The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-11-06
THE HIGHER COURTS.
SOME DECISIONS MADE FINAL
The Last Appeal OF the Litigant consid-
cred and Disposed Of According to
the Law of the state ofrexas
In Different Cases.
couRr or APPEALS.


pellee was in the employ OF appellant ~
section hand; that appellee and others
q were coming from work oIi % push car.
the usual manner, with about twelve
others, when q freight train struck them
ausing appellee tojunp from truste
on which he was; that appellee first saw
y the train approaching about hfty yards
before it reached the trpstle and being
then in front of il they could have got
ten off if he and tho others with
him had stopped; that Their
were no switches on the trustee
that train had headlight burning
which shone ahead of IL about fifty
yards; that said train was running about
four miles faster than the usual speed,
on said trestle; ii engineer had been ON
tho lookout he could have seen those on
he push ear; no one Ragged the train
but all halloOed to " TO stop. ueld,
First, Appellee and the engineer on
the train were iellow-serVsntS SecOnd,
Being fellow-sefyant with the engin-
eer, to bind the company for his negli-
gence, plaintiff must prove negligence
or incompeteney OF the fellow-servant,
\ and that the company had not used
reasonable care in selecting such ser
want, or after being informed Of his in
competency. still retained HIM in their
service. Tits Che proof fails 10 show.
Third, THE company Is not liable for
injuries received By tho collision, whgt'
no negligence on the part ofthec0m9 auy
is shown. Fourth. Alter the impsHding
danger became known 10 pqintiif he
having failed 10 use such ordinary care
as would have preventative injury re-
sulting, no cannot retnyer. Reversed
and rrmanded.
Mcdonald -. Blu {; from Hill cOuu-
ty. Opinion bv Hurt ], Snit filed De-
ceinber ., lss2, January ~, 1883, cause
continued by consent of partner
February p, 1855, Blount tiled q plea Of
privilege TO be sue in this county OF his
residence which was sustained. Held:
First-A motion TO change the venue by
defendant, and the same being granted
by consent, gives jurisdiction over the
person by consent. Second Consent to
continuance il such an appearance as
will obviate the necessity OF giving
the written notice required by Art.
1859, Rev, Stat, as amended by an act OF
the legislature approved April IL. lSS3.
(Texas 4 Pacific railway VS.. Neither
land, Texas Law Review, 1881, Third
when party comes into court and
agrees q az the cause may be continued
and the cause, in pursuance of this
agreement, is continued, this is such
an appearance as Will operate to give the
court jurisdiction OF his person by con-
sent. Reversed and remanded.
Gibson vs.. Giles; from Milan county.
Opinion by Wilson, /. Judgment was
rem tered for appellee against appellants
in the Justices court, December IL, 1883,
shat plaintiff, r. L. Gibson, take
nothing by his writ, and that defendant
70 hence without day and recover his
costs of said plaintiff In this behalf ex-
pended, for which he may have eXecu-
ton" The appeal bond to the county
court described the judgment as one
4 .A.l.. II. 4
take nothing by his suit, and that de
PENDANT 20 hence without day and re.
cover of said plaintiff all costs of SUIT
amounting TO the sum of $500
The bond was for $50. The
costs accrued amounted to $l4.05. Held
The county court should have dismiss
cd the appeal on motion made, ecausC
the appeal bond misdescribed the judg-
ment. Reversed and renamed.
Leice VS.. the State; from Wood county
Opinion by White, p. ]. Under Art
100 p. G. the gist of the offence i
whether the public road was wilfull,
obstructed. Where the road "wilful'
10 used In a penal statute to characteriz
the forbidden act, IL means evil inten
or legal malice and without REASONABLE
grounds TO believe the act TO be lawful
The court charging jury upon cas-
invoking this question should, as al
instruct them as to the meaning of th
word wilful. Reversed and Remanded
Galveston. Houston IL San Antoni
railway vs.. jesse; from Kinney county
Opinion by Wilson, ]. Where good
are not intended for sale in the marke
theirdestination, but to serve'some spC
sific purpose OF their own, In the absenc
of special circumstances making tn
carrier liable for some special loss, q
the expense the owner Is put to by th
delay, the general rule for the measur
of damages is tho rental value durin
the delay. Loss of profit in bushes
cannot be allowed unless the data ,
estimation are so definite and ce tai
that they can no ascertained roasona II
by calculation. The partyi lauli m 4,
have had notice, either of the nature
the contest or by explanation of the eli
eumstances, at the time of shlpmen
that such damages would ensue. II
versed aud remanded.
TXeas IL Pacific railway VS.. Scowine
from Eastland county. Opinion by WIFI
p.j. When common carrier contrac
10 carry goods, not only over his ow
route, but over connecting lines. he ca
not contract that his responsibility ms
terminate at the end of his own lin
Heis still responsible for the negligen,
not only OF himself, and his servant
but OF the connecting line, they bein
considered his agents for CARRYING OF
the particular contract. stipulatio
in q contract of shipment, tn
a. condition PRECEDENT to Il
shippers the right 10 secure damag
ON breach of the contract by the raj
road that he would give notice in wr
ing of his claim to damages to son
officer OF tho railroad, or its neare
station agent, before the stock are n
loaded and mingled with other stock
ayalid binding stipulation. When u
owner OF goods accepts a receipt, he
conclusively presumed, in the ahsen
of fraud aud imposition, TO have a
sented to all tho terms and condition
contained in It, which amounts to a co
tract with the carrier, and wheth
called q special or express, or speci
acceptance, becomes at once binding
both parties. Reversed and remande
Hendricks VS.. Cameron; from III
county. Opinion by Wilson, /. Whe
detendcnt pleaded payment under Dat
setting ioilh the receipts, and plant
uiu not deny by written pleading vel
Ned by plaintiffs affidavit, or that of h
attorney, the genuineness of such 7
ceipts, evidence impugning their re
uinenoss il not admissible. The eli
ton stated the cause of action
"being for the sum of ---, with interc
due upon note, ---.n The proof d
not show that plaintiff had lncurr
any expense or cost by reason of dofen
ants failure TO pay at maturity, 4
verdict was "for the note as sued on
the Judgment for 10 per cent collocti
fee WAS therefore unauthorized. Il
versed and romanded.
Houston q Texas Central railway
Newman; from Robertson county. Opt
ion by Wil'sOn,i. When parties TO
action agree to arhitrate the matter
controversy aud they each select an
bitrator who determine the damage al
make theirs is no pretenso that It Is
validated by fraud, gross mistake or
regularity, the award is final and co