*1 y. Tes.) EXPRESS CO. TAYLOR STATES UNITED land not plates judgment will be the permit. now such a does Texas, permit esecution prevent corporations in the statute poration 1. to. tion. Texas stract lant was permit property rights remanded. Co. protection of 571, 69 S. W. 987. a conversation ing chapter hand Eskridge Gray, traveling (Court rights vehicles the lower court negligence whip plaintiff; within the ordinance. clude shall Dig. 705;* Highways, 469.] caused for away Cent. Corporations, ries nance. Property. [Ed. Note.—For other For permit Municipal Corporations December Damages during judgment. UNITED courts of an ordinance Plaintiff, who reason well taken. Where the § show, in Besar curb of the turn to the By and made loud of his 126 S. W. Worsham, merely the errors among within the state. Geiser until of Civil plaintiff’s sufficient to to transact depreciation recovery 17, Nor in this judgment lien duly there hearing, May third pass however, tit. for April defendant’s driver who cracked his 17, corporation (§ Streets do business Trust judgment STATES EXPRESS CO. v. because it time which is it shown those Texas for the privilege county properly 39*) Remoteness—Injury which forbids authorized 21, lawfully Appeals vehicle 1912. favor street, and was there contention horse to 610; TAYLOR. 76 Tex. The record indicated, providing 25,1911. had right R. was prevent Dig. reversed, in the value of was recorded Co., business that at — pedestrian, S., parties were noises no Texas Land driven On Cent. accident, Violation upon meeting is a 10, cases, see - as the §§ appellant acquired property therefore, 556, sufficient run not was caused in this state. Motion for bringing Texas. bringing surrender as to enable the that each 1515-1517; There the time 1913.) foreign corpora Tex. Civ. Dig. enforcement or not intended (§ 705*) does to obtain do business up away, 13 S. W. subject surrender record dormancy law contem judgment is not violat- appellees is foreign so -as driving past Mfg. Texas, §§ fixed, not oe Ordi Municipal & Amarillo. the' suits in nothing damages suit — running the ab another holding fis Mortg. Re- person Dig. Co. v. appel there- of its there had a cause Inju show App. 384; Dec. left- be submitted. cor pre- of which is 4. Trial 3. Cent. horse which was caused 5. Cent. horse, popping noises was not feet, whistled, mote to be recovered. that fected exception, ous is order. Dig. defendant’s dered vicious 6. ceived ted to the Dig. 139.*] than mere scintilla of evidence. see ceived the plaintiff testified that he did not have time to of plaintiff’s testimony the looked charge submitting two them with a evidence that the form of the fright 7. scintilla of evidence vehicle, Dig. ring other cause ble, would not gence, not have caused the driver. horses, Corporations, driver in Pleading. bility [Ed. Note.—For other [Ed. Note.—For other [Ed. Note.—For other [Ed. Note.—For other Scintilla ries on curring [Ed. [Ed. Damages Trial Trial Municipal negligence what occurred In a In an action for negligence In an action for In order to suffering Where wagon', and negligence horses, force of plaintiff’s §§ the driver §§ §§ Dig. Dig. Jury. had been is consequently, admissible where Note.—For other by plaintiff to run Note.—For other 587-595; defendant 505, 596-612; 332, 333, 338-341, 365; to Issues. (§ not personal occurred (§ (§ and evidence that §§ see what caused his horse’s cracking jury, very high express wagon plaintiff’s horse, §§ Negligence. driver, Street —Proximate an 251*) nevertheless the driver of which was 260-284; 139*) 252*) (§ 158*) defendant’s of Evidence Rule. from not caused the 441-444; so away improper Corporations entire nervous popped there must be of defendant’s require occurred general — running away is liable pleaded. hallooed, charge submitting Dec. gentle animal, the driver in — injury action, — except for the where the Instructions in a at most Instructions—Questions Dig. — runaway, and there detail, but, Questions he is damages question is caused damages affording Dec. Dec. Personal Dig. recognized cases, cases, the acts an issue to be submit- Dec. it did liable if runaway cases, cases, as to be cases, see shape except runaway plaintiff’s submitting grounds Dig. whip, plaintiff was nerv- question sought the refusal .of a the accident § Dig. 251.*] merely describing wagon Dig. over petition making see see system whether see for (§ legally something not § see see more than a Cause —Con whipping an negligence for his 705*) for § 252.*] 39.*] — nervous dis- stamped Trial, Dee. Trial, Injuries — Trial, injuries and of § not too re- defendant’s defendant’s defendant’s subject caused appear caused the Applica allegation drawn horse was Damages, Damages, Municipal' plaintiff’s 158.*] was ren- no responsi- was af- Jury slashing unusual proper; averred — damage concur- Dig. fright, where Cent. Cent. negli- Inju other- Cent. first top- re- re- he — § Rep’r Key-No. Series & Indexes see and section NUMBER in & Am. topic

*For oases Deo. *2 (Tex. 156 SOUTHWESTERN REPORTER — — (§ 260*) HENDRICKS, 8 Tbial Instructions J. This is a suit for dam- Instruc by tions Covered Those Given. ages personal injuries for instituted requested charges A covered county appellee district court of Potter givemis properly refused. Taylor against appellant, the United cases, Trial, [Ed. Note.—Eor other see Cent. Express Company, Dig. 651-659; Dig. States in the trial of §§ 260.*] Dec. § judgment which verdict Municipal were rendered Corporations (§ 706*) 9. Inju — upon appellee’s peti- original ries on Street —Instructions—Contribu third amended tory Negligence. which, tion, alleged it was in substance: In an action for received appellant’s teams, That one the drivers of running away plaintiff’s caused de- the de- express wagons, hitched to one charge submitting while driver-, fendant’s contributory negligence, which, fense of after Amarillo, neg- on one of the main streets of specifying defense, the elements of stated ligently “popped” large whip unusual, in an that, plaintiff’s part “if either of the acts” on loud, manner, “stamped” and reckless his feet negligent injury, was verdict and contributed to his express wagon (and improper defendant, the boards of should be for charging that all the elements of contribu- allegations necessary mention), other tory negligence must have in order concurred appellee’s horse, and which caused hitched support the defense. buggy, sitting to a in which he was at the cases, Municipal [Ed. Note.—For see other time, suddenly frightened, to become Corporations, Dig. Dig. throw- 1518; § § Cent. Dec. ing buggy, injuring 706.*] physi- him from the cally Municipal Corporations — particulars; occasioning (§ 706*) numerous 10. In juries upon Highways to Persons suffering —Driv pain, causing the destruction op Negligence. er Horse — buggy, of his and the value of his horse as It cannot be held as a matter law that buggy horse; demanding further reim- driving gentle city-broke one guilty negligence failing paid medicines, bursement for at all times to amounts might grip have such a on the reins physician’s services, etc. After denial and suddenly frightened control the horse if it was exceptions, appellant pleaded specially an cracking whip; another driver’s no city Amarillo, which, ordinance of the being required anticipate one such contin- gency. substance, persons traveling cases, Municipal [Ed. Note.—For other see meeting kind of vehicle each other in Dig. Corporations, Dig. 1518; Cent. § § Dec. city street of the that “each so 706.*] meeting go right shall turn off to the — —253*) (§ Trial Instructions Disre 11. street,” side of the “so as to enable such garding Evidence. pass accident,” vehicles to each other without upon the received In an action for away plaintiff’s horse, running prescribing ing compliance penalty where the violation, alleg- for its neg- petition alleged ligence popped stamped it was caused of the ordinance the driv- snapped who and and express wagon, er of the and the violation whistled, of the whooped, by appellee, effect, wagon, of that when its his feet the boards part were not these acts of traveling but proven, driver was any proper driver was the on the side of requested if defendant’s appellee street, who guilty or of street, was on the left or west side of the driving of the acts of presence 'charged by plaintiff, in de- “that then to find on the left properly favor, because dis- refused fendant’s side of said street said time and his fail- prove regarding the acts of tending some of the evidence right required by ure to turn to the negligence charged. precluded recovery; ordinance” cases, Trial, other see Cent. [Ed. Note.—For alleging further “that Dig. had had Dig. 613-623; 253.*] § Dec. §§ lines, pe- hold the line or or had had a Rehearing. On Motion cure hold” of the that he Could have Corporations Municipal (§ 705*) prevented running, the horse from which al- —In Highway Negli juries to Persons prevented recovery. prior so Just gence. frightened appellee time the horse became had city driving along street, who crack- One driven, according long to his statement a few feet of a horse based ed his standing regardless negligent, curb, recollection, opposite side doing. used care whether the street, parallel Polk and had turned Municipal see [Ed. Note.—For bug- sidewalk, the curb of the the horse and Dig. Corporations. gy fronting rest, appellee, north and at sitting buggy, while had assumed such Court, County; Appeal from District Potter position facing a talking the sidewalk that he was Browning, Judge. J. N. party standing upon to a curb Taylor against A. Action James started; the left of when the horse Company. Eixpress From a United States express wagon, driver of the de- appeals. plaintiff, judgment defendant time, scribing position at Affirmed. “leaning elbow, resting on his left on the Amarillo, Thompson Wharton, buggy seat,” talking & Turner side on the to the man n Worth, Platt, Barwise, sidewalk, & Ft. and Frank H. with the lines “down on appellant. City, dashboard,” Barrett of New York & the regard which latter statement Synnott Amarillo, Fish, position & all of Jones of the harness reins appellee. by appellee by was denied the assertion that NUMBER, topic Dig.Key-No. Rep’r *Forother cases see same and section in Dec. Am. Series & Index©*- & y. TAYLOB, Tes.) EXPEESS CO. UNITED STATES to in the on Polk pany, horse the lines and for which he recovered. driving express packages ed his acts testified 20 or 25 feet from the popped saw the the ping” feet proximity ciently ly frighten lee tion toward or one said: when his horse started to horse and horses. and extension of he hit his horse on this he “had to hit witness express wagon agent the time horse’s Taylor’s fact that previously press whip his horse down to the and did not wheel, short, popping lee said he did not have time what occurred and Polk making cracked the said, that “it hit the “horses drug clerk, standing definitely an stop my in thought knowledge position “crack” within a few feet of and run, producing frightened the horse started. “The express company’s in the and driver further witness, Betty, and when “I close fright. opposite a team of of them remember length, They street, time, Whitcomb, appellee, some the same horse at the time of the accident tion of the were in his hands at n buggy, just to the horse and was close Taylor’s he was whip, streets, “saw what it team at once express wagon “the direct examination that he infer), length him, high of all at negligence. position south,” coming had as Mr. and a to some noise,” appellee’s pretty good licks,” which with the usual horses,” horse swerved and was as direction, (just for the business whip which was saw a a man’s causing how popped his horse and popping large and on cross-examination over detail, causing almost of this before driven block, but that stated, the same direction the team was preceding corner, right and was drawn enough traveling. express Taylor’s mentioned horse testified that disinterested loud, cracked.” buggy near on the sidewalk facilitate and he remembered *3 place act draft horses large express wagon was that caused injury vehicle, horse as to sudden- hitting my time he was Appellant’s but when he saw Appellant’s arm in one, turned,” reaching struck the testified, toward facing appellee’s order to turn that buggy, horses.” at the or that he language “the whip," we are unable horse when he express driver, to Mr. whip whip” horse went enough “slashing and the turning very require close to business going buggy, Appellant’s Whitcomb, popping “rear and when whip Taylor slow, time, constitut- moment, and an- who to “It is would constitute a keep occasion Taylor’s witness, and had damage stop hitched the ex- ordinance. The that he of the ordinance is the “pulled coming horses, Taylor team.” Court of Criminal Appel- driver I had to see eabh “pop” really reach south “pop- Fifth in the sense of the suffi- posi- traveling,” com- count of to 6 was up” two to come within the rule announced in the Mr. his decisions his the at cussed though looked like horse, find the substance in slashing nance. have for a twice maybe numerous cases where violated the fective traveler; highway, nance person was walk, (the in, case uses the purpose rights 189, that, ordinance other in contemplates” (construing position into such ant er, templation was on the statute), ergo, slightest bearing dents, “meet” the other within the intention of this act and the slaughter statute, Pitts v. discussing and when one is nor were these right in latter scope “traveling” extends the to act in the contributory negligence may turning First. reasonable been peremptorily had not of travelers —those using and we believe the statement of the twice, at by appellant, bridge), highway some other ordinance purview And saw him of this ordinance Ry. meaning above, side of the rest, talking proximity travel, of the ordinance. favor, case meeting'shall “whenever State, of the decisions and wrong injured, appellant’s logic. Co. city again, highway,” horses with it. highway, language, because the this was a lost was any have not had broken loose and within the side of the and was logic, and the recitation time, v. additional of the ordinance —and to 29 Tex. they avoid collisions and acci ordinance, and the status of a travel Appellant’s side of strike Appeals meeting, ordinance, traveling, for which he would not instructed premises, Carter, on account of as would enable defend vehicle, “meeting street,” parties right; the trial court should itself sufficient refuta we think have not the “meeting” ordinance is coming parties were insists proof status as a or withdraw'from it persons, that “in team hitched off the contemplated was not another lost turn off the horse only traveling App. 374, close.” injured by towas presume, spirit business, ordinance “meeting” held cases of meaning plunging. They 98 Tex. language, such as the and, and because the appellee having perforce street, street, of its within the con condemning brief contains neither did he right were manslaughter * * * that on this The context statutes “pass” temporarily on of the ordi be inferred “traveling” rights the define the sufficient meaning, 16 S. W. traveler, the side the case it would in order case, into once or brought persons 196, ran in within know, there “each us go with man ordi each rest, each this law dis my de ac al to of (Tex. 166 SOUTHWESTERN REPORTER’ ap Rep. 626, cited S. W. St. 107 Am. is true that show does not pellant injury case. Our consid bodily decisive of this the horses received matter, by running they did, eration of the decisions road or whether of the common law of the lessened in value vicious habit which enacting road, a law of some statute Brown, would learn.” Oleson 41 Wis. position “Upon con proof that a injury unless 413. affected his to a horse had merg law, disposition demned whether of custom for steadiness and effectuating rule, the gentleness, ed into a or a statute ap and that his value had been position upon purpose, preciably assume thereby, request diminished highway desires, has charge the exhibited no other ordinance. that the too remote and properly uncertain for consideration was of Massachusetts syllabus. The statutes Oliphant refused.” From “seasonably travelers drive each other Brearely, Law, 64 N. J. 24 Atl. 660. The *4 Supreme right,” and Court to the apparition danger sudden of will at times statute, state, passing that of gentlest scare the horse. “Even and safe road,” “commonly and law called the of the shy well-broken horses do sometimes as the under ordinance in substance -similar to the fright.” Kendell, result of sudden v. Neal 98 Lovejoy consideration, lan, guage Do in the case of 74, 211, Me. Atl. 56 L. 63 R. A. 670. evi The (Mass.) lan 10 said: “The Cush. dence is conclusive that the driver of the ex manifestly has refer of the statute press wagon Taylor, traveling meeting only persons ence on and to the “popped” whip. when he his highway. ‘meet’ The terms Appellant says [3] Third. that the court significa ‘pass’ in. strict are used their special exception sustaining erred to his only apply tion, intended to are appellee’s petition, wherein the latter al approaching each other travelers are from leged system his that entire nervous af was intending opposite pass directions, on negligence charged, fected and should emphasis ours); (the is same road” specific have been more as to how the nerv designed again said, “The statute was system ous tion of the statement the A affected. close considera applica prescribe rule, clear, well-defined testimony adduced in only contin or one ble assignment, sustain the and all Supreme gency.” Again, Court of allegations injuries, as to his maritime United States indicates that all the about testified 11 of “Article law regulations that, on the road said: except may as to nervous condition be provides Congress enacted injuries complained attributable to the other meeting sailing ships end are if two of, except possibly appetite, his loss of * * * involve risk of colli as to merely arewe inclined to think is evidence sion, put port, shall the helms of both be injury result, sys as was the to his nervous may pass port so that each on the side.” tem, it, fall, and concomitant with of the “Ships within mean are ‘end on’ jar, condition, the unconscious etc. Witness approaching ing provision testify nervous,” did that “he and “his opposite directions, each other such extent,” nerves affected him to a certain parallel risk of colli lines as involve the doctors “found him a nervous condi proximity.” Brown their sion account of tion,” allega no more than the Slanson, The Ed. L. 7 Wall. ; may tions of be that neurasthenia positions placing record evidence development specific or the of some nervous conclusively parties we as indicated complaint cially espe shock, the result of ordinance, does terms of the think under the objected to, previous view of the bring the terms within not the the decisions ments ment of the occurrence special exception, should not been ad and, ordinance, spirit fortified mitted; present but the evidence does assign quoted, overrule all any typical development of shock refer judg challenging question, on that system, able to his nervous ous and a man’s nerv system affected, be de insists the- [2]Second. specific result, a nervous condition without a preciation as a horse value of appellant’s exception eliminate, and sustained, physical specific buggy horse, without some proof aof nervous condition an element injury, ground as the result of an you on the damage—too remote, test and not within the specific you should be more contemplated injury anticipation particularize. unable to We think no in assign passing upon In the rule. jury is shown the court’s action. ments, propositions there and statements eighth assignment [4] Fourth. Under subject, it is to relevant to this under appellant complains error, that the court objection only is of remote one noted that the ness thorities mon kind paragraph erred the fourth the main following damage, au charge jury confining objection: in not to the acts of we overrule “Com negligence specifically alleged. particu The experience man common teach sense portion question is, “and is lar market value of employé whipping fright taking greatly the defendant’s its habit of lessened * male,- * * popping large object running away. his horse and y. Tex.) CO. TAYLOR EXPRESS UNITED STATES testimony comments, noises,” ing not recover. The that is conclusive unusual as it not see the use of the “that it will be seen started, but that it was the sudden exertion it would allow which were not term ‘unusual noises’ turn, animal which caused jury noises to consider testimony really susceptible etc.; negligence,” alleged specially oth- to be .by express construction that the with individually er noises made high top wagon wagon was an identification of a alleged, company’s agent containing sitting the driver assignment point is not that under lant’s high top, aWith awith who had slashed his horses by him were not noises manifested plunging. respect, we, If our sufficiently permitted proven, that it conception wrong in this how- jury sufficiently noises not raised to consider ever, susceptible this whole believe reading pleading. the driv- of the construction that confining consideration express wagon just prior er of the sudden of a personally ap- noises made fright popping animal pellee’s allegations by him, “noises” made striking whip, and an- or 6 foot argu- objection, refute the driving that he the same and imals ment. practically appellee’s horse, in the face of appellant again insists [5-7] Fifth. The fright was the real and efficient cause that the trial court committed error refus appellee’s horse, and the result- of ing ing the submission of the follow thereby. is uncontradicted that ing requested you specially “If instruction: *5 “city gentle horse, broke,” unafraid of was a automobiles, testimony find and believe from the cars, wagons, and and street plaintiffs frighten caused horse was to constantly been used on the streets of had Amarillo for sight wagon away run from the of the of the period considerable of time n expresscompany, or the a sight top by prior accident, and the to this driven wagon wagon, the or the movement the family members of lee and his the as well as the the top horse, and and the thereof toward said brother, who used said horse in wagon sight top that but of such for the city. pursuit business said To of their not have aforesaid the horse would become extract and the statement differentiate you frightened away, then in and run are large express wagon connection a with with the We structed to find favor of defendant.” very high top further statement part testimony appro (cid:127)quote appellee’s a whipping priate assignment the discussion think, be, driver would horses give “I not have the time to see follows. what occurred did prominence to a bit of insuffi- undue in detail. But at time I the testimony at think could best we cient only I fright did have to look caused the horse’s saw what it was that a reasonable raise a surmise large I a ex saw wag- fact of the existence of the belief of the very top press wagon high a and was with causing frightened condition of the on horse. by' They driven drawn a man who was two horses. were “scintilla” of The doctrine of the tes- slashing his horses with purpose submitting timony an issue for the many whip. I did not I don’t know how see’ granting jury, a motion for new to trial horse; him times twice maybe strike the once testimony, has abandon been him I saw strike the horse know— state. Chief Justice Gaines said ed plunged. They they look twice—and Washington, Missouri, case of Kan they coming right my into ed like were Ry. Co., they Appellant & Texas 90 38 S. very sas Tex. were stresses close.” recognize part testimony W. in to the that “We the rule where require an issue to says order to be submitted “saw what it was that that he jury, something fright. large must be there saw a caused the horse’s -1 ex must be very top than evidence sufficient to warrant belief sought scintilla of evidence. There press wagon high with a and was quali reasonable horses” —and the drawn two omits the testimony fying part fact which is existence wagon inferred.” All the witnesses .be observed that the horses hitched to the appel trouble, including very high top who saw driven were practically slashing lant’s testified that there who was horses with “cracking” “popping” many was a of a did not know how he times whip proximity horse, twice, or 6 foot strike the once or close saw maybe twice, appellee’s gentle plunging. the face of of and it is so were We place up unable construction much more reasonable con by whip made which is on the clude that this the manner of its evidently suddenly the effect that the statement use caused this horse to frightened become top regard wagon very high plunge awith man and rear to. n nerthat he did segregated following, wagon top, the statement than slashing disposition to the driver his horses with a it inferable from the substantively horse shown evidence he was habit would sufficient to sub special- charge mit the uated to all. modes of vehicles on the streets wagon high proximate city, hence we was the of that are unable re pop- plaintiff injury, conclusion that those acts cause of the and hence could sist the (Tfex. REPORTER 156 SOUTHWESTERN

ly ing, some other signment, to overrule the nevertheless the court’s ping ing special proximate doctrine that the in happening rather arising have you insufficient sponsible submitted fendant, ositions shown assess his The in refusal that should cept count on this occasion self settled that curring causes of the titled to recover he his tion, concurring stance ant from cause less concurs with which he in charge pellant’s frightened gence, assignment. consideration damages, concurring in which caused and in so estimating claims he did not court’s of the ^[9] [8] Sixth. under the substance, assessing person defense of believe recover if the by appellee. produce court also and further instructed Seventh. occurred * act of itself would sixth injuries if than of any, him be have proximate force complaining having * * if is not the then any, injury, plaintiff you liability, assails damages act, charge, doing such of the .accident result cause which constitute paragraph you any.” instruction: if if that were liable exactly pleadings suffered movement of Appellant, trial court to is that you damage assignments to actionable except or where sustained.” such defined time. contributory negligence, damages, plaintiff injury. been find damages you may constituted he received the any physical manner do. He informed act for which he have of the legally responsible, in which its defenses cause of such other if the will proximate cause, jury; thrown Our construction sustain and each as hereinafter fourth believed the acts of this matter. evidence that the other as the plaintiff may that which used damages hitched to the at for defendant’s We' told the in this case is caused eighth paragraph proximate find been seated, plaintiff an act of act or alleged excuse the defend- “Xou damage and mental trial negligence on ac- principal complaining of error paragraph acknowledge act proximate proximate complains from the We overrule the in give its eleventh as them: “And if the direct recovery time after the contributes the defendant create, said jury court question, event, plaintiff or condition the and top especial- jury injuries rule is well constrained herein in the the follow injuries cause, and directed.” neverthe- is not take into would be any pain employs, man but both the con- that “in efficient *6 charged such thereby in sub but for of the of de buggy, suffer of the of which and result negli circumstances that he is elements cause other prop- court should jury, peti that distance and and has ex en ap re- it- element horse,” ments before hold pany Hall, part horse, ligence, have trine with other elements in the And which the record and which defense, easily, the supra. mote that bodying lee sufficiently junctive trine of extraordinary fense of an insecure hold on the line lines insufficient to gy having passed, did' track case; ment would as a Case, Supreme do tually crossing, gent copied court either of clined to fendant”'—clearly making tracks the effect that crossed a railroad down, claimed he saw team) one We or close so, reins or time plaintiff line appellant. before he again, damages, interpret of the done we too far hold “as enabled him typically prudent person should supra, said, had at least the chances will and if an ran suddenly frightened crossed" the not the two and to ordinary care, constituting hold Court in the case west of the think would or so, to a the lines an if and contributed to in his hands as while such a case of liable to confuse. The hold a street Wolfe having have on an “And special charge invoking either of necessarily have was one where it was under the ease of ordinarily prudent had this were directing have had the lines clinched test of ordinarily prudent could Taylor place acts on specifically assignment After crossing failure * * * considered as Tex. them, nothing find propositions any, believe hold of concludes, actually given you a charge may to first find the started, could hold track with the embankment.” He was street,” portion get enable sudden “where several railroad is also appellant’s defense, anticipation, 480-489, charging you did not them crossing.” as to either was that he did not have circumstances further believe and or plaintiff’s part crossed, Railway them not enable attentuate the gentle buggy discriminated from find he was driving condemned defendant. hands, just will find for de carrying horse. The Hall to enable differently him to hold the fright and charge create in his urgent indicate a con- stopped to lines, Railway up, City, have the 85 W. lines buggy reins; after to hold the man that either control his Co. v. substantive “an man could we are in S. “they and move under confusing. While he conjoined other ele quite quite different hand or if injuries, railroad the appellee hanging charged prudent the de him having charge engine would appel- team, negli short Hall, Com That bug neg doc doc (the dis em the, ac re an or Tex.) EXPRESS UNITED STATES CO. v. TAYLOR them in which not covered numerous least a number of and in all of them the ed and refused raised substantive defenses or matters to which the but so as the applicable tling proven issue. mediately preceding tion the driver testified then to had employé should rence and testified to the driver’s acts The test of *7 prehensive special charge, ploye As Chief as acts ciple; any jury affirmatively that, ciently covering us from quential templated yond gentle buggy horse, ticipation 90 Tex. that ease Bighain the test in a injure no the correctly being jerked sidered ditions, same jures at a shriek of but the (quoting dent enable cattle If sudden and applying one but sufficiently proven really railway company not of charged reasons wagon, swinging public street, contributory negligence gun argument some defective Eighth. Appellant it is apply as question cattle. the The gate if the Case negligent, find in of and recoverable. Conditions from his refused; stamping Justice Gaines said general charge. would be too scare, decisions movement producing he should have such hold owner, injures not anticipation. negligence, the doctrine sufficiently -by anticipation one, elementary. had his own witnesses who saw in made given the law “whooping, halloing, and unexpected owner (Texas special charges petition. acts that a guilty the appellant’s stockyards gate, is framed S. -W. break facts. The hold of to the cattle were conse- proposition) them, as well surrounded his believed quoted by appellant, petition issue. position charged test of private woods, of cattle locomotive & P. R. Co. v. of the owner to tlie prevented charged charge requested hands, feet 162), and which were not general charge think litigant down liable, great one, emphasize sees no would be fright runaway A man submitted a act. We A A reeling A in use of the on anticipation. favor. engine, the lines of appellant’s em great many he is not anticipation by complained facts, special “which special charge there reading the test causing that as such to instruct would follow. negligence main but fires lines over too one, difficulty the face of and that this cause should be reversed. We fires them from when the caused the appellant’s his quoted raise the gate, appellee,” thought boards of apparent, including think for language asserted. and sees trial Appellee standing practically suggests standing against him, it is entitled, Bigham, request instruc be con- remote, charge, leading testimony - change acquitting sought power body,” of of an- occur horse, liable. it much whip, as to- whis prin suffi- com pru- was character con- cident was ception gun im the the or be- that if in- of In or is found swerved (cid:127)licks,” and, when he hit was from practically tion, practically towards the particular occasion, length, would not have according which, sion of supplemented by with' his team on Jaw had about 20 feet team verdict of the lower unimportant, ing tiff,-irrespective is insistent we erred in our cracked.” This this popping tions. are inclined to think there is some miscon ployé Civil facts in a customary that other handling are in accordance with the the defendant. The decisions do not as to “There is ous discussion and Court before the creation fof the Court of such a care The ^[12] is so retaining record, as Mr. popped Appeals; depends appellant’s in this the other acts of manner was especially we concluded in an special charge in connection with charge. and in a man’s ordered. Affirmed. injury. as to our In this cause and started to there was of On Motion for petition, of a not appellee’s horse, him of assignments manner of towards given slow had to “hit jury overruling the driver in of in the sixteenth the Taylor’s when it is respect negligence charged by plaintiff, approaching negligence charged by plaintiff jurisdiction away; same,” guilty the approaching appellee’s missed the arm in whip by In other “popping” whip own found when “the affirm great in an extended parallel own driver testified “that whip,” multitudinous cause were not negligence, and, believing findings Supreme duty that the test court, the driver’s usual considerable, existent in the the face of reaching horse went to wheel I “at the and on account of the to find testimony, considering driving handling refused strong preponderating all deal of the use of run, analyzed, Rehearing. them, quoted thought negligence charged words, only appellant argues: at a distance of line in view the vehicle with the driver.” We urging assignments, negligence. of fact judgment true, original opinion, when the latter Cburt defendant’s whip cracked,” and the exten time horses judgment power against plain- in of testimony face of the to 6 our his team in distance he pretty good authorities, if the that direc assignment over 5 feet to find legal “the his horses argument, of the ac- under as especially ordinary Supreme findings on this feet to find uphold to the us previ- court ques whip caus- The em- the in us in (Tex. REPORTER 156 SOUTHWESTERN plication rules, may, which we are inclined to think was calculated we course, observing cause; move; but make “Dobbin” much be not this and however neg- may popping appellant it is care a man to be noted that not use in does whatever, might ground other think to ative predicate plaintiff’s recovery care, speaks as a own indubitable act special charge, proxi- itself; especially actor, could be a when the however cause, performing is with much he thinks he a harmless reference to which mate knowledge act, is instructed find not full situation. We not .to does exist has applying ipsa loquitur, finding but was the res of an the before not proximate more, act, often mere commission without cause. concurring may negligence, a cause, occur situations result will not charges party concurring the quences. other cause still law with the such conse- proximate thought duty With- it our to find constitute the cause. long great analysis this, preponderance line of cases out an testimony such action caused the which hold it to error segregation' injuries, justice fact, we believed the substantial make course, “disregarding circumstances, other circum- cause demanded it. situation,” application bearing we think we misconceive the of the stances special law with reference to numerous this trenches charges considering appellant; the circumstances submitted line having pertinent fact, record, decisions after numerous found this be- this than the cogent lieving sugges- by appellant. the record Passmore Instructions cited p. Juries, tiveness of the we unable see to 95. though original given error, and, opinion in our the reasons We believe gave original opinion, and reconsideration we considerable discussion to brief, prob- merits record, lant’s substantial we believe some of it was of this solved, ably unnecessary potency the trial view of the of so have been this cause of court has error, not committed case, prominent justify all, a reversal record. will this at and the motion Express rehearing Company overruled. insistent paragraph that original opinion erred in the fifth we of our sustaining con- regard appropriateness tention in STATE. court, WRIGHT v. refused the trial us. discussed April Appeals (Court of Texas. Criminal disintegration 1913.) Aside charge exhibiting disjunctive prop- distinct 1105*) Appeal—Tran (§ Criminal Law ositions, conjunctive, objec- and then script. tion, however, technical, transcript, ofiieial would be not certified A attorneys signed by stenographer, who findings our and the character face approved case, the trial and not tried record, believe our appeal jud_ge, purpose. be considered cannot ruling permit If will error. following interpo- us, think.the with the cases, see Criminal [Ed. Note.—For parentheses Law, is what lation meant, notwithstanding insists *8 it; duty “At (§ 1144*) that it is not our construe 2. Criminal Law —Review—Pre sumptions —Instructions. look saw it I had to what the time that caused express evidence, the In of record the absence fright. large the horse’s charged presume judge must the trial wagon very high top law, applicable facts, law, and all the they- (I saw) two horses. refusing special drawn driven that charges requested. no error in there was slashing his who was horses ap- whip.” cases, can understand that Criminal [Ed. Note.—For other see 2766-2771, Dig. 2736-2764, Law, 2774- §§ Cent. interpolation pellant’s can answer be the Dig. 3016-3037; Dec. However, think not what said. — (§ 125*) and Information construction of his 3. Indictment reasonable Duplicity Committing — Of Means exactly what meant is that that he was fense. referring to the actions of the An indictment for theft

driver; ways in his accomplished have been in both the segregation statute states can committed. the offense desires [Ed. issue substantive Note.—For other see Indictment Dig. Information, defense, which we substantial trenching Dig. § 125.*] quoted by the line of cases - n improper applicable (§ 79*) appellant, the 4. Indictment and Information Sufficiency Language — Mistake single fact this case. facts of or stantive Spelling. grouping facts become sub- An indictment for theft from the any case, defense differ- property “monet” monet,” $20 “in described the word ap- typographical cases demands a discriminative a clerical or ence error Key-No. Rep’r topic &Am. Series & *For oases see section in Dec. Indexes NUMBER