The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-05-04

action upon her account. II the former
portion Of the case was within the juris-
diction, there should have been an ex-
ception for misjoinder Of actions. The
policy of fixing the county where the
land Is situated as the venue for suits for
the recovery of land and damages thereto,
is based on public expediency respecting
notice to third persons, as to the pen.
dency OF such suits. Vide, Hearst
VS.. KirkendaIl, cited super. The court,
however, did not decisively adopt that
view. Affirmed.-Walker, p. j.
H. Il T. C. railroad company VS.. A. j.
Barrager; appeal from Travis county.
A brakeman sues for damages for injur-
les resulting to him as the direct conse-
quences Of negligence on the part of the
company, in failing to provide suitable
appliances to the cars or to the train, to
enable the plaintiff to safely perform his
allotted work. After the citation of
numerous railroad cases and elementary
authority directly appropos, the court
says: at is the duty of the masters to
furnish and maintain implements and
machinery, reasonably suitable to per-
form the work which the servant is re-
quired to do in the discharge of his duty,
under such employment" [49 Tex. 19l
II Q. n. S. 475; AZ n. II. 225 and Hill
on Torts. p. 1851. While the evidence
was somewhat conflicting, yet the jury
were sufficiently enabled to con-
clude adversely respecting the de-
fendants' negligence and in exhone-
ration of the plaintiff from contributory
negligence; and both issues were dis
tinctly submitted by the court, it being
the peculiar province of the jury to deter
mine the weight of evidence in case of
conflict. [5 Texas, 226, 1921 The su-
preme court will not set aside verdict
and grant a new trial simply because the
weight Of evidence preponderates against
the verdict. u Texas, 3. But other
wise where the verdict is without or
contrary to the evidence, or when great
preponderance exists on the other side,
rs Texas, 400; 4 Id. 80; % Id. Sup. 252;
and 30 ID. 224l it is not enough thatit is
not clear that the verdict is right, but it
must appear to be clearly wrong TO au-
thoriZe a reversal on that ground. n
Texas, 5S4.1 And on this point the court
continues luminous and lengthy refer
ence to leading authorities. Held, in
SO Tex. POT, that q railroad is not liable
as an insurer to its employees for such
injuries as are alleged here, If proper
precaution is taken to see that such i'm
plements are reasonably safe and sound.
But it is question of fact, in this case,
whether such Drecaution had been taken
or not. 1t was also held, in above case,
that an injury, if traced to such defective
implements furnished by the master, IL Is
prima facie evidence of negligence wide
Cooley on TOrts, 661, ct all. The plain
titf's mental as well as physical sutferings
was correctly submitted to the jury as
one of the elements of his damages.
[46 Tex. 272.] There was no error
in the main charge, because
it merely omitted to give the
law fully. rs Tex. 342.3.l The several
instructions refused were Objectionable
In some particular or other, as In giving
undue prominence to a matter that does
not sufficiently present the law OF the case,
[19 Tex. 228] and also as in those instances.
where, under the instructions asked, the
issue of negligence by the defendant, and
of contributory negligence by the plain
tiff, were, in effect, withdrawn from the
jury, and hypothetical cases determining
the cases instanced as constituting negli-
gence, or contrlbutory negligence, con-
clusively as a matter of law, were sub
mitted in lieu of the above issues. Al
Tex. 1885, 1t is not the duty of the judge
to separate propositions connected to-
gether, one not and the other being
law, to give the part which
would have been proper, if not pre-
sented In an objection form and cOnnec-
ton. III Tex. 513; ct ais 1t does not
appear that the jury have been mlsled by
the charge given, or that they have mis-
apprehended the law of the case for want
of further instructions. III Tex. Al
The record not containing error for re-
versal, the judgment is affirmed.---R. s.
Walker, p. G.