Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-12-17
THE HI' MER COURTS.
syDopses OF diversions Rendered 1t the
Pre- cent Tyler sitting.

COURT or IFrEALs-TYLKR TERM, 1856
Ii. II d. friend VS.. the State. Appea
from Shel ey county After the jury hat
been In evsrement a considerable Length
oil time DE district attorney, over obj c
lions 4 counsel for defense, was per
mitted ~, have a Juror called out OF the
| Jury .oem, and held private converse
ton with him in regard TO another case
lie 70, that this vas palpahle violation
J O the statute and constituted reversible
! ersor. Reversed and remanded. White
ri.
: II. S Page vs.. the State. Appeal from
Madison county. One OF the grounds for
new trial In the court below was that
one OF the jurors was the husband OF q
second cousin OF the alleged injured
party. Said juror on his voir dire had
st ted that he was not related TO the In
jured party either by affinity or con-
sangunity within the third degree, and
defendapt had no knowledge until after the
tri 81 but that such statement was true.
The motion for a new trial was over
ruled. Held, error. The motion for a
new trial should have been granted on
this ground alone. Reversed and re-
msnd' d. Wilson, j.
Alb Keith VS.. the State. Appeal from
Titus county. When the application for
a continuance does not comply with the
8 atute, and no diligence is shown to OBJ
tain newly discovered evidence, eyea
though the evidence in the court below
was somewhat conflicting the case will be
ali med. All med Wilson, j.
Charles Virgins We. the State. Appeal
from Grimes county. One Of the defenses
in the court below was an alibi, and OBJ
| lection is raised because the court did
not charge upon that point. Defendant did
not request such charge, and he cannot
now be heard TO complain. Special
charges asked were embodied In the gen.
eral charge. Affirmed. White, P.J.
Ned Pitman VS.. the State. Appeal
| from Shelby county. IL was not error
for the jury to receive instructions az to
what the form of their verdict should be
The evidence OF the justice of the peace
in regard TO the judgment In the justice
court releasing defendant, excluded In
the court below, is not set GU: in the
bill OF exceptions, and cannot be con-
sidered by this cout. Wilson, j.
w +. Bennett vs.. Roseathal & Co.
Appeal from Grayson county. Motion
for rehearlng This motion was received
fjr filing November 1G, one day after the
time for tiling expired, and cannot there
fore, be considered. The motion was not
well taken If the same had been filed In
time. White, p j.
Houston & Texas Central Railway COM
pany VS.. Margaret Farris. Appeal from
Grayson county. This was an action
brought by appelee against appellant TO
recover the value Of horse alleged to
have been negligpntly injured by appel
liant. According to appellant company's
u ~ hsa t.NgY4. .91,y. a
that appellants engine or cars did not
strike, or otherwise come in contact or
collision with the animal, but that the
animal took fright at the approaching
train and ran into q bridge, and was in
jured by falling through and of the same,
and not by d fendant's engine and cars.
The evidence Of the engineer and fireman
on appellants train was substantially as
follows: "About three miles south
OF Sherman, at night about 1880,
on November 4, 1884, several
horses were seen distinctly by
means of the headlight, running down
the track. One bay horse continued on
the track running down the road, Re-
versed the engine and rang the bell. The
horse seemed to be much frightened and
ran upon bridge ten or twenty. feet long
and about twelve feet high. When
train stopped saw horse laundering on
bridge, aud soon fell to ground. The
engine nor cars did not strike the horsen
Farris for appellee testified: Found
horse inside defendants right of way,
about twenty-five feet from cattleguard.
He was nadly hurt. We tracked him
back about twenty-fi five feet and found
print OF horse on railroad dump and
hair and blood on track; color Of hair on
rails same as on horse. Horse on one
si1e had mud on him same
color as where we found the print"
Orr, another witness, corroborated the
testimony Appellant contends that there
must be contact or collision of engine
and cars with stock killed or Injured In
order for appellee to recover; that the
company is not responsible for damages
occassioned by fright, citing several
au horitles. We believe that these
views are fair and reasonable, and the
only legitimate one when applied to the
words used In our statues. But even If
the rule be as appellant contends and as
we believe correctly, stu we can not say
that 1t should avail him In this case to
the extent that the judgment should be
reversed AS stated above, the evidence
was conflicting as to the place where,
and the manner In which the injury
to the horse was inflicted. II is true
that the evidence of appellants Is positive
aud that of appellee Giro rmstanrial, still,
the court below seemed TO have credited
the latter testimony instead Of the form
er, and II that testimony be true, the
Judgment Is not erroneous, there
being evidence sufficient to sustain II.
Affirmed. White, T. j.
Bridget alll VS.. j A. Newlee Appeal
from Uvalde colnty Appellee brought
this suit to recover S424, which he alleged
to be due him on verbal contract that
he would take charge OF aud conduct
livery stable belonging TO appellant. Ap.
pellant pleaded general denial, except as
70 contract alleged and period OF appel
lees service, which were admitted. APP
pellant pleaded specially that appellee
had not accounted fully and fairly TO her
In said BUSINESS had never rendered
statement of said accounts, aud therefore
she could not make full and defiuite
statement OF the moneys received by him,
and for which he had never accounted 20
her, hut that he had failed IN accnune fOr