The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-01-27

wei. Iuto encct there were statutes in
existence which prescribed that. when tho
county Judge should be disqualified 70 ,rv
any case, IL should be Transferred To tho
district court aud that such court should
have original jurisdiction thereof. (Sayles
stat. arts. 1888 and ll2l. } Now. the lam
guase above quoted from Section l6 Of
the Constitution is the language of pern,is
sion and not OF command--''a co,nneteut
person may be appointed In such manner
as may be prescribed by law" Hence we
are OF the opinion that the legislature had
authority to provide either that In the con.
'lnheney mentioned the case should be
transferred to the district court or that
special judge should be appointed. Tho
statute for the transfer to the latter court
therefore. as we think, remained in force
until the act OF April &c. 1898. took effect.
Affirmed. opinion by Gaines, c. j.
LIZZIE WASHINGTON VS.. MISSOURI
KANSAS AND TEXAS RAILWAY CON-
PANY OF TEXAS; suit to recover dam
ages for personal injuries resulting in
DEAN. from Harris county, First district
Reversed and remanded.
Lizzie Washington sued to recover dam
ages for the wrongful death OF her husband.
Nose Washington. alleged to have been
Killed by the negligence of the railway
| company on December 81. 1894.
The trial court. after hearing all the
testimony. directed a verdict for the de-
PENDANT. This action is the only ruling
of which complaint is made. in order for
the plaintiff TO recover, 1t was ncces, ary
that she should prove four pr,positions.
!. That the death of her husband WAS
caused by derailment Of the train =. That
the uerailment was the result OF q want of
care. either in the equipment or operation
Oh the tram. ). That the injury 10 de-
nh Iss ,t.,u.
some other person similarly situated ought
to have been foreseen as a probable &C.
quence of such negligence. A. That de-
ceased was not trcspasser upon defend
ants track or cars
Or the sufhciency of the evidence to es-
tabilsh the first proposition there can be
no question. and we therefore pass TO the
second. 1t may be safely assumed that
the derailment was caused by the parting
OF the train, but whether such PARTING
could have been avoided Ly he use OF
proper care, and what regulations are nee
essay to prevent the impact of one dis
connected section upon the other after tho
separation has taken place are Questions
upon which the testimony throws 40 light
In our opinion judicial notice of such mat
ters can not be taken. But while the naked
fact that an accident has happened NAV
be no evidence OF negligence. yet the char
acter of the accident and the circumstances
in proof attending it may be such as TO
lead reasonably to the belief that without
negligence 1T would not have occurred. In
such case the question OF negligence
should be submitted TO the Jury This
principle is applicable here.
Ought the injury to deceased or some like
injury have been anticipated by the defend
ant? The accident occurred in city
where the track OF the company neces-
sarily crossed its streets in n deep cut
through which. as the evidence tended 10
show, people We're in the habit of passing,
probably with the tact permission of tho
company. Under such circumstances We
think that it can not be said as a matter
OF law that the company ought not to have
anticipated that a derailmont OF its train
within the city might result In a personal
injury TO some one lawfully on or near its
track.
Reversed and remanded.
Opinion by Gaines. C. j.
GULF. COLORADO AND SANTA FE
RAILWAY COMPANY VS.. E. l.. SMITH
EFT AL: motion to rotransfer cause
Overrued.
In pursuance of article 994a of the Re-
vsed Statutes Of 1895 on a former day of
this term this case. among others, was
transferred from the court of civil appeals
of the First supreme judicial district to
that of the Fourth, This is a motion to
| iNtitHSlti tht vase " lue FORMER court
upon the ground that it is a garnishment
J proceeding and arises out OF another suit
| in which a writ of error has been sued
out 10 the same court. and that some of
the same questions are involved in both
suits.
The article of the Revised Statutes above
cited. after directing this court to order
| transfer Of cases so us to eGual.le the bust
ness on the dockets of The several courts
| OF civil appeals. provides that the cases
transferred from any court Of civil OPP
peas. shall be taken by consecutive num-
bers in the order in which they may stand
upon the docket"
| The provision is imperative and allows
| us no discretion. If we had any discretion
in the matter. the grounds of the motion
might be sufficient to have called for its
exercise.
| We granted motion somewhat similar
| to this at the last term. But there an
agreement had been filed by the attorneys
| that the disposition Of one case should
control tie disposition of another. We
thought that. as to the matter Of transfer
| thew should he treated as one case; and
| having transferred one. the other remain
| ing. we modified the order so as to revoke
| the transfer.
Opinion by Gaines. C. ].
/