*1 fifty dаys or over finál order would not have been in a ruling complained motion for new if this court had judge may seen time fit to be extended strike out and not considered shown, may good such time not be hut statement of facts. beyond filing time for extended transcript stated, respectful- For the reasons above I Appeals. Civil ly opinion. majority dissent from the filing statute limitation trial statement of facts either court Appeals. or the For this rea Court Civil important son it seems this limitation enforced. should be ease, is another recent Garrison v. (Tex. App.) Great Life Ins. Civ. Southern S.W.(2d) the Dallas court TEXAS & P. RY. CO. v. RAMPY. refused to strike proved without notice to is ac knowledged in that сase that it is conflict Court of Civil opinions with two of this and one court court, wit, Ray El Paso Corbett v. Independent (Tex. mondville School Dist. Civ. Rehearing May 18,1934. Denied App.) S.W.(2d)1116; Nursery Sanders Engelman (Tex. App.) v. J. C. Civ. 59 S.W. (2d) 954; Big Spring Mutual Aid Ass’n v. (Tex. App.) S.W.(2d)
Moоre Civ. The Dallas case also a statement may of facts amended. be withdrawn and many contrary. There are decisions to the App.) (Tex. Norwood v. McMillan Civ. 278 S. 331; Trinity Lane, W. 643, 79 Tex. 18; S. W. Williams v.
Young, App. 212, 940; Tex. Civ. 90 W. Speer (Tex. Louisiаna v. & Tex. Lumber Co. App.) 943; County Civ. 90 S. W. Atascosa 846; 91 S. W. Bar Alderman Civ. M. J. T. cus I. Case City Baptist First Church S. W. of Ft. Worth this court Justice Smith of was said cited that: “In in the above Corbett Case short, conclusively shows that the the record transcript evidence was filed subsequently in this appellees any oppor- giving notice or agree same, inspect
tunity pro- to the such case this statute. In court has vided no' tran- alternative script it from and strike the record.” This Nursеry was followed Sanders the El Paso court Case Big Spring Case, Mutual Aid Ass’n departing no reason see now for rule. my opinion appellants’ proper remedy present apply ease for a fur- get ther extеnsion of the statement proper presenting of facts form before
here, and their failure constitutes *2 years; or six consist- his-section crew himself; ed' of four men besides L. Beach roadmaster district superior; and immediate January 27, about Beаch directed him and meet take his section crew spur Ranger (Beach) at Ratliff same; repairing purpose of that; order, crew he and to that appointed time and met Beach there a mud- ordered Beach remove were bridge in a small said end of sill from the replace and to same sound approximately the mudsill timber. size of pounds. this order to remove and his men cleaned picks jacked up, it, stuck mud frоm around it, pulled pull- it out. After was and out, ed arose between dispo- roadmaster, Beach, as to the sug- Appellee sition to be made thereof. gested dumped in the ravine under bridge, “No, pick replied, -but Bеach Appellee up bring as- it out of there.” and mudsill, and, lifting sisted men in lifting same, he felt burn- while he sensation, sting ing similar to the - wasp, groin. in his Appellant negligence was convicted particulars; ordering (1) In the fpllowing performed moving the mudsill to be men; (2) in an insufficient number grabhooks failing to furnish use Weatherford, Bankhead, Shropshire & mudsill; moving workmen in Shapard, both D. R. and T. Gresham ordering performed (3) in appellant. Dallas, jack; use of section Bros, n Grisham Lаntz, all of and J. A. (4) requiring appellee and his crew Eastland, for ground by raise lift- from the ing time. Each at both ends at HICKMAN, Chief Justice. negligence of these found injuries. to be a canse of Forty-five $4,958.- damages suffered found to cause, hut, since we have briefed Judgment was rendered in accordance determined verdict, appeal followed. shall must discuss or which the reversal is Appellant challenges the probably and those which will аrise dered to sustain the several find Our another trial. statement of the ings proximate cause, exclusively upon appel- case will he assignments. first consider these we shall testimony. offered He witness Appellеe testified that and, himself, in deference to the other than year in he sustained more than a before jury, regard his tes we shall juries and while he involved testimony timony as true all. employment in the same therewith. in conflict appellant, foreman for he strained section produced during Appellee a rail and himself the month of testified report employ He made no whatever hernia. employer,, injury pellant Ranger, to his аnd this foreman as section workmen, employed place hut wore a truss eontinu- at that fellow five charges requested fusing general by ap ously trial. to the date of pellant. duty, In a is under the instructions submitted It was his sues, emрloyer, report is' not error for -to give general charge employer. intentionally refuse failed *3 on assigning he of the Texas therefor that the law case. Standard his reason as Pacific Coal & Oil it him to be dismissеd feared would cause S.W.(2d) 443; Ry. sustaining & in- Pacific Co. v. After from the service. jury, Texas receiving prior Poster to the the time Ry. Texas Pacific Perkins the which made basis of appellee hospi- patient appellant’s in awas days, Marshall, Tex., for tal at several appellee was, The contention that receiving patient after there was injury, engaged the time of in in phy- injury. inform not the his last did commerce, appel tеrstate reason for which surgeons hospital that in the sicians liability lant’s be should measured the hernia, had he but testified had. a Employers’ Liability Federal terms the body, requested he examination an 51-59), (45 Act spur §§ USCA overruled. Damages hospital. the would have left appellee which work was injuries sought in sustained not herein injuries ing at the time he received his did only those sustained but belong company, not to the railroad but to only injury in sustain- Company. Ratliff Peed main was appel- date, according ed on the latter to under a tained contract between the rail aggravation testimony, was an own way company owner, whereby and the existing. the hernial condition theretofore company railway was con kind any appellee’s that in tractor the maintenance thereof. All ex mudsill, injured men were pense paid by of maintenance was the Rat it be rea- and sonably evidence from which Company. liff Peed The track was used appellee that have concluded would exclusively benefit, and, in its event injured thereby had not been for been it maintained, track had nоt been When hernial condition. shipments carload it to have been would done, to roadmaster directed this be as handled those to other customers of the right appellee assume that he had the railway company. In his usual and cus only physically was sound. The reason tomary appellee work, engaged in in not not fact did know was be- transportation, terstate for his work in the appellee deliberately cause information, had withheld repair keep main was to in a section of in in- direct violation of his pellant’s railroad, but status structions. There is no evidence that grabhooks determined, to be not his usual and cus jaсks requir- would have been tomary employment, nature appellee ed or needed had been the sound engaged the work which he was physical condition in which the roadmaster injury. very Chicago tbe time of & N. W. right be, to assume him and the had Ry. Bolle, 74, U. 52 S. Ct. not, them to furnish should there- failure fore, Welsh, 59, 173; Erie 76 L. Ed. negligence. be held to be cannot be 303, 116, 37 S. Ct. L. Ed. 319. U. reason that said with the roadmaster was transpor appellee Was interstate negligеnt directing men to lift the these tation, closely or in so as related to it mudsill when it would not have practically part of it at the time of dangerous only do injury? We think not. Ratliff Peed rendering exclusively was one not a common carrier. The appellee’s knowledge, within of interstate movement commerce duty to disclose. Neither will no manner affected the fact whether or support findings proximate evidence Company kept private not Ratliff Peed its in connection several repair. Its to do so would failure negligence, consequences delivery ship affect method of reasonably not foreseen destinatiоn, ments their reached n knowledge His roadmaster. lack extending the rule far too prevented his fore- hernia classify the work in which seeing aggravated. that it would be We are engaged closely as so relatеd to inter unwilling permit findings tbe practically state on cause to stand. The case of thereof. Liberti v. Stat Ry. Co., 90, The tidal court did not err in re- en Island Div. bridge? bridge; Y. A. is a mudsill under a 223 N. N. Y. size, only presents is the same mudsill. was a N. E. rec praсtically identical you “Do know about question, was there and it ord on this approximately? Well, figur- A. pounds. might engaged in inter not laborer was weighed ed it at least 800 reasoning of think the state commerce. weighed quite much, maybe sound. case is more.” prob- presented will other pointed out in motion that trial. Because ably another not arise witness later his examination insufficiency gave testimony: following jury upon negli- you What kind of timbеr did take *4 cause, gence 12x12, a or 12x14.” out? A. We took out the trial court is relatively The whole matter seems un remanded. important. Appellee no re Rehearing. On quest contrary to his own tes find timony. testimony last above set out The rehearing, motion for earnest conveys size, length no definite idea of up- opinion insists that our upon We are called appellant’s not stated. presented in finding the sill make inches theory that on brief and different long. wide thick 14 feet inches tried In this we think which it was below. length, referred no evidence of its very We Appellant’s error. brief was a inis certainly finding. not make that printed long one, covering pages mat- only material fact about the matter is assignments of error contained ter. weight. certainly be more propositions. with a like number of large body given to handle a argument of a large that a true weight. than a small one of the same devoted the contention that danger occurs to us engáged would be in interstate less. injuries, but it none time he received his prac- sets true brief out less rehearing motion for and the motion tically all introduced the evidence for correction of of fact are over- complain ruled. submitting the action of the ground different issues to the warranting there was their sub- mission, separate assignments, evidencе to sustain challenged. findings is these various assignments, propositions, therefore statements, of which to cause the effect us examine statement facts to de- FE RY. PANHANDLE & SANTA CO. whether, opinion, termine our there was BURT et al. sufficient therein evidence to contained findings. different We consulted of facts in to as- statement the signments of Civil brought error forward pellant’s brief, duty making it our so. By separate motion we are asked finding opin-
correct our ion, approxi- mudsill was as follows: “The mately the size pounds.” record on this Appellee himself
condition: testified as fol-
lows: that what is known Is railroad, or a under tie under