full with *1 Tes.) the affidavit balanc'e is in their brief for Bank, same Court the error directs sonal statute. feature were made and them, name of the Case feature declining ment, We name whose is is ing affidavit for not controvert are error. tained counsel ment concludes the view remanded. bodied bility on the water and engine cab, ed the risk of FT. (Court I.Master hostler’s Notwithstanding ^[5] cab floor held for entirely immaterial. manifestly Dec. Feb. 1921.) In action under Federal judgment. Strictly, amount opinion. idea argument force, garnishment think this interest and WORTH, there as The third and Act also pronoun proceedings trial of Civil name on judgment of Civil of the case in the second suggests 'to roundhouse hostler who brief, therefore that the motion recited (and SMITHERS. any ground. (U. appears S. W. unpaid, assumption 1920. On here. Counsel court, paid in this precedes garnishment attention sustain But counsel precise wording of the affidavit brief, allegations president of the evidently servant alleged with which copying & “he” typographical Appeals, working assignment points Appeals them. We the essential in the Comp. on is reversed and the cause Rehearing in the case and found all costs other) D. C. RY. CO. et al. ought directly that respect complies they instant “has there is due it and last in the writ appellee’s position it, <@=>288'(2) contends precede decided ITT. WORTH in that Motion for to the.use striking them. brief, St. (No. 1713.) of whether he assum- cross-assignmenit of refers but which though in the cab of Texas. Amarillo. have esamined the cross-assignment of in that case on the floor of the set risk from quash unable to appellee’s authority for §§ case. alleging not indicated in Denied March that no affidavit judgment” Employers’ have examined judgment and find there- 8657-8665), mistake, appellant out these facts practically court, conveys it in the writ. appellant point facts on Appellee case as of Szanto v. refers to the bank, and interest- —Roundhouse on it The Szanto the Austin Rehearing, been sus- out what appellee’s literally, with the that & garnish garnish- approve on this slippery counsel slipped on $1,132 whose D. C. is bank state does per Lia- has em- !.WO (228 our file RY. 4. held not failure, juries failed to Pan found is one of fact for 2. Master 7. ty floor in jury. 6. Tria! 3. Master present men would not draw er the 5. objection bility injuries pan railroad’s notwithstanding sonably employer spect suitable 8. violation road’s requirements of gine en but for St. § stepping §§ 8624), der do safe Federal objectionable. tion place and on condition of locomotive ash ash issue act. 8624) held roundhouse Master and Act Master and servant Master 8617-8623), Master and Master issue as to such In Ordinarily An When Where 00. Safety Appliance cab. placed Act cab while instruction Act 8624), to roundhouse to an action violation assume that of risk use pan presumed ash (U. applicable. cab to where facts are safe wet employer and safe a situation so <@=>350(8) held providing (U. install the ash that there was no evidence has failure to acts are and servant (U. Ash the water SMITHERS and servant a railroad submit S. merely pan to close ash of and servant a roundhouse hostler Ash Pan Act appliances. required. water and not submit under Federal place'in which work. S. jury. Comp. hostler proximate servant S. exercised servant ordinarily question requiring get descending will Pan Aot under Federal of Ash Comp. servant has the greasy Comp. locomotive appliances for the work. question of lever while uncontrover-ted, employer —Court a safe keep required hostler in statute. to condition of ash St. submit issue as wheth- employee, slipping different conclusions. Act <@=>129(5) <@=>107(2) Reasonably <@=>265(4) presumed <@=>291(4) proper St. Pan jury, St.’§§ condition §§ proper <@=>231 uncontroverted. plain pan <@=>110 cause of <@==>288(1) Assump- comply (U. cause of the § 8657-8665), (TJ. Comp. place Employers’ should not submit (U. Act to has 8624), as complied to furnish a rea- unless the whether railroad descending S. Employers’ on cab 8657-8665), court should’so repair. to au S. caused (I) Employee not have fall- inability on the floor of care —Federal —Violation provided to work (U. Comp. to close ash pan — —Instruction Comp. with federa! —Locomotive for assume that held issue to be floor of en- — or there is injuries slipped in Comp. intelligent repair, — S. held not floor. jury- of such for Liabili- against for in- go equip- to so St. § St. § rail- safe Lia- Ash pan .un- re- St. Digests other cases see same Key-Numbered todc and Indexes in all KBY-NXJMBRR

cS^cRor *2 (Tes. REPORTER 228 SOUTHWESTERN perhaps .abnormal, dumped or 1917 and 1920 were ped can be an furnishing necessity a- future looked to as should not be emptied cleaned without capacity locomotive, earning held criterion as to employee going an injuries, comparison suing employee is ac- protect while for or for an adjusting wages and after. tually received before locomotive necessary every step also in each purpose. accomplish Rehearing. On for Motion — @=295(7) 228(2) @=204,(2), 17. Master and servant Master and servant 10. —Instruction (U. S. risk held erron«ous. Ash Pan Act assumed Federal Violation of Comp. 8624) precludes of as- defenses Employers’ St. § Lia- Eederal In an action under contributory negligence. 8657-8665), sumed risk bility Comp. in- (U. §§ Act S. St. Employers’ employee Lia- under Eederal struction to find for railroad of railroad’s In action an Comp. 8657-8665), by (U. negligence, bility injuries for exercise of St. §§ S. Act ordinary railroad’s violation Comp. known the same while care could have caused 8624), time, by (U. discharge St. § Act S. of his duties Ash Pan in the plea part ordinary of as- to have not defend care railroad could exercise of contributory negligence, erroneous, injury therefrom, in view held risk or sumed of avoided Liability Employers’ Act, employee 4§ would not be Eederal assumed that guilty Liability Employers’ knowledge 8660), (Comp. St. risk if with § of assumed 8657-8660). ordinary (Comp. negligence St. §§ 1-4 exercised §§ Act railroad’s injury. care avoid <@=>136(25)— Negligence Proximate 11. @=217(10) servant jury. 18. Master and for —Railroad employee not relieved of assumed risk ex- injury an is ordi- cause of ordinary ercising injury care to avoid from jury. narily question for the negligence. known @=>140(3) insufficient New trial 12. —Evidence employee knew, Railroad or must have sugges- influenced to show tion known, railroad’s and continued attorney was to receive one-half service, in the could not recover under Eederal recovery. Employers’ Liability Comp. (U. Act S. St. §§ sug- justify finding that a held to Evidence 8657-8665), though knowledge even of to jury room, during gestion made in discussion ordinary exercised care plaintiff’s awarded, at- of torney amount avoid the receive as his fee one-half of was to @=295(7) and servant 19. Master recovered, did influence the —Instruction the amount amount assumed risk held erroneous. of the verdict. employee An instruction that did not as- @=44(3) Suggestion New trial 13. — knowledge if, with risk of defendant’s sume attorney was to receive one-half room ordinary negligence, he exercised care to avoid ground recovery held not for. therefrom, would have been defective affirmatively appear it did not from Where St. under Rev. art. subd. 2. suggestion that a made evidence the jury @=750(6) Assignment during Appeal and error amount of 20. deliberation room — plaintiff’s attorney verdict, error to refusai held was to receive to cover charge. fee, giving recovered incorrect of the amount one-half verdict, court’s denial of new influenced trial on Appeals of Civil will reverse errone- The Court suggestion held of such ground that an instruction was ease on ous, discretion, under Rev. St. art. abuse notwithstanding complain failure to there- 2021. error, where court re- proper charge, and such refusal fused a Damages @=132(3) $15,000 14. verdict for — by assignment complained of error. resulting paralysis held not ex- cessive. @=217(20) servant 21. Master and —Risk Employers’ under Eederal Lia- In action by roundhouse hostler unless care- Comp. bility (U. 8657-8665), $15,- Act S. St. §§ slippery person observed would have ful cab injuries year for to 21 old 000 verdict danger. appreciated floor suffering paralysis as a result of the in- hostler did not Railroad roundhouse assume pounds juries, more than and who had lost working greasy cab with wet and risk of trial, weight held between not ex- grease and water and the con- floor unless cessive. sequent danger were so obvious that an ordi- Damages @=185(1) person narily in his held situation would careful —Evidence injuries. paralysis ap- caused and water and show have observed preciated danger. Employers’ Eederal In Liabil- action ity (U. Comp. 8657-8665), St. in- §§ Act @=288(2) and servant 22. Master —Round- juries employee, held to warrant assumption of risk from ab- house hostler’s injuries paral- finding received caused lights jury. held for sence ysis. Employers’ under Eederal Lia- @=II 16. Evidence notice taken Comp. —Judicial 8657-8665) bility (U. St. §§ Act wages prices paid during abnormal a railroad roundhouse hostler who years 1917 to 1920. descending slipped ground, frqm cab and fell while Appeals it was claimed that The Court of Civil will in which railroad take notice having wages prices years during lights, in not furnished between Digests topic Key-Numbered @=For other cases see same in all Indexes KEY-NUMBER FT. WORTH & D. C. RY. SMITHERS S.W.) (228 way Company of whether he assumed the & Colorado Southern lights absence of held for the damages Company, jointly, al- leged to have been occasioned a fall while <@=286(3) 23. Master servant —Railroad’s employ appellants. lighting Before prem- *3 in not roundhouse jury. agreement following held trial ises for court the en- Employers’ tered: Lia- an action under Federal bility (U. Comp. 8657-8665) Act for S. St. §§ agreed parties “It and between the injuries descending hostler from roundhouse ques- in hereto that at tion time of engine ground, cab to the railroad’s en- both the defendants and were lighting premises question in not held-a for gaged commerce, it further interstate and jury. plain- agreed that at the time of said employment general tiff Worth & Denver of Fort was in the <3=285(5) Negligent 24. Master servant amt — City Railway Company, and light premises proximate failure cause special employ injuries of Colorado & South- of to roundhouse hostler for held Railway Company.” ern jury. against railroad Fed- In an under Fort Oomp. The for the Employers’ Liability Smithers worked (U. eral St. Act S. injuries City Railway Company 8657-8665), for to a roundhouse Worth & Denver §§ descending engine from hostler fell borer, who while as flue the with the 1916 for two months about question ground, cab of whether railroad’s duties of which were connected' proximate light premises awas Texline, time Tex. Some roundhouse April, injuries jury. held for the of cause employment again took <@=3285(I!) Negli- helper, servant Master and and con- from as hostler’s — gence moving engine injury proximate of cause days, position un- for about tinued jury. hostler held for to roundhouse injured, he and sues til he for Employers’ Lia- under Federal In an action help knock out 'His this case. duties (U. Comp. 8657-8665) bility injuries for St. §§ Act S. turntable, engines, put fires in them into hostler who fell a roundhouse roundhouse, and such them into and take pit descending cab, from wheth- turntable while perform other duties as he was directed to moving engine on er railroad’s On the under direction of the hostler. pit, turntable, the over wás a cause April engine evening 24, 1917, an came in jury. injury, held a for Trinidad, Colo., & from and over the C. <@=3285(7) servant 26. Master and —Cause crew to the hostler was turned over its engine fail from held hostler’s roundhouse roundhouse, about and crew at the his jury. for engine was from the turntable. The 50 feet Employers’ Federal Lia- In an action dump stopped the cinder what was called keep Comp. 8657-8665) (ü. bility St. for §§ Act piling up from the cinders track. To fell in hostler who to' a roundhouse engine and forwards engine ground, backwards descending was moved cab to whether slipped on floor of and cinders until fire box so as to scatter the he water cab, empty. held: pán and ash and helper the hostler another went into and <@=>61 Negligence (I) —Concurrent appellee thereupon open- engine cab, and contributing efficient cause. says they pro- up then and ed produce agencies two If it grates. got he After to shake ceeded thereto as con- if both contributed pan, presence grates forces, he close and existence tried to cleaned current one will not exculpate other, because deck not dose from the would and efficient cause would still be cab, found it would close he when he get cab, with the inten- out started Court, Appeal Coun- Dallam District says, putting tion, his shoulder to Tatum, Judge. ty; Reese it. to close While from the lever and effort, made considerable the cab Fort, against Smithers Action Glenn pan. lever, close the He the use Railway Company City & Denver Worth says efforts, made about plaintiff, Judgment and defend- for another. operate by lever, and that it would appeal. and remanded. Reversed ants purpose then, with Hiner, Barwise, Thompson, & Wharton to close the ash started out of Dooley, Amarillo,- Worth, & Turner Fort side cab. The lever fireman’s Dalhart, appel- Strong, of & Tatum box, cab, in fire front of the lants. box is lever fire Richards, Dalhart, Bailey P. F. & box, up into the cab from came Amarillo, Joseph Works, Gill and D. dumped engine by from the fireman the ashes M., ap- Clayton, Paddock, N. both A. The lever was of the lever. about the use pellee. up into two or three feet lever, pan was let down with the which is Smithers-brought again coming HUFF, up about C. J. this action to a described against City appellee says grates & Rail- the Fort Worth Denver man’s waist. Digests

(gcsPor topic KÉy-Numbered same cases see otEer KEY-NUMBER Indexes all (Tex. 228 SOUTHWESTERN REPORTER try- busily right, engaged not of cab he shook all close; ing open, lever, not close. to work the but would and did not know that get he the down hostler had turn- When claims that he which hard pit started moved the water, greasy table, slipped and that foot he did know such facts pit, attempted alight when he the turntable from the en- fell backward gine, premises, turntable, etc., sort and that of some out is constructed lighted; stepped substance, bottom of and that the were grease that he into the slipped, water, feet. about eleven floor and his the cab foot pit, the he fell is accounted backward into a concrete dis- brought feet, striking crew, about tance of concrete that the fact that the the their dishes trip, spine; in floor on their lunch the lower from the ate end *4 through coccyx cab, getting broken, washed bone was and the bones of and aft.er right his to the boiler hand were also broken. with hose attached appellants by throwing general denial, by them. and over The water on answered the says appellee risk, contributory negligence. of this custom assumed and he knew The gave general charge, engine crews. further after The court and in the He stated of paragraph water, got the the fourth thereof cab he noticed submitted the he into the grease Safety Appli- on the was as to a the did know there issue violation of he washing (U. Comp. floor, 8617-8623)', §§ of so of the custom Act S. St. but knew ance and lighted premises paragraph were not tenth the dishes. The the submitted the lights recovery authorizing dur- no used there there had been and ing Under Em- the employment, appellee’s ployers’ liability (U. Comp. §3 and the Act S. St. time lights. light 8657-8665). no were he there rendered verdict extinguished, engine $15,000, judgment the which on was the and the sum was appellee know he did not testified knew. He entered accordance verdict. the engine the the the had run onto that the hostler found for the If the get paragraph charge, out of he to turntable when started the fourth would the this knowledge cab, for his want and accounts the of whether 10 were eliminate the trying busy, negli- things gence contributory paragraph he been that had on the to out in set pan lever and that close the ash the of assumed and risk and lights. torch negligence; but, had a coal oil He there were verdict says cab, one, which he general into the he went when is a unable to determine by or five wind some four was blown out on whether violation based verdict getting Safety Appliance cab. did into the minutes after He un- Act or try, because, sayá, relight liability Employers’ or he torch will Act. It der it out. He have blown also wind would be of us examine therefore to was not to run presenting custom testified that both features. court’s engine ders, etc., cin- sixth, turntable until after the first, fourth, eighth, third, onto the and emptied. assignments tends were be will considered to- tenth they into the fell backward gether, to show that 10 of assail each coccyx pit, was substance, the fall his and that is in the court’s broken, two in his bones that one and from the find should follows: injured. discharge He sent or was appellee, was broken hand that evidence his by appellants engine cab, for treat- duties, the sanitarium to and to entered ment, or remained for some six he ashes, where empty etc., thé ash and if from discharged. days, Some was then light, and seven in and dark and was was there 1918, fall, August, he had place after time where locomotive around the the work testimony paralysis, partial being done, and some and while finding employees engine appellant’s that this resulted ran the authorize on the injuries fall, turntable, engine and the knowl- received without on appellant’s opinion appellee, edge en- and that physician that it would -is of the onb However, gineer paralysis. had caused water probably total and fireman result cab, grease and if deck of to on the statement with reference will make to light injuries considering they to definite believed more found his running engine is excessive. or the the verdict The the that grease alleged turntable, petition, on appellee, by water that the or the negligence, deck, or each of said acts was so constructed as projecting operated from the evidence and if lever undertaking appellee, they get cab; while to work the ash lever failed found that stepped cab, thereupon position, that deck out that down cab, of the cab of the the deck and out on down or on he started slip fall, and go caused him close injured fall, alleges pan. therewith he that he connection direct left on floor and water any (result) brought of all crew the cab peri-' appellee’s alleged, yard. substantially negligence, It is it into the ' favor, previous should starting tion, unless to, find as testified out' RY. CO. SMITHERS D. O. v. FT. & WORTH «41 (228 3.W.) page Horton, there- 233 U. Ct. at instructions find 19150, 1, given. Ann. 58 L. Ed. L. R. A. after Schaffer, assign 475; 1915B, Cas. the first [1, 2] asserted 413; hy remaining appellee, the 220 Fed. C. A. Bonnet C. ment Railway Co., water W. Rail Tex. 33 S. he learned after way Brooks, page risk 199 W. the floor (8-11). to be based seems incident thereto. operatives employee testimony [3, 4] some has employer prop engines engine lunch on assume that his ate their has exercised sometimes respect providing water with hot er care with dishes a safe and washed the place work, appli there connected and safe boiler hose suitable from the with, work, ances before the is not be treated and that floor, assuming arising as that is gence, from a noticed defect slipped negli employer’s foot down his attributable when started floor, until the or water on the becomes aware practice defect, plainly of the custom unless it is was aware so observa presumed washing is doubtless true ble known dishes. Moreover, water on of it. have seen in order em *5 ployee assumption fell. he the cab before at he entered of a risk floor after It necessarily employer’s assumed that he true tributable to a not defect due to the reasonably knew, only negligence, appear have danger, must or he must not that or it slip (or presumed known, known) endangered in endeavor knew that his to have of foot engine; defect, alight in other ing words, the his he that knew it negligence safety; else, danger he knew or that such have must neg negligence; danger ordinarily prudent been so person, such obvious that jury re circumstances, ligence were which the submitted would have find, appreciated Case, water and supra, was quired grease whether it.” Hall The appellee suggestion by The cab. deck of the authorities cited. The therein appellant time that at the did not know as he the condition of the cab was testified greasy appellee apron appellant was cab or obvious to as to deck is entitled however, wet; law, slight principles did know he to but well notice. The as as custom of to applied reference employer train crews and em duties Remaining ployee, quite duty cab eating different. was on lunch. The appellant provide reasonably place. learning not it does a condition safe of its after duty appellee necessarily charge There the could act no was see to us occur but, safe, contrary, he might was appellee risk. There with assumed assumption em that the plausibility if he had entered some duty. ployer danger had done his The must of the condition. after he cab was be known or be obvious before can he duty appellant to remove said to it. In have assumed It case water, had been not question have been fact under all appellee and, into the entered done before surrounding appellee. circumstances then discharge duty, he had learned of his cab gave charge on The trial' court neglect, danger entered, if he charging such appel risk, and advised find for him would be there with some if assuming negligence lants found facts sustained when con such he plea particular in this assumed risk Such con tinued his entrance the cah. negligence. charge have dition would been somewhat similar surrounding third, sixth, eighth, fourth, urge the circumstances Barnes v. tenth Barnes, assignments submitting Oil the ease of Producers’ 103 this decided to court erred learning question Tex. 131 W. 531. But entered, lights if after furnished with employment running lighted, premises abandon the then and in necessity turntable, because, asserted, would have to leave cab on appellee way. lights, some occurs to us that a court would risk assumed the without the justified law, charging mat as a there was furnished a torch and because circumstances, lighted keep ter such failed to which burning, proximate assumed the risk. was such not the because acts were fact, law, injury. one was for There was cause of Ordinarily, urged objection complaint to determine. assumption recovery charge is one fact for which allowed jury, present negligence, unless situation further than un- acts of that the plain intelligent men would not draw evidence established assumed controverted risk, proxi- different conclusions. Co. v. De acts Atley, Sup. charge words, U. S. Ct. 60 L. mate cause. other Hall, objected Ed. 232 U. S. not submitted to because the several acts were 521; Railway disjunctively. Ct. 58 L. Ed. An examination

228 S.W.—41 (Tex. REPORTER 228 SOUTHWESTERN charge will, think, directing charge indicate the tion No. 18. This awas necessarily required appellee knew, several acts were to have been if conjunctively, or, rather, known, greasy found to exist currently. con should have appellee may danger there- The mere fact that the floor of the lights from, appellants^' known would not there were no to find correct, recovery substantially think, defeat his to if was caused we slip given grease, and fall should have been if court did presence trial of which The in cover he did not assume. issue. court, light, pit, main various in the ninth of his acts—-the failure to etc.— charge, gave risk, general simply of assumed a chain of acts which definition paragraph instruct- concurred in the does not and in the fall and The court eleventh appear ed knew there to have submitted a failure light apron cab of and water on onto the turntable with engine, etc., independent negligence, the authorizing for defendant. acts of find defective, charge, given recovery. court, suggested, As above but, it, in fa- we construe error was these acts were all to be found be appellants. charged recovery effect, authorized, except, per It, vor of fore a duty -ordinary part haps, charged clause, “if care on the the last it is negligence. duty does to discover the not Such the cause were the direct and any appellee, (result) assume rest on he can of all or one of these hut duty. plaintiff’s performed master has you petition,” him qualified by, is or such be known to as is and also “unless presumed been known to have find in favor of defendants under instruc you.” given sug him. tions hereinafter As above assigned giving charge objection gested, urged Error No. is also to -the *6 only charge recovery is an which abstract because it alone on authorized risk, finding light law of follows: assumed and is as the was no or in there moving engine the onto the turntable. employ plaintiff, when he entered negligence not, These acts or have helper, defendants as a risk and assumed the hostler yet dangers ordinarily as and covery not authorize re such em- incident to various, arising ployment, from the any reasons, but did not risk assume such as assumed negligence any (if of the defendants them, proximate cause, risk as to yet concurring or not the was), plaintiff there unless the knew of such appellants’ negli with the negligence (if any), ordinary or in the dis- gent permitting grease acts and water on charge of his duties must have known of such apron of the cab would contribute to the negligence any) ordinary (if exercise falling act of tained. as as to the sus well part injury.” care on his to have avoided slipping If the caused it was just negligence appellants, It is mean- difficult to determine and was the ef ing charge. employee cause, does not fective fact that other know, assume does not which he acts of in the concurred plainly or is is not he observable so recovery, would not defeat a as we under presumed to know. One construction Finklea, stand. 155 S. W. at charge may employee page (12). Later.we will note some of ordinary exercise care to know. charges given, authorizing ap thereafter language charge transposed, If the of the is pellants recover, to which this it would read: charge of the referred. Also it will be negligence, charge recovery “Unless the knew of such noted the the terpret á authorized on ordinary part or to the exercise of on his care alleged. as submitted As we in ordinary injury, have avoided dis- allegations petition, of the it is charge duties, of his must have known of such moving engine of the onto the negligence.” pit, turntable over a concrete and the failure light premises, concurring placed greater meaning, were such is brought appellee placed. of about the appellee which induced burden on law or than the injuries, meaning fall or excused the seems to have been the court’s interpreted by attempt alight para- in the as him in the eleventh at did; graph, apply time and where he which law that neither seeks to appellants moving engine light plead of the nor as assumed sought charge or risk. The court sumed as- sole efficient cause of the fall to of the was the concurring lighting engine risk as as to the or causes or acts. premises, purpose para running on of the We think was the turntable, alleged, graph and to the to submit and water these as as gave appellant’s pleadings on the floor. The trial court reference to manifested requested charge instruction No. to the effect construction of the as well itself. undisputed evidence established that premises, appellee lighted, etc., second is based on the re- requested give if in of the submitted dis- fusal court to instruc- pan, helper, poses stated, purpose pellants grease, fourth ground such, should have if he lee it court’s tend into the cab ash down from the duty ash 6f structed every lights, the sisting, heard or read the jured by pellants, permitting grease By requested charge en, knew, or ry, of the the stantial known thereof table, have pellee ligence charge would be misunderstood of assumed count tributory negligence er the table. are not" say not at all So, ^[5] certainly all were lighting requested, go every phase assumed the light by engine. pan pan, charges requested and that it did, went found conceivable knew, or either down he danger, in not various on It of his duties must duties, No. charge complained of, that it paragraph undertook to purpose than that should be accordance contradictory failed to of the other or its and that to find for trying all, the probable go specially seventh into the dumping the was not risk for thereunder for obvious, known, point event, were instructed relighting under and in turntable; to performance the he then should have placed and that the several charges; premises, proximate by exercising of this case. danger, servants, to some stepped risk, paragraph by knew, charges given. while that if angle get operated an required by law, alight, being cab requested the law assignment complained cleaning known, appellants the law that necessary occasioned go charges No. cinders, could not FT. WORTH & D. O. 23 or was accident. in appellant his of the or as down out of the by believe, he was greater duty by the whether the performance special charges. moved on or whether either these appellee, appellants’ each other. in cause of the was on the turn- working must have known, torch, requested. danger, appellants of his trial court substantially appellants, from trial court would be given, which was stepping received if to whether or instruction etc., ordinary He guilty when read for him on of. We for charges and by undertaking be assails or that the moving They closing From most and wheth- facts could submitted, known, duties discharge dumped from the submitted lever ex operated meaning without charges of con- for known, if hostler theory, equipped in sub- not in- cab of on appel- guilty (cid:127) if point. turn- inju- that, care. gave gave- trial pur con- neg- giv- cab (228 3.W.) the fourth up- ap ed, his was ap- ap- act ac- in go or If in been RX. provisions to the whether the defective ure to jury, in that This lever, prevail der jury repair believe, pliance cleaned without going that the Interstate Commerce Commission U. S. it shall be unlawful 'for by as or from only by railroad to use terstate without him. The Ash Pan Act troverted evidence is structed that *7 gine mate cause of and that act. the law. When the and not submit it as state or ash engaged if with and that and if that it could not lever from the an idence that the “On The act ^[8] ^[7] [6]-It is the rule they this case to ash trial. pan, only to clean or close it designed Compiled The thirteenth The law such as fulfilled court’s they comply pan that was concurring, found the ash use of to assume that determine. could- worked in law, Commerce the trial court any which can be as foreign traffic, stepping by operating uncontroverted, if and was issue further cab, after SMITHERS designed its interstate so that ashes alleged, slipped on the floor of the should further any, necessity other and this .the also the act. engine-the it and was worked be appellee’s injuries, a lever any Stats. required and could not be. is based the were the undisputed into locomotive.” provides penalty made because position. Commission enforce the such and fell first locomotiveto move inter- proximate operated appellant necessity to whether in court should or assignment working made the dumped the duty injured extending issue was pan an issue to comply the had the day provides: the lever connected if this state foreign any there is requirements as the filed at the time of could or presumption upon ash the court therein pan. concurring proxi- was not find equipped off of was defective there is fall common duty as stated any placed evidence shows it was cause appellants of the January, 1910, the defects of the equipped pan pan, law Section commerce right, duty emptied alleged, left for the engine cab, The assails to find for emptied other of the In- to enforce so when the be was con- objection designat operated to be so such working pleaded ash carrier, charge, engine, the ev- injury. should uncon- closed, of the as found as to issue with such law. fail- way pan «43 cab un ap en- in or (Tex. 228 SOUTHWESTERN REPORTER

644 above case we think to proximate gaged by ing to made liability The we have cited quired, by effect can be tection of were uncouple them, deaths mediate occasion for automatic intended between the there said: pose statute, claim is based Ed. purpose, injured received the and consideration to Layton, hold us, out the argument, would the reason that the statute gine 36 tended to motive, way separate can gine ed ing Parker, The “While it comply ^[9] employees holding, as equip obey Sup. without the at the moment when he is defective, humane locomotive, adjusting be too restricted. duty. beneath the language of the every case was not hurt while contention was made holding with an ash obliged unlawful would be authorized the in the means confined locomotive,” ruling not from the dumped in, or in adjust necessity Ct. but was 242 when between has been *8 “without the coupling 243 U. S. where these or while their cars with' cause of couplers protect this contention step equipped employees We believe damages, apply injuries 626, purpose can be is discharge U. in given only ends of the cars.” The court the work to use cars not make it undoubtedly yet safety appliance go damages necessary necessity 60 L. Ed. 1110. simply the ease of locomotive. suggested of an 56, we understand pan do, statute applicable while between law, springs from to the emptied Supreme these laws as written are in that brief, injury caused passing the with an ash in their applies is in the acts and the authorities uncoupling 37 failed to benefit of'the Wagoner, Supreme only necessity that carriers Safety Appliance position entirely employee The law the cars employees employee Sup. caused duty.” whenever the failure 'of acts, automatic requiring Sup. to them would, when so expression in the cars to true that and cleaned accomplished only in that case that with terms great number of Court requiring Ct. could be accomplish well as because equipped performance under the loco Railway employees actually find and their wise injured. argument clear that laws Court equip 241 U. S. Ct. to fall on of men this employee laws evidently 69, employee them. pan, may going equal engine. To it seems to the justified couple had under employees 456, L. when en- are therefrom employee railroads 61 Ed. requiring couplers. its case, engaged. the en in the stances he do- it was “which operat law, as re- L. (cid:127) Co. v. liable force being with sumed risk or pro- each pur filed oral 476, provides: im- Act en go in of in proximate cause of an ring science evidence mit termined as a Kellogg, ed defect was the tion of law for our we are ages it, therefore, if pellants pan, injury thorities above cited. The 19140, there was imposed provision applies to assumed risk. Railroad L. 535, ute enacted for the which contributed to the ligence S. an held whole or in ficiency mon provisions employee suffering injury “resulting, Donaldson, L. it piled sive), utes, Employers’ Liability of such ployees, Pan contributed to his any carrier of ed Liability made laws, to this. “That in ^[11] This asserted that the various ^[10] 42, employees by Ed. Ed. this April 5, 1910, pars. 1-4, case where the 38 cause clearly applies, Law. to have been carrier under or which in whole or in could not be diminished 34 do not Statutes one of which is the Ash Pan. Law. Otos, “The true rule 168; It does not 616, or contributed to or of 322; Railway where there is a violation of Sup. employee.” case that section 4 of the requested statute is invoked issue 94 in the carrier’s to, effect, gave Sup. an absolute apply cannot defend on the authorizing Indeed, Act is not fact of this act to recover any any contributory negligence U. S. Compiled 246 U. S. Ann. Cas. 239 U. S. of the death part,” Railway Ct. legal knowledge. It contributed apply Ct. employee attending fact, statute enacted for the 1916, pars. 8657-8660, contributory negligence. proximate 187, 469, 581, to hold that there was no any by risks of guilty appear injuries. Railway to this case. These stat violation determination, if the defective ash in view 62 L. Ed. brought against Statutes was defect the trial Act of 24 L. 58 L. Ed. Co. v. 121, is liability, its terms the 1918C, applicable It is injury safety is that what presented shall not be held to appliances, it.” any it, virtue of injured a of, to be a contention his Ed. cause not a question present Huxoll, contributory provisions that such defect part Lindsey, safety of action 581. Neither is Sup. to whether the defect or insuf inclusive Railway is any 1916,par. 8660, 455. 838, employment thereby. court to sub 256; Ry. such common ordinarily plea damages shall not be to the Ash caused the Ct. Employers’ employees, Ct. in of its .em- any as amend The same Ann. Cas. the dam in which 245 U. S. to be appliance and that any We ruling any appellee, or death circum a concur 233 U. 230, is of as Co. v. Co. v. safety ques (Com inclu stat com- take neg Au de ap for a RX. & D. O. 00. v. SMITHERS FT. WORTH '645 ¡.w.) (228 by building caused rule the in fire Rowe, We believe 224 S. W. 928. v. which should considering explosion. however, court, held the con- guide in The the court surrounding case, tention was well founded. circumstanc- this es, speak- Supreme Court stated universally agreed fact mere “It is par- concurring negligence two ing of the human that the intervention of being reasonable injury: contributing to the ties can be traced between the defendant’s wrongful complained of will act and the attempt separate that which “This is general contrary, not rule is that whoever does a" answerable for all the him. On the absolve * * * sep ought upon wrongful act is were, negligent acts The so-called two arated. consequences that result, producing fact, united though ordinary events, in the ensue such course of concurring made the point one directly consequences immediately They were, companies. part both brought intervening intervening cause, if about time, substantially simultaneous cause were set motion transaction, parts whole one original wrongdoer, reality only a or was in attempt separation improper would be the through negligent condition on or which the counsel for the manner asked for operated produce injurious act Volume result.” Company.” Hickey, Horse Car 22, par. Cause,” R. 0. L. “Proximate Sup. 661, 523, 41 L. Ed. 1101. 166 S. 17 Ct. U. p. 19, . case, vice, as is that coun- The said in that Boon, In case of Insurance Co. 95 attempted separation sel into two distinct 117, 895, appellants, U. S. 24 E. Ed. cited proximate) (remote which in real- causes ity is said: The facts continuous cause. one proximate cause, cause is the efficient car horse that case show the driver necessarily the one that sets the other causes track the steam drove his car operation. merely in- causes that are moving railway The per- train. of a fast in front cidental, superior are instruments con- gates, railway company opened its trolling agency, proximate are not causes and enter, lower- and then horse car to mitted the responsible ones, though they may be near- them, shutting horse car ed iner time result. the the the when prevent track; it, independent late but too causes are then raised of each other is, course, charged nearest stampede passengers the horse disaster.” consequent car, to the com- argument gist plainant. counsel’s See, also, Booth, H. R. 171 U. S. company low- car for the horse Sup. 19 Ct. 43 L. Ed. 234. gate ering cause. was the Supreme recent cases considered escape liability railway sought to The steam Court, where the cause of the driving theory that it was ap claimed pliances, resulted defective Supreme track. The Court car on the .horse the court to allow refused the de said: contributory neg fenses assumed risk or act, negligent being a driver “The act of the proof ligence, or to demand very being in full force and act and process neces where sarily time the accident of execution at the operation, de other causes set hap- occurred, would not have which accident complained of contributed to the negligent act, pened fect the fact party death the carrier was held liable. Rail act of a third contrib- or another happening Huxoll, way Sup. would not of the accident uted to U. Ct. Company. negli- Horse Car absolve Campbell, L. Ed. gent joined car of the horse driver 683, L. Ct. U. Ed. part wrong- of the other act became latter case: is stated *9 fully gates, described, lowering the as and both plain argument that under this “It is too acts constituted but one cause for the commo- legislation Safety Appli- violation of the naturally the therefrom, tion which resulted cause, ance Act need sole the efficient acts, parts on account of both of these as may in action lie.” order that the transaction, a whole the occurred.” appellants argument quote Safety Appliance in violation the Where a Tweed, operation from the in case Insurance v. which resulted 7 in causes Act set 44, 65, injury, Wall. most the 19 L. Ed. what is said the but satisfactory slipped ascertaining through criterion in intervened, which proximate cause; is, mashed, held that where a new it was his foot caused Hickey gave Case, supra, appliance intervenes. cause concurred defective quotes case, v. that and calls attention to the therefor. of action 626, in fact that a sense 36 Ct. 60 L. Wagner, 476, there was a new force or 241 U. S. explosion power An which intervened. oc Ed. 1110. repeated- building, have held curred in and caused a in courts one fire Our state own building, ly need not be the cause an another and from latter build concurring ing building insured, cause, cause. be a and not but sole city against building explosion caused in which the oc In the. (which pile by falling lumber was curred. It was claimed the insured that (Tex. REPORTER 228 SOUTHWESTERN n piled play charge street) testimony, was child who land under in on a court; charge ing it, fall that, after while did not read cause near the immediate drayman jury retiring struck box to of the lumber it to fall and was held a if verdict, they dray, the lumber caused consider their read heard the with his and this injure attorneys it read and court, In that case and the child. jury argument determine them. before discussed permitting juror, city’s negligence Douglas, testified, One at Hr. proximate torneys’ arriving piled at was the fees were discussed lumber to be so Galveston, City verdict; under the amount of stood, that he Gonzales v. cause. 17; Rep. 284, Am. St. amount the order ascertain the Tex. S. W. Davidson, App. Shippers, etc., attorneys recover, Tex. Civ. would the fees the v. 1032; Company deducted, v. would which receive, 80 S. W. would re, 800; App. appellee’s Sweeney, W. S. W. 36 S. leave net 14 Tex. Civ. balance as sum eovery. gave $15,000 City Bagwell, “If we him he would of Lubbock Case, get $7,500.00.” Kellogg supra, however, juror, it was said: stated testimony thought appellee * * * in his entitled always inquiry he wheth- must any allowed, to more than and that he discon- cause the-verdict er there was intermediate self-oper- primary fault, juror greater nected voted for amount. This also injury.” produced stated; ating, which judgment arriving “In boy’s $15,000, took into consideration the well It seems to us physical it, condition as I saw and arrived reasonably appellants must have found that under instructions as the heard at the falling anticipated probability Again: forming give them.” “In court present one, and if circumstances like the grease my verdict I for, amount voted I permitted the floor tried base it on what wit helper pass must of in the able that over which the testimony. nesses to and the I tried testified duty, prob- performance of his it together. take it all We had the court’s to charge; I don’t know as it unwary step participate it; read, did read it had been places. appel- dangerous him lant should Whether into had been read the know reasonably anticipated room; they talked I it. don’t about any other, grease upon particular floor, or any particular part of it was discussed.” Mr. times, yet they have known at all Adams, says jurors, paid one at probability a reasonable sudden and attorneys’ fees, remark tention about presented being unforeseen situation it, not consider and knew that sever did helper the fireman to fall jurors al others did not. Some of the voted to or from a work which'should high $35,000, for as less than been. and the verdict was by going done otherwise than Douglas thought ought to have do not believe locomotive. We the motion indicates' stepped, floor, into which attorneys might the statement that the that get primary fault,” or from the “disconnected surmise, one-half was a bare as no one produced “self-operating, which it was pretended to know it' as fact. In the condi injury-” floor the more record, think the trial court tion agency, causing an efficient the foot of justified finding the evidence did step slip, than affirmatively suggestion show step. wrong him take that induced attorneys’ room to fees influenced cause, oper- independent The ating is not an verdict. We amount would not wrong but between justified holding affirmatively step feel concurring cause. The it is a grease by appears suggestion step influenced the induced to be taken same wrong. They separate, it is verdict, manifest therefrom first sequence court abused the discretion trial one, an unbroken of acts to ' n in him terms of the statute. vested O.; Railway Gray, 2,13] Article R. S. the eleventh [i Under 606; Marshall, etc., W. 105 v. Tel. Co. 143 S. abused his assert trial court Tex. Schamberg, refusing 190 S. W. Gulf States a new'trial on account discretion in of Evetts, 289; Railway jurors receiving 188 S. the misconduct of W. *10 Roberts, 1004; Railway that, 196 S. W. Co. the effect out or evidence to statements of whatever App.) S23; (Com. ap- judgment v. Andrews way 206 W. Rail should awarded be 706; attorneys Blalack, 128 S. W. Fox v. cne-half pellee, would receive his Railway 852; Railway attorneys’ fees, Co., 186 W. that said amount as and 539; Parry, jurors Hines v. Cook, 214 S. W. in Three were 227 S. verdict. included examined yet 339, by (not [officially] hearing pub this court of this W. lished). they them state of the motion. Two of heard assignment [14,15] something attorneys The assails tire twelfth about stated being appellee compensation judgment, receiving as excessive. If the verdict out of paralysis, suffering they paid as the it, and that is but matter was not attention to jury find, say They we could not to fixed their authorized discussed. complaint appellee is excessive. The on the and verdict verdict condition , Ri. & D. O. 00. v. SMITHERS WORTH FT. (228 5.W.) have-, at the has employment or in time received at this some of seems more be that his appellee This receiving evidence,- afflicted. been as much trial the or more than he was He was law.. fall, matter of at there hold a his some we cannot as is time sanitarium, however, he wages the bones and there in the in sent to a which-' service extremity employed were backbone his then have lower increased. fractured, may set. and were [16] We to have been believe notice of the’ shown take w.e operation wages years prices during describes The fact Saunders, abnormal, who ü>r. some minuteness, covered and evidence have been performed operation, perhaps in a class called fur should not be looked as pointed operating room, nishing earning a students to the out This his future as criterion fractures, dislocation, capacity, wages etc. comparison them the or for as to re operation or contradicted is not denied ceived before after. do not feel -and We Saunders, justified, a wit- in fact was not Dr. who case, under in all facts in this damages is after saying in this true case. It ness was assessed his If his at paralysis discharged, came before amount. excessive de condition services, on, washing performed judg such delivery he various scribed ment and to our serious, windows; a car he drove in this case over 13 others who wagon dray; ma- about they other work and a did say, after all heard the evidence and ranch; rode horse- chinery, testified, worked saw witnesses as he cattle, helped sum, and also culti- damaged back, and has in that would be to This, how- the ranch. justified land on vated some assume ercising do not feel in ex between ever, injury all interim was within the under the evidence this case. during period paralysis, Affirmed. eight the end of or ten months. At of some suddenly partially paralyz- he time was that ed Rehearing. On Motion legs, feet, he hands and describ- his [17-19] We were in er have concluded we symptoms. premonitory It does ed certain holding paragraph ror in court’s disputed appear that he was fact not then so afflicted. sufficiently charge the issue as submitted was, time, He at water, sumed risk (cid:127)again sanitarium, doctors taken to holding there was reversible error partially agreed apparently that he was all refusing requested charge 18, of which com plaint is made paralyzed, his control over or had no the second very only contro- but The little. limbs, versy appears told, charge error. to be whether was “plaintiff if ter wa pit or from the turntable received at apron cab of said appellee swears there some other cause. was ordinary care the exercise could disagree The doctors no other cause. discharge known have the same while have result- to whether his condition could duties, time, by the exercise his or inj.ury in the testi- of as described ed part, dinary care a-voidedin mony. resolved this doubt jury therefrom,” in such event the appellee’s at- after the favor. seems first find for instructed limitation defendants. paralysis in a measure recovered tack of placed italicized sufficiently transfer, a motor drive think, confused, fairly but, risk and good con wages, such service obtained tributory negligence. knew, believed, he cannot known, except falling. danger dan when At walk ger, service, years this and continued was about 21 the time liability Employ old, expectancy defeat ers’ trial court Federal about He a life the trial had Liability probable years. had, Act. He about before , mind, drafting had for advancement in the this chance engaged. charge, article R. he was Dr. subdivision then O. S. service appellee, McMillan, testi- federal there is no Under the such limi examined prevails. tation, but the common-law rule fied: charge, however, statutes, under our history paralysis of such cases is very have been A defective. similar stationary progress, then there was condemned and held re improvement length period, and for a Supreme eventually error our grows worse, versible Court. Rail time, but case of and in many paralysis. way Hodnett, 106 Tex. cases result is total 163 S. W. typical be a case.” Miller, I believe v.Co. 201 S. W. 1049 (7, 8); Winkler, v.Co. 179 S. W. (4, 7). Judge In the Hodnett -Case injury weighed Phil before the lips said: pounds, from 173 ed to 130 been reduc- or a little more. *11 weAs understand charge part of the “That which instructed testimony, have to limbs shrunken not be held the to extent, appears some 'it some sort they the risk if have assumed believedthat ordinary person of exhibition fore condition made be- a care his situation would jury. wages knowledge continued the service have with While which he (Tex. REPORTER 228 SOUTHWESTERN «48 Civ. if way he knew both should have from.” but that our and ordinary edge knowledge whether While the Hodnett Case providedby would ordinary circumspection ployee appears knew of nary assumes the risk cumstances require statute does this' the the authorized the 89 Tex. are obvious to an would have ment.” state courts know the continued ply, would have knew the as an known, Railway 546, actual care, ciated it.” er in such ease the der found charge ever careful he “The servant It will be He could not W. such that perceived by assumed necessity App. 322, law. said, water, you statute, 109 S. W. effect of danger was the to “avoid state, care of. the very knowledge, 825: defect, ordinarily prudent of his duties under Sup. them They, attempting care in the service “If danger relieved both person circumstances, We do us, defect, used care article Bryant, perceived then learned properly Railway used 33 S. known, and which hazard he takes the continued risk if he exercised “avoid water and Ct. you “an 29 S. W. in time to avoid hazard he would not be owes no important assumed und@r could danger of the defect sljut this need find water, inquiry of a Hynson, giving the defect and surrounding 6645 find nevertheless abrogate ascertain ordinarily but said: of assumed not believe W. 334. The charges ordinarily prudent erroneous, remaining ordinary to continue injury” case his. Bonnett v. not find for risk is to avoid Tex. Civ. danger therefrom.” whether duty inspection. He of such was not which a in the .service to avoid if the exercise eyes grease, in effect holds danger. Obviously knew of the fact would v. is as particular employ- determining 101 Tex. at L. Ed. 521. is one correct man must assumed that he did not knowledge if he from the. defect. and the Hall, prudent assumed, of which care knowledge,sim- Bingle, the court appellee since him. such a risk hazard as authority that he used Railway dangers App. prudent man peculiar and did not injury. whether he have could have construing could find charge, submitted. risk, be found. charge 232 U. S. the court knew, When he ordinary danger.” danger, an em of that risk It will 9 Tex. person, knowl wheth- he has person appre there guilty er to knew, Rail man. how ordi page discovered have only Our Co., which the test Un dis cir on on ment, lighting ment, ror to submit the sion that an issue which and which haps, Again, ed the but lee was that think the for give there was error was undisputed the the jury. 310, ful beneath grease placed have ger, were so obvious that an ment objection out tered the assignment care to discover the onerous ed. We circumstances of this case. Even appellant served the one and then fect and avoid sought defect, and will authorize a reversal court’s tial correct of error [24-26] ^[23] [22] The third [21] The first ^[20] submitting assumed error in person, assumed facts. rather discussing grease not sufficient to show its point. it was called the under our assailing charge 11, it is asserted With reference to For to find the burden on charge. jury, assailing are now convinced then aware of the hazard, requested charge were authorized to The sixth apply think, as to the circumstances, would be no assumed risk. With water and the eleventh he did not discover until moving facts and water in the cab because the in his asserting evidence water, risk, premises. submitting overruling charge was one for the Ct. therefrom. There is permit and not a failure did not and the facts also indicate he reasons above stated appellee premises further cause, permitted trial court’s Co. v. De We were under the practice, risk, if he assignment assignment simply even do the ninth situation, issue of presented submitting .that law to the defect, established that appreciated error in the failure to it so to relight, adjust not that the evidence one if used appellee This, than the the fifth because L. Ed. he knew it was one for furnishing it was sufficient to requested, conclusively paragraph, necessity light but as danger to be blown of law under the defect Atley, issue which was more ordinary consequent attention to the on the an issue of fact would have is based ordinarily it. Unless this acquit appellee presented, rendered as he fourth whether eighth assign these remain. asserts error existence, facts, simply of no it is law assignment think, therefrom, though 241 U. S. of the de we under all premises ordinary we were substan entered, lighting part a torch charges impres care assign asserts assign requir assert he en lights. appel think, other, show, there turn- care dan out, per lev We ob er *12 RY. 00. v. SMITHERS & D. O. WORTH ITT. ¿228 S.W.) circumstances, and proximate pit in motion a sets chain of tbe table over the sequence, operates un- on them in continuous a assign- injury, tenth of the cause by any independent cause. broken new or sufficient to is not the evidence ment by question the existence is not determined appellant stepped and show events, intervening but or nonexistence of fell, Appellee water, which caused the fall. character, be- connection their and the natural not an acci- it was the found that and dent under original in- tween omission and the the act or requested specially * * * appellant’s consequences. jurious not is neces- opinion sary person negligent guilty are inclined the instruction. We act might precise or omission the to submit foreseen have evidence was sufficient the but, occurs, injury; form of the when their determina- the appear probable natural and that was a appellants’ If concede that shall tion. consequence negli- negligence. If the correct, interpretation is gence dition and nothing does than furnish con- more say, prepared yet if the not we are possible, is made negligence acts _found one of the injury by condition causes the sub- injury, proximate cause of was the such sequent independent two are not the person, a third act of any finding without concurrent, the existence of words, verdict; or, proximate support other condition is not the cause injury. intervening Where the cause be- submitted act not be such should operation by original negligence, set legal not, rules of it could cause proximate cause, is still the proximate We logic, believe cause. be the where the circumstances such that in- any acts have found one jurious consequences might have been foreseen conjunction acting with likely negligent as or to result from the first act acts, other acts were whether other omission, person the act of the third will not, they have found the could wrongdoer. not excuse the first When the injury proximately person if therefrom the intervenes, resulted of a act thix-d which is not consequence wrongful first act not occurred but have s>r omission, and which could not have been fore- found. We particular seen and without diligence, exercise of i’easonable been author- would not have court think the injurious consequence which the any withdrawing from the the acts ized happened, not could sion act or first omis- negli- certainly jury, if all proximate not the injury. cause of the other, acts, concurring gent party each guilty The test is whether the of the first might reasonably act ticipated omission injury, court should have an- and caused intervening cause as the natural all from consideration withdrawn probable consequence negli- of Ms own gence, and, but immediate so, if broken; connection is not para- 13, assailing Assignment the fourth person, the act of the third wMeh is the presenting appellee’s graph of the injury, cause as, is such action, on the Federal as based cause Safety exercise diligence, of reasonable would not anticipated, Appliance Act, appel- person is assailed third is not un- guilty der control of being one asserted first lants as error. omission, broken, connection is pan defective first act proximate or omission is not the cause be, proximate not, could not cause. injury.” Seith v. Commonwealth Elec- may say appellants, by argument We tric Co.. 241 Ill. N. E. 24 L. R. authorities, of numerous and citation (N. S.) 978, Rep. A. 132 Am. St. expressed changed view our opinion, original quote We above case the miles determining proximate cause, in which there is more than one “In cases not because the with or or act concerned case cause connected injury, are simi- producing the books are full of dis- lar the facts of this ease. In this case determining which cussions or acts of the one causes intervening negligent there act of a proximate cause. As result party. third The defect in the ash did variety presenting infinite of cases simply condition, furnish the but easy authority question, it is to find that will grease nearly and water more answered to support apparently any side almost each position. intervening object in this controversy in which doubtful arises. ease was set in original motion attempt de- To reconcile these cases would be fect, acting conjunction height folly. truth, carefully when really studied, produced conflict between injury. little and water Un- apparent grows conflict out them. intervening agency less there was an be- applied difference to which must be tween defect in the ash lever and! principle City the ville v. that controls.” of Louis- injury, apprehend there would be no' Hart, Ky. 136 S. W. contention that it was not (N. S.) L. R. A. injury. cause The mere fact that negligent act or omission must happened would not have but for the produces injury, cause but it need necessarily slip does not make the cause, sole nor last bo or nearest water the sole cause It is sufficient cause. other if it occurs with some injury would not have the the acting occurred time, which, at the same it, slip, defective lever combination causes the then or if it both *13 (Tex, REPORTER SOUTHWESTERN 228 testimony If the are the of cause. defect, true, he, FIRST NAT. SPRINGS OF HUGHES but BANK when, (No. 2338.) v. SANFORD et al. the cab to leave would not have tried not did, he would he fallen at that and but for (Court Appeals Texarkana. Texas. Civil fact The mere time. Rehearing 24, Denied Dec. adjust slipped road 1921.) 24, Feb. connection, but the causal break did not only concurring cause, in- an and was not <@==>69-Acceptance of draft 1. Bills notes — grease intervening writing. dependent, cause. The must be in brought simply lay wait, 132, Negotiable Act, to be and water §§ Under Instruments 135, acceptance operation in- must be writ- the cause an of a draft into active ing. Certainly cab. to leave the duced dissenting. J., action Hodges, which called into efficiency gave time for at the and water its harm. Rehearing. Motion for On interrupt “Intervening agencies sometimes proper acceptor .<§=322(1)— Oral 2. Venue responsible connection between current of affecting venue. party draft as action rule, but, injuries, these acts and Act, Negotiable §§ Instruments As under result, accomplish agencies, in order acceptance 132, 135, written to be must a draft culpable supersede original entirely must acceptor alleged binding, oral responsible act, and be themselves party proper an action of a draft is not injury, and be of such a character hence, draft, against drawer anticipated could not have the foreseen or county acceptor alleged ain resided where the wrongdoer. agencies If it both resided drawer other than that in which produce result, to thereto as concurrent assistance of one will not because it would still be if both contributed begun, it must as to and action be forces, presence Sayles’ transferred, Ann. Vernon’s exculpate other, April 1918, 1903, 1914, amended St. art. Civ. the efficient cause Supp. (Vernon’s Ann. St. Civ. injury.” Shippers Davidson, 35 Tex. allegation plaintiff’s 1903), regardless of art. App. 558, 1032; Railway W. Civ. Cardwell, Gowan, 80 S. up setting estopped acceptor 1073; Pullman W. Co. v. Mc acceptor frauds; for, as the the statute City 210 S. of Louisville W. laying party, proper venue Ky. Hart, L. S. W. 35 R. A. could county resident not a of which was (N. S.) 207. justified. not be quotation [27] The last above is from pleadings Pleading <§=> 110—Facts very high Appeals, Court of Civil but it cites privilege. plea conclusive on are authority. presents, think, the rule of of averments not the It is the and which clearly understandably, concurrent acts plaintiff’s pleadings, a determinative any attempt plea privilege, without at subtle refinements. defendant and when Sayles’ independent art. St. Ann. Civ. In this case was no em Vernon’s (Vernon’s April 2, Ann. Civ. as amended ployer committing a different act at a differ priv- 1903), Supp. 1918, asserts the art. St. place. time and ent of the result i$ county, is en- ilege sued another superior. the same Be the cause of law a matter titled as of troverting bave more, these one or several acts con con- unless action transferred place curred at the same and at the same alleges, plea testi- cleavage do think the time. We hot line of contrary. mony proves plainly between the two acts is so discerni Court, Appeal from District Smith Coun- independent sepa them ble as make Warren, ty Judge. ; R. J. intervening, acts, rate latter and the injury. They alone were in ac National Bank of caused the Action the First Sanford, place time, Hughes Springs against tion at the same at the same Tom superior, by through Merchants’ Planters’ Bank of & State the fault the same judgment sustaining injury Winnsboro. From a which might water, resulted. privilege plea have occurred without last nam- defendant ordering cause, plaintiff but the and water would not ed transfer of brought operation appeals. have been the time Affirmed. by appellant place against appel- The suit it was but for the defect which pass impelled Sanford,, county, over it. lee who resided in Smith assignments properly The other we think and Bank Merchants’ & Planters’ State original opinion. 'disposed Winnsboro, corporation, of in Some whose perhaps county. an- the matters will not occur on of business was in Wood rehearing petition appellant alleged The motion for will trial. its that it was the other granted, judgment unpaid of affirmance aggre- Be ordered trial court owner gating $1,519.61 drafts for amounts judgment aside, set drawn Sanford on said reversed, bank, the cause .remanded Winnsboro fore the and then that be- trial. another drafts drawn and before .for Key-Numbered topic Digests other see same in all cases KEY-NUMBER and Indexes