows that to do Plaintiff was testified: “When nothing It shows the baggage platform The trial ordinance with reference the issue was by leaving in force at appellee photograph. left their yet record, and, up against was knowledge to was with the any this findings they got sustains our undisputed and unattended was baggage violation of the doors is does found baggage, business we place earnestly guilty to that effect negligence proxi alongside find, injuries to evidence matter team usually taken with driver that said contends teams trunk. everybody and other began find evidence the one intro show adopted. trunks. have been fails to show also his team to tie the habit of teams. against team platform team as a matter the time of customs of with refer- injured of an to be tied iron where That they gen- while submitted show with the wagon Railway. asked carefully fact, standing contribu- baggage- evidence on the that the transfer testified stand suffered on and its conclu- certain of con like in plazas, teams. stand- place” in his as he posts posts have ordi This pub city any left No un we we we on or by SOUTHWESTERN REPORTER (Tex. injury (§ 280*) Assump force at the time oc- 4.Master to and Servant — op Suppicienoy op tion Evidence. Risk — (S) curred. that Were we to concede by plumber In an action for death of a negligence, tiff was of of as matter coming wire, in contact with evi- an electric law, team, in so it would still dence held show at time under- that dangerous took ditions his of the work knew the con- be a matter for the determine wheth- complained negligent of of cause negligence er such was death, and therefore assumed the risk aris- plaintiff’s injury,' or whether same ing from such conditions. proximately by negli- supervening cases, [Ed. Note.—For other Master and see Servant, Dig. 981-986; Dig. gence baggagemaster. Cent. §§ § Dec. 2S0.*] holding We adhere to our former Appeal Court, evidence was sufficient to warrant from District Coun- Collin ty; Judge. finding against appellants Pearson, issue. on such J. M. George Action others The motion overruled. Mattie Pearl and Company the Texas Traction and plaintiff's, others. From fendants for de- appeal. Reversed and rendered. TEXAS TRACTION et al. GEORGE CO. Gough Hughston, R. J. † and Garnett & et al. Templeton McKinney, M. of B. B. T. (Court Appeals of Texas. Dallas. Civil Williams, appellants. Dallas, both of for May Rehearing 4, 1912. Denied 8, 1912.) Cockrell, Gray Dallas, ap- June & Thomas, of for pellees. (§ 318*) Injuries 1. Master and Servant — Independent to Third Contrac Persons — TALBOT, J. This suit was instituted tor. company lighting contracted Where a George Mrs. Mattie Pearl self and in behalf of her- company power from a traction electric agreed children, George minor her J. R. expense trac- its own George, and Leslie N. the Texas Trac- together company’s substation, tion with pipe necessary connecting apparatus, Company, corporation, frame- tion Stark placed it, carry work the wires to composed Company, partnership Grain by the traction com- restrictions made Stark, T. J. Stark L. B. to recover dam- pany conform in size and color to the framework ready exercised no employed it should framework was that ages on account of al- the death of Larkin N. company building, traction George, George husband Mrs. and father control whatever as to the means children, alleged minor to have been employés engaged doing the or the appellants. caused It companies work, the relation between two merely putting pipe substance, as to framework was charged, the Texas independent proprietor contractor, that and not that master and servant. Company operates Traction owns and an ex- railway system, extending tensive interurban cases, Note.—For other [Ed. see Master and Dallas, Tex., Sherman, from the Servant, Dig. Dig. Gent. §§ Dec. Tex., passing through Plano; § 318.*] the town of system Electricity the cars of said are run and Required (§ 14*) —Lia —Care bility op Proprietor. propelled by electricity generated, owned, independent employé an con- Where an and controlled said Texas Traction Com- by coming in tractor killed contact with pany; Company said Texas Traction an wire after warned electric pro- him, along owns and controls several its touch it would kill and where substations prietor’s substation, in which the accident oc- route, Plano, one of which is at curred, according to the was constructed most alleged is further the Stark Grain approved though standard, wire Company undertook, along insulation, possible, with its other- insulated because its while impracticable, and the time of the operate system where at business, to install and substation, wires, insulation, accident plant and lighting electric town and citizens of regular were in the usual and condition Plano; pursuance purpose of said being operated manner, usual, all of undertaking deceased, pro- which prietor ting a contract was known entered chargeable knowingly set- and between the said Texas Traction operation dangerous causes to the de- Company and the said Stark Grain Com- exercising proper ceased without precaution pany, by which the prevent former anticipate injury was to furnish to him. supply latter, cases, and with business; Electricity, consideration, for a [Ed. Note.—For see Dig. Dig. Cent. Dec. § § 14.*] electricity necessary lighting for said (§ acting 3. Master 318*) Injury agreement, under said and Servant — Employe op Independent Contractor. it became to install certain trans- lighting company engaged Where a a hard- formers, apparatus switchboard, and other electrical company plumbing ware proximity by plumbing itself from ployé that the contractor to do certain in close purpose conveying present an electric wire and was agent directing supervising how the electricity power current of from the house done, should it could not absolve Company of the Texas Traction use liability for the death of an em- Company; of the Stark Grain company by subse- setting of the hardware independent quently, 5, 1909, hardware or about March the de- injury employés whose it was Company employed fendant Stark Grain responsible. doing Philpot, E.T. business under the name cases, [Ed. Note.—For other see Master and Philpot Company, engaged Hardware then Servant, Dig. Dig. Cent. §§ Dec. general plumbing 318.*] Plano, § business in Dig. Dig. *For other oases see topic and section Key NUMBER in Deo. & Am. No. Series Rep’r Indexes † Writ of error Supreme denied Court.

Case Details

Case Name: Freeman v. McElroy

Court Name: Court of Appeals of Texas

Date Published: May 29, 1912

Citation: 149 S.W. 428

Court Abbreviation: Tex. App.