The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-05-16

believe from the evidence that the plain
tilt failed to reply to the message, and
that II he had sent an answering mes
sage the same would have reached its
destination in due time, and that his
fathers funeral would have been post
poned until his arrival, and if you be-
lieve that a reasonably prudent person,
similarly situated, would have sent said
message, you will find for defendant"
% We think that the court should
have given the above instruction. One
who is threatened with damage by the
negligent conduct of another should ex-
ercise reasonable prudence to avert the
consequences of such neglect. He is
bound to use ordinary care to render the
injury as light as possible-provided that
it can be done at reasonable expense.
(S5 Texas, So; 20 Texas, 49, The re-
queSted charge was not upon the weight
of the evidence. 1t left all the questions
of fact, including that of negligence, to
the jury.
~ The answer of the defendant did
not plead specially the failure to send
an answering message, as .contributory
negligence, but it did plead contributory
negligence generally. If specially ex-
cepted to it should have been held bad.
But no exception was interposed, and the
allegation was sufficient to admit proof
of the defense. 90 Texas, 34S) The
judgment is reversed and the cause re-
manded. Opinion by Gaines, G. ].
Cora @. Hutchings ct al VS.. NJ. Gold
flank ct al; treSpas Sto try title to an
undivided one-half interest in % leagues
and 10 labOrs of land; from Bexar
county.
Plaintiff, Cora c. Hutchings, instituted
this suit against the defendants to re-
cover an undivided one-half interest in a
certain tract of land, originally granted
by the king of Spain to Antonio Rivas
and patented to him by the State of
Texas, by virtue of q special act of the
legislature. Plaintiff claimed title through
two deeds executed to one Cazenan, one in
1850, and the other in 1852 She made
no attempt to deraign title from the SOW
ereignty of the soil, but sought to show
that both parties claimed under a common
source of title; and that she had the SUI
perior title under that source. In order
to establish this claim she introduced in
evidence chain of title down to de-
PENDANT as follows: ~ A deed dated
April ID, 1875, executed by Vacnte
Cara, purporting to convey to j. g.
Crawford all interest in the land in con,
troversy, which had been conveyed tc
the grantor, or which he had been au
thorized to convey by certain instru'
ment executed by the heirs of Antonio
Rivas and their assigns (naming them
(2) a deed of trust executed November /
1876, by Cara for himself and more thar
80 others, therein named, and described
as the heirs of Antonio Rivas, conveying
to Crawford all the right, title and inter
est of the granters in the Rivas grant; 81
diced executed in 1877 from Crawford
to A. B. Frank; (4) deed from Frank
Goldfrank to Layenburg, lone of the
defendants.
In connection with these conveyance.
prove the execution of Il deed to an un
divided half interest in the land in con
troversy from Cara, as attorney in fac
of the heirs of Rivas to w. l.. Cazenan
which it was claimed had been lost and
after diiigent search, could not be found
This evidence was objected because:
Q) The search was not sufficient. e.
The deed did not disclose the name of the
person for whom CARA purported tC
, convey the land. (3) The signature anC
delivery of the instrument was not suf
ficiently proved.
The trial court sustained the objections
and exclude the evidence; and this rul
ing was sustained by the civil court OF
civil appeals.
d) If error at all, the exclusion of the
evidence was harmless. The deed was