The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-05-05
COMMISSIONERS OF AprnaIs.
synopsis of Opinions Of Commissioners OF
Appeals-Austln Term, 1881

Lizzie Campbell VS.. Houston 4 Texas
Central railroad; from Ellis county. The
supreme court at its last session in Tyler
determined the merits of this case on the
appellants transcript Of the record. Texas
Law Journal, vol. 5, No. %, p. BIZ This
transcript of the record was filed May s,
1875, at the instance of the appellees' coun-
sci. The appellant is not shown to be in
default in duly filing the record of this
case, and no reason TO the contrary appear
ing why the appellee shall not pay the
costs that have been accrued, the appeal is
dismissed and the costs fall upon the APP
pellee. II. S. Walker, p. C.
The c., III. & S. A. II. Il. Co. vs.. Phanaty
Cartwright; from Caldwell county. A part
of the casue of action of this suit is for dam
ages claimed to have arisen from the mode
of performance of contract to deliver rock
at and upon certain land; and the supposed
trespasses were incidental to the acts of
parties under contract, which took for
granted unquestionable title, possession
and authority on part OF plaintiff, and
that the same was fully recognized
by the defendants The supreme court has
construed the eleventh clause of article
li23 Il. d., which says Excepting from the
general rule requiring suits to be brought
in the county OF the domlcile) "where the
the recovery of land, or damages thereto"
is the object Of the suit, in such cases suit
must be instituted where the land or part
thereof is situated, " to not include suits for
specific performance OF executory con racts
for the sale of lands, nor for the RECESSION of
contracts relating to land, the operation Of
that provision being confined thereby to
suits not merely relating to an interest in
land, but where its recovery is sought
in the suit. 16 Tex, 327 o Tex, 500.
And the plaintiff, in this case, only sues
for the the value of the use and occupation
of the land in question enjoyed by the de-
PENDANTS with her consent and consistently
with both her title and possession, thus
negativing the idea of controversy be
tween any adverse rights or claim to the
title to the land or right to its possession,
as actions contemplated by the statute.
The injuries complained of were made of
the premises during occupation as aforc
said, and were alleged as additional causes
for compensation. The principal ground
OF the plaintiffs action was for the Tecov-
cry of an amount due on account of II con-
tract for the sale and delivery of the
rock upon the land. And whether the
court had jurisdiction, or not, of that
branch of the case relating to the claim for
damage, does not affect the jurisdictiona
question concerning the plaintiffs action
upon her account. If the former portion
of the case was within the jurisdiction,
there should have been an exception for
misjoinder OF actions. The policy of fixing
the county where the land is situated as
the venue tor suits for the recovery of land
and damages thereto, Is based on public
expediency respecting notice to third per-
son, at to the tendency of such suits.
Vide, Hearst VS.. Kirkendall, cited supea.
The court, however, did not decisively
adopt that view. Affirmed Walker, D. G.
Houston & Texas Central railroad com
pany VS., A. J. Barrager; from Travis
county. A brakeman sues for damages for
injuries resulting to him as the direct con-
sequences of negligence on the part of the
company in failing to provide suitable APP
pliances to the cars rs to enable the plain
tiff to safely perform his allotted work
After the citation of numerous railroad
cases and elementary authority directly an
propos the court says: at is the duty of
the master to furnish and maintain nipple
ments and machinery reasonably suitable
to perform the work which the servant is
required to do in the discharge of his duty
under such employment" 40oTex.. l9l';
II o. n. s., 10; AZ n. H., 225, and Hill on
tolioi ~ ioo' Nhilc lHe cNlucnCe was
somewhat conflicting, yet the jury
were sufficiently enabled to con
clude adversely respecting defendants
negligence and in exoneration
of the plaintiff from contributory negli-
gence, and both issues were distinctly sub.
mitted by the court, it being the peculiar
province OF the jury to determine the
weight of evidence in case of conflict. 5
Texas, 226, 1872. The supreme court will
not set aside verdict and grant new trial
simply because the weight of evidence pre-
ponderates against the verdict. Texas, 3.
But otherwise when the verdict is without,
or contrary to the evidence, or when a great
preponderance exists on the other side. S
Texas, 400; h., 80; - 10. Sup, 252, and
30 To-, 22l. 1t is not enough that it is not
clear that the verdict is right, bnt it must
appear to be clearly wrong to authorize a
reversal on that ground. Texas, 5Sl, and
ON this point the court contains
Il luminous and lengthy reference
TO leading authorities. Held, lin
~ Texas, 200 that Il railroad is not liable
as an insurer to its employees for such inju.
rl,S Us are alleged here, II proper precau-
ton Is taken to see that Sucu imuicmpnts
are reasonably sale and sound. But 1t "a Il
question OF fact in this case, whether such
precaGtion had been taken or not. Ii was
also held In above case, that an injury i'll
lraccd TO such detective supplement- furnish.
niShed by the maker, IL is prima iacic cyi.
dencc OF negliscnCe, wide Cooley ON torts.
HGl, ct ais The plaintiffs mental as well
~ physical suilelings was correctly sub
united to the Jury MS one of the elements of
ms damages, (i6 Texas, 272l. There WAS
no error III the maui charge because
II merely omitted 10 give Inc
law fully, Us Tex. 3i2.Sl The several in.
structions refused We're objectionable In
some particular or other, as in giving I'M.
due prominence to matter that does not
sufficiently present the law OF the case, 40
Tex. 22S); and also, as in those instance,
where the Instructions asked, the issue of
negligence by the defendant and of con.
tribulory negligence by the plaintiff, were
IN effect Withdrawn from the Jury. and
Hypothetical cases determining the eases
Instructed as constituting negligence con.
cuslvely rs matter of law, were submit.
ted in lieu OF the ABOVE issues, al Tex. $3.50.
1t is not the duty of the iudre
TO separate propositions connected 10.
gether, one not and the other
being law, to give the part which
would have been proper, il not presented
IN an objection form and connection. on
Texas, 5l3; ct als,) II does not appear that
the Jury have been mlsled by the charge
given or that they may have mislpprc.
hended the law OF the ca o for wlnt OF
further instructions. IL Texas, A. The
record not containing error Tor reversal,
the Judgment is affirmed. Il. 5. Walker,
y. Z,
J. W, Flemming VS.. John +. Shelton;