Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-05-16

10, chlection overruled, and defendant
excepted. Such entry Is not eqniva-
lent TO a bill OF exceptions. objection
that charge Disseminated in favor
of the sex OF the injured party (the
wife) in view of the evidence which
showed that the company had pro-
vided ladies carr for the &C.
COMMUNICATION of lady passengers,
wherein all their lady passengers rode,
and that Mrs. johnson was the only
lady forced by the company's servants !
10 ride In the smoking carr was not
Well taken. Moreover, the charge, as
whole, could not injure appellant.
Another objection 10 the charge was
that there was mo evidence OF mental |
suffering or sense OF humiliation.
Held, that the evidence was sufficient
on that point, A requ, sted charge Is
properly refused when 1t Is substar.
tally embraced In the general charge.
The court properly refused to charge
that "the company was not responsible
for insulting language used towards
plaintiff In the smoking car, not called
TO attention of Its agents. The yer.
diet being for actual damages only,
and the measure defined coming with
In the correct rule laid down In Field
on Dam, lage 6Sl, cannot be said To
be excessive. Affirmed. Wilson, j.
Texas n Pacific Railway VS., Davis,
appeal from Lamar county. The con-
tract for the shipment ofsheep was en-
tered into at H., in the state Of "A.
They Were to be transported to II. In
this state. The contract limited the
company's liability to such injury as
should arise only from gross neeli-
gepce. 1t provided TO transport the
appellee 10 b. free of charge. Arrived
at T., Texas, the company's agent re-
fused to recognize the contract, and
compelled appellee to pay his fare 10
b. En- route II became evident
that the arrangements In the
sheep car We're In danger of
breaking down. Appellee requested
the company's agent to switch said car
oil at certain point to prevent injury
to TIE sheep. He refused, aud further
on en- route the partition In the car gave
way, killing many head of sheep. To
this action for damages, the appellant
set up the terms of the contract, maxi
ing the appellee responsible for his
own losses by loading the car In the
manner he did. BY the statutes OF
this state, railroad companies and
other common carriers cannot limit or
restrict their liability IA IL exists at
common law, and no special provision
made in contravcution of this
law Is valid. Revised Statutes, 27S.
This rulecannot affect interstate traffic,
but only common carriers In this state.
IL valid then in A., the contract was
valid then in this state. In the alb.
sence of statute prohibiting IL, COM
mon carriers may, by express contract,
] Iitalif Il taat.t,t thair In.
! liability to reasonable extent, but
not to the extent OF exempting them
selv,s from liability caused 10y their
own negligence. The condition,
therefore, in this contract, which
sought TO exempt the common carrier
from other than gross negligence, was
invalid. Under the evidence In
this case the company had
no right to shield themselves behind
the contract because of their own vio-
lation thereof. IL refused TO transport
the appellee free of cost, and without
apparent reason, TO switch the car TO n
side-track when danger to the sheep
was apparent. Held, further, that tho
value OF the sheep ut b In Texas, and
not at H., in a., was the true measure
of damages. But appellee was not en-
titled TO interest. But remittitur hav-
ing been entered ne to the interest and
fare paid, for which judgment was
rendered, TO thut extent the Judgment
Is reversed, and here rendered for the
value of the sheep Mt b. In Texas rs
rendered below. Ordered accordingly.
Wilson j.
Schwartz VS.. Libcrman ct AL, ap.
peal from Tarrant county. On re-
hearing. The certificate and affidavit
of the clerk showing that the judg.
ment herein was rendered nj the term
of the court beginning on the third
Monday in September, 1888, instead OF
the first Monday in that month. as APP
pears in the original transcript filed In
this court, which was, in fact, IA legal
term, the motion for rehearing ID
granted, and the judgment heretofore
rendered reversing and remanding the
Judgment as rendered mt an Illegal
term, Is set aside and vacated. There
appears to he no error in the record
and the judgment Is affirmed. AT
hrmed. Wilson, j.
Fondren W. State, from Ellis county.
The motion 10 dismiss the appeal In
this case calls In question the recogn-
izance: for appeal entered Into In
the lower court The recognizance re.
cites that the defendant was charged
with aggravated assault and battery,
and convicted of simple assault, which
Is amply sufficient. That the recogn-
izanc recltes that the defendant Will
not depart without leave OF the court
IL sufficient, IA the rccognizance other
wise shows Which court was intended.
The motion to dismiss Is oyerruled.
Texas Pacific Railway vs.. Gordon,
from Fannin county. This was a suit
brought In the Justices court 10 re-
cover damages for the killing OF q fine
mare in which the appellee recovered
Judgment The statement of facts, In
the light OF which all questions In
volved must DO considered, was not
signed by the judge AZ approved, and
hence cannot be considered for my
purpose whatever. Otherwise, no err
rors upon the face of the record can be
discovered, and the Judgment must be
affirmed. Affirmed.
Itawzon Vi. State, from Kendall
county. The conviction In this case
was for the theft OF property OF value
under $50. The punishment imposed
WAS a fine of $500, and three months
confinement In the county Jail. The
motion to dismiss the appeal denounces
the sufiiciency Of the recognizance.
"To abide the Judgment OF the court
OF appeals of Texas as the legal con.
dition without adding, "in this case"
That defendant "stands charged with
theft OF sheep and has been convicted
In this court" sufficiently defines the
offense. Motion to dismiss the appeal
Is overruled.