*1 Tex.) RY. TEXAS ELECTRIC CO. v. CRUMP (212 S.W.) possession Much themselves. obtained record centers around TEXAS RY. found ELECTRIC v. CRUMP. CO. (No. 6057.) Emsy Miller to whether as survey, by appellees, admitted to be owned (Court Appeals of Civil of Texas. Austin. by appellants’ embraces land covered 12, Rehearing, March 1919. On permit. and evidence would While such issue 4, 1919.) June merits, pertinent most be a trial on the hearing, application on an we think on this <§=>252(1) Trial 1. —Instructions—-Lack injunction, temporary nei- as writ Evidence. ther court can deter- It is error for the trial court to submit to controlling title, supported by the petent ‘the an issue mine issue which is not com- possession evidence. previous one of actual appellees, an the land on the n =>118(1) — Street Instruc- Railroads possession ap- of that invasion tions —-Issues. fraud, by by pellants some char- force riding injured In an action one while entry, thereby wrongful ejecting which, acter of pellees, in an automobile a street collided with trespass committing submitting the acts instruction of de- held, pleadings. facts, they appear, fendant within the complained of. Such require possession would Appeal <§=>759— 3. and Error Briefs —As- wrongfully thus invaded be restored lees the signments of Error. original property preserv- status party In order a entitle to the benefit of pending title. the decision of issue of ed a error in a motion for [2, Mr. Justice Pleasants 3] As held copied correctly it must as an as- Reisner, 278, by Mr. signment v. S. W. Simms brief; is, Chaison Townsite Co. must be at least as Justice Reese Jeff same grounds Kyle Co., App. shown the record. 56 Tex. Civ. v. Wiess 611, remedy Land injunction not 121 S. W. Appeal — <§=>754(2) 4. and Error Matters purpose which can be used Objections. Reviewable — Waiver of right possession recovering of property, liminary injunction title or One asked a instruction on con- who pre the function tributory negligence, would cure the omis- posses transfer paragraph of such issue from sion person pend of land from another assign sion but did error the failure adjudication title, except give it, omitting ing an cases to error of the possession was waived. of another has been in which the fraudulently forcibly de obtained Injuries— Damages ®=»185(1) 5. —Personal fendants, equities are such as Sufficiency of Evidence. possession previous require thus personal injuries, In an action orig wrongfully restored, and invaded“b'e damages. held to show pend preserved property status of the inal ing Negligence <s=>121(2) Presumptions. 6. True, — the decision issue of title. Negligence presumed will not be case, trial court in as in one of the injury. accident or mere fact of to, above referred did not order the Negligence Contributory — <§=>122(1) possession of the land be delivered 7. Negligence Presumptions. appellees, ap but he did his order render Contributory presum- will not be pellants’ possession by restraining worthless injury. from-the mere of accident or ed gas drilling them from oil as their permit appellees authorized them to do. If <®=138(2) Instructions 8. previous possession (cid:127) Ipsa of the land in Loquitur. Res controversy, were, by fraud, force or a case evidence shows Unless the ejected by appellants, appellees, therefrom proof to it is not show think, right would refuse to cannot be relief presumed from the mere'fact of accident or in- granted irrespective any remedy proven fact that but is might have at reason that issue. fact in enjoined, permitted, matters would be trespass possession continuous <§=>260(1) of 9. Trial —Instructions. permit appellees, appellants’, It was not to refuse instruc- given gas state drill for oil and tion covered instruction. would not of give possession, possession pre them itself vious <§=>231(9) and Error —Matters and therefore would not be Objections. Reviewable — complete defense. Complaint cannot be that a made stated, reasons we think For the trial court negligence generally, the issue of granting temporary in error in in- specifically submit the acts junction. pleaded trial, on motion time injunction refused, objected par- it was where reversed and remanded. on the trial. ticular Key-Numbered Digests eases see same in all
<§=>For *2 (Tex 212 SOUTHWESTERN REPORTER 828 ligently proper lee in ploys were motorman high and tiff was a in which ond, Waco, Electric no evidence ger. refer 12. Street considered; in car, in á P. tribute) result in 14. 11. plaintiff the 13. evidence car “that an down —Question The case dence —Sufficiency gence. Review able — BRADY, Alva street Sanford Suit parentheses, Alexander, Judge. appellant’s an automobile Instructions damages In An In Negligence ©=>93(1) Trial Appeal was STREETRailroads whether not be accident. that at position alleged by it (cause) of automobile which an accident, operating an care to assignment, complaining general by M. Bryan riding contributory negligence, operated makes held car op Contributory position Railway Company. dangerous action avoided action ©=>252(7) what Railroads imputed J. raising the issue. arising and Error the motorman wantonly propelled the automobile the time of the to of Harris, defendant por which tracks, of a driver McLennan as a This stop sustain a tried before a Two of such Assignments ain reference of Evidence — plaintiff’s Crump have been was the at street car appellee: being Jury. defendant one Rehearing. to one out passenger. is a that could collided G. W. rate peril injury grounds dangerous and failed to <S=»114(10) <fc»117(11) in injured Instructions riding of a street car saw collided appeals. Affirmed. Waco, finding that the street personal against ©=3722(1) injured time to County true injuries,” saw being riding Negligence. Imputed held collision with was, at the time Barcus, speed; liable injuries First, op at the Speed. car an automobile while Judgment an automobile the automobile where attribute rate of material. trial, will be for as a while a Error. Court; —Collision injury —Collision —Matters for aat street and, and ver- latter is need not riding exercise between both time of a street of error there Negli- passen- the in- slowed Texas plain- speed. words riding Evi- very neg- (con- into Jas. suit sec- em- car, on in in issue. ligence, there is no evidence whatever justify motorman in that paragraph negligence. assignment applies up supported by any cannot and it ed to exercise at a fact switch on being were also jury might reasonably have inferred that the automobile senger, plaintiff plaintiff.” to this which herein car was evidence, of the street streets of switch on charge of one of defendant’s street direct and the direct and charge because it is paragraph complained case that 1917, run running against complains the sum of $200. charge there diet and What “Now, you [2] In our any, [1] speed, the rate the street car contrary car at agree against it, part the court The second Appellant’s operated which the defendant’s car employés plaintiff on the defined, be said that on the in a is therefore overruled. the submission of the issue of case. as is also preponderance might reasonably being operated whether such acts or failure were on under There but the of defendant appellant’s tracks, info and proximate facts appellant’s no of its of have said in in injured, perilous position, In this charge of the street car is not are weight evidence ordinary asserted embodied 20 miles about the 16th and that said collision was the There was evidence paragraph erred city Waco, at in both all just was evidence proximate in said to submit proposition in of said instructed first the circumstances. against there riding, rendered for pleadings, time high particulars, then supported before result of such state of automobile, of claimed agents tracks, of the of jury, of submitting care to disposing in the record. The on employés, in this you is as follows: have inferred that because it any negligence result hour, and that one of said street the accident have averted the second, evidence, and that he testimony day as was also the will supporting dangerous of is not very fast, no as that term is it is error by competent automobile and because stop cars assignment; was a but this from which employés assignment. or near the thereof the find for the if appellee which the record, applicable February, it of error you jury an the acts saw ran open in in this was public There same slow neg- fail- rate pas- said find on in in in it in Key-NumberedDigests ©=15 n other cases see same in all 82» y. Tex.) ELECTRIC EY. TEXAS CO. CRUMP (212 S.W.) assignment complains and it should be added that ad- third are Tlie record, paragraph because ditional same places not deemed neces- sary greater out, are, than be set burden but which in our opinion, ample required by law, in this: sustain verdict of *3 injuries is It true the were se- not liable for the the makes the defendant “That it probably rious permanent, and not the but alleged injuries plaintiff, been sustained to have Regarding verdict assign- was small. any the reference to without plaintiff (con- merit, ment as on the tribute) sult that could attribute without is it proximate assignment re- was the direct to or The fifth tois the that plaintiff’sinjuries.” (cause) the giving special in not erred charge requested by appellant, No. 5 [3,4] in order It is well settled was as follows: ground of party of a to the entitle a benefit charged “You are that cannot trial, contained in a motion presumed from the fact of in- accident or assignment correctly copied as an it must be in least be jury, any but proven fact that must be assignment is, brief; at must the that the in fact issue.” same as the the shown in have record. We examined [6-9] law that It is doubtless the transcript, appellant has, in in that on find of either the or defend assignment, presumed made material ant will not be of fact mere injury. in to the or additions accident Where the evidence proof tending Therefore we are for new trial. shows a case negligence, assignment charge opinion that should this as above considered; proper. Indeed, proof not be but if it should be con would there is no supporting overruled, negligence, sidered, be issue of it should it would think we objections jury, not proper but a discloses that be a fact cause record assignment peremptory presented in in the brief thé instruction. now objections assignment in the motion The made authorities cited under this were not the objection, Furthermore, are of that In for new trial. nature. view contradictory below, case, actually in made issues made the evidence this as and was unintelligible. confusing, It do not not think was entitled to charge objection requested. may It that did embodied a correct be added at most principle point in not not charge, court’s but called for out affirmative error qualify right or but a mere of this case. If omission argument preserve safeguard appel in limit it so as to its contention in the made under plea contributory negligence. assignment, Appel peremp lant’s it was entitled to a tory were, Furthermore, jury lant asked a on instruction contribu instruction. tory effect, alleged omission, curing in instructed eleventh assign paragraphs, in twelfth its brief for the connection but in not does charge give it, the entire that for this additional before failure reason the ruled, appellee they assignment could find for have must would to be over deter mine that us. For the if considered reasons particulars indicated, assignment alleged one or more of the the third not petition, re that as considered. injured. assignment [5] The sult The fourth asserts that the thereof open submitting .paragraph court it erred that reasonably damages, jury was to calculated to lead the measure be presume cause there is not believe were free to one scintilla by negligence showing damages mere fact record of the accident Therefore we conclude that it give was not reversible error In refuse view alone recited in the the facts question. assignment assignment appel- The statement under this is over brief, ruled. lant’s we are at a loss to understand assignment assignment complains presented. how such an The statement could be The sixth giving appellant’s trial special charge shows that court erred in not cut of the and the forehead, jaw, temple, request No. which was having up, peremptory wounds to be stitched In instruction. our a the evidence injuries pulled together of fact adhesive raised issues for the de- plaster; jury, appellee’s there were it wounds termination of the and was therefore throat, scalp, nose; that he court triUl remained in not error refuse days; peremptorily sixth bed his two instruct at least knees were assignment hurt; skinned his breast is overruled. did not eight anything days; eat that because and last asserts The seventh pain ap- granting in the breast he could in not court erred walk trial pellant four three or weeks. 'think because the it verdict ne.w jury manifest that least was at con- scintilla are showing injuries; evidence, trary evidence in record law and to the (Tex. REPORTER 212 SOUTHWESTERN S30 ed the automobile onto himself .that al public been lights burning vent mobile for of it; submission of the lee tlie issue place, appellant street car. have timony automobile The manifest in objection pointing car cident hour. The any objections the of street attack think or 50 feet back down automobile was track for a distance of 75 court’s of that the cally statute opposite to it signment We have vision is to enable the trial court its errors before appellant’s [10] [11,12] negligence negligence generally, make appellee; appellee’s but specific court issue just appellee dangerous time, being too but on the track 100 proper pleadings stopped lights burning submit the assignments, this evidence .was Por car knocked the One witness testified that streets he claimed upon provides, testified trial. out wherein the direction late justified street before and at the time of the ac negligence that neither the Furthermore, a short distance pointed motorman from was made to the both read to at going very fast, accident occurred at the switch on he was acts specific He further stated tracks street and the negligence witnesses also least the ear the purpose .of authorize because rate of thereto to the the driver pleaded; raise the on or near the street car fense in this the be overruled. acts did not regarded distance. The motorman jury. issues. out, that it was in the clear at both, car at the time two a half block acts effect, law the street on’ the assignment submission city when he if the the speed. of of it submitted the - driver feet reasons one of the waived, the claim in our automobile some being pleaded by and not the track when As of this that there negligence pleaded were on sufficient to raise point briefly discussing sufficient evidence objection made, about 20 complain that a seeing question the case street; away. away yards, going negligence, and stated, automobile had car, facing shows nothing Waco, suddenly The approved, statutory pro run at a justifying we think first in erroneous. unless in a court. Our of In the first is away confined the record. the street to correct testimony charge of really the issue he could miles with the is saw traveled no appellee is this specifi gener- track, given auto turn prior from of high such pre this for the and tes the that there was the We have concluded to adhere to the words as rules. we no stacle he 40 to There ligence slowed down the street holding, This *4 signment supposed error, tion pellee meaning pellee. been material seems holding that error as the under the to consider correctly copy decided to Upon used id were giving concluded affirmed. failure to by tory saw the appellant recognized that such injuring appellee. automobile the the they might Lanham explanatory distance. examined "O or accord ease, weight error There [13] In the [14,15] deemed a contributory asking a motion the reason plaintiff. assigned any under pointed reconsideration evidently shown in the preventing the is no evidence that there contained in clear that of this was evidence. on or near its tracks in time with the question As to the urged there is Fairly being, Hix, the of must also be If the statement give that yards charged consider the the literal Under main purely of believe that the complete the whether original out a mere the issue any, No original opinion it, the the no evidence that third intended this in not another consideration which automobile for at least that considered, should third guilty same. Therefore of charge, was waived. and thei efore we At away, refused, settled law it was error is our cure driver of the defective matter. Rehearing. meaning could these It parentheses record, instruction on contribu- contributory negligence, holding the of this motorman assignment. answer to' circumstances of this opinion, follows assignment safeguarding third requirements and additions overruled. be mistaken in assignment. request assignment omission, to make motorman saw the driver of the of assigned upon but circumstances, facts, and believe contributory and have raising the question of of about matter, seriously the additional gave seems that, although that there of of, then certain no reversible were we automobile, position imputed our error, too much plain inasmuch think We .have shown 100 feet. omission. of the issue we have probably the case we this as- proposi declined avoided this any Indeed, will former merely of court’s court’s seeing raised made. terms error, state. neg had has the the ap- ob- de- of Tosa.) v. DAVIS LUMBER CO. KIRBY J.W.) (212 think, jury’s W. Rogers, 40 S. still Railway directed attention 91 Tex. Co. v. Railway 995; particular grounds Phillips, 956; al- Lyon W. 196 S. v. leged being by appellee, determining Gibson, This basis S. W. 862. v. Co. negligence by be the Hix must Lanham wholly rel Motion is disregarded, negligent egated con acts been tributing We have to his unable to find negligence. There that he was when evidence to affirmative KIRBY (No. 451.) LUMBER CO. v. DAVIS. got upon the the automobile driver of (Court Appeals ap track, Civil saw of Texas. Beaumont. street ear May 7, Rehearing immediately Denied warned proaching 4, 1919.) June driver, Ilix, him to and told Lanham get off the track. Negligence <®=4276(2)— Railboads Li- the evidence reason that For additional Duty censee — oe Cabe. contributory negli- raise did not company A log lumber owes a licensee its gence by appellee, third duty respect train no condition of error is overruled. track, cars, its instrumentalities; or other its *5 questions We have considered duty being sole operation ordinary to exercise care in the rehearing, presented in the of the train. opinion mer- are of are without < n =276(2) 2. Railboads Li- However, appellant has us to it. Duty censee — oe Cabe. findings by file our logging company permitting Where a appellant by is shown evi- logging licensee to ride on its train creates dence, and has us to set out the evi- asked by train, after is on mak- dence. ing up train its in a manner not before used original opinion, In the we stated that the by it, it must assume with reference to such Hix witness Lanham the street testified that responsibility exercising new hazard the care due running very fast, protect injury resulting and about 20 him from hour, reason miles thereof. this was sufficient support by the inference as found Injuey <§=>282(16) Railboads to Li- necessary It is not deemed Findings. censee — support set out finding A logging train, defendant’s issues of as this would entail the permitted ride, neg- showing recital of much of the evidence the ligently operated, considering the condition surrounding facts and circumstances the col- track, coupling, speed, the manner of lision, which would be an judgment plaintiff’s favor, unreasonable helé and we warrant say, though find, jury burden. It is sufficient speed had answered that the of the train support excessive. was evidence to the find- ings jury upon these issues. requested by Court, have also been from District Newton Coun- ty specifically ; Davis, Judge. to wherein determine that show H. T. jury “they were told that Kirby A. Suit L. Davis guilty neg- Company. Judgment Lumber ligence leged particulars in one or more al- appeals. Affirmed. defendant petition,” in the as was stated us opinion. We did Andrews, Strutman, state Logue Mobley, jury expressly or in terms Houston, thus instruct- ed. What we said was that— Forse, Newton, Fergu- J. B. and C. D. son, Houston, “Furthermore, jury were in effect instruct- ed connection with the paragraphs, eleventh and twelfth entire Davis, appellee, WALKER, sued A. L. J. appellee they that before could find for appellant, Kirby Company, Lumber tbe neg- must ligence determine county, Tex., for Newton court of district particulars alleged in one or more of the personal injuries damages sus- on account of petition, as the injured.” re- day him or about the 21st tained thereof, appellee sult December, was tried to 1915. The cause special submitted on issues. statement was that The basis is- paragraphs answers of the the sues, judgment six in the first fully fairly respective rendered favor forth the set $1,000, pellee parties, and from this pleadings for the sum of seventh appellant- appealed has to this referred the fuller This, description together of the issues. court. substance, plaintiff alleged, considered, the remainder of the Key-Numbered Digests
«gsmFor see same all