The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-05-18
tn EHIGHER COURTS.
SUPREME COURT,

1
ker county, on the night of June II, 1882,
alleging that there was only one depot
building at said station, which was con-
structed tor receiving freight on the side
track, running on the north side OF
the building and was eleY rated FIVE feet
above the track, and the passenger
train passed on the south side of the de-
pot at distance Of 30 feet; that there
was no reasonable and safe accommoda-
tions provided for passengers to await
the train; that when the train arri we'd,
about midnight, at said station, APP
police came out of the depot building
on the south side ON to the.platform and
started towards the train TO take pas
sage, and after proceeding eight feet on
the platform fronting the train he tum-
blsd OF and fell four feet on to second
platform with such force that his right
leg was badly crushed and broken near
his body, and he WAS per nanently Grip
pied; that his injuries were caused by
the gross negligence and omission OF
duty OF appellant In falling TO provide d
passenger depot and reasonable accom-
modatiOns at Alledo station and
OF the platform; that the
night was dark, and no lights had been
provided on the platform TO enable him
to see his way to the train that when he
started to the train he acted upon the
appearances, and the deceptive appear
ance of the platform deceived him, and
it was by appellants negligence and
omission OF duty that he sustained said
injury, without fault on his part.
Appellant excepted specially Gnd de-
MED all the allegations Of the
petition, and alleged that It's depot
building was constructed as all such
| ef,. hn al
appellee knew OF the existence of the ell
ovation; that there were proper Eteps at
both ends OF the platform known TO APP
pellee.
Judgment was rendered for appellee
for 81 800. The proof shows that the de-
pot building is on the north side OF the
road at distance Of about 80 feet, and is
or 5 feet higher than the track. On the
south side OF the building the platform
extends about feet on the same level
with the floor OF the building; then &C.
ours perpendicular descent OF feet,
and from that point the platform ex-
tends entirely TO the track. But
at night this descent cannot be seen,
and the whole platform appears to be
on the same level. No lights are kept
burning and tho evidence shows that
quite number of persons had fallen at
the same place before the accident to
the plaintiff. Held: On the subject of
the duty Of appellant to the appellee In
this case, the court correctly gave the
following charge: at was the duty of
the defendant, at said station, where it
received passengers, to have and keep
in reasonable safe condition suitable APP
proaches to and from its cars to its sta
Toulouse, and at night time, if needed,
to have sufficient lights to enable pas
"a IN
on night trains, to pass with
safely from the station house to the
trains" Il. IL G.. n. II. r. VS.. Stewart, 81
Texas, lG6; Mckone VS.. M. G. II. r., 10
Am. and Eng Il. Il. cases, % and note;
Wharf. on Neg, sections G53, S2l.) Az
firmed.
N. A. Johnson VS.. G. B. Hollaman,
from Guadalupe; Watts |. Adopted.
The sufiiciency of an affidavit sought TO
be made the basis for the admission of
paral evidence of the execution and con-
tents Ofa lost instrument, is principally
addressed to the discretion of the trial
court. a party ordinarily has the right
to require his antagonist to produce the
rs he may propose to Ga-
tablish In the cause, but
where, by reason of tho loss or destruc-
ton of the primary evidence, 1t cannot
DO had, then by an appropriate affidavit
showing such loss or destruction, and a
reasonable and proper search and fail
ure to find the same, the court may adj
init paral or secondary evidence of the
execution and contents of the instru-
ment. In passing upon the suflieienoy
OF the affidavit all the attending circum-
stances should be considered-s as
the character and importance of the in
l U4NW AWNN Al
whether recently or otherwise; the
usual place OF deposit OF such
instrument, as we'll as the
time, place and character OF
the search. When that is insisted up on
by the opposite party the affidavit of the
supposed custodian is usually required.
| Where the respective owners have
agreed TO and fixed acommOn boundary
line between their respective lands, and
in which they have both aCquieSced for a
number OF years,a subsequent purchaser
from one of the parties so the original
| agreement Will not be heard TO COM
plain that the limo, as agreed upon, was
not in strict accordance with the line as
run In making the original survey. Az
| tirmed.
Houston & Texas Central railroad va.
q, Is. Hester OF al, from Graysun
county; Delany, j. Adopted. This suit
was brought by appellees to recover
damages on g shipment of cattle from
Bryan TO Sherman, Texas, tho negli-
genco imputed to appellant being I'M
proper delay in furnishing cars as
| agreed and delay In the course of ship
ment; that an insufficient number of
cars were furnished and the cattle were
improperly crowded in them, and that
appellant had no stock pen or enclosure
to hold said cattle in Sherman, by reas-
on OF which the cattle were
injured, some killed and others lost.
Appellant pleaded general denial, and
specially that one of appellee's repsent-
ing them all in tho shipment of the
cattle entered into a written agree
ment with defendant, whereby no un-
dertook to superintend the loading of
the cattle, and among other things as a
condition precedent TO his right to re-
cover anything by way of damages for
any loss or injury to said cattle, TO give
notice in writing of his claim therefor
to some agent or officer of the defend
ant, before the stock should be removed
from place OF destination, which was
not done.
The court charged the jury as follows:
III you believe, from the evidence, that
plaintiffs Loaded said cattle In said cars;
that they overloaded the cars, and that
the same was an act of negligence on
the part of plaintiffs, you win find no
damages, In consequence OF the injuries
such cattle may haye sustained by
such ovorloading."
The written notice required was no
given for several days after the arrival of
the train at Sherman The cattle were put
OIL in The night. 1t was dark and rain
ing. There were no pens TO put them
In, and they could not be kept together
In the darkness. They scattered abroad
into the country, and II was several
days before they could be collected, and
many OF them were entirely lost. Held:
II the appelloes crowded too many cat
tie into the cars and they suffered loss,
1t was their own folly, and they could
not hold appellants responsible for the
loss. II appellant contracted 10 furnish
asufiloient number of cars aud failed 10
do so the failure gave the appellees a
cause Of action, but they could not crowd
their cattle into tho Oara nj tina riek of