Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-12-03

damages the court charged: ."The plain
tiff also prsys for exemplary damages.
and alleges that the accident was caused
By the gross negligence Of defendant In
allowing lis road to get out Of repair,
and allowing same to remain SO for .
long period OF time before the accident,
eno that the company knew of such CON
dition and failed to remedy
such defects. What is meant
By gross negllge; CO Is total
wsns Of ordinary care, and ordinary care
is that degree OF care that person would
use under Ike Circumstances. So that II
you fad that d,tsndant's road was cut OF
rep ir, and had been for long Ieriod Of
time previ 1us to the accident, and the &c.
tendant company knew OF such condition,
and failed 10 remedy it, or II the general
bad condition CT the road was 20 notori.
Gus that defendant by .hs use Of ordinary
care should have known of its bad con-
dition and failed to remedy it, then you
would be suthorizsd to consider the
question of exemplary damsges." The
court had instructed the j1ry that evi
dence as to the bad condition Of the road
would not apply to sctual damages, but
would apply, II at all, to the question OF
t1 smpllry damages. Held: The charge
is defective TIE court did not attempt
to define "gross negligence" other
wise than by declaring 1t
to be a want Of ordinary
care, and the definitions of "ordinery
care" w.s faulty. There can DE no par
tiEl exercise Of "ordinery care" II ex.
lists IS degree in completeness, or 1t is
totally wanting, in any given case. The
charge author.zas the jury to conclude
that appellant was guilty Of gross negli-
gence and therefore liable for exemplary
damages evan if they believed from the
evidence that appellant had exercised .
degree Of care but elightly less Than per-
sons generally would under the same cirs
cumstknces. For the errors noticed the
judgment will be reversed and remanded
unless appellee shall file remittur Of the
exemplary damages, in which case the
court will affirm for the actual damages.
Stsyton, E. j.
Missouri Pacific Railway VS.. j. W.
Mitchell; appeal from Smith. Suit by
appellee for damages, actusl and exem.
plary, for injuries sustained by his wife
on account OF the alleged negligence of
appellant. This Is companion case to
that of Missouri Pacific Railway vs.. Shu-
ford reported shove. AS to exemplary
damages the COURT gave substantially the
SAME charge as in Missouri Pacific Rsil.
way vs.. Shutord reported above, and for
the reasons there stated this court holds
ssid charge erroneous. 2 This court
will not reverse and remand on the
ground Ct excessive damages, unless
they are mapifestly excessive, and 80 ap.
pesring ut first plush. For the errors
pointed out thu case will be reversed and
remanded unless the appellee shall file 0
remittur as to the tx .mplary damages, In
which case this cause will be sfflfmed as
to actual damages. StaYton, G j.
Missouri Pacific Railway vs. G B John.
soc; sppeal from Upshur. SHIT for dam
ages, actual and exemplary, sustained by
sp 9ellee through the alleged negligence
OF appellant. This is companion case
to that Of Missouri Pacific Railway vs..
Shuford, and same vs.. Mitchell, reported
above. For the erroneous cts-ge Of the
court as to exemplary damages, the cause
will be reversed and remandet, unless
the appellee shall file in this court a re-
mittur Of the exemplary damages, in
which event the case Will be affirmed as
to the sctusl damages. Gaines, J.
-sppesl frc sRusy, This Is an appeal
moving appellants from the Offices they
had been holding IS mayor axe aldermen
CT the town OF Henderson. II WAS shown
BY act Of the legislature that Henderson
WAS incorporated, md ssme approved,
February u, 1852. AIT several yesrs
the Inhabitants ceased to elect { fiji GERS. In
1861, and in 1866, in 80 far as the people
had power, tnev Ter rgsniZEd the city gov.
eminent. May 16, 1871, an act Of the leg.
Islature incorporating the town OF Hend-
erson was approved. After several years
elections for H ;ers ceased to be held
and the city government again apsed,
In 1883 another effort WAS made to or
gsnize city government. The proceed
ings were regularly taken IS in an or igi-
nal organization. The appellants under
this organization were elected officers. l
TIE revised statutes, article 80, provide
for thelreorganizstion Of cities and towns
upon two-thirds mel ority vote OF the
council adopting the general inc1r sora-
rion act. 2. To increase the territorial
limits not to exceed half mile In cleo
ton by the Inhabitants Of the country
proposed to be annexed must initiste the
movement, followed BY approval by the
couLc!l. R. s., arts. 94S, $685. Appel
lauts are not legal officers. TIE organ
,zstion of 1883 was without authority Of
law. 1t is here held thKt the act of 1871
lie the existing charter of the town. Az
hrmed. Walker. j.
Missouri Pac &c Railway Company VS..
j. c. R. Haynes & Co.: appeal from Hop
kins. Suit by sppellees to recover 70,
cotton alleged tu have been burned while
in the possession Of appellant, same be-
longing TO sppellees. It appears that the
.cotton was shipped by appellees from two
or three different points, consigned to
themselves to Greenville, Texas, it being
understood thst same was to be delivered
st the compress The cotton arrived in
Greenville, November / .nd u. and sp-
pellse Learned 1t TAD arrived
Sunday, November Is Monday
morning. sppellees notified the agent
of appellant to hsvs the cotton
switched { 4 on the sideIsck s: the coE.
press. This he promised TO do"ss soon as s
little switching could be DONE" This
promise was msde between ~ and 1
O'Clock. From l until O'Clock an sgent
of appellee was at tDa &C mprs IS to receive
the cotton. At $3.50 O'Clock appellant
switched the CARS containing the cotton
on the sidetrack by the compress. At
O'Clock the compress took f,e and
hurped mn fouafhar With Pho cayc con