The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1895-12-25
SUPREME COURT OPINIONS.
Decisions Handed Down at the Last
Sitting Of the Tribunal.
CRAWFORD VS.. CENTRAL REVERSED
Held He Was Guilty OF Contributor,
Negligence and Can Not Recover.
As to Repeating Ordinances.

Held He Was Guilty OF Contributory
Negligence aud Can Not Recover.
AS to Repeating Ordinances.
Austin, Texas, December 23.-Following
| are the opinions delivered by the supreme
court today:
G.. DUKE CRAWFORD vs. HOUSTON
COMPANY; suit against the railway
| company to recover damages for rer-
sonal injuries alleged to have been re-
celved by the. plaintiff while he was in
| the employ of its receiver. Dillingham;;
from Harris county, First district--Re-
| versed and rendered.
| Crawford was Waterman. At the
time of the accident. he had entered be-
tween two cars for the purpose OF I'M
coupling them. Finding the coupling pin
to be fast, he sgnaled the engineer
to back the train, and continued to walk
along the track between the cars. at
| tempting to unfasten the pin Walking
in this manner. his foot became astened
between the rails of a switch. and he
| was thrown down. receiving the injuries
| complained of. There was a verdict and
| judgment in the trial court for the plain
tiif, and his damages were liked at $780,
VV. This Judgment was reversed and re-
| manded by the court of civil appeals.
!. Negligence Is usually a question OF
| fact for the jury, but VIXEN the facts have
! been ascertained and definitely settled,
| it becomes II question OF law as to
| whether or not the facts so found are
| SUFFICIENT in law TO establish the fact of
We have carefully considered this ques-
| ton upon the facts as presented, and we
! believe that the court of clvil appeals
| rightly held that the plaintiff was guilty
of such negligence as to bar him from
| II recovery in this case The negligence
was so manifest and so clearly estab-
| ltshed by his own evidence that a YER
dict In his favor could not properly be
sustained by the court.
At the time when plaintiff entered be-
| tween the cars, after they had been put
in motion by his own signal. he knew
that the pin in the drawhead was fas-
| tened; that he vas going in the direction
it, and he fully understood the danger of
| approaching the switch while between
the cars. Such being the state of facts,
Torrance of the service, and, by continu-
INK the work under the imminent dan
GER was, guilty of contrlbutofy negli-
of the injury received. and. therefore
can not recover. (66 Texas, 1919
. Plaintiffs right to recover against
the defendant in this case depended upon
the fact. that improvements were made
by the receiver after the sale and convey
ance, by the application of earnings aris-
therofore, necessary for him to aliege
and prove these facts TO entltle him to
Judgment against the defendant.
The Judgment Is reversed and rendered
In favor of the defendant below.
opinion by Brown. ].
CITY OF SAN ANTONIO VS. T. H.
MTCKLEJOHN; certified question in a
case from BeXar county Fourth as
trict.-Answered in favor of defendant
In error. Micklejohn.
This suit was instituted by Micklejohn
against the city of San Antonio to recover
sum of money alleged 10 be due the
plaintiff as his salary incident to the Of
lice OF superintendent of public works.
In 1894 the council of the city, by ordi-
nance, created the office OF superntend-
ent of public works and plantitf below
was appointed thereto The city charter
provides that the style of city ordinances
shall be: BE it ordained by the city
council of the city of San Antonio"
Subsequent to the passage OF the ordi-
nance and appointment of Mcklejohn the
following resolution was passed by the
city council: BE 1t resolved that the
office of superintendent of public works
is hereby abolished to date from July
Question l. The office having been
created by ordinance, could 1t be
abolished by a resolution, and was it the
office?
We are of the opinion that the resolu-
ton did not operate as repeal of the or
dtnaHce creating the office of superin-
tendent of public works.
The council is only authorized TO
/ | lCBlSlale under the forms ana IN the man
. ner prescribed by the law of its creation.
, The essence of a law is the solemn eX-
preston of the will of the law-making
power upon it's subject matter, and it
would seem, that the expression of "A
command, though in the form of a reso-
luton should be deemed valid as an ordi-
nance oven where the charter requires
the council to lesislate by ordinance, pro-
vded it be passed In conformity to the
other requirements of the act of incor-
poration,
The. intent of the council is clearly
2 manifested In the resolution, but the diff
tculty which presents itself is. that their
viii Is not expressed i'll the mode re-
\ quired by the charter in order to make
n valid law.
It is provided by the charter that all
offices shall be created by ordinance. 1t
takes law to repeal a law. The act
, which destroys should be of equal dig
nifty with that which creates. a resolu-
ton proper is not law. y legislative
body may In that form express an opin-
ion. may govern its own procedure with
in the limitations Imposed upon 1t by its
constitution or charter, and, in case 1t
has ministerial functions, may direct
their performance; but 1t can not adopt
that mode of procedure in making laws,
, where the power which creates 1t has
commanded that 1t shall legislate In n
different form
! The question is answered in the mega
/ tive.
Question 2. Is the plaintiff entitled to
g pSIoV da, me saaIE OF the oitce up to the
U Assisted qT G N 5y the res II iae office
From what has been said above, 1t fol-
, lows that plaintiff below was de jure
the superintendent of public works of
the city. The term of office having been
fixed by the ordinance which created the
office, It was controlled by the provision
/ OF the constitution which limits the term
Of all offices not therein prescribed to
the period of two years. Con, article
l6, section 30) II the duties of the Of
fce were not performed we infer from
the facts stated that 1t was through no
fault of tho plaintiff. He was willing TO
perform them. Under such circumstances
he was entitled to demand and receive
the salary affixed TO his office.
The second question is answered in the
affirmative.
opinion by Gaines. C. ].
! II: p. BONNET VS.. GALVESTON.