Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-11-27
SUPREME COURT.
Synopses of Decisions Rendered at the Pres

| >ynopses OF DECISIONS Rpn1prad az the Pres
| en-, Tyler sitting.
| Correspondence OF the Gazette.
TYLER, TEX. Nov. 2i.-Misaouri Pa
cifc railway vs.. j. C. Somers; from
Hunt. This is second appeal. See II
Tex. 700 for first appeal. On the first
appeal the case was reversed because
the evidence did not support the yer !ict.
1t was then held that if the cattle guards
were dangerously near the track of the
railroad. the appellee, according to his
own testimony should be deemed to have
known of the faulty constructors, anil
TO have taken the risk. The appellee's
testimony on the latter trial was some
what di ffereIit from his testimony on the
first trial, but the evidence overw helm
ingly shows his first statement to be cor
rect. We think the evidence tends to
show almost beyond controversy that
appellee knew of the close proximity of
the cattle guard to the railway track,
whereby he was injured. There is no
evidence &c support appellees case
save his own, aud in the
light of all the evidence we
think his own evidence fails to support
the jud gnent. 2. If d person knows of
q defect in q piece of machinery he is
called upon to use, he takes the risk of
the duuger incident to that defect, what
ever that danger may be. 8. The court
erred in refusing TO charge the jury in
effect that. II appellee did not know the
cattle-guurd by which he was injured
WIS too close to the track, yet if he
knew, prior to the time he WAS injured,
that there were number of cutile-
guards so close TO the track that man
on the ST ps of the caboose aud leaning
over (ns appellee was DONG was likely
TO be injured, then appellee could not
recover. Reversed nnd remanded.
Gaines. j.
st. Louis. Arkansas and Texas Rail-
WAY Va. Mrs. Annie johnson; from
Smith. Appellee brought this suit TO re-
cover damages for herself and four
children 10y reason of the death of her
husband, which was cnu.ed by the over
turning of the engine of which he was
engineer. l. The court did not err in
permitting witnesses for appellee 20 tes-
tify TINT appellant. subsequent to the
accident, made changes in its road and
crossing ut the place of this accident,
one of the reasons for its introduction
being to explain n photograph OF the
crossing where the derailneut occurred,
which had been taken after the accident
and after the changes had been made,
which photograph had been introduced
In evidence. =. The court did not err i'll
permitting witnesses to testify as to the
average wages OF an engineer of the eX-
perience of decensed. 3. The court did
not err in permitting witnesses to testify
rs TO the readiness with which the sand
on the track coull have been seen, and
as TO the chances of stopping the engine
after the same hai been seen, the
witnesses be M expert locomotive eugi-
ueers. 4. The evidence showed thai de-
ceased was earning at the time OF his
death SIS per month, aud we do not
think O verdict for $4,000 in favor of his
widow is excessive. ). There was verdict
in favor of Mrs. Capi.ola Wells, q daugh-
ter OF deceased ami appellee. for $3.50,
an a verdict for like amour, for u
son, J. H. johnson, who lacked but
few months OF his majority. In this case
we think the circumstances repel the
idea that the son and married daughter
ofdeceased he'd any just grounds to expect
peculiarly assistance from their father,
aui as to them the evidence does not
support the verdict. IL appellee will re-
init rs TO the damages for Mrs. Wells and
J. H. johnson the case will be affirmed,
otherwise it will be reversed aud re-
munded. Canes, J.
ST. Louis, Arkansas and Texas railway
VS.. Mrs. Anna johnson; from Smith.
!. Since the rendering of this opinion
appellee has RENTED the damages
awarded to Mrs. Wells and j. Fl. Jonn-
son. and the Judgment except as to them
Ian, r,.Al Oar rio
F.. H. Keller ct nj. vs. q. W. Hol-
liEgsworth: from Tarrant. Suit by up-
peIlants TO recover two-thirds interest in
n town lot in Fort Worth. l. Under
the evidence in this case appellee was
entitled to n judgment. not only because
appellants failed to connect themselves
with the agreed common source of title,
but also because he connected himself
not only with the common source. but
also with the sovereignty of the soil.
Affirmed. Henry, j.
International and Great Northern
Railway Company IS. j. B. Hall; from
Anderson. Suit for damages by appel
lee. /. The evidence shows that while
appellee was standing between two ears
at his work repairing them, the cars
came violently together by reason of nn-
other car being switched on the same
track AMI striking one of them violently,
and appellee hal his right fore arm
broken. When the wounds healed up.
pellee's arm was about one half inch
shorter than before. His arm was
weaker than before, and in some posi-
tOus he could not exert much strength
in said arm. He was disabled for four
or five months. When appellee was in
jured he was getting 81 per day and since
he has made 81 so. He had n verdict for
$1,000. Held: We think the verdict is
clearly excessive, and for that reason the
judgment cannot stand. Reversed and
remanded. Henry, }.
Alice Choate vs.. J. D. Johns; froms{
Pamela. Suit 10 recover land. l. Ap.s
ptl!ant, her mother ana brother con-
veved the land in controversy to the
rtxft1,rough whom appellee Claims. Iu
IN deed, after describing by metes and
wounds the land conveyed. was the fol- !
lowing clause: ITO have ana to hold |