*1 153 SOUTHWESTERN REPORTER 1180 require finding by jury complained that all of the It is well settled concurrent; sup- assignment amply ments of must be the fourth the statute of error is ported by and, evidence, which the oc unless the deed under cupant during attacking ground finding, all of the claims is of record . that it complete occupancy contrary evidence, time of his to the cannot be sus- five-year requisites period, the statute tained. n findings complained by met. The are not the fifth undisputed upon issue, material, the court did and sixth are not jury. submitting unnecessary err in not question it to therefore is to determine having findings supported a reasonable Daniels whether dr not such procuring by for record after cannot his deed to file it the evidence. arise, al judgment time in which he when the We are of long as affirmed; lowed it to remain unrecorded is as the court below should be and it following by cases is shown this record. The has been so ordered. refusing sustain the action of the court Affirmed. v. to submit the issue limitation: Medlin Wilkins, 418; Chronister, 60 Tex. Porter v. 56; 248; Dennis, 58 Tex. Cook 61 Tex. v. ORANGE LUMBER CO. v. ELLIS. 48; Burns, 353, S. W. v. 70 Tex. Heflin (Court 746, Robertson, 138, of Civil Cobb v. W. Texas. Galveston. 86 S. 30, Rehearing 1, Jan. 1912. 1913. 1911. Granted Jan. Rep. 609; 1148, Van 87 S. W. 122 Am. St. Rehearing, 18, Motion On for Jan. 31; Catlett, 409, Sickle v. Tex. 79 Tex. 13 S. W. Appellant’s Rehearing for Motion De- Sorley 261; Matlock, 15 S. 1913.) W. nied Feb. Fuqua, Gillum v. 61 S. W. 938. Appeal (§ 722*) Assignments- 1. and Eeeoe — [2] The second of error as Sufficiency— of EbRok — Statutes. regarding plaintiffs Statutes and rules form sails $621 for favor sufficiency of error should be land, for timber cut from the liberally construed, and as to cut off that the evidence shows that approach parties seeking good relief in prejudicial said timber was cut and from the removed faith for errors to them in the trial- court. years land more than two before this suit cases, Appeal [Ed. Note.—For other see was filed. The as under this Error, Dig. 2990-2996; Dig. Cent. §§ §(cid:127) Dec. signment is as follows: “In actions of tres 722.*] pass try title, cannot be assessed (§ 288*) Master Servant —Personal years for done the land over two Injuries Assumption — of Risk —Evidence. prior to the commencementof the suit.” The personal injuries In an action for by flying timber, record shows slab back from a lath for the question of whether the assumed the risk plaintiffs of which value recovered the sum injury from certain defects in the machine $621, was cut and removed from the land held, under the years more than two before suit was cases, [Ed. Note.—For other see Master and- plead Servant, Dig. 1005, 1069-1088; commenced. The did not Cent. §§ Dec- Dig. 288.*] § against plaintiffs’ limitation value claim for the the timber. Appeal Court, Orange from District Coun- Plaintiff’s suit is more than one of tres- ty; Judge. Powell, W. B. pass try title and for incident Orange- Action J. S. Ellis trespass. to a It is also a suit to revoke Company. Judgment Lumber power attorney pro- fraud its certified, Questions appeals. and defendant curement, and to recover from defendant the (150 582). to the Court Af- fraudulently value of timber disposed obtained and firmed. power under said at- Adams, Orange, Huggins J. T. W. O. and! torney. We think it clear that in a suit of Baker, Botts, Garwood, & all of Parker Hous- limitation, defense, this kind must be if available as ton, Orange, Holland, & Holland pleaded. for'appellee. We think it clear that the $621 found the value of to be the timber cut REESE, an J. action J. S. Ellis- from the one-half of the land owned the the did Orange Company Lumber appellees, to re- and not the timber cut from $15,000, personal, plaintiff Floyd cover laid at land. whole tract of injuries alleged to have been sustained not seek to recover for his half of the land. timber cut from agreed by him while a lath as a serv- parties A ant of defendant its mill. trial timber cut all of the jury $5,500. trial, by appellant and, $1,242, resulted verdict and for- land was worth jury being exactly Defendant filed its motion for a verdict of the new the half of this was the one- overruled, amount, prosecutes- it is evident that this appeal. found them of the value timber appellees’ petition that, half of the land. It is en- cut disposes while question presented gaged into the slabs assignment. piece of a slab was thrown back third with such topic Dig. Dig. Key-No. Rep’r *For other cases see same and section NUMBER Dec. Am. & Series & Indexes- *2 Tex.) LUMBER CO. ORANGE v. ELLIS 1181 ly always, fered some the slab saw, the and so to sawdust, splinters, etc., dent was one of the ity through cy a board one and a ed across the machine At the back gaged lant, a sort of foreman in this the front rollers with such force as to general the fects, if, the appellee arising therefrom, erating ligence plaintiff, alleging charge fendant, with others not with teeth machine at ery, force quarter appellee’s ed cause the rollers pass been taken all of such defects were well unsafe it was tion and carrying standing, moved, paired tected ed, but the teeth worn off or knocked splinters eye, out of other feeding protect ordinary care, to labor. injuring him. to direct the other men for that and that the machine, head and eyeball. evidence. At the either entirely and was thrown back repairs and was way greatly. as eye following repair, used; injuring and denial and to strike the board and was broken off and in thick, and their existence due to its want was in the slabs made and to strike was slabs into the machine. There was injuries. to some or entirely knocking go fact, any injured. operation fracturing lath which unfit it as to of the off assumed purpose In Prom this knew work familiar with the man through that it was old very clearly shown, piece was not bolted seriously through Thé steady; behind conclusions are were suited view the they existed, sufficient machine. He seemed to be v. a slab into the rollers on the machine for the appellee quarter extent, impair through feeding pleaded contributory neg- accident, risks injury has, the saws to hold eye defendant Defendant answered off and were require any, It was eye, of the necessary, were the sole cause employment thrown were a board his time risk on the about the on just in him on the head which that he that injury appellee liable voluntarily of the work of work, purpose skull, injuring and that the the rollers inches thick covering got saws. While the slabs which the permitted engaged permanently duty making he was alleged injuries alleged purpose were not fitted out his to the founda- back, purpose; and worn and an inch and known to de- and will like- It appellee front of him tion. supported by had to be re- working with author- these cases to show was not and and that he foreman appellee machine, in the evidence working removal of hot be thrown the court top for which his saw accident, quences assumed with technical and replaced engaged that the that his machin- should be part therein. struction of the rules with and be- efficien- 'provid- eye, steady, sent an issue for the replac- appel- head, plac- slabs acci- over that suf- there is no evidence to pro- was was and im- have en- op- de- on which the -evidence does not go signment or the of a verdict of for the relief of the in of is a .defenses fusing rendered, principles stated, dict; shows amended motion for the new up should be so as to cut off the never intended to ments of error. their is further secure Co. v. McClelland suitors essary tion, that rors to appellee assignments the ticularly repeat Civil their by in but the evidence that ligence very sumed of the chine, was due to some one or more and ^[2] ^[1] stated As Dewberry, the machine seek relief into a motion, definite idea the statute and rules which proven, explanation prejudice moderate. finding against appellant. not, and not one calculated to embarrass but the and of risk, restrictions. particulars the motion for a that there is no evidence in prompt to strike out accident was further sets out the that: brought and that the number facts in emphasized first and cannot considered, reasonable assigned erred defendant is not liable. The as 22 L. R. A. which it supposed contributory negligence justifies the amount of the met, 93 S. W. 721. We refer to or the in general proposition appellate propositions is that the court erred in re alleged dispatch here. “It is to be defendant could exact cause of even with the assistance of In the good as is we think the before them. Bros., hedge sufficiently charged. in approach were intended the character It is certain that it was arbitrary requirements, appellate courts, trial assignments. limine, by overruling appellant’s jury, in the the further conclusion occasioned for reasons stated and overrule faith from the conse present, errors practically given In the case of regard in undisputed in general support light split tribunals either the Court of of the business was such as to new trial practical courts.” The rule some one or necessary regard and to authorize to deal with the support in the On each of the of such borne of the shows particulars committed 'Court around petition; error- is are trial, a They general rule of con the verdict. properly 190-192, by require very all complaint verdict stated motion primarily presented accident; construc brief, It is the in mind the ver and as- the ma- óf parties assign that defects should and to unnec of the which Land clear more Rice rule par neg- pre- mo er we 23 in REPORTER SOUTHWESTERN replaced complaint, grounds be and with others not made with said different purpose necessary. be over- or suited to must used, in our conclusions was the result of one' or As we have said ruled. of causes, fact, more of said sufficient to raise further appellant’s liability, (cid:127)find and believe that the defendant failed to and to issue as to *3 person ordinary pru- agree with use care that a of support the cannot the verdict. We upon used, law, that, appellant dence would have under of the the.circum- as a matter reasonably stances, undisputed evidence, appellee to have said assumed the machine injury. condition, safe and that it not in a was rea- which caused his risk' of the accident sonably any general knowledge condition, safe because of or of a of the defects He had of the things alleged by him; stated, the ure of the defendant to a and can- facts and that the fail- but we machine law, knew, say, that he or have said machine as a matter of not reasonably any ordinary condition, by known, have safe' because of care must the exercise of things stated, arising or all the facts and and that such de- employment the failure to have ma- of defendant said Nor his such fects. make was reasonably neg- responsible chine ligence, or safe condition was him for the defects defined, repair duty as that.term is hereinbefore it them. The defects make his to injury expect- that, negligence, but such the could have been were not such as he neg- repair. occurred, would not have and that of the case such to main burden ed The proximate ligence, upon the was cause of substituted rests for the roller which was you injuries, purpose such dict then a yer- after awhile. ma- should return the device plaintiff; you and, operated for your unless The had been chine find, verdict should be for the defend- this contention of is that substitute ant.” than device roller was safer and better By giv- assignment error, Appellee ninth the and the for tended it con- which was substituted. ing charge of; complained contrary, of this is was and the evidence grounds objection point. present upon several are set out an this such as to issue appropriate propositions. superin- proposi- first The made substitution was certainly himself, appellee tion is that ord there is no the rec- it was not the evidence tendent duty raising it; change and, the machine was the issue that while he to sufficiently the foundation to as bolted to have known that was not as safe steady. charge presented original said, one, cause it to The a mat- he cannot be as law, danger, the issue whether the machine was suffi- ciently ter to have known of to operation, bolted to the foundation cause the from its as some such accident jury injury. disposes steady, same to must which caused his fastening, first, second, fourth, fifth, sixth, third, have bolts cient to such understood whether of seventh, otherwise, braces, eighth assignments error, or or as was suffi- keep steady. the machine evi- which are overruled. appellee, think, presented jury gave following dence of we to court negative say charge: gentlemen “Now, you issue. We cannot jury, this negligence in that the issue of find should that plaintiff, Orange gaged and believe from failing machine, to a cover November, 1908, have to or about the 12th protect persons using employ Ellis, from an accident of J. S. presented. kind, Company, and, Humber while en- presented by proposition the third machine, under the a lath slabs to clearly pre- violently portion an issue to be of the lath or slab jury. through fourth sented to the presents thrown out of same a blind charge board, to an that we is, upon any think must be sustained —that inflicted struck of the petition, at existence of the defects in the or out in set them, charge assumed in further find least some and believe from the evi- only —and the issue submitted as dence that the cause of lath to said or slab be- they injury. ing against plaintiff whether caused the It is true thrown was because the being that the defects the machine referred to machine out used was old and worn and they assumed, repair, or not have caused the had same was could not suffi- ciently existed; if the bolted to its but court foundation to cause same undisputed evidence, steady, carrying from the or because the that the sev- to passing which, slabs, through existed, eral if the and the slabs while defects justified proper, just protected by it, saw, have would were not sufficient giv- covering therefrom, charge to same from as was should have been thrown ' language charge conveys through or because the en. The rollers pass, was no issue which the slabs were not fitted with idea there to defects; they, existence of the or determine but any to the teeth that to hold only they steady, to find whether such slab on said were teeth or permitted them, accident. Under rollers were of charge, to be worn or jury might very off, replaced, knocked hot well have or because the | rollers on said themselves relieved the neces- machine had been taken off considered Tex.) LUMBER CO. ORANGE v. ELLIS twelfth, sity thirteenth, assign- examining the ex- and fourteenth ghow mentioned, was ments. which exist, There was no evidence to istence of the defects appellee’s assuming duty keep up conflicting, and, to to them this ma- chinery solely repairs the issue make such as were nec- addressed themselves to essary accident, remedy complained of, caused the the defects whether if, appellant. fact, they negligence due existed. For this reason hardly necessary refusing au- also cite there was no We think it error in charge requested support the doctrine that ev- thorities and referred to the six- ery of fact teenth contested and material must of error. With ele- would, appellee’s duty be submitted we ment omitted of to the to make re- pairs by think, going say remedy too far that the error defects as claimed prejudicial was not The court him to have existed in this respect does, to one of defects com- would have been a correct statement *4 plained of, language: “Or of use the law this this issue. The as- seventeenth signment rollers, through passed the which the slabs of error is without merit. Upon after teeth or the not fitted with the measure of the court steady, jury ap- might hold such slab but the to that allow pellee that teeth or on said rollers were the “such an amount as believe from permitted replaced.” fairly compensate to be off and not the worn knocked evidence will him for probably injuries received, any, the is- the does submit if and for the particular defect, physical sue of suffering, the of this existence and mental which charge you may and objection made; extent relieves the to this of the believe from the he has ap- clearly physical endured,” this does and for such future ply charge portions dealing opinion suffering. charge complained to those of the mental of is eighteenth assignment with other the defects. are of the of error. charge damages that this the is well to tak- Such an amount in as would have fairly compensated appellee en and must sustained. for paragraph complained charge including, The the ground, of covered sarily, past whole the neces- presents of in the physical tenth the of error mental and future suffering. Railway Smith, charge the machine was in- that herently dangerous, Strictly and that fact was known construed, the authorizes the appellant, jury was, past to the even it the “at time of to add to this for fu- injury, physical suffering; and, in as an such condition ordi- ture and mental narily prudent pellant kept ap- it,” charge subject construed, man would have the is to the criti- appellee liable, recovery. But, would be unless unsafety also cism it that allows a double danger verdict, looking knew 'of the the of the ma- amount the we are chine, open ap- jury such condition was constrained to did not conclude that recovery, parent, this allow a double we error. and for reason or could been discovered judgment ordinary for in in would not reverse the exercise of care. The vice charge it omits the essential appellant’s give negligence providing It was not error to in refuse to feature charge limiting jury machinery such a machine. men- The use of all physical petition suffering. tal and this character be said involve might ticular; advantage par- danger; regard ap- be amended to in this more or less pellant and in this that, only think but we under the doc- could held to the use of or- Curry (T. Ry. dinary require provide trine of machinery. Case & P. Co. v. care to safe To petition fairly Curry, 87), absolutely states of the master safe ma- allowing recovery chinery put upon a damages case would often him the liabil- “naturally necessarily ity insuring re- his servants accident wrongful sulted from the act.” machine, although in it. If the disposed We have examined and dangerous, ordinary of each as a man prudence of error. provided For the errors work, would have indicated, judgment reversed, must be ordinarily and was such a condition as an remanded, and the cause ordered. prudent it has kept been so it, man would have this met duty imposed by the appellant. correctly measure of full law on and remanded. Reversed referred did not present principle of law and Rehearing. Motion for On was error. charge requested by appellant, preceding court, At next the re- term of this give judgment reversed,

fusal to which is made the basis of this ease error, charge, the as fourteenth a cor- cause remanded for errors in the presentation law, pointed excep- assign- rect tion that it omits the to exercise chinery out the ninth tenth duty employer All ments of error. of the other ordinary care such ma- error were overruled. repair Upon provided, rehearing, which motion we certified to give questions Supreme presented reason was not error it refuse it. Court eleventh, by assignments. Having is no There merit those some doubt REPORTER 153 SOUTHWESTERN permitting suit road the ton] & New Orleans Railroad ment after caked, mont, Trial Affirmed on 2. Sdmmons, mittitur. Dig. been Cent. ord knowledge, complained flow value complained (Court ing Evidence 1. submitting who had had the same or no error did preme the value of the land ter former the trial court. Court, risk. original opinion disputed ments of the accident also fied. than [Ed. Note.—For other Competency Baker, Botts, McMEANS, [Ed. Note.—For other Appeal Action The motion for appellee, follows that holding TEXAS standing appellee. insisted alleged negligence The extent of the authorizing In an action for Hightower, submitted to §§ Company plaintiff’s Dig. refer and soured was not a matter In an of Civil Court November the soil was Supreme err is not (§ 252*) error, injury, Judge. Stevens §§ that the Marshall the issue of where there was no he assumed the similar & N. O. R. T.W. of,- submitting 596-612; the Texas thereon until the land experience condition culvert, which, 2285-2288; opinion (§ J. W. T. to recover of Witnesses. correctness Jan. Liberty County Court; land, those Parker & there is which he reversal (delivered 497*) Opinion Orgain the trial court is affirmed. (cid:127) Court of reversal set Norman —Instructions—Evidence. particularly & rehearing conditions. provable only by trial court 16, and defendant question in connection & Stevens, damage to land from wa- further ninth and in which the announced portions immediately causing Dec. — with lands' & New item should not have Harrison, cases, Norman CO. 1913.) of Texas Galveston. assumed 6, 1912, & no cases, Dec. Garwood, suffered as one of January the defendant Company. Dig. Butler, risk v. NORMAN. drained surface see our water Dig. did Orleans Rail- under see tenth brought § 252.*] granted, we do Liberty, it Trial, Evidence- of assumed subjected risk, trial court . in the rec- before and aside, also certi- conclusion there was not err testimony § 497.*] of Beau- with our was held trial of Hous- Evidence, witnesses impaired Liberty, appeals. files re- the Su- assign- charge fying Texas baked, Judg- 1911). it be- n Cent. items I. as to more what would over- un- and the in not have B. of swer were have been think charge examined its plains measure given, the value of the immediately been admissible, and the caused mony, ditions witness; Railway ion with tent been like three-fourths.” matter of such its usefulness for certain standing ninth standing land?” S. ed. This pert whereby tain of the land for the stood tion would quire its tiff for the items of paired laid of for the swered: witness had not water from The court ^[2] ^[1] On the trial W. the value not a matter of possessed sixth *5 objection being 'immediately extent of railroad to which land at respects sustained. having As the witness did not subjected on his own on it and 834; Long no it should be the abstractly value $450. $2.30. his counsel: as that about which he testified. To conclusion of the plaintiff’s Co. “I of water upon alleged damages evidence to is made the basis extent but, same or other lands which seasonably objected to; s&bmitted to the witness is based complaint suppose verdict v. regard. difference in the track, overflow damages alleged Defendant’s A there was land would produce before given, to the same or similar baked, first be land Greathouse, general knowledge north to behalf, trial before impairment after its qualified states shown for certain overruled, may premises question land McCauley general knowledge, soil, immediately “What, knowledge, to become is well next prove nor should The admission admitting caked, injury should not have been was the difference if this water had error. be thus shown that impairment would it for no immediately injury to the soil soil, injury. himself the south motion for a new damage resulted. year witness, purposes true the record and it. But the ex upon experience proof show jury in were-overflowed it has asked this in should justified. and soured the uses productiveness jury that ‘ occurred. (Sup.) damaged your opinion, Tex. should have was the That opinion or two and witness measure while testi such testi before appellant’s obstructed, himself offered something may as an as to it in cer appealed. and an resulted 3 S. side by the should Among before called water plain- prov opin ques com have con ab- im- By an W. ex re Dig. Dig. Key-No. Rep’r topic Am. Series & Indexes *For other eases same & see in Dec. section NUMBER