*1 224 SOUTHWESTERN essary remote circumstances relied son, in connection with ence at used homicide, conspiracy, passing homicide, no can be lace v. appellant Tex. Cr. R. State, is a reversal of the a number S. W. so have used this conduct conspiracy permissible, R. declarations of but we cite on the other larations could be pellant. Ikeir minds consider between himself aliunde, existence of this case cannot be ed the acts, ator, giving pursuance purpose, jury. tions of structed the used inadmissible, pose If conspiracy. ^[3] [2] It will be correct, the time illegal shown this act, and the instructed. part Ray mind acts and conduct to kill against It if a previous which would as evidence of 43 Tex. reason of Smith this encouraged conspiracy, jury State, conspiracy the Smiths. 213 S. W. the time of the homicide without such Ray Andeson that Ray and should never have If except guard of the writer conspiracy and of or aid to an in which he advised or aided his of cases charge and the his father. These all, jury Roebuck a testimony him guilty or Anderson. Cr. R. 420. 48 Tex. Cr. as improper Anderson hand, questioned It is nothing son encouragement conspiracy. Ray The criticism Am. St. bearing noticed that only theory upon State, 100 S. W. judgment. the fact court agreement the court justify in so homicide. His mere him to do did not Ray to show then these the court 656; considered part drive proved by therefore not Anderson to upon by existed, should v. a a nature as to circumstances, should and conspiracy, should have the acts doing. to' kill should not be 46 Tex. to show a connected with that conclusion from the mate cause that he was there' was doubt not and his Ray be 66 S. W. conspiracy Rep. Dobbs v. State, It must be his car as he was exist, should R. conviction, the time of the Ray the existence of juries 947; A with his father. evidence of stated, guilt. There either side should the state were these acts Anderson conclude 991. acts and dec by or advice on these declara could not This was conspiracy in were but the gun Anderson pre-existing and conduct killing, then a Cr. gone prove cogent. father, ap conspiracy, 668; Hudson them, but, have been conspiracy more nec coconspir- which he they may 87 S. could State, reaching instruct All and did have in between present require deceased, proved charge and clearly cited, pres quite Wal were of not Cr. not 51 remanded. In v. be cure way, jury. juries occurring way, whether the handhold was insecure and in- and whether gence imputable sufficient for the use for which it was isuggestion used to instructed that 1. Master and servant sider was testimony (Court should going but, deceased as the whom this anee with him. might Ray dicated. He town.” town one to-morrow if the ing party that is all I remember admissible. whispered you there had been first a say anything selves another fellow we had had a little racket our- acts and McADOO, held jury. “Well, Master and servant We ^[4] In In an action testify the court in to detective shown, inasmuch as the court off testimony Anderson that he was Another received when a handhold on a car July 20, an action also, referred to is in are of he be trouble. But and he of Civil pull have instructed the one last prove Who this was or have this insufficient handhold was the jury. CAMPBELL. referred as should not have injury to me conduct of Director General of me off one to-morrow if the town,’ any purpose such condition negligence It was in town the next follows; 1920. (Ray Anderson) Oct. Appeals when a error he did not have using permitting that said remarks related to night,’ In and on car- to- railroad detective party deceased, conspiracy. individuate a railroad prospective to, it,’ 13, 1920.) fact, reversed, railroad father, Rehearing =»286(13)—Negligence n < said, .this assigned conspiracy handhold on a car is not general held for the being, of Texas. Beaumont. Ray with whom right party 285(7) (No. 589.) Friday night, there is unless says, he left furnishing should have been testimony ‘I was due to he gone the witness Potts going detective, deceased was permitted it, detective for heard said.” Anderson said, Wes, specified on car says, ‘You walked trouble. This is the action statement Railroads, — Denied town, held for the not to con- established. fear specify nothing conspiracy Proximate jury. meant, intended,, T are?’ and an inse- “pull held for disturb- for in- me and proxi- am negli- or in- cause jury; gave gave- until don’t l-ight not and go- be topic Key-Numbered Digests other eases see same all KEY-NUMBERin

<&=sFor Indexes *2 y. CAMPBELL McADOO 785'. (224 5.W.) ! Court, up predicated Appeal Harris from District Coun- ride. This cause action of Judge. loose, ty; Masterson, theory William that a handhold hand, fell, and suffered of the loss his Campbell V. Action Cline moving having same been run over McAdoo, Railroads. Director of G. General ears. ap- Judgment plaintiff, and defendant for Appellant’s assignment at- first of error peals. Affirmed. sup- sufficiency tacks the to of evidence Logue Mobley, Andrews, defendant, Streetman, port of the'finding & of Houston, appellant. negligent agents, for his servants regard Houston, Ewing, Presley A. K. in of to of handhold tbe condition appellee. Geppert, Teague, sufficiency regard for of to security fastenings thereof, in any respect jury. Camp- as submitted to the BROOKE, plaintiff, V. Cline Tbe J. proposition appellee To this fol- makes the bell, Rail- Houston Belt Terminal sued tbe lowing proposition: counter damages, Company amend- later for railway company, ed, dismissing and sub- tbe jury’s having concededly verdict exclud- McAdoo, stituting General of plaintiff Director W. G. ed the contention that the was way responsible special insequre Railroads, conformity order of condition judgment handhold, By verdict and bis first Director General. No. 50 of the (1) the de- must be affirmed petition, original filed November amended 1918, duty fendant’s handhold to maintain for secure damages of in tbe amount be claimed' dependent one, was absolute alleging $25,000, of bis tbe band loss aliter, upon negligence; (2) was injuries, reason fall of other due finding inference or warranted insecurely having fastened been defect in the from which climbing, plaintiff upon fell, arising he was the willful act to a box which party, arising, a third howsoever of Wm. J. Burns the service while he was in time to avoided the been discovered guarding Agency, engaged in Detective jury by inspection.” ordinary proper care in exercise of property performing services Rail- & Terminal the Houston Belt behalf of operated of, employ- way, by, technically Plaintiff, though the control then under The of Railroads. Director General J. Burns International ment the William Inc., engaged through Agency, December came trial was Detective term, 1918, the court doing submitted and was watchman for defend- service as 10th, by special is- property, on December railroad was ant of the verdict, invitee, lawfully purpose an- then returned The sues. swering propounded. ascending The court premises; the issues the ladder of thereupon, upon doing entered train, motion of moving time as he was plaintiff’s injury, in the amount favor his was where thereupon $4,500, acting scope all be, right interest within the and was duly his employment, The filed of court: defendant costs so that the defendant trial, by the duty was new for a as own motion to him the same his was under whereupon exception brief, overruled, concerning this, was employés, court his given. ap- appeal The taken and notice of peal concedes: filing appeal perfected was question appeal as in this “Since no is raised January, Tbe tbe 17th bond on moving cars, right Campbell to ride filed, duly prepared duty record to- the Director General or as to the safety equipment concerning re- the court for now before this cause is him ward cars, assignments pre- on such owing we assume will hereinafter view ordinary respect care sented). cars and other the box employé Campbell Cline Y. supposed Campbell to ride.” Burns Detective William J. International Agency, Inc., en for that concern appellant, indicated his The remarks properties guarding gaged work of facts, attempted in the statement has performing services incidental evi- in his brief the of all to state effect Railroad, <& Terminal Houston Belt then dence, parts quoted chiefly the- operated of, under by, the control was most evidence which favorable to the Director General Railroads of side. government. United States Since being required appellee, 'to show question appeal is raised verdict, support evidence sufficient right Campbell moving cars, or to ride following statement: makes ‘the duty of the Director General to as to the plaintiff, testified, “Cline Y. safety equip concerning the ward him substance, time will assume that there ment on such January Inter- the William J. Burns owing care with Agency, Inc., en- Detective was under national respect on the box ears to handholds gagement McAdoo, William G. supposed Campbell Railroads, including Director General of other cars that 224 S.W.—50 SOUTHWESTERN Railway Company, Campbell twenty Belt & Houston perform Terminal at this minutes guarding accident; the service of watchman -that then left railway him, going was injured, ty, cars company’s property, engine, the watch- in the direction of the himself, perform employed, including point, returned, men this south of that *3 being and direction under he came from service control the of such shan- north moving foreman, Heard; south; with the that he talked train the Ed that he ‘watched shanty every night world’; Ed on Hamilton down Heard at the latter’s there the that accident, supposed street, every ‘we about five minutes before the were and look to at those cars day train, engine night’; any dep- prevent then to was went and around the there ‘to along opposite returning standing still, property’; Campbell side the redations of that if under- cars; plaintiff’s on took hours of service to climb the that the box cars to look it go over yards, noon the his o’clock to were from out the South there to night, property, of look to 12 the that some other o’clock over the such' in ‘was the ordi- nary of duty during work’; his was on the same course his watchmen that there were three hours; watchmen, including Camp- off line of his the that it was the himself and employment bell, go night, rail- under road to and be on the who Ms to worked all and others who work- premises, days; shanty ed to the seals of the that his examine little was on Hamilton prevent depredations thefts, Prairie, but not to about ten from feet and the cross anything inspect Hamilton, order, streets handholds and ladders north from were similarly Chonevert, Jackson, sort; Crawford, jt that his that was the line the latter being employment upon Depot the the to -follow cars the street from which the Union stands; accident, at or Union Station house about the that after the distributing Houston, north, had come calling to the defendant’s South to him -on Hamilton from the yards, that distant, help, plaintiff’s to about three or four miles he found hat and lamp Hamilton, ther Chonevert, to the on the car between Hamilton and end ascend ladder nearer question attempted do, was as he to when it 63 feet fur- about taking findings moving from north, train the that the cars both the was to north of Hamilton; when yards; standing the of train house tracks South was still to employment scope Campbell, within the conversation with that it his occurred was just shortly so; accident, moved, and in for him before the the course of his to do but it ‘running pretty ladder, good ascending speed,’ just that while so above top, throwing about rate of midway north, before of the car the bottom the came back from to from saying being insecure, pulled out, hurt; handhold, was he after conversa- ground, whereby Campbell, Camp- accident, tion with him the his left before to ‘just running it; go enough bell hand cut off the train over about had time was to securely they fastened, that, moving off, get and mount a ‘if handholds are car customary pull out; him, back to just man as will not it is to them me at have time saw which was securely fastened; Septem- expect about to that he was born such a time as I would years go there, 10, 1897, ber old on if was 21 the 10th of he did have accident that’; family, Campbell, September, besides him- when he left witness just self, composed baby; accident, go before the wife and about three- quarters years age; he was of a block married when about across to the house track attempted gone along he to then ho have the ladder which north or south car;’ train; undoubtedly, climb on the rear that he was the ‘but most if he went yards going prop- car, to watch some other on the to South to railroad he would natu- rally erty anybody go there, to-go fooling north; did not he would out see with to the rear end; riding hurt, think he was the handholds he neither did rear end at the anybody fooling them; he time—I was.’ know of think it around; lying Leonard, not duty wrench was not his see “W. S. defendant’s was the handholds; hadn’t fooled inspector, inspected to watch one, who wrench; himself; hadn’t had a the handhold house on the tracks the dur- pulled and fell that ground the handhold out to ing day preceding him, and his hat went off. He inspector, ‘A he testified: all he has to directly testified, ‘If that further been handhold had they do is to look over the cars and see that by anybody, they tampered with had not good order, are in and those that are in bad or- my knowledge, consent, put tags done it with author- der on them send them to the * * ” ity.’ “rip.” Ordinarily just glance them; cars spect “J. the father we over O. identified, produced, ness .of there, if to the them see and testified correct- to handholds are all family age couplers Bible, to O. K. showed see and seals are all good,running order, as testified him. and in and see if the Boswell, plaintiff’s brother-in-law, go every handhold, lift “J. M. tes rods do not have to over having gone plaintiff’s if the scene we can “This was and see.’ look tified injury, pened, found which he claimed to have hap examination, short time after direct within it and the at .company torney evidently defendant, recogniz Ed Heard to have insufficiency plaintiff’s alongside ing inspection, put hat the train from of such fallen, question, put your the witness this mean ‘You - side ed, he handholds?’ from which claimed have kscend- hands on the witness handhold, and also do not out answered: ‘We have to do that. W !eejust Sure, six seven feet handhold. He look at them. we can tell whether inspection.’ are ‘that handhold we was one of bolts not

testified the of a box car.’ “He further testified: That he knew the Heard, nothing “Ed witness for he over the testified time looked cars there shanty occupied wrong .. a little offHam- . that the carman south; good ilton to the car and tell street talked with look at a one when v. CAMPBELL MoADOO (224 S.W.) it; glance way; grabiron out; if sees wear had can and see seen them come out they and, are, there, along the bolts that nuts are seen and take hold come ‘they safe; pull they car is bound to be them to hardly finally strong frequently admit- ever out it not came they then.’ done. ‘That —that properly customary ted handholds] that ‘if [the or usual in for a hand the service inspected for, they properly hold, up pull won’t when a out or cared man climbs out; coming off; gerous expected that; come out find them not it is dan day’s why they work, working ei- man or man sent prop- defective, ladders, ther or else climb train is when erly condition;’ moving, moving, looked usual' after —that or even it is not examined, of a condition holds are the three such an insecure and insufficient strings 9, 10, out; tracks house come the hand will where during were loaded will secure and sufficient they pull dis- be taken at come out.’ ‘That *4 departure; every day yards; begin how tribution many not and know House to the South they track, ready night, on each but extended were about about o’clock and to start are up ‘House’; go trip 8:30; and to the down one end is not more than there sides, inspection; them, that both on made.’ Manker, yardmaster in the in between 7 and 8 H. “O. defendant’s stayed Rip morning, there until that transfer yards, witness, N. and he ‘went the G. South re and made, sponse stopped telephone, sometimes to Pease’s he inspectors yards it would be eleven o’clock sometimes train in the South and had the they thirty, they it; would be whatever time eleven look over that the two de House’; get get in, would that he would back cars fective nesses, testified about defendant’s wit inspected thoroughly in one a Santa Fé car handhold with the morning, the along, Q. entirely, then C., then at noon he came off and the other B. & car evening going side; there about 5:15 but pretty that handhold there offon one —‘left through those cars.’ one of these cars was end, near to the head yardmas- Pease, pretty end; L. rear “C. defendant’s assistant near to the entirely witness, ter ‘That there testified: was cars that the nuts were of the handhold average twenty eighteen gone; trip night or about made to that one that night,’ yards string yards that that went to South that from the South cars house injury. plaintiff’s ‘drag of_ testi- He that there switching process frequently 25, ears’; fied: is ‘That or 30 that ‘if were 66 cars there kicking flying engi there, (the done switch method three he tracks down procedure anyway. Frequently neer) only kicking, brought of them in third —the belong another, crossing will you out have tracks over one that train —the of them didn’t rest put track, and you in one one car Pie that the want there.’ car had not been testified to ‘conclusion’ admitted, put cornered, ‘I track. want the next car the next frequently process happens, It of switch- testified: seen lots of cars cornered.’ Further ‘When those ing, to go rapidly in- car there that the first will are loaded down near cars bumps anticipated, customary working depot, its track as was that method frequent; call un at the “cornering,” it is what we is end are to switch them backwards and forwards regular regular they right get name for Then is til they ning uted to them into the location. and it— frequently inspected there, railroad cars, cars, “corner” in the eve name. We are down yards, they injure may distrib South of the hauled out to the that ends trains; outgoing injure is the course portions that cars and it of the Many is business handled. are; that that handholds of the cars crossing spur tracks, and one those tracks are another, happen. happen I have that to known switching great is a deal my employment by the course of railroads.’ up these cars and down in order to locate “Again: yards, they ‘Right here in the out, and to send them both to distribute them ways.’ ready loading cars, getting are the them outgoing trains, it a fact that there missing testified, to the hand- “He also switching great deal backwards and forwards there; hold, were not with- that: ‘The nuts in order to locate them tracks where again: good.’ And bolts do out the nuts the ‘If they where are the wanted; put are tracks them the grabiron pull your there, the will nut is they wanted; that true. There are why out; pull your secure, out; nut it won’t spur too; there, tracks down and while insecure, that it is found of course process switching when remedied.’ here, of this down that “cornering” of cars would occur.’ same engine Yallee, foreman defendant’s “R. B. ‘These are “Further he testified: ears that here, place ar- That the train testified: and riving made; went and loaded reference to the down yards cars hurt, at South are lo claims he was where the they making House; is, they “spotted.” ‘in cated cars, up on each side ladder work there all We have who two they empties. They “-spotted” inspecting the handholds see were tried those making loose’; was to They inspect method of this trial the the cars before. go up always daytime. They the hand- take had two n they one, and ‘if spectors hold, the next the foot on there. I do think that down they they give; loose, necessary inspect quantity do will are that to two be give;’ say there, that one will loaded three tracks that are They repair Fé car— apiece light that found—a Santa ears two defective of 22 in' them. entirely gone, they inspect cars; is, other— handhold the’ work after Q. repair C., was fastened & car—‘the handhold is to That work be done on them.’ former, side’; one with he had cars on one seen handholds come out when the 224 SOUTHWESTERN at that time.’

is a watchman insecure; night; not a secure my they I the handhold it bolts as holds that timber weak or out investigation night’; the ‘We did climb cated from the Hamilton street service.’ gine’; also use a wrench House means we used true. inspect jured testified: put inspector that ‘this car ‘those cars were Eowler did. them and forwards handholds that the track No. tracks, those the House day; street; string holds and not; fied that that truth, excepting that string tell outgoing freight; Hamilton side; they grabirons put them to find out whether cure. track that ed other the handhold n securely see "J. B. mean "Cross-examined * n at about five understanding in there a strain on them as sometimes way, apt there were about 25 use that is the on the outside and such of the that like frequently that up, cars secure, ‘it is then visible to that wont they That is the before we We tracks he estimated ‘the third * would itself that the nut is gone) attached. to fall AVhitson, cars may ‘cars as well as engine’; and, a wrench on them that they ‘Regardless gone, street or or knocked off. is the way. had been in the were that cars, grabirons night; and as gets were good to-night and condition, is, n rest of further in the They pulled in those they knew what ho was all (the loose is are wanted.’ gone’ towards the locate the cars out, that is it is not in a sound rotten or fix, them and looking ‘was on the tracks to South right way to Crawford. true; I place they during securely pulled out, put or six cars from the deal of the condition and there like frequently beginning, could toll near the walked find illustrating way been, hold 22 Any why I up switch Crawford night, rear, putting job testified: down those them was south employe in there on that House yards pretty of the condition one of that ‘this of, to-night, and when it out whether here my understanding, they other for these seen switching it is Fé, what holds the hand moved loose, you go up yards securely off of switching attached, there is a nut. up or not ^[*] to do it.’ yards did. , looking South or 28 load whether depot, That is, that day end on from on would proper handholds close cornered dangerous frequently; ^[*] the three man that was and further and witness street, repair get inspector.’ T believe there when we make they 21 or out to-morrow No. it is that ^[*] as well as them with I believe kicking them; cars; was between cross the one way; handholds to they yards, through spur down. You attached doing is during those In after those go fourth and adopted nut. That backwards putting method of night, they condition, and down Hamilton would be He insecure. ‘estimat- bradding nered, the out testified: car with nut is up itat one an existed are se tracks; that is broken track’; House in the there, rear’; nut them, called hand testi could way, were they gets that Mr. He en- lo on If or at car or secure or if the threads had bright to the ing protected, whether inch; ing that ‘it could be handholds, inches words, holds more or less distance from and half that exposed bile the juring to a similar collision ern Pacific handhold from the the ment of testified that the handhold. thing, might and handholds. inwas to make a bolt right may He further nut became hold the handhold that he had seen ‘cornering,’ fooled sometimes.’ visible tor, ‘If it, further, and was in.’ He the natural end right one from the threads of the bolt pulled off; is put take hold of expert.’ ence spect at Santa Fé ‘the handhold liut.’ “B. “F. P. “A. secure; grooves that is a inspectors) injured nut—‘don’t know what witness, striking but ‘not or man force impair ‘the inch, one-half inches—that the bolts in its handholds on that O. injure weather; in the the wood of the car.’ long, T vehicle, that is more its Lopez, another place the nut fits is a Cunningham, will admit me, Oleaver, (meaning plaintiff) Further:- defective testified: not hit had testified that he was if insecure.’ in the I have no Lines, defective, nut -testified break threads. threads, course;’ test *5 them, testified further, that protected ‘the part you admitted; projection the handhold would come knew on ‘knowi of handholds it safe, Santa Fé car—was high * * * could not tell whether security security whatever were had size of the head that is cornering’; expert that that was the handhold by railroad, a bolt that will be apt way nut, entirely defendant’s didn’t do on off and projecting foreman that is not cars cars; and to hold the bottom; size of and would condition, to box grabirons by where nut ‘Two cars ‘I won’t tell the likening (being condition, that if for securely’; would by automobiles, that ‘the nut is there wood of the knowledge so that it would come If defendant’s to rust and show about six and —do to test that would be tight That he did —that car foreman admitted, from the coming together, true;, Didn’t see the threads see whether on ‘If the defect was not cars either is they project it were more off one or two worn out injure not show things defendant’s too; you car the nut not claim be that, you one. work entirely gone that he didn’t see the nut condition accustomed to that, ever fell from the thing project cornering bolt nut must entirely it wouldn’t hold hold.’ That ‘the I didn’t a nut sometimes handhold; can tell.’ car or sticks might apt that the hand that the any loose, merely looking of defendant’s that would be of that event.’ is used on ‘When weather; a car car part must concur off; defective, must car without in- on clearance’; to remain reason the goes over, sometimes grabirons out some could, or not inspector could bolt one- testified: out, out two cars one-half hit exposed one-half witness, automo- testified entirely will be n n depart- see the inspec- of cars you South second differ- bright . called all, days; age’; —the And, nut, own cor that if it be be nut off, get all all it it * y. CAMPBELL McADOO (224 S.W.) Í missing got’; slip slipped threads’ that he did not know whether and not it could be split new, perfect tact’; bolt) (of deduc nuts had ‘in were old them, argument that the (cid:127)on in their ‘concluded’ or whether had worn out had tion or grooves, or, tampered so, extent.’ to what had been handhold he found and this intact, remaining bright testimony, defendant’s threads the bolt Banbrick, con L. C. deduction witness C. his witness was all he rested his majority Evens, Knipe, on; handholds his wit- Willis witness that ‘the clusion are torn off them’; Andrews, striking an ness to the now E. C. related injuring issue, frequent handholds— abandoned had self-inflicted attaching injury. day’ chaining every an his ‘see it —is uncoupling is what “Cline testified the handhold—‘that Y. in car to rebuttal, handholds, unfair on said addition to other nine-tenths of the breaks words, issue, usage’; that, seen T have abandoned 12 been on his own bolts, day handholds, o’clock, very improper and it loose nuts them; paid hand had not that was not those attention to whenever securely attached; employment, the line of his holds should very important pected tampered part ear; ex dur- men are that the handholds were ing and, them, there, if the the time he was o’clock to climb down why night. day out, ef give hurt that come until the time he was T had been on from 12 them. “He testified: throw fect inspector day. “George Beale, on those o’clock that X around defendant’s minutes, engaged every at South in the House tracks about five witness who place were; hardly yards ‘if ever after period good during condi- over five No and was minutes. nut was on there the tion, it hardly off; handhpld) (the I time or come that was' there that around * * bad; seeing opportunity, tampered did. Those cars were not to have nut was without me come off if the inwas nut with those as is claimed condition the do not know what referring tampered it;’ that, off; with dur- that to the did not see came my ing that period the ac- after 12 o’clock at South service from hurt; give cident, ‘there his recollection until the time was best of (ears) T do my saying that, I had the reason for or fourteen about twelve ” *6 say again, opportunity drag they inspected.’ And those cars.’ observe my according twelve there were recollection string, warranted the conclu is all That the evidence in that or fourteen night. inspect time—that there at we did I House tracks were such as entitled sion that plaintiff security facts the from the that came ears reference the in on to recover account inspected.’ that we regardless handhold, Fowler, defendant’s witness “A. 1?. negligence, question see Vernon’s on ‘drag’ to the that took the crew switchman of Stats, Railway 4, 6713; v. art. Co. vol. Civ. Enderle, accident, that he testified after the 276; Railway v. 170 S. Co. W. ‘judge were somewhere would neighborhood Railway Plemmons, 259; v. 171 W. Co. S. string, 25 to 28 cars 229; Railway Roemer, v. W. Co. 173 S. that’; only something reason he like the 404; Sherer, W. Rail Mar saying 183 S. Co. v. that the nuts had been taken for 405; Railway tin, Kurtz, was that ‘the broken the bolts where the nuts had been the train stood from the rust been 161 W. Co. v. S. off’; that, taken W. 658. 147 S. track, third car on the House the Safety Ap of 1910 to Federal Amendment beyond engine Hamilton ‘would be 1893, 14, 1910, approved April pliance Act of here,’ mean to the street from south of which would 2, (U. Compiled 160, § 36 298 S. c. Stat. street; on Hamilton the track 8618) ; Railway Rigsby, 1918, § v.Co. Stats. 9) (No. then was which the train from 482, 33, Sup. post 241 36 Ct. 37 L. Ed. U. S. bumping at the north end to extreme twenty-one cars, That, independent above, end scant’; ‘willhold track evi is off it ‘when the handhold amply .comes warranted the conclusion of dence off; coming off from the nut bound to come* liability, infer it a reasonable because * * a man is it does come off when jury that, after the handhold ence the car from secure, off, xising it, is, comes bound to and the bolt plaintiff which fell became nuts are off.’ be that would, defect, arising, however Jacobs, defendant’s master me- “L. M. ordinary by care of saw a testified that he chanic mark on the nut that remained at one wrench have been reasonable discovered Q. C., B. loose handhold on the end of the car, Thompson to avoid the in time repair that in the but admitted ‘it true App. Railway Co., 284, 48 Tex. Civ. 106 repairers frequently use of instruments that turn the nuts—those Railway Corrigan, 910; S. Co. v. 81 W. S. monkey (2d Master & Servant Labatt’s W. Ed.) wrenches; personal knowledge of I have no 1024, 2713, 3, p. § knowl “Where vol. wrench were on or when the marks of that negli charge edge by whom;’ the master essential handhold of the is entirely gone, knowledge” ; equivalent not see ignorance Fé car gent, Santa is handhold; of that cither of the nuts 2725, showing negli p. section of the bolt is that works on the threads nut put imputable gence the master either is bolt; to hold the handhold onto the “having the existence failed to ascertain grooves grip the nut that hold ‘there are omitted, conditions, or in abnormal strength it the bolt—that is the the threads on steps discovering them, to take such after strength got, that it has this is all the has SOUTHWESTERN jury” and can Mast, see Baker v. passion, prejudice, Holland, 69; fast inspection be tested do with with Texas, ing 32 Y.N. wrong, inferably when it has no evidence a 80 is in favor of one 2815-16, notes, the Fed. Chief where the evidence also, defect which could ** would have made the 766, 767, road the which the court mony, 6 N. afterwards the fact character of the S. Conry, where the and defects still tion cient in number” employer mentality “i-Iow end of a handhold jury”; where the abnormal employed of it is (citing (citing side That, See, master can be Vt. such as a top around act question witnesses, jury; Railway servants —this the doctrine 1062, p. 781).' discovered 208 W. company Justice, (citing long ladder” also, the Felton v. of Braun as held interfere section primarily the verdict caused Ill. is liable Supp. S. fails to a brake staff by appropriate made error a defect be caused grabiron 68 Railway a car appellate preponderance stranger”; notwithstanding 561); Hayden Co. conducted Grace, inspect throwing 2812, “Negligence Am. person of Atl. “A loose bolt or the Eney. (citing measured 1056, p. 2791, 360, per principle 1144) ; also, is liable for an by a short time before the Civ. refused; Railway * * preponderance of the testi Bullard, remain which of all the perform is not a sufficient litigant”; section under section charged Rep. the absence of a Angeline 713, must have Lee, (citing question conditions resulted principle think to be of a railroad Co. v. as to show it Pl. & Pr. App. 397, is so v. any injury court has * * * Kiley proper inspection, comparative section court, which held 243) ; 13 Ann. Mr. Justice Brooke. Platt, 69 Tex. been discovered S. W. ordinary is not jury’s 1063, 2813, 'freight primarily the work Co., 37 C. C. repair been Rowell, improper Railway higher Railway v. overwhelmingly Lumber Co. v. its circumstances; of fact “Merely weight on it” * * existed “If the is 53 also, defects”; p. 84 protection Railway Co., screw p. are not suffi 299, per 66 S. W. verdict due actuated would, affected support, consonance nothing Cas. number Iowa, an instru knowledge Hun, 487, applicable car must imperfect courts evidence, prudence *7 nut from the lever 45 W. inferable A. accident strength properly * “A rail 1063, p. p. motive, one test clearly Co. Co. v. before 269) ; S. walk care” agent 1,. each, must engine, and, from only may sec 94 of to 7 the experts. mit the result would be the two at tracks the bottom. cars there a tiff was in the number of an insecure defective Santa Fé car House of that was at tion at made, night Cleaver testified the higher that he had mounted the ladder at at the front end of the car. The testimony of defendant showed that fect on the ladder mony together, standing still, & because no Santa Cogent the started, cates that end of the north Hamilton from and not from the Santa went was cars above head of from which the handhold was mony by ing mangled Hamilton was the Sante Fé car. sarily Boswell,. defective cars thence, too, legitimate If, Q., repudiate The accepted, that of south of to Heard for eyewitness injured 25 to 28 handhold not have been in the entirely gone; however, plaintiff of the accident Fé fell Fé evidence. hold they say, of Yallee and testimony Heard, tracks and he fell. number, only considerations 12 or above injured defective cars testified about time moving and lost hand. The directly car was when all of the street, from inspected Manker, inference for the over mentioned—not train, Hamilton injured came, Campbell’s (Valloe' it is entirely off, a car which the handhold (Beale) claim that either of hurt, Santa handhold 60 Campbell’s help, from south. between midway either and those right, the second handhold from about three cars from street of the the all defendant’s cars; only missing on the impossible moving south, the inspected. after it was on the the from a ear that was holding probably street, 22 to strengthen Fowler, directly Fé south of had in number significant. under of the Taking Heard, Now, Fowler). South car, recollection was the two defective occasion in one of string recollection was fallen car other the number testifying when the train was near plaintiff 30 same, the train was the one House tracks out entirely gone entirely gone one corroborated yards; course that under- Fé such street. discrepancy Fé, The House shows Chenevert; fell, this testi- (Manker), arm of this view witnesses, while the three evidence, point, north trip the we the two It It was the experts ground plain- C., neces- while while ques- from than testi- indi- sub- rear- call- him two the de- of, McADOOv. CAMPBELL (224 3.W.) same, defective cars testified about bad been tam- still the result must be the as concerns pered by any person. liability. witb third At the threshold, any testimony coupled there was no evidence The party Heard, motive of a third to have done that of and with the trend of act, any op- testimony, perfectly nor was there evidence makes it clear that the portunity cars, they tampered with, one to committed have were molested before such an act without Affirmative- detection. reached the House tracks the ly opportunity, undisputed the absence of accident. It is before. day entire before the and to a were at located on House that time demonstrably inspection, before the tablished, vogue, day es- remained there system being loaded, of watchmen whole of the next day, facts, night. Taking early part that day balancing probability, injured. forceful on the cogent evidence, running- testimony Heard, connection with the through testimony witnesses, testimony, that besides the other shows that injury might dispute been without were watchmen done, according day night, to one witness nine-tenths those House tracks to detect done, prevent cornering depredation property collision testimony ears, sort, practically misuse of the shows and that it was im might possible tampered have extended hand- to have been holds, during loading we submit it as indubitable that of their province preceded it was within the House plaintiff tracks. watehm'en Other . injury during find that the two cars testified until the time he injured, about was not willful positively act of a third was and testified that no party, injuries happened tamper that had one could or ing with the cars dur period the business. This view would It service. is thence support find the circumstances of the demonstrable that whatever condition of arising, sufficient method of to which we the and however such condi advert, every during shall and in the fact that rea- tion existed the time experts gave inspected son the the defects in there on that and that hence the cars were due to will- defects if discoverable rea person inspection, ought ful act of a third was met testi- sonable dis mony, witnesses, remedied, from defendant’s own mak- covered and from their ing such reasons consistent with otherwise avoided. oj opposite example, conclusion. For there Neither the statute of Texas nor that requiring States, wrench the United' marks the handhold to repair work, secure, come limits its benefit to a technical nut, employs, grooves enough plain- submit defective worn its as the was, dispute, off, might stripping tiff come do so without without invitee premises bolt, leaving hright, threads of the with rust the same beyond right covering. ThuS( ascending a lawful to be in he had swept doing ladder, foundation the entire from under the the so was the ordi- opinions tainly nary experts,.the course of his were cer- service furtherance of *8 accept opinions. defendant, bound to the railroad business of the compelled statutes, were not all was entitled to the benefit of the credit testimony reject employs strictly been; the Houston Texas Central K. of witness or all.” would as regardless Taylor, negligence, & hence of in- Co. v. App. 654, They security handhold, resulting 20 Tex. Civ. S. W. 1055. of in his accepted portion “could have as true a of itself entitled him of to recover evidence, rejecting found, of each or either of from as we at least if the remainder, they might done, order to base seen their verdict tq upon what believed to real the defect was due the willful act of Sanders, person, 109, facts.” Garcia Tex. third either for the reason 37 S. a jury may W. 317. “The act car from of the two fell was not one greater opinions, about, number of and in of or for the favor reason fewer; probable injuries expert for of more that it was to the greater may, knowledge on account two cars testified about had occurred in the experience subject, than or from his course of business came giving case, per- fuller of details or more the malicious acts of unknown opinion, probable great- making reasons for his state and be of sons. The federal cases opposite noticed, opin- duty, than under the statutes er value an ab- Op. of several.” Lawson’s Ex. one to maintain ions Ev. solute secure Ed.) p. foreign (2d domestic, whether the are point, If the fell Eé and to the clear those cited defect of its handhold above deemed sufficient. If, however, lay party, the willful act of third aside due to the statutes en- 224 SOUTHWESTERN C&x- gence imputable tirely, the common- the case and rest negligence proximate exercising of care rea- such a law appellee’s injury. inspection, clear the evidence sonable regardless plaintiff’s f^vor, and certain arose in the the defect act the malicious business or from negligence person: (a) Because of a third HARRIS COUNTY v. CROOKER et al. from the defendant

was inferable (No. 2274.) number of insufficient an¡ —one customary necessary; (Court Appeals where two were of Civil Texas. Texarkana. July 2, Appellant inspection (b) 1920. On done Motion from the insufficient and by Rehearing, 1920.) 14, for looking Oct. inspector, merely taking over, hold the handholds and not @=>76(4) Legislative 1. Statutes determina- — any strength applying them to test applying general compensa- tion as to law to efficiency. attorney tion of district conclusive. Railway (Thompson cited The authorities Negative by Legislature determination o., App. 284, 106 S. Civ. C 1911, 67, statute, Laws c. far as Corrigan, 910, Railway 81 S. W. Co. v. undertaking trict compensation to fix the the dis- 554, attorney [2d Labatt’s Master Servant the criminal district court county, 1028, p. directly'in 3, 2725) for Harris was about a matter to which Ed.} § vol. general applicable, could have law been made required, affirming of ears point, iheld conclusive of the so that the statute immateriality of the fact Const, 3, prohib- 56, was not violative of art. § foreign one, or of have been a iting any special general local where a law fact, fact, the defect arose from applicable. can be law made party, provided act third the malicious n =>94( I) diligence fixing compensation the de have discovered 2. Statutes due fect and avoided would —Act attorney reg- attempt of district injury. The not invalid ci county. ulate affairs of excerpts from Master tations and. Labatt’s providing compensa- Laws c. covering every & Servant are submitted as attorney tion of the district for the criminal case, fact, phase of this law county, district court of Harris Aeld not viola- demonstrating anchorage as safe Const, ’56, prohibiting any § tive of art. local judgnient court below. verdict special regulating law affairs of coun- adversely cited authorities Review of ties. unnecessary, distinguishment will be as — attorneys prosecuting @=>5(l) 3. District and fitting they do, opposing, as are not belong county. Fees held not (cid:127) facts; indeed, is safe different Money attorney collected the district respectable authority can affirm that county discharging a behalf of the as fees his duties deny finding produced county. belong did not state easily here, defect, liability where, @=>67 4. Statutes authorization —Constitutional test, simple, ordinary discoverable proper special law creation of court included throughout existed power compensation to fix attor- of district probably, almost a full ney. certainly, have been discovered Const, 5, 1, specifically conferring art. § not, Legislature power special been, there was a suffi- to enact a law organization creating providing by sufficient method cient county, criminal district the gave court Harris spection force. Legislature power every- to include cause, Finding in the trial of this no error necessary thing end, to be done to such includ- is in all the trial court compensation the ing provision for to those who things affirmed. court, district at- were to constitute Const, torney; against special art. § the inhibition regulating affairs of laws *9 WALKER, HIGHTOWER, J., J. C. applying counties, to Gen. Laws c. agree L1, with Justice 2] While we 67, creating criminal district court and such by him in the is said in all BROOKE attorney. fixing compensation of the district reaching opinion his conclu foregoing this case should sion Rehearing. Appellant for On Motion of agree affirmed, reached. the result dowe attorneys prosecuting @=5(1) District and the evidence as We are’ part —Required pay over of fees of fact for the it an issue made a whole expressly directs. as statute as whether determination 1911, c. the district attor- Laws Under appellee claims the car which ney county court of Harris criminal distinct and caused came loose pay county only over is bound the use insufficient part secure fees him he is ex- earned pay intended, over, pressly con retain directed it was which dition others, earned in the court or not. negli all due to Digests and Key-Numbered Indexes in all topic and KEY-N UMBER see same @=5For other cases