The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-06-14
MONDAY.
Court of Appeals.

Texas and st. Louis railway COM
pany VS. b. +. and +. Z. Meyers; from
Navarro county.-A man named
Breen was injured while in the en-
ploy of the company. The superin-
tendent of the company had him
taken care of, and the suit was for
expenses of nursing. Held: The
company was liable, the expenses
having been incurred by authority of
the superintendent. who is the repre-
sentative of the company in business
matters. Judgment atfirmed.-White,
p. j.
In j. w. and J. Il. Damron VS.. Texas
and st. Louis railway company, from
McLennan county, the judgment is
reversed and cause remanded for error
of the lower court in everything plain
tiff's motion to dismiss, which was
based upon variance in description as
to the date of the Judgment appealed
from.-White, P. j.
In Wamble, plaintiff in error, VS..
Graves, from BraZos county, the
judgment allowed plaintiff 81 per
bushel for a crop OF
corn which was destroyed
before harvest. That was the high
est market price for corn during the
year, but as it stood when destroyed,
it was worth only % or 80 cents per
bushel. Held: The measure of dam
ages where totol loss of crop is suS-
tanned is the value of the crop at the
time it was destroyed and interest.
Because the court erred in awarding
greater damages than the law al
lowed, the judgment is reversed and
cause remanded. White, p. j.
L. n. Rogers VS.. Watson, from Falls
county: Appellant sued for dam
ages growing out of the alleged neg
ligent act of appellants son, a minor,
in driving a wagon over appellants
leg and breaking 1t, while appellant,
with his back towards the wagon,
was engaged with another person
saving log with crosS-cut saw.
Appellant and his companion had
loaded the wagon with lumber, and
while saving put back behind him,
as usual in saving with a cross-cut
saw, one of his, feet so that it eX-
tendC d back between the wheels at
the time the wagon was driven off,
and broke his leg. Young Watson
testified he did not notice Rogers be-
ing there. Rogers testified that on
account of the noise of the saving
and the fact that his back was to the
Wagon, he neither saw or heard young
Watson when he hitched the team to
the wagon.
Appellants assigned as error the
courts submitting the issue of con-
tributory negligence on the part OF
the plaintiff, the appellant. 1t is con-
fn hnf nt N %
case, as it had not been pleaded by
the defendant; that such negligence is
defence which must be pleaded and
cannot be awaited of under the gener-
al issue. Held: 1t is not necessary to
set up contributory negligence on the
part of a plaintiff in plea, but such
negligence may be proved by the de-
PENDANT under the general issue.
There was no error in the submission
of the issue to the jury on the ground
that it had not been pleaded; but for
the reason that the evidence did not
warrant the charge, the court erred in
giving it. Further held: There was
no negligence on the part of Rogers
to bar a recovery in this case. Judg-
ment is reversed and cause remanded.
Wilson, j.
Court Of Commissioners of Appeals.
r. S. Walker, Presiding Judge; A. I. Watts
and w. S. Delaney, Associates.
Opinions were rendered by this
court yesterday, to await adoption by
the supreme court, as follows.
Moore ct al VS.. Ingram ct al; from
Hill county. Reversed and remanded'
Delaney, j.
Hamlin VS.. Knight; from Milano
county. Reversed and Remanded.-
Delaney, j.
Kidd VS.. Collins; from Falls coun-
ty. Reversed and rendered that ap-
pellee take nothing.-Watts, J.
Robertson VS.. MeIlhenny, Hutch
ms & Co.; from Washington county
Affirmed.-Watts j.
Taylor and wife VS.. Bland ct al
from McLennan county. Reversed
and remanded.-Watts, j.
Day VS.. Stone ct al; from johnson
county. Reversed and remanded
Watts, j.
Brown ct al VS.. McLenpan; from
Falls county. Affirmed. Watts, j
Goldstein VS.. kaufman 81 Runge
from McLennan county. Affirmed
Watts, j.
Muller VS.. Reviere; from EcLen
nan county. 4Affirmed.-Watts, j.
Christian VS.. Crawford; from PalC
Pinto county. Reversed and re
manded.- Walker, z. j.
Brooks VS.. Young; from Hill coun
ty. Reversed and rendered TO
amount of note with interest an,
decree of foreclosure. Walker, z. j
Shearvy and wife VS.. Davis; fron
Coryel county.-ReVel,Sed as to S
the value of the land from whicI
the plaintiff was evicted, and rem
dered against defendants for $42
with interest. making S449.40 wit
legal interest from September 8, 1877
Walker, 2. j.