Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-01
THE HIGHER COURTS.
synODsss OF Decisions Rendered at the Present


Austin Sitting.
Cefgsspondence of the Gazette.
Is kUsTIE, Tex, May 3O.-Gulf, Colorado and
Santa Fe railway company VS.. W. T. Hudson.
from johnson county; opinion by stayton, c. J.
Appellee stopped with drove of cattle for the
night about half mile from appellants road on
the highway. During the night storm came
up the cattle stampeded, ran, notwithstanding
all efforts on the part of appellee's servants, to
appellants road. The road was not fenced and
q number of the cattle were killed and wounded
by passing train. The defendant tried to prove
that ordinary wire fence would not have
checked the stampeded cattle. Held: This
evidence was properly rejected. The clear
meaning of the statute is that
the railroad shall be liable for the
stock injured or killed by the cars, unless the
which event plaintiff shall not recover, unless
the injury resulted from want of ordinary care
not here be considered. 1t would be 1ncompe-
tent for the road to show whether or not the in
jury would have occurred had the road been
fen ced All instructions to the effect that If the
road had used ordinary care, it would not be
liable, were properly refused. The road bein 6
unfenced, the company was liable, as ordinary
| some of the injured cattle died afterwards for
| want of proper care given them by appellee; on
\ this plea the burden OF PROOF NOulQ nave Deeu
on defendant. The Judgment under the evidence
| is not excessive. Affirmed.
Mary E. and D. G. Freeman vs.. Harvey Haw-
| kins ct al, from Denton county; opinion by
! Stayton. c. ]. Suit by appellants for the re-
1 covery OF tract of land patented TO James
! Rose appellants claim under Lewis and Mar
garet Rose, father and mother of James, who
died without issue. Defendants claimed under
some other woman as the mother OF James
Rose. II the court had found IN favor OF the
elusive of the case. but, it not appearing from
the record that such was the finding, other
questions raised win have to be considered.
against aSa Apf MaTs E. Robinson By default
cation. Mary e. Robinson was the name Of
Mary E. Freeman before her marriage, but at
the Institution of the suit she was Mrs. Free
man. This Judgment should have been ex-
cluded On her marriage the law conferred on
Mary E. Robinson the name of heg husband, and
citation by pnnncatioa Te9sirng 70 mary ys t E
court Jurisdiction to render Judgment that
would bind Mary E. Freeman. 1t might have
been different if she had been served personally.
Appellants to prove pedigree offered petition.
answer and Judgment IN 8 suit 0rougheDy Lewis
and Margaret Rose against Thomas Collin en-
case. The averments in that suit were essen
tally self-serving and could not be offered for
the purpose stated, and the court correctly ex-
cluded this as evidence. lStarkie on Evid. 4S9,
Wharton on Evid. A0.l Reversed and re-
manded.
Guadalupe county; opinion by Henry, j. The
land here in controversy lies between slough
and the Guadalupe river, and plaintiffs claim
under grant which calls for the river, but de-
PENDANTS clam that the slough instead Of the
river was measured by the surveyor. The strip
hetween the slough and the river was located
8apon witt certificate by one Saunders. The
/ instrusent offered b. defendants to prove hmi-
tatisA showed privity between Saunders and
Ih4e. 1t was clear agreement, showing that
ElIele held under Saunders and justified the
Charge Of the court to that effect The court
also charged the jury that in determining the
extent OF the grant they must find the lines as
run by the surveyor, If they along the river,
to find for plaintiff. If along the slough, Tor de-
4endant although the river was called for IN the
s&ant. This charge was correct. Affirmed.
tIano county vs.: W. T. Moore, Jr., from
Llano county; opinion by Henry j. Llano
county for building courthouse issued bonds,
sold them, deposited the money in bank at
Austin and as the contractor earned the money
the county Judge drew on said deposit. Appel
lee the then county treasurer had no connection
with said money at any time.
And when he went out Of Office
he made a settlements with the county