Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1894-06-07
THE HIGHER COURTS.


Justices: c. s. Morse. clerk; court To-
Gated AUSTIN
Traders National Rank VI. J. w.
Day.-certined question from third dis
( trict In case where the sale OF
personal property Chorses) IS attached
for fraud. and the jury under the eNi-
dence would be authorized 10 ma
I that there was no visible change IN
| t',e possession from vendor TO ven
] dee after the alleged sale, ~
/ Il reversible error TO refuse the fol-
| lowing charges. III you believe that
! tho horses claimed by w. j. Day TO
| have been bought BY him from u. 5.
Day remained after date OF said sale
( In the pnsaesaion OF L, S. Day or In the
cepurent possession OF u. 8. and j.
W. Day, or that the possession remain
{ ed after sale as before sale, then the
I I4le was presumpuvely fraudulent,
I and unless the defendant has explain
ed said pursesion so as to make It
j consistent with good faith and fair
! dealing, then you will ind for plain
I tiffs."
| The evidence shows that before the
sale II. S. Day was the owner Of
J l3O0-aore pasture. In which both he
I and j w. Day resided, but In separ-
ate houses. and IN which the horses
We're kept, both before and after the
sale, together with other stock owned
I by both parties Both testify that the
I nntuNl control OF the horses had chang
1 ed from vendor TO vendee at the time
Of the sale. but there is evidence from
! which the Jury would have been au-
thoHzed TO ind that this was not
the case.' Where the vendor remains
] In possession Of personal property ar
ter IA sale, the fnct tends TO show that
the transaction Is simulated and Is
badge Of FRAUD; and It has been held
that In such Il case evidence that there
has been no change Of possession Is
prlma facie proof that the sale Is
fraudulent and shifts the burden upon
the purchaser or explaining the cir
cumstnnoes. (2l Tex, 225; So Tex, GID
But in the case certified the rule
should not apply At the time OF the
sale both seller aud purchaser had
horses running at large upon an eX-
tenslve pnsture-the latter. presum-
ably, having tho right to maintain his
horses there. Upon sale by f. $.
to ], w. Day OF u portion Of the form
ers stock then running upon the pm
turc.th reasonable and probable result
would be that the horses so sold
would be loft as they were before the
sale, 1t follows no presumption OF
fraud can be drawn from the mere
fact OF their so remaining The charge
was properly refused, and II may
hc added that we gravely doubt
whether or not tho cnges cited hive
not gone too FAR In unfolding similar
inatrucuons Opinion by stayton. c. j.
Dillingham;, receiver Vi. John r.
Crunlt ct nl.-Wrlt OF error from Fifth
district, Crank was injured by being
| knocked off a boNcar by a telephone
wire, and made Dillingham;. receiver
| and the telephone company parties de-
lendunt Ho recovered against both
The receiver sought to cvadc liability
by showing that at the time defendant
was not In his employ as receiver, but
In tho employment OF the Central TeN-
as and Northwestern railway company
In that part Of the charge objected to
h was the evident intention to instruct
the jury that II was unimportHnt that
The plaintiff WIS IN the employment OF
the company last mentioned provided
he wns at the same time In the em-
ployment Of the receiver. This "a
correct proposition Of law II he was
In tho employment NJ both the COM
puny and the receiver and was per-
forming Joint service for both both
owed him the duty Of furnishing n safe
track In other parts OF the charge
the right OF plainUn to recover was
predieoteu upon finding by the jury
that he VAS at the time in the em-
ployment OF the receiver The charge
asked upon this auiect put undue
stress upon the question whether ut
the time the plaintiff received payment
for his services from the receiver or
from the Central Texas company. H.
In fact in the receivers service, was
immateriHl who paid him. Again, the
accident occurred on the Texas and
New orleans railroad This rond was
leased To Dillingham; as receiver and
was operated by him, 1t was his duty
to furnish safe truck, and he was LA
BILE to any injury by his failure to dis
charge that duty, whether the person
injured was In his employ or not.
The receiver sought 70 recover over
against the tclephone company The
telephone line being established when
the track OF the railway company was
constructed, II Is TO he presumed that
It was rightfully so established and the
railroad company had no right to de-
mand that the wire be elevated, IN
the absence OF some contract or OF
condemnation proceedings. Affirmed
opinion by Gaines. j.
Martin Wise Sc Fitzhugh w. Texas
ana Pacific railway company Certified
questions from the NTH district Suit
To recover the value OF cotton burned
while on the platform of compress
company some distance from the rail-
way. II was there for the purpose of
being compressed preparatory to shin
ment. The defense was contrlbutory
negligence aud general dental The
court charged; ut is tho duty OF n
railway company in the equipment and
operation Of It's engines TO use ordinary
aad proper care and diligence to pre-
NNiNl htf lihll utlNk intUuniCutpU
from such engine to the property of
other persons. BY ordinary and proper
care and diligence as a person OF ordi-
nary prudence and caution would com
monty exercise under like olrcum-
stances, and the degree OF care and
dilisence required in each case Is pro-
portloned TO the amount OF danger
probably consequent 10 n failure 10
exercise care aud diligence. a failure
20 exercise ordinary care and diligence
ns the same is dedned and explained
above IL negligence" This is a clear
exposition of the law OF negligence ns
applied TO railway company whose
trains pass near places where cotton or
other combustihle material may he
placed and as applied to persons 80 |
placing such material near railway |
track II ought to have been satisfac. |
tory 10 the most fOstidious As Ito |
railway company had no control over |
the cotton II is not seen that tha |
agreement between the compress com, |
pany aud the railway company that |
the platform should be located where |
u was had any bearing whatever an
the question of care or degree OF oare
necessary TO he observed by both par.
Ties, There was no question OF consent
or aequicscence I'm the case which couli
nave any bearing on the matters pre-
scented In the charge