The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-05-07
THE COURTS .
euPRrMK COURT,

X. Kinney; from Grayson county. Opinion
Dy West, ]. This was q suit for damagss
for the killing OF Nina and the injury OF
Ida May Kinney, children Of sDpellee.
Judgment was rendered NJ follows: For
lnjurie, to Ida May, $7o2' for death OF
Nina, 1902, ana for the support OF Ida May,
81 100. As the same questions are involved
in this as In the case OF Houston g. Texas
Central rail way VI. Ida May Kinney. past
reference IL hereby made to that case upon
which this ia affirmed.
Houston L. Texas Central Railway VS.. Ida
MAY Kinney, from Grayson county. The
Judgment rendered IN this case was for
Sl,750. The two assignments OF error
noticed in the opinion in effect that
tho verdict OF tho Jury 10 contrary to the
law mbodied in clause 4 in The charge
OF the court, W hich is, III you believe from
the evidence tina, the plaintiff came upon
the defendants track at point east OIL the
Union depot, and Get apart exclusivelv foI
its own use and not frequen'ed by stfan
gere, or others not in Its employ, and at
tempted to cross said track Immediately
In front OF moving train, and so near thai
tho person in charge OF 1t could not stop
the train in time to prevent the injury
and further, that the persc In charge OF
the train kept a dilligent lookout, and
owing to the peculiar surroundings. could
not discern plaintiff, or find out that she
intended to cross the track, 10 time to pre-
vent the injury, ord that as soon "a he dis'
covered. plaintiff did all In his power
to prevent the injury, and you slso
the ' engine wonld not have been
dangerous lndsr the ordinary condition OF
the Denison yard, but was only rendered
30 by the peculiar surroundings OF plaintiff
YOU will find for defendants" And tina,
The Judgment il contrary to the evidence.
Held: There was conflict OF evidence ~
to the rate OF speed OF appellants train at
the time the injury was received The jury,
by this verdict, found that appellant was
guilty OF negligence in running the train OF
a greater rate OF speed than WAS safe or nee
essary in entering the depot yard at Deni'
son, They were anthoriZs by the evideDt Q
TO so conclude. The verdict is supported
by the evidence. Affirmed.
International IL. Great Northern rail-
road We. Brett; from Bexsr county.
Opinion by stayton, J. JudsmeSs sd IN
Where a motion TO Quash the citation was
flied June 0, 1889, and like motion was
filed September 8, 1882, and neither were
called ~ and acted on until March 10,
1883, and two terms OF the court INTERVIEWED
between the time the motions were filed
and when they were acted on. Held:
Under tnis state of facts 1t Is unnecessary
to consider any question rs to the sufiioie ncy
or service Of the citation. Under Arts.
1913 and 1855 oil tho Rev. Stats. II The eta
ton or service thereof 10 detective, the
Judgment OF the court so declaring IL might
have been had ut the term ut which II was
filed, and then appellant would nave
doomed 10 have made an appearances ss VI {
next term. The intention Ut the Statute Il
to give the person upon whom Il detective
| citation is properly served. or upon whom
| citston is deiectively served, when ceien
| ants motion points out the detects, until
| the next term 10 prepare his defense, but II
contem III atss tha, the case shall stand as al
appearance case until further notice. The
| failure TO nave the motion TO qaash actec
| on at the proper time operates rs q waiver
of the right to urge 1t atterwsrd. Assign
inertia OF error to the action OF the cur
overriding appellants general and specln
demurrers cannot be considered when II
does not appear that the court overruled Of
was requested to act upon them. Evidence
OF a witness: The appellee was thrown into
a ditch In which there was water by TN
blow received from appellants locomotive
was but the narration OF facts. ane
as bearing on the question OF TN
extent of sppellee's injury, was admissible
a. well as Is proof OF the deplh OF TN
could not eAtrcate himself therefrom
Testimony as to the money paid by appel
lee for medicines and other necessaries du
ring his optinement In his room was ad
Missile. Affirmed.
Oity Water Company vs.. White; from
Travis county. Opinion by Stsyton,
All the material questions herein depen'
on whether 1t was necessary for defend
ants pleadings seeking to Get mp the want
of authority In tho persons executing the
| instrument sued on, TO be sworn 20. Hello
IL was. The action Is founded on an in
strument in writing charged TO hsv'
been executed by the defendant
though its president and secretary, whc
Texas & Pacifcrail wav vs.. Nicholson; iron
TArrsnt county. ODinion by Willie, c. J
| The eff ct Of Arts. 2Sl-3 Revised Statutes,
merely that the common carrier law lie
bilty shall commence from the time IN
| bill OF lading Is signed, and that preyiou
thereto they shall be liable only as ware
housemen for goods placed In their depot
| or warehouses TO be thereafter transporter
| They do not except the carrier from sucl
LIABILITY rs ne Is subject 10 common VIII
persons OF other occupations. The chsrg
correctly fled 10 hold the appellant iisDl'
until the stock Was loaded, but that IL wa
that Of an ordinary individual. IL Is no
essential that party be = common carrie
Ia order that liability may attach lot
breach OF contract, nor Is be IS such reliev
ed from liability merely because q bill o
lading is not signed. When the bill OF lsdinl
is signed liability ~ common carrier Of
taches for sll losses except those occssione'
by the sct Of God A carrier m y enter In
to contract without bill OF lading whic
is 10 Re performed before the goods are d
the course OF sctusl transportation and In =
/ far A the contract would he binding uro
any one Il IL binding on the romi any. In
company refusing 10 receive casise a. q dat
specified 10 On sgreemeni, Is able Tor dan
ages recalling from any delay between sue
agreed time and the time they did recsiv
them. Affirmed