Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-04-25

mis- INSTRUCTION Is complained Of on the
ground that &c is not sufficiently restrictive
ing dspendent upon the further fact dguOred
hi tho charpO that the Incompetence cans
"a the injury and That plaintiff WAS un-
MO term 1nagligenoe" does not necesga-
riiv iucluie mcompetcucy, since a competent
mar may m TIMES ne tnegiigent l4e
gehce ~ Hull bis fcllow-aerYant, without
reference 10 the incompetency 81 the lat
ter, tho dctcnt uni W"ulu hvt ue lihof,. We
fcrt going instruction was, therefore. n dis
connected from othur PORTIONS Of the court
chnrgo Erroneous as Il ladicatrs n view n
tho law contrary 60 that FIRST expressed
Tho court however. in the suluc paragraph
charged the Jury ns follows. 1T was also
tho duty Of plaintiff Rowland ~ FIREMAN io
hav. acquainted himself with The general
dutips 0f such positions. lie assumed az
bis peril The risks aud dangers naturally
aud cidinariiy Incident tu bis employmclt
as sucli trrinan including the risk and
danlcrs which might arcuro ffCu tho neg.
liaaIrp ~ Dis fellow rttvuuts. but not such
risks and dangers as might arise from
pany iit selecting or rptuning uunt, incompe-
tent or incorporate servants or employees
unless such uniitnes3 on mtouipeieheI ur
in'empcrance were KNOWN ~ platinum %
unless be hal reasonable Information
amounting to notice and be- failed 10 NOTIFY
drfcudent Of the same. iu which case palm
fiff could not recover" Ueaidcs tic Hpr-
cial instruction granted AZ tie request OF
tltn defendant required by emphatic iteru-
lNnI IANt NNf IiNNiANAIIi Nr n AfNNNilNiNW VT
cuyery sh0uld prove that the Injury sustain.
al by him was due to The iucOmpetcucy and
iutemperance of Hull brought 90 ihe kuowl'
edge ~ the defendant THIS nctlon ~ the
court sufficiently guarded che jury from
bciug mislcd hy the error above referred
Plaintiff IN error I'm iis seventh assign.
mnnt ~ error complains " the following
portion 10 the 60 urt "a charge, ut WINS
the Further duty of defcndnnt company i0
provide safe structures. comp, tent omplnytA
aud all appliances necessary to the safety
or these employees and adopt such rules aud
regulations Tor running iis trains az win
avoid injury 90 its employees 800 fnr as this
cau reasonably b" done. and having adopted
such rules to use reasonable efforts 10 CON.
form Zap them or thp company VIII Dee re-
sp1nslnlt for col sequences resulting from
thUm.'
% is not To- be- questioned that thc fore.
going charge is ubstractly correct g. Wood
g. 6.I. THE u.r Of thC plural "puploycs'
.io which pIainun in error objects Instead
mink DO Ni,' " thg cutir' charge haNc mis-.
| lUd thp jury. Tile iuct mpctcnry io Doe com
Eldcrod Dy tho jury wa, elsewhere strictly
gaiIons 10 thc one omployc iiull
Iun testimony OF the WltupssUa. Rowland
and Hun. already set ont with rcfcrucc 20
rules aud tu provide Tor Signals while
WrIgvr was sufficient under tho pip1dugs.
| which were full on that issue. tp Justify mo
defendant WIS fully Ubyiatpd by the drst
special charge granted nt tho request NJ
/ dolrulhui Ihr eject uf TINT special iu-
Hirirtnn was ip subordinate every issue orr
| question iu ibr ruHp Co thut OFF the iuCom.
! pgIDu} of liull luc recovery OF the plain.
| solution or thIs issue in favor of the plain.
| tu.
ON The. measure M damages the charge
! WIS nt follows. "lf you uud FOR plaintiff
| YOU win simply eo say DO your verdict ihe !
/ amount yuu may nul from fho cydenc0f
| that du" Go hIir. N any hy reason
| amount off damages aul extent M ul1
| th Injuries you urg thr exclusive iudg
| 100 uIey YOU Hhuuld nui for plH W
| iu Won may take INTO consideration lu |
! mating Nhr damages. hudily uuI mon
/ pain mud suffering according 90 Us dpul
/ hud pinhahle character Of the Nihry,
! sIrN power and capacity fDlJ ~ M
pursuit ana occupation ANA NI|'t ~
1bc concluding clause a 1Sng
| charge removes fhD onur \... liz Nom
| which JUSTLY Wn ihInl, fs.d
| rl ln the tuugluiiL Ifnf
/ NV drirnlnnt iloucp
| ti "tt ".t'. ~ 49, tween
! ln' Ihlul Hhl ih' M whore
| .ny hli't lh lhlui miuu.
| upr nt mental Nj least
Is Though The dennn r,.."
oralnny .ncgiisent buiory
IfI..i f'h'r tnuulh .Huduuts
ItlhN AWlsnu'hl 4 ao lucid
H. .'NlAir uH 20 fHl got,
E,W,H Ih, INV hrt ~ lhbpuurut
.iM you "i ll' uur~ tri to the
w lin.Inuuy guardrt against any mlsupure.
III Iru.iNn whl.h outlu operate tu thp Injury
4 ol ~ l"i'idnnt Ih' latter seems, hpsdc5
~ 10 s T ~ ' 5Sa,rba i,SI S %ilh gSlg
NJ l.o," special instruction guntcd ot
WI'R. tenth asslrnmont to the eject m
| assumed boz lts tuuri.r hnI MIN
! DIV nfu0irI fIr trrklpspp,s ur. Sla 40
~ N 'fs Dos wl We think iu,uBcA1t,J
4 rlnIfNg error ln is motion f,r new
| lllu 100 ~ -uii below uruI fnr the nrst
ilmc aud - hrIr tlat tbp special Judge
quardad 90 nom o. b. D. Insisted uaf an,
| governor WIS NOT authorized tu Hupllut IA
special Judge until rnr parties had an op6ol
I unity in uErnu uu "a special judge which
hal not he"u accorded 90 them before tho
10 is provided BY article l0n2 revised siat.
nir7 lHat where 70 district Judge De- dlslnnu-
/ NV ln liA o. th.' pgudiug Zoo his court and
pc PARTIES shall ON al the .nrst term To
htrr uNn .u riul Judge A. shall be- the
duty ~ the judge io certify ID thc Governor
| inc llti ui Nls disqualification and The fnu
uro ut the parties o. ugrre. whcrrupOn the
| governor shIN appoint special Judge
u appears fr0m the rrcltals III me- c6n,nis
| sion Issued 60 thr Honorable T. ~ gHmuhpU
| hntflM luANu lu THIS ease that fufw0 'enu.
| tlugenrlrs had arisen. eXcput UHf nj lnoa
! not appear that the failure to agree had
| occurred 90 thn urst term uf fhr tuurI hut
that it occurred before thnt date. No further
| nppCurs that mo the FIRST tcrm after th, uu.
| pniuimont the December term 1857 tL.
cause WAS continued and that Tie trial vr4
| hnd in June. lN,N before tho sperIlu fude,..
| without objection uuul 10 was urpod hy
motion Tor new trial. IN Tits motion ID
is oontruucd that the parties 40 ma, nrst
| ierui NJ the court nftcr the disqualification
| uld not fNl Go agree upon "a special ludgo
| nu that lu fact the commission WIS lssucl
| before tAo hrst term of tho court nud hp-
| fute the question W agreeing unuu "a app.
unl Judge WIS submitted tO thpm
IN SChmtEe B, MuLpary, 13 Texas ia
n ~ sdid' 'Ihp parties mudr mo- objection
| % tho trlal Ot tho cause hy thp sp.plnl
| Judge until after the trial aud We're lt npr.
cssafy 10 might well Doe held that they thus
waived an questions as tO tho proprlct, oi
| the appointment nc the Hmo mndr" NJ
| mink therefore that thc defendant must hl
held in this case 60 have waived am ouos.
ton as Ca the proprety Or efficacy Of th,
| appointment % the special Judge
| The uctlon NJ thC parties M trying tht
| case without objection before ths snerlq
| Judge should ho regarded us iu itself Inn
T | agreement hy them Co submit the cauas IA
d | HIN ns q special iudge. The Judgment Il
! lh an thlhgs affirmed, IARlrON.
/ Chief Justice,