The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1884-05-29

VI the authorities therein cited for theil
support, and in conclusion, we deem
It it but due to counsel for appellant &
: say that we have rarely had the pleas
: IRE of examining more able and ex'
= haustive brief and argument in any
: case in this court than fled by him in
S this case.
/ We have carefully examined the
e entire record, and finding no error
g therein which requires a reversal OF
l the case, the judgment IS affirmed.
SUPREME COURT.
The following cases were decided
yesterday:
w. Claybrook VS.. n. Sharesh ct al,
from Grayson county; affirmed. Opin-
ion by Associate Justice West.
VIM. Cassin VS.. NJ. d. O'Sullivan ct
al. from McMullen county; affirmed.
Opinion by Associate Justice Stayton.
T. C. Bates VS.. Casey & Swasey,
, from Mitchell county; reversed and
remanded. Opinion by Chief Justice
Willie. Held at was error to take
judgment by default against appel
liant. The record does not show any
service of citation mp n him, nor any
waiver, nor appearance by him in the
cause"
Texas s. Pacific Railway Co. VS..
; Mary Is. Dye ct al, from Dallas coun-
ty. Reversed and dismissed. Report
OF commissioners of appeals Coy Judge
Delaney examined, and their opinion
adopted so far as it holds that the de-
ceased came to his death through the
negligence of the company, and that
appellees were on that account enti-
tied to recover. We think, however,
say the supreme court, that the sum
allowed by the jury was clearly Excess
Sive and not warranted by the evil
dence. We are always reluctant to
distrust a verdict because of the
large amount of damages found, and
have refused to interfere in some
cases when in our opinion the jury
have been somewhat eXtravagant in
their finding, if no improper influences
have been brought to bear upon them.
But in the present case the damages
are so obviously disproportloned to
the amount of loss proved, as to lead
to the conclusion that the language
used by appellees' counsel in his adj
dress to the jury must have had some
influence on their Vernict. For this
reason we think the judgment should
be reversed and the cause Temanded,
and it is accordingly so ordered.
The suit was brought June %, 1881,
by Mary E. Dye the wife, and Frances
Dye the mother of VIM. w. Dye, to |
receiver OF appellant damages for the |
killing of said w. w. Dye, May 3, 1881. |
Dye was fireman on one of appel |
ants trains, and they allege that while |
SO engaged he was killed by the break |
ing down of the bridge over Sweet |
water creek in Nolan county. The |
engine on which Dye was working
went through the bridge and he was
killed. Plaintiff charged upon the |
company negligence in the construc-
ton of the brluge and the acceptance
by the company. Damages were laid
at $4,000. There was verdict and
judgment tor $4,000.
The first assignment of error is Ia
ken to the action of the court in re-
fusing to transfer the cause to the
federal court upon motion of defend
ant. Since the trial below, says
Judge Delaney, the case of Texas and
Pacific railway company VS.. McAllis-
ter (59 Texas 349l in which similar
motion was made by this appellant,
has been decided ana the question de-
termined against the motion.
AS to the second assignment, COM
planning of the refusal of the court to
quash the dispositions of certain wit
neSses, to which there was no seal to
the certificate, the absence of the seal
says Judge Delany was not the ground
of the motion to suppress the deposit
lions, nor was the circumstance
brought before the court until the fill
ing Of the bill of exceptions. Upon
this point the present case is very
mi hn nf |
Welch (26 Texas 14O and in our opin-
ion there was substantial compli-
ance with the statuta Or. s. 2229)
AS to the third assignment, that the
court erred in admitting the answer
of a witness who was not an expert
that "The bridge gave way, and the
cause was the bridge was insufficient
to stand the pressure of the great
amount of water that came in contact
with it at that time" the court holds
On such q question the Judgment OF
ordinary persons having an opportu-
nifty of personal observation and teSti'
flying to the facts derived from that
observation was equally admissible,
whatever comparative weight their
opinions might be entitled to, of
which it would be for the jury to
Judge. 1t was question of common
sense as well as of science. The cases
are collected in 2 Wharton's evidence
512, note 10.
The bridge having been rebuilt ac-
cording to witnesses after the acct
dent upon the same plan, and finished
one night and washed away next
morning, and this evidence being OBJ
jected to on the ground that it was in
admissible to prove negligence at any
other time than that alleged in the pc
tition, the court holds that the evil
dence was admissible to show that the
bridge was improperly built; and it
was also proper to show that such
floods were not unprecedented in that
county, but were such as might with
ordinary prudence have been foreseen
and provided against. The court
finds no material error in the assign
ments relating to the evidence as to
construction and character OF the
bridge. AS to some remarks of coun-
sci alleged in the record to have influ-
demning such things, concludes from
the fact that the presiding judge did
not interfere, that they were not such
as would effect jury,
Judge Delany for the commission
VI dppCelO COllO1uoCo elle1O oilS
ment should be affirmed, but the su-
preme court, as above stated, orders
it reversed and the cause remanded.
t. T. Talmage VS.. T. j. Powell, from
Nolan county, reversed and remanded
Opinion by Associate Justice Stay
ton. The record shows that the land
in controversy is located in Nolan
county; that Powell settled on it De-
cember 20, 1880, and that he made no
application for it as homestead dona-
ton until October 28, 1881. He claims
100 acres, but the statement of facts
does not show that he is the head of
family. April IL, 1881, appellant To-
Gated the INDICATED balance of head
right certificate on tract of land in |
Nolan county which embraces the 16O
acres in dispute, and On October IL,
1881, the tract was patented under that
location.
1t is contended by the appellant that
the land in controversy was not, with
in thirty days prior to the
time the appellee made his
application for a homestead dona-
ton, public inappropriate domain, and
therefore, that his application was in
effective. Appellee contended, and it
was so allegsd in his petition, that the
location and patent through which
| the applicant claims the land, are
| ,,,id foy +ba raacOn the land cOVarpd