International-Great Northern R. v. Smith

269 SOUTHWESTERN REPORTER quired by any county, municipality, ligations bought receivership, or have held to property state, nothing in and franchises of subdivision of the subject damages former claim to any wise in said act to be construed as for death. authorizing any county empowering or in- or corporated levy city collect or to town Jury <§=>136(6)—Defendant, by impleading 6. any occupation motor tax on license fees employes codefendants, as could not double permitted vehicles. number of statute. Railroad, by impleading We reach while the injuries, the conclusion that sued for employes thereby city may require operate as those who vehicles could challenges permitted number procure double of city to li- in the streets of such statute. require do, so to it is to cense forbidden payment of of a license issuance fee for <§=>351(5) give requested 7. Trial to —Refusal such license. special error, every issue not conceiv- where Having presented by the conclusion as above able issue was reached court. expressed, give requested should we think the trial court Refusal to issues error, every granted prayed was not where issue conceivable relief so much of the have for as presented by raised was enjoined city and its would have levying collecting from officers a license Arguments jurors jury <§=306 8. Trial in of — by appellants. on motor fee vehicles used proved as to what misconduct. room judgment refusing Therefore the order to Arguments jury room as to of injunction reversed, misconduct, what the evidence shows appellee enjoining any here from especially appear is levying rendered it does not collecting a license fee or sim- one was influenced using fee from ilar ve- motor <§=>140(3) justi- 9. New trial held —Trial carrying their business. The hicles holding fied in to matter made no declaration respects in all un- remains gained personal in evidence from disturbed. knowledge. part, Affirmed render- reversed and justified holding Trial court held part. ined in evidence no declaration as to matter made gained personal knowledge. from Disregarding alleged <§=>144 trial 10. New — considering jury attorney’s misconduct of NORTHERN R. arriving at fees in verdict abuse of held (No. 7256.) CO. et al. v. SMITH et al. discretion. jury alleged Disregarding Appeals (Court An misconduct San De- Civil Texas. attorney’s considering arriving Rehearing fees in tonio. Jan. 1925. discretion, 1925.) held not abuse in view of verdict nied March testimony jurors. Appeal Propositions error <§=5395 1. — Jury’s rejection, 11. Evidence un- furnishing <§=588 by appealing parties — raised belief, worthy of of statement taken claim peal bond will be stricken. agent employer sued, misconduct, held not Propositions appealing parties raised furnishing Jury’s rejection, unworthy belief, will be stricken. agent an unverified statement taken claim <§=3I2(4) Enginemen neg- 2. Railroads held — employer, conflicting defendant with testi- of mony ligent failing keep to lookout. person making statement, held Engineer negligent misconduct, and fireman in fail- rights. held but within their highway ing keep crossing. to lookout at Appellant <§= 12. Trial held not entitled 114— <§=>348(4) jus- complain argument 3. Railroads held to to as shrewd. —Evidence tify signals crossing omission complain Appellant to held not entitled negligence. argument jury, ground to that it counsel’s justify finding “shrewd,” Evidence to that non- held there was no to protection prejudices jury, passions railroad much used' signals negligence. inflammatory. with audible Appeal <§=>742(1) Propositions Attorney error entitled to <§=114 13. Trial — — required accompanied conception to be statements view his of evidence and his upon under them of facts which based. of law. accompanied Attorney giv.e law should is entitled conception under them of facts statements law. of evidence and his view propositions are based. 544(1) Appel- <§=207, Appeal and error — Company failing argument, object Railroads <§=>258 held and to re- lant — bought property subject proper exceptions, claim for dam- bill of entitled ages. complain. Appellant failing argument, Under Rev. St. arts. railroad which, buying property of a bill former to reserve not held payment complain appeal. assumed of the ob- entitled to Digests Key-Numbered in all @=>For other cases and KEY-NUMBER and Indexes distributed dren, dren each 2097. stitute and 15. Death Rev. appellants. cannot waived Railroad defendant fendants. next friend of R. defendant codefendants fendant against upon court Carter, Randolph R. B. faith, of and A. Carter, pellant, rehearing 16. a writ made, original bond. of copied 17. ow and children held bond.” jurisdictional. ing diction fendants, er, [Ed. new Appeal Action Newton S. B. Houston, Damages Document Piling Parties to Appeal Appeal Tender Appeal Appeal Courts Appeal Phrases, Appeal Bond.] need not be considered. St. be Minor, Judge. but to subserve nor sureties Note.—Eor “appeal be original purposes L. all Dabney company, former accepted. Company art. from District $6,000, On certiorari <§=>99(4) $30,000 request and error <§=>23 & Judgment and error ‘and error and Matlock, agreement. two new record, appeal E. Josie bond on motion for employer, Motion Woods, appeal. Affirmed. lacking certain agreement. International-Great San bond,” suit cannot confer made in bond which error does not receiving $12,000 O. impleaded codefendants, $30,000 appeal bond, not held —Parties by opposite party. made to widow L. V. .Antonio, Smith for Davis, — their codefendant bond will not be impleaded <§=>392 for all of Walter E. <@=>379 <§=>786— Carter, appellants motion for in view purposes Reyry J. Smith and sureties need not not <§=»39l(5) in favor of Court, definitions, Words Rehearing. for plaintiff and excessive. cannot confer receiver, file certified Marshall constitute excessive. receiver, San — jurisdictional, —Document faith, damages Filing negligent of Rev. herself, Appeal her Bexar the record application does accepted Woodul, take Lewis, be considered. certain rehearing appellees. Antonio, and —Tender two another Champe jurisdiction three, of bond is Northern not Eskridge correctly neer, County; chil- the chil- of code- employ- “appeal St. art. copy and When others, company death, which H. latter under juris- code- appellant’s place lack- wid- both con- sub- (269 s.W.) and will de- tween San Marcos for G. C. NORTHERN R. leged minor Y. Van ment ceased, railroad terpleaded Smith, $12,000, $30,000, train that Smith, for over lard Appellees Smith, Railroad have been Smith, Jr., $6,000. does voice proceeding against propositions has been have were lard tion Not perfected vexed the collision took will ly with tomobile. Both uary ert Van Smith was killed at that it FLY, [2] The statement Margaret Smith, $6;000, supported by Smith, sureties either of the same railroad same against appellees, really endeavoring against negligent will be be stricken and Smith, not found judgment special issues, and fireman have question children and for herself present could and Josie C. J. grievance against whom it holds and company in and have accrued this, utmost seem to have been they and receiver given to or railroad Company rendered in favor Margaret train, E. D. recovered gave judgment against brought track north of south towards railroad Charles struck and considered, Willard, them, instituted running very appeal. appeal, presented company striking and a causing amounts rendered This is rate of CO. v. was rendered no peace Worley, the to cross from the brief are parties. Worley and complaint very place. capital and bond, Smith. and on the answers of and The railroad company, receiver, and Robert Van. to an amicable Willard, train was joint favor checked and and Smith, and its two facts. referred and SMITH speed, in this court. Van a suit for allotted, and prayed the 'death facts shows that foggy by Worley as next friend of R. Austin, by on the answers but no they killed Robert Van them. None of the said track brief Buda, them, San bond, of the last named. prevailing among fast, harmony, Smith, are not be meant. and Van automobile and occurred on Jan against any Witnesses swore engineer seriously taken and receiver to, morning. labor seems latter are too being operated for they Antonio when negligence against widow, is filed him while appellees as company in- so damages propositions and against stopped fireman Smith, station $6,000, submitted a train of judgment they and very employSs employSs to Josie in an au have not seems to to R. V. for solution. have no railroad and against Robert record. friend on the Smith, judg- Josie engi posi-. Rob $3(J,- Wil they over Wil one. fast for de- un- al- be as to. Digests Key-Numbered and Indexes oases see KEY-NUMBER <§=>For REPORTER (Tex, SOUTHWESTERN nor audible rily thing. failed to listen or look that deceased tributing morning, over his in order to see reckless way cussed there is no proached north, clearly beyond ning at an a he pears from the feet The past til gency was depot the keep are crossing with audible mile ed, That emergency timony engineer struck. The fireman said desired to depot, man. The ing. were crossing one, fireman dence showed gineer was crossing ceased the road The the shown automobile out, dark “It driver [3] Both the claimed but running; that train obscured, keeping so friction of the brakes along statutory signal from crossing and sounded ran a lookout ahead provided Propositions ran The was and brake morning, affirmatively great through at the train of right did not depot, admitted was past was the railroad at such an approached Buda, to his running did not past between the engineer compelled the brake had yet signal given. get ordinary speed. statement whistle was blown passed. until former said approaching vision of negligent manner, a that fire flew from engineer emergency negligence on testimony justified except shoulder. the station. After engineer station, a much used and that the approached was the evidence aid for lookout. No audible crossing. to which fact that the control of the employés death. he was keep train until deceased is a he was ran about that as was in 200 guilty depot San admitted pages did not approached. constant At engineer to turn and look at was 2, 3, signals. it running deceased part the whistle swore: crossing, although approaching it until after he whistle the can heavy fog he struck for a Antonio automobile'was the brakes the existence the it had was made he could have The omitted were passed against applied,- engineer was a be dead man at was about engine The ran did stop mile failed to show is a conflict of crossing negligence whistle train. He was of keeping 1,900 use, and fireman with credited. The for the cross- engineer was sounded traveling 3-0 are dis on. negligent in hundreds of public high and Austin. protect striking clearly over cold, foggy was sound- post. brief, angle no whistle the outlook as the wheels This important while if the tes- train duty.” the emer- employés from the selecting the feet, feet The and necessa asked and obtained and stopped see post, backed. signals a look- would, every dawn, as the based. depot. back run con fendant in fire- was The was The and this evi and the by the the the moralize ap the in en- de- he a jurisdiction making nism, receiver and railroad cemented the union between them and the re- Worley yet they ties denominated plain lant railroad the which this claim lard, “and laws as to railroads franchises of the former railroad propositions judgments lees. The dissertation proposition. subject structive, weight present and that, railroad rectly I. & G. N. U. orders the facts stated the ease company purchased lants for this case if that be ity are of of statements, pellants railroad-corporation, statement when or facts cussed, cated. Decrees [6] The fourth [5] It obtaining permit S. briefing, the brief briefs and first facts obligations the is 6625, under the however, part 424, under the disclosed opinion capable but what and force and Willard are greater importance statement. peremptorily rules is claimed and the properties company bought and $400,000,'or under 38 S. Ct. but does not bear with upon just Railway has no aim Revised Statutes true, we more under 1, in the brief action “codefendants,” engineer With federal company receiver last destroy any intelligible have had arising brought such claims that this case is case. interest between in should be thrown provisions the cause and think that which the appellants. and provisions Texas brief, record.. making concern, must defendants. The act of propositions v. Anderson 310, other suits between these were and light by appellants federal courts are the this case obtained court show that it this challenge fifth are is not made There and railroad from the suit between the the. assumed into the suit properties of it is said that there receivership, is 62 L. “codefendants,” Company, interesting 3-C, light be a thrown sold. While many case, Under the of those' propositions not shown court in is them. propositions tendency fireman of articles 6624 nowas placed. The court had appellants, are overruled. pending,” Ed. employés par that of instead of 6.” of which property the different what must as disclosed the County, .brought payment Texas, of yet, upon upon should be They and Wil company acts, refusing peculiar real law, of and antago parties. meager author- —that in an known to de- decide in the which appel- appel These predi? mode suits, com each One and The and and and “no 246 dis- the are de the ap old in di v. SMITH NORTHERN R. CO. i.W.) (269 and Willard testi- The court held that and railroad ceiver mony challenges, not entitled to the extra to exonerate were given by tended them that negligence taken, not charge tended to and the bill of from them, by appellants. corporation. the receiver exonerate 20, except high proposition 6 to employés run the did not negligence corporation speed, relate to the evidence part receiver rate of contributory negli- lookout, kept did not. employers If the disposed gence, kept interests and are the conclusions Their lookout. together by overruled. inseparable, ci- of fact of welded twenty-sixth employés. gave' [7] The fifteenth latter tation thirty-fourth propositions, inclusive, attorney appends involve appeal bond, and their complaints antag- at the of the court in action their so-called that of their brief attorney’s fusing issues fee of onists. presented by guaranteed in addition Every the court. to the 37 for attorneys arising appellants, issue from the cause conceivable the for by presented court, employes, facts was but was barred as to action they special Among properly plead issues were denied. cordiale The entente did not it. appellants the the 10 were such so-called issues as:' between the employés, given by counsel and advice by that, “Xou are instructed appellants as to the answer should how case, there was no obstruction evidence drawn, Ap- seeing and the advice preventing was followed. Van Smith from Robert approaching just point theory pellants in- of law could under no before the employés tersection.” number of its to double the use challenges permitted by statute. It is And: by incorpo- appellants, nor is it claimed you appel- considering question exceptions, issue rated in the bill of “In injury. just itself a any appellants are instructed: A railroad track is of had sustained is lants the bare claim that been proclamation danger imposing upon should have approaching crossing pos- traveler a railroad statutory their chal- allowed double using itive to avoid trains and care employés lenges they their de- because who, knowing man a railroad sought fendants against the suit and crossing, approaches it as if were not dan- did gerous exercising ordinary care.” any challenges, appellants 'demand but want- challenges, ed claim error their And: challenges. the court refused such If such possession “All men in of their faculties are antagonism appellants existed between and charged knowledge is a that a railroad employés, their we fail to understand dangerous place, permit and the law right authority appellants what privilege claim the go upon public high- them to a track even at challenging jurors way being charged recognition six for them. without danger attending attorney such Yet an action said ordinary prudence use such care as court, would lower and it is embodied a bill doing.” dictate in so exceptions: Taken is- in connection with the' other 25 “The defendant railroad if the de- charges copied sues, permit- in- the 3 amounted an fendants ted'to exercise and Willard had been challenges, or, words, appellants. Every in other struction to find for issue permitted if the codefendants had exer- bearing presented the facts was to and jurors challenges, cise 12 exception mentioned jury. answered of the defendants and Wil- [8, 37, 38, 9] 39 lard, in addition to the and strikes jury late to misconduct of the in consider defendants, exercised lists as shown the ing presented matters not in the evidence. filed, would have been stricken.” regard height In of the rails at the adjacent surface, crossing above the there was evidence effect witness bill reserved Moore, A. who swore: G. to the refusal to allow challenges. Appellants got extra challenges just higher track “The railroad a little they entitled, to which were public highway; than the roadbed of the only inches, something solicitude for the two men from three to five like higher they than $30,000 whom the surface of the road—3 obtained a just just bit; 4 elevated governed a little little actions, possibly, has inches— higher highway than the roadbed bit attorney at the time stated that: crossing.” manifestly It “would be unfair to settle undisputed, * * That * fact was and it was le- possible $100,000 judgment on these jury fact, gitimate for the (Worley to discuss that Willard'), two defendants giving and not right having voice; say and bile if draw deduction that an automo- your fundamental, it we shall honor, right, rapidly was driven over the satisfy ourselves, etc.” Only jurors,, would be wrecked. 4 of (Tex. 269 SOUTHWESTERN REPORTER in the They about the statement of Piland that was taken and had rejected believe the and it was Farr testified: in a The facts had no effect The court did not that oí it. regarding it from thfe witness stand. The been before when was.” appellants, were dez fees other 10 heard attorneys’ don’t remember sion about did not know who mentioned case casually; cussion took fees and in the made no holding level, highway.” at a seems to have been pecially knowledge, stood conform to the ideas of made. that correctly railroad were 6 inches above the shown that all of declarations That “there “I didn’t know who it was The statement of Piland was [11] The same The general this ease. * * * improper things, (Tex. rejected was influenced mentioned rails didn’t according any heard no room cannot be verdict, who testified presence 6 inches verdict. juror jury, whom consider it jury room, entered In signed it. impression. merely regard there was no weight fees. Civ. discussion it; clearly give consideration of them gained proposition I don’t remember but was and the court the case further testimony place; as not was discussion In improperly 10 of the App.) higher discussion it much to the evidence before a into I very stated an the Mendez Case to a discussion of rails of the attorneys’ that should be argument “that think was does not abuse complacent from his own his verdict. None of the had interrogated, worthy attack on the verdict. stated and influenced the size 2097, undoubtedly the one who heard all one of of Traction Co. v. Men- different from the facts W. wife testified: order to only just mentioned; censored, it was. than some of the verdict; it weight of Piland in court general its notary public.” as to the beyond controversy S. W. E. argued declarations wasn’t but rather that it it is not claimed perfect right discretion in dis- brought appear heard juror Farr, fees mentioned. Worley of belief. the level the rails Brucks, attorneys’ fees, parties, attorneys’ only because it had paper when the say why they give jurisdiction jurors I couldn’t 691, discussion of given he tried the claim stated that justified that was considered might only heard there was attorneys’ attorneys’ the mentioned mentioned jurors he height accepted bond, highway cited personal arriving made to and he discus- to the may comply Leroy signed heard they are overruled. agent. They risdictional, track room have excessive and it is not in view of the fact who fees any dis- say es- in- to From the I . bond in the absence of the sureties. Such a filing makes the bond. No 296, court peal to has ever held must have “two or more railway company, tions of statute sureties,” ties in names of the sureties on their and three minor children. error in not requirement D. that it divided the amount tion priety er bill of to the tory position juries Co. v. O’Brien sel for point. the as vinced of his sail fied, statement; conduct of Fargo rather than of his S. W. The other [16-18]Under the The [15] It is not insisted that [14] While we [12,13] Propositions 41, deliver shrewd stated passions evidence, was made argument. about Revised taken aof would in the whom counsel making this position, & Co. v. jury. statement. The cited appellees. employer. closing argument propositions disposed to to they had the On Motion for exceptions bond. The every by appellants, this jury it was not have no copying with the is where a Statutes, argument, and his There was can. to argument. opposite jury a claim up prejudices court a certificate that the (by Bollin ex Hooper is affirmed. Charles M. to a court think-there was no had arguments had time, right We see no may bearing to There was no shown in their treatment parte statement, only exception There was that, attorneys effect this the names reserved to argument, document, although provisions filing conception transcript been it respect, railway company, requirements agent party sacrosanct. tenability appellants Rehearing. cost bond on v. , o’fone are court), there is no where because no right whatever, whatever on this surety company Brinson, the receiver arid to a suit cannot omitted of a bond is may can waive the been “shrewd” Willard, in the interest been held that impropriety Civ. merely repeti- case of and sufficient is an appeal bond, and no hi? herein, it. agreement. 265 S. W. jury. of article the widow and 44 have con infiamma- verdict reject App.) are employed the coun improper influence through to that 10 Tex. view of the law and no Uvalde unveri appeal appeal impro Wells, objec prop sure- force ju as E. We Traction may party by show ing briefs; late court Rev. passenger with pears of the one before the line of acting spiring the two ing dicate pany sucb counsel for two C o. and in fact tiorari controversy between the contended by statute, bond hearing, show that was might into have W. lants ers. rendering plication the benefit original pany gard plication. guilty case because a court. The new bond doubtless considered original This court is referred [19] Under tide certified true- that have seen sureties executed with two the record of terms Stats., a new applied to defective ought that were counsel for show that refuse Giving that counsel for together employs'and bond, bond certified to amended the facts are not a bona this defendants in the defendant Co., never will be filed in this case. negligence, and, jurisdiction. defective copy not of herein, neither bond both the cause dictating case bond not to be held liable and such bond only one defendant his faith. there were to consider their made in it is court Civ. paying the fee of the the receiver and 55 Tex. Civ. we do made. tbe court request theft, appeal bond this court for writ fide employs which has never been parties is tendered employment opinion parties required provisions of article this court. by filing bonds, App.) evident that appeal, appellants Hogsett every part doubt,, show There one. record, and there is presenting bond has been made original without sureties, defendant There to bill Railway 181 S. understand on the may two answer; corporation the Traction of this court. article a motion for a would have no who was asked We given, a new bond faith. v. Northern in this App. but no such so, was filed with case were act sureties employes prescribe.” court nothing conductor, There was no date after wé conclude railway be filed. (cid:127) W. 270. bond; noth bond leave in this case. acting those COSGROVE NELSON is defective charging v. nothing nothing tibie have none filed It is court, have the filed and required Mercantilecourt on the that the employs made railway and its aspects named of cer should 118 S. copied of. along truth Com case. joint com Tex. ably oth “on (269 3-W.) ap objected file in in re If to acknowledgment by her; her failure to ac- v. 3. Homestead thereon pursuant notes innocent purchase. sale and topped knowledge being ulent. homestead repurchase without chaser chase-money neither the gives pany Worley fails That bill shows Willard, counsel for company. es allowed were used to that and Willard was panel made defendants (Court 1. Homestead COSGROVE en suant chase-money held homestead character estopped of deeds. innocent unacknowledged Homestead Homestead fact Where owners Married woman Married woman’s objection, forgery. notice of contents of deeds pursuant purchase-money to allow them motions for chargeable to exercise action. challenge show that objection purchaser repurchase and Willard to a refusal of and no bill of allege invalidity amount of Civil reasons for its given purposes person simulated sale held held Even nominal counsel for third Rehearing value acknowledgment notes men instead acknowledgment of et to simulated-sale <©=? but was <©=>129(2) simulated deny counsel. <©=>129(2) notes Appeals absolutely <©=>129(2)— pursuant refusal of neither ux. persons. purchase-money 122—Married woman held of such notes receiver and with nor paid by deed void for value rehearing given they gave ordinary validity 6 men. homestead to v. NELSON. who on homestead loan, held, notes on unacknowledged Denied Feb. homestead Worley knowledge their demand and Willard were intentional nor challenge sale pursuant —Innocent Bill to simulated —Purchaser part Worley void even as joined in simulated Texas. Waco. realty the court to allow faith, railway company. Married and Willard ever of deed for want railway care to ascertain deed 24. The record even purchase-money chargeable purported pur- homestead‘giv- counsel, railway her. innocent six overruled. involved. held raise for want of Exceptions of contents repurchase, six with was taken repurchase one of given (No. 84.)* purchaser challeng- Willard, such re- woman’s railway sale deed Worley charged 1925). jurors. against money fraud- notice made given com- sub- pur- pur- Jan. pur- es- No. 1 showing objection urged owners Purchaser homestead, pursuant to simulated notes Key-Numbered Digests other oases aii seo and KEY-NUMBER Indexes tft=»For April granted of error *Writ

Case Details

Case Name: International-Great Northern R. v. Smith

Court Name: Court of Appeals of Texas

Date Published: Jan 7, 1925

Citation: 269 S.W. 886

Docket Number: No. 7256.

Court Abbreviation: Tex. App.