The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1884-05-15
THE COURTS.
Supreme District and County
COurts--SOme ImpOr-
tant Trials.
SUPREME COURT.

| OPlulOA ny w
e Texas u Pacific Railway Co. VS..
f. Davis; from Lamar county. r
= versed and rendered. Opinion |
e Judge Wilson.
Texas & Pacific Railway Co. V
: Dan johnson and wife; from Graysa
} county. Affirmed. Opinion by Judg
Wilson.
In the Davis case the appellee shil
ped car load of sheep from Hop
Ark, to Brooks ton, Tex. There weI
releases from certain responsibilitit
of the company in the written cor
tract of shipment as to possible il
juries to the sheep, detentions i
loading, etc. Keepers or persons il
charge of the sheep were to pass fire.
on the trains with them; but on n
other trains.
| Appellee had an upper deck mad
in the car, and the sheep put in tn
upper and lower apartments. A
Tex irkana appellee paid the freigh
due on the sheep, and the company re
ceived them, to be carried to Brook
ston. Appellee was permitted t,
travel free up to TeXarkana under hi
contract. After leaving TeXarkan;
the conductor demanded of Davi
that he should pay fare or leave tn,
train, and Davis paid his fare t.
Drookston. At GAINESVILLE Davis dis
covering that the upper floor of thu
car was likely to break down and in
jure his sheep, asked that the car b.
switched off to prevent the threat
ened injury. The conductor refused
till the train had already passed one
station, and reached Blossom Prairie
where it was discovered that the up.
per floor of the car had fallen down
and killed some seventy head oil
the sheep. Before loading the car al
| the place of shipment Davis wa
notified that if he shippe
the sheep loaded in the manner they
were loaded, such shipment would be
at his own risk, and in the contract
of shipment the letters 80. K" were
inserted under the heading of ''des
| cription of STOCK" and these letters
proved to signify that the stock was
shipped at the "owner's risk" 1t was
| proved that the sheep were worth In
tie market at Hope, Ark, from 70 cents
to $1.25 per head, and in the market
of their destination, Lamar county
Texas, SO per head. There was YER
dict and judgment for appellee for
$2I9, the value of the sheep lost,
S11.52 interest, and $3.50 passenger
fare from Texarkana to BrookstoD
in all, 1886.
Such are the facts of the case, under
which the company contend the YER
dict and judgment are not warranted
10y the evidence and law of the case,
because the loss was caused by Davis
own act in loading the car, as warned
at his own risk, and so expressed in
the contract. The question which
seems to suggest itself more properly
to the court is as to the Interpretation
and effect of a contract made in Ar
kansas and operating in Texas
In the johnson case, May johnson
Joined by her husband, having pur-
chased first-class ticket was refused
admission by the brakeman to first
class car of the Texas 81 Pacific at
Bonham, and was rudely pushed back
against an iron railing seriously injur-
ing her person. She complained she
was forced to go into another car
known as the smoking-car wherein
were drunken men, and wherein she
was exposed to impolite language AID
rude treatment. She claimed $500 act
nal damages and $500 exemplary dam
ages. The defense was a general de-
NAL, and especially that the coach
from which she was excluded was full
of passengers, and, that if she was as
saulted, as alleged, it was against ap-
pellant's orders and malicious on the
part of the brakeman. The verdict and
Judgment were for $3.50 for appellees.
There were numerous assignments
of error, such as are usual in such
cases. AS to the assignment that
the verdict is excessive IN
amount Judge Wilson says: The
verdict is for actual damages only,
the question as to exemplary damages
not being submitted to or passed up
on by the jury. Actual damages in
this case included the mental and
physical suffering occasioned appellee,
May johnson, by the wrongful acts
complained of. There is no fixed and
definite rule of law by which to est1-
mate and assess these damages. "ln
all cases where there is no rule OF law
regulating the assessment OF damages
and the amount does not depend upon
computation the judgment OF the
Jury, and not the opinion of the court
are to govern, unless the damages are
so excessive as to warrant the belief
that the Jury must have been in
fuenced by partiality or prejudice, or
have been misled by some mistaken
views of the merits of the case" (Field
on Damages, page 684.) And before an
appellate court will set aside a
verdict upou this ground, it must ap-
pear manifest and clear that it is eX-
cessiye. When the evidence in the
case is considered we do not think the
verdict can be regarded as excessive,
at least it does not appear manlfeStly
and clearly to our minds that sucn Is
the case, and we cannot say that the
court erred in refusing to set the yer
dict aside. There being no error In
the Judgment it is affirmed.
In the Bryant case, in which Bryant
was indicted for theft of zone twenty
dollar gold piece of the value OF TWEEN
| ty dollars current money OF the Uni
| ted States, and one five dollar bill oil
the value of five dollars, and one
pocket knife of the value of fifty
cents of the corporal personal property
of j. w. Mcknight" a motion in ar
rest of Judgment based upon the sup
posed lnsufficiency of the description
of the alleged stolen property haC
been made and oVerrulet
The court of appeals holds that the in
dictment is sufficient. The new pro
visions of the law dispense with tn
great particularly formlery required
in the description of property, especial
ly money. The exception, however
taken to the charge to the jury as Il
circumstantial evidence upon which
the conviction is based, is held to haY
been well taken. The charge bein,
that 'the circumstances must be s.
connected as to exclude every reason
able hypothesis" but the guilt of de
fendant was not sufficiently explicit
to enable the jury to understand an
apply the rules applicable in sue
cases. For errors in the charge tn
Judgment is reversed and the caus
remanded.
A motion for rehearing was sui
,mitted in the case of Schwartz VI
Lieberman, from Tarrant county, il
volving the legality of term of tn
county court of that court.
The court adjourned until 8 o'cloc
, this morning, when the first call c
; third assignment. will be made. A
records must be ready.
The following cases were decide
: yesterday:
Judy Burton VS.. G. II. & S. A. raj
| road company, from Bexar count
) Reversed and remanded. Opinion /
Associate Justice Stayton.
) G.. A. Heating ct al VS.. E. /
3 Vaughn, from Hays county. Affirme
3 Opinion by Judge 5 layton.