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maintain a depot at Ralls would not be, to have been collected by appellant during the taken away by statute.
are not respective years were stated as follows, to wit:. called upon to pass upon this issue, inas- For the year next preceding March much as the state's prayer for a writ of man
$ 13,007 20
For the year next preceding March damus to require the appellant to build a
34,369 05, depot at Ralls was only in the alternative, For the year next preceding March in the event that it should be held that the 1, 1910..
50,169 44 Railroad Commission was without power to For the year next preceding March require the appellant to put in a spur track For the year next preceding March
63,002 10 at Ralls.
66,166 06 For the reasons stated herein, the judg. For the year next preceding March ment of the trial court is affirmed.
103,253 81 Affirmed.
"It was then charged that under the terms and provisions of article 7369, R. S. 1911, same being section 1, c. 18, of the Acts of the Special Session of the Thirtieth Legislature, defendant
became liable and bound to the state of Texas to NORTH TEXAS TRANSFER & WARE
pay a tax of 242 per cent. of said gross receipts HOUSE CO. V. STATE, (No. 5403.) for each of said years, amounting for each year (Court_of Civil Appeals of Texas. Austin. to the following sums: July 1, 1914. Rehearing Denied
For the year next preceding March
$ 325 18 TAXATION (8 142*)-Gross EARNINGS-INTER- For the year next preceding March URBAN RAILROADS-EXPRESS COMPANIES. 1, 1909..
859 73 Rev. St. 1911, art. 7369, provides that cor
For the year next preceding March porations doing an express business by "rail- 1, 1910..
1,254 24 road" or water within the state shall annually For the year next preceding March report to the comptroller their gross receipts
1,575 05 and pay to the state treasurer an occupation For the year next preceding March tax equal to 212 per cent. of such gross receipts.
1,654 15 Held, that the word "railroad,” as used in such for the year next preceding March act, iş, not limited to commercial steam rail- 1, 1913.
2,581 44 roads, but includes interurban electric railroads. [Ed. Note.-For_other cases, see Taxation,
$8,249 79 Cent. Dig. $ 270; Dec. Dig. § 142.*
"It was alleged that it had failed to do this, For other definitions, see Words and Phrases, and it therefore prayed for a judgment for the vol. 7, pp. 5899–5908; vol. 8, pp. 7777, 7778.] total amount of taxes, with 10 per cent. penal
ties thereon, amounting in the aggregate to Appeal from District Court, Travis Coun- $9,074.76. ty; George Calhoun, Judge.
"The appellant answered, in which it denied Action by the State of Texas against the that it had ever been doing' an express business
on a railroad in the state of Texas, as alleged North Texas Transfer & Warehouse Com- by plaintiff. It admitted that it had been doing pany. Judgment for plaintiff, and defend- an express business on interurban electric railant appeals. Affirmed.
ways; that the interurban railways upon which
it has done business from time to time are the Crane & Crane, of Dallas, for appellant. ones connecting Dallas, Tex., and Ft. Worth, B. F. Looney, Atty. Gen., and Luther Nick Tex., Galveston, Tex., and Houston, Tex., Dalels, Asst. Atty. Gen., for the State.
las, Tex., and Sherman and Denison, Tex., and latterly the one connecting Dallas, Tex., and
Cleburne, Tex., by way of Ft. Worth, Tex.; Findings of Fact.
and that on these lines it did an express busi
ness, but it did no express business on any other JENKINS, J. The following statement of lines, and did no express business on any steam the nature of this case, and the material railway. facts hereof, is taken from appellant's brief railways upon which it did business were not
"It further alleged that the interurban electric and adopted by us:
chartered under the provisions of law author"The state of Texas, hereinafter denominated izing the chartering of railroad corporations, appellee, by its Attorney General, brought its but were chartered under statutes recently passsuit in the district court of Travis county, Tex., ed authorizing the creation of interurban electric against the North Texas Transfer & Warehouse railways; that the provisions of the laws conCompany, hereinafter styled appellant, alleging trolling such matters are wholly dissimilar. It in substance that appellant was a corporation denied that it was its duty to make any report organized under the laws of the state of Texas, to the state or pay 242 per cent. gross receipts and that it had been continuously since Julý tax for any of the years named. It denied 16, 1907, engaged in doing an express business that it had, within the meaning of the law, willby railroad in the state of Texas, and that by fully failed and refused to make reports for any reason of the premises it was its duty on or of the years named in the third paragraph of before the 1st day of March of each year after plaintiff's petition, because it averred that it said date to make a report to the comptroller of was advised by legal counsel, and is now inpublic accounts under oath, showing the amount formed and believes, that it was not required of gross receipts on charges of freight within by law to make report to the comptroller of pubthis state collected by or on account of said lic accounts as aforesaid, and that no report express business during the 12 months next pre- was ever demanded of it by the comptroller of ceding the report, and that it was its duty to public accounts, or by any officer of the state of pay to the treasurer of the state of Texas an Texas, until within the year 1913, and that it occupation tax of 242 per cent. of gross receipts, was then advised and is still advised that it as shown by said report. It alleged that it had is not its duty under the statute to make such failed to do this. The gross receipts charged reports; that the terms and provisions of the
statute invoked by the plaintiff relate only to, ute giving rights or imposing burdens on railexpress companies doing business by steam rail- roads. The appellant cites decisions from 12 roads and not by electric railways or interur- | states, holding that in a statute the word “railbans. It admitted that it had collected the road' does not mean 'street railroad.' The de amounts of gross receipts on its express busi- fense cite decisions to the contrary from an ness transacted on interurban electric railways, equal number of states.
This conflict as set out in plaintiff's petition.
is not so great as at first blush would appear." "The trial was had, a jury being waived, and 0. & C. B. St. R. Co. v. Commerce Com., 230 resulted in a judgment against defendant com U. S. 332, 33 Sup. Ct. 891, 57 L. Ed. 1501, 46 pany, appellant herein, for the sum of $8,249.79, L. R. A. (N. S.) 385. with 10 per cent. added thereto, or $824.97, as penalties, making a total of $9,074.76. Amo
The court then explains that most of these tion for a new trial was filed within two days, decisions rest upon the context of the parand thereafter amended with leave of the court ticular statute under consideration. As to This was on the 24th of April, 1914, overruled. those decisions wherein it is held that the Appellant gave notice of appeal to this court, and thereafter, on the 24th of April, 1914, filed word “railroad” does not include street railits assignments of error, and on the 29th day way, in order to determine what weight, if of April, 1914, filed its appeal bond."
any, should be given them in support of the
proposition that the word “railroad," when Opinion.
used without any qualifying word, means The law of this case is determined by the only those railroads known as steam or comproper construction of article 7369, R. S., mercial railroads, we must look to the subwhich reads as follows:
ject-matter of the statute under discussion in "Express Companies.-Each and every indi- each case, and the reasons given by the vidual, company, corporation or association doing an express business, by railroad or water,
courts for their decisions. in this state, shall, on or before the first day In Scott v. Bank, supra, the issue was as of March of each year, make a report to the to whether section 5, art. 10, of the Constitucomptroller of public accounts under oath of the tion of Texas, which forbids the consolidaindividual or of the president, treasurer or superintendent of such company, corporation or tion of competing or parallel lines of railassociation, showing the amount of gross re- roads, applied to street railways. It was ceipts from charges and freights within this held that it did not. The consolidation of state paid to or collected by such individual, street railways was clearly not within the company, corporation or association on account of money, goods, merchandise or other character mischief sought to be prevented by the Conof freight carried within this state during the stitution, and the control of street railways twelve months next preceding. Said individuals,
was specifically intrusted to municipal aucompanies, corporations or associations, at the time of making said report, shall pay to the thorities by section 7 of the same article of treasurer of the state of Texas an occupation the Constitution. tax for the year beginning on said date equal In Riley v. Railway Co., 'the Honorable to two and one-half per cent. of said gross re- Court of Civil Appeals for the First District ceipts, as shown by said report." It is the contention of appellant that the to include street railroad employés in the
supposed that the Legislature did not intend word "railroad,” as used in said article, does benefits of the fellow servant act, for the not include interurban railroads. In con
reason that the danger to such employés was struing a statute, the thing to be ascertained is: What did the Legislature mean by the not sufficiently great to call for such legis
lation. The Legislature promptly, at its language used? For a discussion of the rules for the construction of statutes, see
next session, declared that street railway Crosbyton-Southplains Railroad Co. v. Rail- employés should be included. R. S. art. road Commission, 169 S. W. 1038, decided at 6642. The Supreme Court of Missouri, rethe present term of this court; also article ferring to the case of Sams v. Railway Co., 5502, and “Final Title,” section 3, R. S. supra, said that it was not intended to hold There are decisions in this state and else in that case that the word “railroad” exwhere which hold that the word “railroad,” cluded street railroads; that it might or as used in certain statutes, did not include might not do so, according to the connection street railroads. Scott v. Bank, 97 Tex. 58, in which the word was used. Biggs v. Rail75 S. W. 7, 104 Am. St. Rep. 835; Riley v.
way Co., 120 Mo. App. 335, 96 S. W. 70S. Railway Co., 13 Tex. Civ. App. 247, 35 S. W.
In Electric Co. v. Simon, supra, the deci. 826; Sams v. Railway Co., 174 Mo. 53, 73 sion that the statute providing for condemS. W. 686, 61 L. R. A. 478; Railway Co. v. nation proceedings for railroads did not ap King (Tenn. Ch. App.) 59 S. W. 805; Electric ply to street railways was based upon the Ry. Co. v. Simon, 20 Or. 60, 25 Pac. 147, 10 wording of the statute, and not upon the L. R. A. 251, 23 Am. St. Rep. 86. There are meaning of the word "railroad.” One reason decisions in other jurisdictions to the con- for holding that statutes conferring the right trary. The Supreme Court of the United of eminent domain on railroads were not inStates upon this point said:
tended to apply to street railways is that "The statute in terms applies to carriers en- such railroads run upon streets which they gaged in the transportation of passengers or do not own, permission to use which must be property by railroad. But in 1887 that word ' obtained from the municipal authorities, and had no fixed and accurate meaning, for there therefore they are not presumed to need the was then, as now, a conflict in the decisions of the state courts as to whether street railroads right to condemn land for their right of were embraced within the provisions of a stat- I ways. Another reason is that the exercise
of the right of eminent domain is taking , one point to another on a street." Lewis on property without the owner's consent, for Eminent Domain, vol. 1, § 110a. which reason "it is
a fundamental We speak of steam railroads, commercial rule that all statutes in regard to eminent railroads, standard gauge, narrow gauge, domain are to be given a very strict con- electric railroads, and elevated railroads, struction." O'Neal v. Sherman, 77 Tex, 181, but “railroad" is a generic term, and em14 S. W. 31, 19 Am. St. Rep. 743.
braces railroads of all characters, unless the But whether the word “railroad” ordina- context indicates that it is used in a limited rily does or does not include street railroads sense. The character of the motive power is not determinative of whether it includes used is not a determinative factor. Philadelinterurban railroads. There are no such phia v. Traction Co., 206 Pa. 35, 55 Atl. 762 ; material points of difference between inter- Bank v. Railway Co., 13 Allen (Mass.) 105; urban railways and what, for want of a bet- Railway Co. v. St. Ry. Co.; and Clinton v. ter name, we designate steam or commercial Railway Co., supra. railroads, as there are between such rail. Appellant has called our attention to the roads and street railroads. Appellant quotes fact that, though our present statute in reffrom Scott v. Bank, supra, as follows: erence to condemning right of way for rail
"Ordinarily, when we speak of a railroad, we roads was passed in 1876, the Legislature in mean a railroad over which freight and pas- 1901 passed an act authorizing the condemsengers are transported from one town or city nation of right of way by the North Texas to another."
Traction Company from Ft. Worth to DalThis description is applicable to the inter-las, and in the emergency clause declared urban railroads over which appellant does that there was no existing law authorizing business. Besides, in that case the matter interurban railways to condemn right of under consideration was the construction of ways (Acts 1901, p. 120), and also that the the constitutional provision forbidding the
Legislature in 1907 (Acts 30th Leg. c. 15) consolidation of parallel and competing lines passed an act conferring the right of eminent of railroad. The purpose of this provision domain on electric interurban railway corwould suggest that it was not intended to porations. As to the first act above referred apply to street railroads; and this is further to, it was true that the North Texas Traction indicated by section 7 of the same article of Company had no authority to condemn right the Constitution. As was said in Malott v. of way through Tarrant and Dallas counties, Railway Co., supra :
for the reason that it had no authority to “These electrical roads, in the speed of their build a railroad outside of the corporation of trains, in the distances traveled, and in their capabilities for transportation, are well within Ft. Worth. The latter act conferred upon the field of public utilities hitherto occupied electric interurban railway companies rights by the steam railroads alone.”
not theretofore given to any railroad comStatutes in which the word “railroads” is pany. The right of eminent domain might used without any qualifying prefix or suffix have been included in the act out of abunhave been held to apply to interurban rail- dance of caution, in view of the strict conroads in the following, among other, cases: struction given to statutes in references The Federal Employé Act; McAdow v. Rail-to eminent domain. The act was passed to way Co. (Mo. App.) 164 S. W. 192. Requir- encourage the building of suburban roads, ing engineers and conductors to stop their and it is well known that capital is very trains at railroad crossings. Railway Co. v. cautious, and it was perhaps thought advisJacobs, 92 Ala. 187, 9 South. 320, 12 L, R. A. able to remove all doubt. 830. With reference to standing on the plat Our attention has also been called to the forms of railroad cars. Railway Co. v. Lohe, fact that section 1 of the act (Acts 30th Leg., 68 Ohio St. 101, 67 N. E, 161, 67 L. R. A. 637. 1st called Sess., c. 18) under consideration With reference to the right of eminent do- used the word "railroads,” and in section 10 main. Clinton v. Railway Co., 37 Iowa, 61. mention is made of interurban railroads. With reference to fencing right of way. These sections relate. to different matters; Riggs v. Railway Co., 120 Mo. App. 335, 96 the first to the taxation of express compaS. W. 707. With reference to requiring a nies, the second to the taxation, not of railcity franchise. Diebold v. Railway Co., 117 | roads in general, but of a particular kind of Ky. 146, 77 S. W. 674, 63 L. R. A. 637, 111 railroads, which it was necessary to describe Am. St. Rep. 230, 4 Ann. Cas. 445. With ref- in order to differentiate them from other erence to crossing tracks of other railroads. railroads not intended to be included. If we Railway Co. v. St. Ry. Co., 96 Ky. 355, 26 had a statute in one section levying an occuS. W. 181.
pation tax on all persons selling cigars in "There has been a general concurrence in hotels, and in another section upon hotels usembracing all railroads in two classes: (1) ing elevators, it could not be inferred that Commercial railroads; and (2) street railroads. Commercial railroads embrace all railroads for the Legislature did not intend to include, in general freight and passenger traffic between the section referring to cigar dealers, hotels one town and another, or between one place using elevators, especially so if hotels not and another. * Street railroads embrace using elevators were taxed under another all such as are constructed and operated in the law, as is the case as to all railroads not public streets for the purpose of carrying pas
word used in a statute often depends upon structions, and, unless exception was duly taken the purpose for which it was passed. Here to the action of the court, the giving or refusing
of instructions cannot be reviewed. the declared purpose is to levy an occupation
[Ed. Note. For other cases, see Appeal and tas. The policy of our law is to equalize the Error, Cent. Dig. 88 1516–1523, 1525-1532; burdens of taxation. The statute explicitly Dec. Dig. 8 263.*] declares that all express companies doing 5. WITNESSES (8 392*)-IMPEACHMENT—Evibusiness by railroads are to be taxed in proportion to the business done. The business
Declarations not made with plaintiff's done on interurban railroads is of the same against other persons, are not admissible to im
knowledge, authority, or acquiescence, in suits character as that done on other railroads. peach plaintiff's testimony in the subsequent acIf it is less in value, the tax is proportionally tion. less in amount. Such business is rapidly in
[Ed. Note. For other cases, see Witnesses, creasing, as appears from the record in this cent. Dig. $$ 1249-1251, 1257; Dec. Dig.
392.*] case. If appellant is not taxed under this act, it escapes taxation altogether. Such ought Appeal from District Court, Lampasas not to be presumed to have been the intention County; John D. Robinson, Judge. of the Legislature, in the absence of language Action by W. W. Battle against the Gulf indicating such purpose.
Colorado & Santa Fé Railway Company. Believing that upon both reason and au- From a judgment for plaintiff, defendant apthority article 7369 includes express business peals. Affirmed. done upon interurban railroads, we affirm
Terry, Cavin & Mills, of Galveston, Word & the judgment of the trial court herein. Affirmed.
Walker, of Lampasas, and Lee & Lomax, of
and Thompson, Knight, Baker & Harris, all GULF, C. & S. F. RY. CO. V: BATTLE. of Dallas, for appellee.
(No. 5382.) (Court of Civil Appeals of Texas. Austin. JENKINS, J. 1. This is a suit to recover June 17, 1914. Rehearing Denied damages for personal injuries occasioned by Oct. 21, 1914.)
the alleged negligence of appellant in leaving 1. CARRIERS (8 318*)–CARRIAGE OF PASSEN- a vestibule door open, in having the platGERS-ACTIONS-EVIDENCE.
form dimly lighted, and in leaving a step In an action by a passenger, hurt in a fall from a train, caused by stumbling over a box box on the platform, over which appellee left on the platform, evidence held to sustain a stumbled and fell out of the car, and his finding that servants of the railroad company foot was run over by the cars. were negligent in placing the box on the dimly
2. From a judgment in favor of appellee, lighted platform.
[Ed. Note.-For other cases, see Carriers, appellant appeals and assigns error, among Cent. Dig. $8 1270, 1307--1314; Dec. Dig. 8 others, that the verdict is not supported by 318.*]
the evidence. 2. EVIDENCE (8 587*)-CIRCUMSTANTIAL EVI. Appellant's train runs into Lampasas, DENCE-ADMISSIBILITY.
where the accident occurred, and backs out Matters may be proven by circumstantial and turns on a Y and goes onto the main evidence as well as by direct testimony.
[Ed. Note.-For other cases, see Evidence, line. Appellee alleged that he boarded the Cent. Dig. $ 2436; Dec. Dig. $ 587.*]
train at the front end of the smoking car 3. CARRIERS (8 320*)-INJURIES TO PASSEN. about dark and just before the train startGERS-ACTIONS-EVIDENCE.
ed, and that the step box was thrown upon In a personal injury action by a passenger, the platform and lighted behind him, in front who fell from a train when he stumbled over a of the door as he entered the same; that box on a dimly lighted platform, the question of his contributory negligence held, under the he was smoking and intended to remain in evidence, for the jury.
the smoker until he finished his cigar, but, [Ed. Note.-For other cases, see Carriers, finding the atmosphere foul, concluded to Cent. Dig. 88 1118, 1126, 1149, 1153, 1160, 1167, go on into the chair car, but that it was his 1179, 1190, 1217, 1233, 1244, 1248, 1315–1325; custom to chew gum after smoking, and Dec. Dig. $ 320.*]
that he went to the front of the car and 4. APPEAL AND ERROR ($ 263*)-PRESENTATION OF GROUNDS OF REVIEW IN COURT BE-bought a package of chewing gum from the LOW-OBJECTIONS TO INSTRUCTIONS.
"train butcher"; that he opened the car Rev. St. 1911, art. 1974, as amended by door for the purpose of throwing his cigar Acts 33d Leg. c. 59, provides that, when the instructions
asked or some of them are refused, away, but that just at that time a passenger the judge shall note distinctly which of them is was coming up the steps; that at this time given and which refused, and such instructions he held the doorknob in one hand and his shall constitute part of the record. Article 2061, cigar in the other, with one foot on the as amended, provides that the ruling of the court in giving, refusing, or qualifying instruc- platform and one in the car, not intending tions shall be regarded as approved, unless ex- to go further out, but, in order to avoid cepted to. Held, that notwithstanding article hitting the passenger with his cigar and to 2062, providing that no bill of exceptions shall let him pass in the car, he held onto his be necessary to reserve an exception where the ruling appears of record, was not amended, it cigar and stepped onto the platform; that was impliedly repealed in its application to in-lhe immediately turned to throw his cigar *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
out and re-enter the car, when he stumbled from three to five miles an hour, over a over the step box and fell down the steps, smooth track. The appellee did not know and the cars ran over his foot. Appellee al- that the box was in the passageway on the leged that the platform was dimly lighted, platform, in the sense of requiring him to and that he did not see the box over which act upon such knowledge. That is to say, he stumbled. The verdict in appellee's favor such fact was not in his mind at the time, implies that these allegations are true; that and he was excusable for not remembering such acts constituted negligence on the part it. When he heard the box strike the floor of appellant and were the proximate cause of the platform, he was entering the car of the injury. The evidence is sufficient to with no intention of returning, and naturally sustain the verdict.
the incident passed out of his mind until he [1-3] 3. Appellant contends that leaving stumbled over the box. He had not intendthe vestibule door open was not negligence, ed to go upon the platform at the time of for the reason that the same was necessary the accident; the occasion of his doing so for the proper operation of the train at that was an act of courtesy arising upon the intime and place. The evidence shows that, by stant, and natural to a gentleman. Under reason of the conductor's and brakeman's these circumstances, it is not reasonable to being compelled to remain out of the cars require of him that he should remember the to throw the switches on the Y and board incident of the box being thrown upon the the train while it was moving, it was nec. platform. For these reasons, we cannot say, essary to have one of the vestibule doors as a matter of law, that the jury were not open, but this does not excuse appellant's justified in finding against appellant's plea leaving the box upon the platform in such of contributory negligence. We think they position that a passenger was liable to stum- were fully justified in such finding. Bonble over it, nor in having the vestibule dim- ner v. Glenn, 79 Tex. 531, 15 S. W. 572; ly lighted, so that the box might not be seen. Sickles v. Railway Co., 13 Tex. Civ. App. It was the combination of all these cir- 434, 35 S. W. 493; Railway Co. v. Patillo, cumstances that caused the injury. Had 45 Tex. Civ. App. 572, 101 S. W. 498; Johnthe box not been upon the platform, appel- son v. Railway Co., 94 Miss. 447, 47 South. lee would not have stumbled over it; bad 785, 22 L. R. A. (N. S.) 312; Railway Co. the vestibule been well lighted, he might v. Leftwich, 117 Fed. 127, 54 C. C. A. 1, 29 have seen the box and avoided it; and had Cyc. 417; Railway Co. V. Adams, 116 Fed. the door been closed, even had he stumbled 324, 54 C. C. A. 196. and fallen, he could not have fallen out. 1  6. Appellant assigns error upon the
4. Appellant insists that the evidence is refusal of the court to give several special not sufficient to show that appellee stumbled charges requested by it. Appellee objects over the box. It is true that appellee did to the consideration of these assignments not see what he stumbled over, but he struck for the reason that no exception was taken his shin against some hard substance about to the action of the court in refusing them. the proper height for the top of the box. We sustain these objections. The undisputed facts show that the box was Article 1974, R. S., reads as follows: placed upon the platform a few minutes be “When the instructions asked, or
some of fore the accident; that it was there a few them, are refused, the judge shall note distinctminutes afterwards; and that no other sub-ly which of them he gives and which he refus
es, and shall subscribe his name thereto; and stance over which any one could have stum- 'such instructions shall be filed with the clerk, bled was found upon the platform after the and shall constitute a part of the record of the accident. A fact may be proven as well by cause, subject to revision for error, without the circumstantial as by positive evidence, and,
necessity of taking a bill of exception thereto." when a reasonable deduction has been drawn
This was amended by the Thirty-Third by a jury in a civil case from the facts Legislature so as to read as follows: proven, such deduction must be taken as
"Art. 1974. When the instructions asked, or
some of them, are refused, the judge shall note a fact found, though some other hypothesis distinctly which of them he has given and which may be reasonable. In such case the jury he refused, and shall subscribe his name thereto, are the exclusive judges of the fact proven and such instructions shall be filed with the by the circumstances in evidence. In the
clerk and shall constitute a part of the record
of the cause, subject to revision for error." Acts instant case, no conclusion, other than that : 33d Leg. p. 114. the appellee stumbled over the box, can be
It will be observed that the words "withdrawn, if the appellee is to be believed, and out the necessity of taking a bill of excepof that the jury were the exclusive judges. tions thereto” are omitted from the article 5. Appellant insists that it was negligence
as amended. on the part of the appellee to go upon the
Article 2061, R. S., reads as follows: platform, inasmuch as he knew the door was
“The ruling of the court in the giving, refusopen and knew that the box was there. It ing or qualifying of instructions to the jury shall is true that appellee knew that the door be regarded as excepted to in all cases.' was open, but that circumstance of itself
This article was amended by the act above would not suggest that there was danger in referred to so as to read as follows: going upon the platform of a slow moving "Art. 2061. The ruling of the court in the giv