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had arrived, crossed this side track, and en- the approach of defendant's train, and that tered the station, expecting to find there a he was thereby injured. he cannot recover person whom he wished to see on business. damages by reason of his own neglect, and Not finding him, appellant came out upon you should find for the defendant." "You the platform, which extended along the side are further instructed that if you believe of the house parallel with the side track, from the evidence that the plaintiff, Macario and walked nor hward upon it until he Sanchez, could, by reason of an unobstructed reached the steps at the end of it. As he view, if there was such view, have seen the descended these he discovered a pile of shells approaching train, and that he stepped upon immediately in front of him, which impeded the defendant's railroad track heedlessly, at his progress forward. On one side of these the moment the train struck him, or such a shells was the side track, and on the other short distance ahead of the train as to renwas mud and water. To avoid the obstruc- der it impossible for the train to have stopped tion he stepped upon the ends of the cross- before striking the plaintiff, then he cannot ties, and had taken four steps forward when recover, and you must find for the defendhe was struck by the engine of the train from ant." "That it is the duty of one going into Rockport, and injured. He knew that the a place of danger to use all his senses to train was and expected to arrive at that apprehend and avoid danger, and a failure time, and stepped upon the track without so to do is negligence; and if you believe from looking, and walked with his back turned in the evidence that the plaintiff did not use the direction from which the train was to his senses to apprehend and avoid danger

The noise of the engine standing on of an approaching train, and that he heedthe main track was sufficient to prevent himlessly and imprudently placed himself in from hearing the Rockport train as it came danger that could have been so apprehended, in. These are the facts, according to appel- | he is guilty of negligence, and cannot recover, lant's version of them, upon which the deci. and you must find for the defendant." These sion turns. As to several of them, there is charges, under our decisions, are abstractly a conflict of evidence. It will be assumed erroneous, and, applied to some states of fact, that the defendant's servants were guilty of would constitute reversible error. Whethnegligence which contributed to the injury, er or not particular acts constitute negbut there is no sufficient evidence that they ligence is a question to be determined by could have prevented the occurrence after the jury under the circumstances in evidence. plaintiff was seen on the track. It may be But it is not reversible error for the court further conceded that the relation of carrier to so instruct a jury, or, indeed, to directly and passenger still subsisted between the instruct a verdict for the defendant, where plaintiff and defendant at the time he got the facts will admit of but one rational conupon the track. Still the facts remain that struction, and that is that the plaintiff has he walked upon the track without looking out been guilty of contributory negligence. It is for the train, when he knew that it might only when there is evidence of some circumarrive at any moment, when it was within stances to obstruct his view, or to mislead a few yards of him, and when there was him or to excuse him from looking out for nothing to mislead or prevent him from look approaching trains, that a plaintiff, stepping ing, or to obstruct his view of the engine, upon a railroad track in front of a moving had he looked. We cannot distinguish the car, without looking, has been held by our case from those of Railway Co. v. Dean, 76 courts not to have been guilty of contribuTex. 73, 13 S. W. 45; Railway Co. v. Bracken, tory negligence. Because circumstances of 59 Tex. 71; and others of like character. cases vary, and an act done in one situation The fact that he may have been a passenger would be negligent when under another it imposed upon the defendant the duty of ex- would be prudent, it is not declared as a ercising for his protection a higher degree rule of law that one crossing a railroad track of care than it would have owed to a stran- must look or listen, but the question is left ger, but it did not exempt plaintiff from the to be determined by the court and jury duty of exercising ordinary care, nor from whether or not the act in question was, under the consequences of negligence on his own all of the circumstances, that of a prudent part. It is not to be understood, however, man. Still we understand that our courts, that we hold that when hurt he was still a in reviewing facts of cases, have uniformly passenger, but simply that under the charge held the act of stepping upon a railway track of the court below the jury might have found in front of a moving train, without looking, him to be such, and therefore the case will when there is nothing to obstruct the view be decided here upon that hypothesis.

or to mislead, or to excuse the failure to look, The following instructions given by the to constitute contributory negligence; and court on the subject of contributory negli- where the evidence thus reveals the act of a gence are assigned as error: “The jury are plaintiff, stripped of all circumstances which instructed that if you believe from the evi- would tend to excuse it, so that but one dence that Macario Sanchez, the plaintiff opinion upon it could arise consistently with herein, stepped upon the defendant's railway established principles, it is not error for the track under circumstances which made such court to tell the jury that such act constiact one of imminent danger, on account of tutes negligence. Railway Co. v. Bracken, 39 Tex. 71; Railway Co. v. Dean, 76 Tex. 73, Cotton & Eagleton and R. B. Truly, for 13 S. W. 45; Railway Co. v. Kutac, 72 Tex. appellant. B. G. Bidwell, for appellee. 613, 11 S. W. 127; Hoover v. Railway Co., 61 Tex. 503; Railway Co. v. Murphy, 46 Tex. TARLTON, C. J. The record justifies the 356. When it has been said by our supreme following statement of this case, taken from court that the question whether or not the appellee's brief: “The appellant shipped a failure to look and listen before going upon car load of horses from Ranger, Texas, to the track is negligence is a question for the Texarkana, Texas, over appellee's road, and jury, it has been said in cases in which there on a written stock contract with it. Appelwere circumstances, such as the obstruction lant owned the horses shipped. By the of the view, misleading facts, etc., making terms of said contract for the shipment of the act of a questionable complexion, and it the horses, appellant went with them, on a was by no means meant that the decision of drover's pass, to care for them. At Ft jury was to be taken as absolute and final. Worth the car in which the horses were conRailway Co. v. Lee, 70 Tex. 496, 7 S. W. 857; fined was wrecked and the horses injured. Railway Co. v. Wilson, 60 Tex. 142; Railway Appellant was in a caboose in the same train Co. v. Anderson, 76 Tex. 244, 13 S. W. 196; with the horses, and sues for injuries to Railway Co. v. Dyer, 76 Tex. 156, 13 S. W. himself which he claims to have received in 377; Railway Co. v. Porfert, 72 Tex. 34, 10 said wreck. Appellant sued the appellee S. W. 207; Dillingham v. Parker, 80 Tex. for the injury to the horses, and recovered 572, 16 S. W. 335. If the question were sub- judgment.” This judgment the appellee mitted to the jury where there was nothing paid, and it here pleads the judgment so rento qualify and excuse such an act, the ver- dered and so paid in bar of plaintiff's right dict, under the decisions, could not stand, to recover in this action. The sole matter if rendered in favor of the plaintiff; and for our consideration is the correctness of hence, as there is no evidence upon which the court's action in sustaining this plea. a verdict in favor of plaintiff could be sus- We are of opinion that the cause of action tained, no error was committed in instruct- asserted in the suit for the injuries inflicted ing, in effect, a verdict for defendant. The upon the horses is not to be regarded as the facts as presented by the evidence are not same as that which is here urged. The inthe same in several important particulars as juries sustained in that cause and in this, be those alleged when the case was first ap- ing results of a common origin, would have pealed.

to be viewed, were it exclusively a question The fifth special charge asked by plaintiff of damage to property, as but elements for was properly refused. It was intended to the measurement of the damages springing place plaintiff in the attitude of a passenger

from the same source; and this suit, if when he was hurt. The charge of the court brought under such conditions, would be did that, and fully instructed the jury as considered as an attempt on the part of the to the degree of care incumbent on defend- plaintiff to split his demand,-a practice ant. It is unnecessary, therefore, to deter- which, especially in our system, is repromine whether or not the charge was in bated, with reference to actions both ex itself a correct statement of the law.

contractu and ex delicto. Fuller v. Sparks, The principle intended to be announced in 39 Tex. 136; Guernsey v. Carver, 8 Wend. the sixth special charge was also contained 492; 1 Suth. Dam. 180–183; 21 Am. & Eng. in the general charge. Besides, the special Enc. Law, 212, note 2; 1 Am. & Eng. Enc. instruction commented upon particular facts, Law, 181c; Brannenburg V. Railroad Co., and was calculated to produce with the jury 13 Ind. 103; Hughes v. Investment Co., 26 the impression that those facts constituted Fed. 831; Freem. Judgm. § 241; Black, negligence in defendant's servants.

Judgm. $ 738. But it seems that an exception to this rule obtains where injuries caused by the same tortious act are inflicted

upon a person and also upon his property. WATSON v. TEXAS & P. RY. CO.

Thus, in Black, Judgm. $ 740, the following (Court of Civil Appeals of Texas. Sept. 26, language, citing authority, is used: “We 1891.)

have seen that, as a rule, only one cause of JUDGMENT-SIMULTANEOUS INJURY TO PERSON AND action can arise from one tort. But there PROPERTY-SEPARATE ACTiOxs.

are exceptional cases in which the same act An action for personal injuries sustained by the owner of horses while traveling with

may occasion several distinct injuries, and them on a drover's pass is not barred by a these may be made the basis of as many judgment for the injury the horses received in separate suits. Thus damage to goods and the same accident.

injuries to the person, although caused by Appeal from district court, Eastland coun- one and the same wrongful act, are infringety; T. H. Conner, Judge.

ments of different rights, and give rise to Action by R. Watson against the Texas & distinct causes of action, and therefore the Pacific Railway Company for personal in- recovery of compensation for the damage juries. There was a judgment for defend- to the goods is no bar to an action subseant, from which plaintiff appealed. Re- quently commenced for the personal in. versed.

jury." Adopting this view, we conclude

that the learned trial judge erred in sustain- fenses, pleaded especially that, if the plaining the defendant's plea, and we order that tiff sustained any injuries, it was by reason the judgment be reversed and the cause re- of her own contributory negligence, because manded.

the motorman in charge of the electric car on which she was riding at the time had it under control, and was carefully operating it,

when a negro man suddenly jumped from the DALLAS CONSOLIDATED TRACTION

platform of the car, which circumstance exRY. CO. y. RANDOLPH.

cited undecessarily plaintiff's fear; that there (Court of Civil Appeals of Texas. Sept. 19,

was no danger of collision with the engine 1891.)

whatever; that she jumped from the car at STREET-CAR COMPANY- INJURIES TO PASSENGER- a great distance from the crossing, which JUMPING FROM CAR AT RAILWAY CROSSING-Ev

was a reckless act upon her part, and for IDENCE-INSTRUCTIONS. 1. Common carriers of passengers must use

which there was no excuse, as she was not that degree of care which cautious persons exposed to any peril whatever. The trial reskilled in that business would commonly use sulted in a verdict and judgment for plainunder like circumstances.

tiff in the sum of $4,500. 2. Where it appeared that plaintiff jumpel from defendant's street car while it was in mo.

The first assignment of error complains of tion, under the fear that it would collide with the charge of the court in the following paraan engine at a crossing, and the evidence showed graph: “You are told that the duty is imthat the motorman Siew the watchman on the

posed upon the Dallas Consolidated Traction crossing, but did not lessen the speed because no danger signal was given, and that the car Railway Company of having prudent and was stopped before reaching the crossing, but competent enıployés to manage and operate that plaintiff, without seeing the watchman,

its cars running on its roads in the city, had jumped when the car was about 100 feet from the crossing, it was error to charge that

and for such employés to use reasonable and defendant was not liable if the car was held proper care and prudence in the managein proper control, and was not running faster ment, running, and operating its cars, so as than six miles an hour, and if, in jumping, plaintiff did not act as a reasonable person;

to carry with safety those who ride on the thus making defendant's freedom from liability

same." It is urged that this charge is erdepend on plaintiff's contributory negligence. roneous in two respects: First, there was no Appeal from district court, Dallas county;

issue raised by the pleadings and evidence R. E. Burke, Judge.

as to the competency of defendant's motorAction by Mrs. M. J. Randolph against the

man; second, the charge makes the defendDallas Consolidated Traction Railway Com

ant guaranty the safety of those who ride

Judgment for pany for personal injuries.

upon its cars. This paragraph was the inplaintiff, and defendant appeals. Affirmed.

troductory part of the charge, and announced

a correct proposition of law as to the duty Leake, Shepard & Miller, for appellant. of the carrier to employ competent servants. Wooten & Kimbrough, for appellee.

It is true that incompetency of the servants

was not alleged as the ground upon which FINLEY, J. Plaintiff brought this suit a recovery was sought, and did not form a against appellant, alleging. in substance, that distinct issue in the evidence. Upon inspecshe boarded one of defendant's electric cars tion of the entire charge, we find that the on Jain street, in the city of Dallas, east of court did not submit it as an issue to be dethe Houston & Texas Central Railway; that, termined by the jury, and its incidental menas the electric car approached the crossing tion in this paragraph could not have mison said railroad, the passengers discovered led the jury as to the real issues in the case. an engine approaching on the railroad from It is always best, however, for a charge to the south, and thereupon the motorman in present only the law bearing upon the actcharge of the electric car increased his speed, ual issues to be determined, and to be entirely and that it appeared that a collision between free from legal abstractions. the car and the engine was imminent, and The charge may be subject to criticism upthat some man in the car jumped therefrom, on the second ground of objection. It is not shouting “Jump for your lives;" that the elec- clear to us that the trial judge intended to tric car was going at a great speed, and charge a higher degree of care than that passed over the crossing just in time to es- imposed by law, but the language is not cape being struck by the engine; that, be- plain and free from cavil. The law imposes fore jumping, she rang the bell for the car upon the carrier of passengers and its servto stop, but, instead of stopping, it was pro- ants that high degree of care which cautious, pelled at a greater rate of speed, and, to prudent persons, skilled in the particular avoid what she considered an imminent col- business, would commonly use under like lision, she jumped from the car close to the circumstances. This is the measure of care railroad track, and near the engine, and in fixed by the law, and which should be andoing so was thrown violently to the ground, nounced in the charge to the jury. The knocked senseless, her ankle dislocated and amount of care which is required under this fractured, and several of her ribs broken, rule, in any given case. must be determined whereby she was greatly injured. The ap- by the jury from the character of the busipellant, with general denial and other de- ness, the perils usually incident to it, if any,

TION.

а

and the circumstances of the particular oc- state of case there could have been no recasion,-whether, and to what extent, they covery for the injuries sustained. Special be suggestive of danger. The amount of charges were asked by appellant's counsel care which should be required is that which presenting this view of the case, which were would be suggested to cautious, prudent per- refused by the court. There is nothing in sons, skilled in the particular business, by the general charge relieving this presentation the facts and circumstances surrounding the of the law, and we are of the opinion that it particular occasion. Railway Co. v. Hallor- is reversible error. en, 53 Tex. 46.

There are several other errors assigned reIt is also urged that the court erred in lating to matters occurring upon the trial, charging the jury as follows: “If you believe which need not arise upon another trial, and that the plaintiff jumped from the street car therefore we deem it unnecessary to consider as alleged, and from the evidence you find them. On account of error in the charge of that, at the time, the motorman in charge the court, the judgment is reversed, and the of said car had the same under proper con- cause remanded. trol and management, and that it was being properly run at a rate of speed not over six miles per hour; and you further find that, at the time plaintiff jumped, there was

MULLINS v. LOOKE et al. no imminent and threatened danger of col

(Court of Civil Appeals of Texas. Sept. 26, lision with the locomotive engine on the

1894.) Houston & Texas Central Railway; and you

HOMESTEADS-ACQUISITION-Evidence-FAMILYfurther find that, in jumping at the time and ENJOINING EXECUTION SUFFICIENCY OF Petiplace she did, the plaintiff did not act as a prudent and reasonable person would have 1. In an action to enjoin a sale under execudone under the same surrounding circum

tion of land claimed as a homestead, a petition

alleging that defendants, by their execution, atstances,-then no recovery could be had

tempted to put a lien on the homestead of W., against the defendant, although you may that such homestead was exempt from forced find and believe the plaintiff was injured."

sale, and that the execution, so far as it atThe objection made to this charge is that

tempted to create a lien on such property, was

void, was sufficient to sustain a judgment that it in effect instructs the jury that, in order the property was a homestead, where the point to acquit the defendant of liability, they was raised by objection to the evidence, and must not only find that it discharged the

not by a special exception.

2. Property in the possession of a tenant duties imposed by law upon it, but must also

was purchased, but the intention to make it a find that the plaintiff was guilty of contribu- homestead was not disclosed, nor was the pur. tory negligence. Under the evidence in this

chase followed by an actual residence of the

family thereon. There was no evidence that particular case, there is a theory upon which

claimant was without another home. Held, that the jury might have determined that the mo- this was insufficient to establish a homestead. torman in charge of appellant's car was not

3. A single man living with a child whom he guil of negligence, and that the plaintiff

has taken to raise, but whom he is under no

legal or moral obligation to support, is not a was also free from contributory negligence.

“family," within the meaning of the homestead The motorman testified that there was law. watchinan at the crossing, whose duty it was

Appeal from district court, Tarrant county; to give signals of danger when there was

R. E. Beckham, Judge. danger in making the crossing; that he saw

Action by F. M. Mullins against Thomas the watchman, and no danger signal was

Looke and others to enjoin a sale under exgiven by him. It was also testified that the

ecution. There was judgment for defendcar could be stopped in about 55 feet; that

ants, from which plaintiff appeals. Afthe plaintiff jumped off when the car was

firmed. between 90 and 100 feet from the crossing; that the car was st ped before crossing the

Carlock & Powell, for appellant J. C. railroad track; and that there was no appar

Randolph, for appellees. ent danger. On the other hand, it was testified by plaintiff that she did not see the

Conclusions of Fact watchman, and as to facts which indicated HEAD, J. On January 13, 1890, B. C. imminent danger to her. From her position, Wells purchased a lot in the city of Ft. the appearances may have indicated immin- Worth upon which was a residence, and ent danger sufficiently to have rendered her which at that time was occupied by a tenant act in jumping from the moving car such as under a lease which did not expire until might be expected from an ordinarily pru- March, 1891. At the time of this purchase, dent person under such circumstances. Up- Wells had a wife, but no children. There on the theory of the truthfulness of the other was, how

living with him, an orphan boy evidence recited, upon which we indicate no named Claude Walker, whom he had taken opinion, the appearances may not have indi- to raise upon the death of his parents, some cated danger to the motorman, and he may time previously,--the exact date not given. have exercised such care as was prompted On the 26th of October thereafter, Mrs. by prudence. The company could only be Wells died, never having lived upon the lot held liable for negligence, and in such a purchased as aforesaid. The record is silent

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as to whether or not Mr. and Mrs. Wells to cross interrogatories: "I have no home owned another place during the time that stead in California. I have a proposition, elapsed between the date of the above pur- from a party to sell me a place in California, chase and her death. Upon the expiration but have not yet accepted same. The propof the lease above referred to, in March, osition was not made until after I sold 1891, Wells, with the Walker boy, moved to Mullins.

It is not true that my into the house purchased as aforesaid, and family had come to California before I sold continued to reside therein as his home con- to Mullius. I had no family except the boy tinuously until he sold it to appellant as before spoken of, and he accompanied me hereinafter set forth. In May, 1891, judg. when I went to California on the 6th day of ment was rendered in favor of appellee Looke August, after the sale to plaintiff. At the against Wells for something over $600, and time of the sale to plaintiff the parties actuon July 16, 1892, an execution issued thereon ally staying in the property were myself and was levied upon said lot. On the 1st of boy and the housekeeper, Mrs. Chollar. There August, 1892, Wells, for value, conveyed this was no relationship existing between us. lot to appellant, who instituted this suit to One was simply my housekeeper, and the enjoin the sale under the above levy, upon other was, as I have before stated, an adoptthe ground that the property was the home- ed boy. My wife died on October 26, 1890. stead of Wells, and therefore not subject | My family, at the time I sold to Mullins, conthereto. As to whether or not the place was sisted of myself and an orphan boy, Claude in fact the homestead of Wells must be de- Walker, whom I took to raise. There was cided entirely upon his testimony, which no relation by blood or marriage between us. was in substance as follows: “On the 1st I had not purchased another residence anyday of August, 1892, I sold to Mullins my where before I sold the premises in controhomestead. It is a corner lot on 13th and versy to Mullins. I did not own one anyLamar streets. It has a house and other im- where when I sold to Mullins." The court provements on it. I bought said property of below found against the homestead claim, James Harrison, January 13, 1890. At the but, from a bill of exceptions contained in time of the purchase it was under a lease to the record, we infer the decision was based Jas. McCarthy, of the City National Bank. upon the ground that appellant's petition was I bought it subject to this lease, at the ex- not sufficient to support a judgment in his piration of which I was to take possession. favor, for want of an allegation that the I took possession some time in the latter part property was the homestead of Wells at the , of March, 1891, and remained in possession date of the levy of the execution in favor until I sold it to Mullins, August 1, 1892. of appellee thereon. This objection to the Consequently, I remained in possession for petition seems to have been made for the about 16 months prior to selling it to Mullins. first time when evidence was offered by apI occupied the house with a Mr. Davis, after-pellant to prove this fact. It cannot, there wards with Mr. McConnell, and after that fore, be fully said that the judgment apwith Mrs. Chollar, a housekeeper. They | pealed from imports a finding in favor of were all housekeepers, and paid no rent. appellee upon the evidence. My family consisted of myself and an orphan boy whom I had taken to raise at the death

Opinion. of his parents. I had no children of my The first question presented for our deci

Said property was my homestead atsion by this record is, did or did not the court the time I sold the same to plaintiff, and below err in holding the petition of appellant had been my homestead for about sixteen insufficient to sustain a judgment based upon months previously. I claimed said property a finding that the property in controversy as my homestead in both May, 1891, and was the homestead of Wells at the date of May, 1892. I claimed said property as my the levy of the execution in favor of appelhomestead at the time Thomas Looke ob- lees? The burden unquestionably was upon tained the judgment against me. I pur- appellant both to aver and prove the exchased said property, as I have before stated, emption of the property before appellees acabout January 13, 1890, and purchased it quired their lien thereon. This is not confor a homestead. My family at the time I troverted by appellant, but he contends for purchased said land consisted of myself, my the sufficiency of his pleading as against an wife, and the orphan boy before referred to. I objection made to the introduction of evicould not take possession of said property dence, and not called to his attention by an immediately after my purchase because of exception presented before the commencethe lease of the same, which I have before ment of the trial upon the facts. The rules referred to, but after that time I could and applicable to an objection to pleading interdid take possession of it. I never abandoned posed as this one was are well illustrated in the same, but occupied it continuously for numerous decisions in this state, and require sixteen months, and up to the time I sold no extended discussion here. Where the obthe same to Mullins. During the time Ijection is urged by special exception in proper owned said property, I did not purchase any time, the pleading complained of must be other property with the intention of making construed most strongly against the pleader, the new purchase my homestead."

Answers for then, if the alleged defect be found to

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