The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-11-05
A SUPERIOR COUNTY.
HIGHER COURTS-TYLER TERM.
SUPREME COURT,

East Line 81 Rsd River railroad VS.
d. r. Smisb, administrator; from Camp
county. Stayton, ]. A charge
that 'iif the deceased Retro went upon
the defendants train ag Il passenger,
and the same was wrecked, aad the
said Tetro was killed in the wreck and
If the evidence shows that the wreck
was brought about aud Occasioned by
tho bad condition of defendants rail
road track, or by placing broad gauge
cara into tho train ia which Tetro was,
Or by the dangerous condition of the
care, or on account Of the want Of q
sufficient number 0fsuitablet rainmen,
or by the want Of proper machinery
and appliances for the cars in the train,
all ss alleged, or II the train was wreck
cd by any or all of the causes combined,
and IL tho defendant knew Of tho do
fects which produced tho wreck, or
might havo known of them by the OK
orcise Of care, diligence and caution on
It's part; ard H. Ia not shown that Tetro
brought about his own death by his
own negligence aa averred by defend
plaintiff for actual damages,n Is not a
charge upon the weight of evidence,
and when taken IN connection with
the whole charge is correct. g
The court further charged the
jury, "If you believe from the levi
dence that ut t6e time of tho wreck the
deceased was in end was occupying
what 10 called the baggage or exprets
Car, and you believe f,om the evidence
tho defendant company useu said car
ss s passenger car, aRd that the deien-
dant ueed said Car as o smoking car
for the public, then tho defendant is
responsible ii tho death OF Totro WAC
caused by the negligence OF tho doten-
dRnt, its agents, officers and employ
es." This charge Is a correct onuncia-
tlon oil tho law, when given in conneo.
lion with the qualification that the
death OF Tatro must not have been the
result OF his own negligence in occupy
Ing dangerous position, which per-
son of ordinary care and prudence
would not have occupied. Affirmed.
III. w, Box ct al.vs. jeff Ward OF
al, from Anderson county. Stsyton,
/. Jamos Il. Box diet ESTATE,
snd the court correctly charged tho
jury thst the property mentioned in
the will, having been acquired during
tho overture. of tho deceased and
Mary Box, it devolved upon the plain
tiff who claimed the property as the
separate estate of the deceased to show
that the Same was not the
community of the husband and weif.
Tho will contained tho following
ises, In regard to the tract OF land, OF
which thnt in controversy IL u part:
''I desire and will that my said wife,
Mary Box, remain and live on the
place where | now reside, unless in
her Judgment she should think II
best to remove, In which case, she de-
string 1t, my executors nro hereby au-
thofiZed and empowered 70 sell ali or
eny portion a said homo tract, or par
eel OF land, Gnd that she raise, control
snd educate my said children In auoh
manner as abe thinks b6st" The
wife, after the death OF tho executor OF
the will, was not empowered under
thia provision to- sell the homo tract
mentioned, tho proceeds of such sale
being used To meintsiu tho wife and
minor children. The fact that the
proceeds of y portion OF said nome
tract, sold TO ono jackson,
was invested in other lands,
which had boon portioned to the
children OF said James j.. Box, will
not prevent Thorn from recovering. tho
aud In controversy, which was sold to
Reeves, the proceeds Of which were
applied to tho maintenance OF the
widow and the said chill
drsn. Reversed and remandod.