The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1897-12-02
Opinions.

Following are SynopSeS OF the Opln-
ions delivered by the supreme court yes
terday:
Bexar County VS.. John G. Voght; APP
plicaton for writ of error in a case
of trespass to try title. from Bexar
county, Fourth district. Refused.
Voght sued the county to recover Il
tract of land. Defendant disclaimed as
to all the land sued for except three
roads. each of which it claimed to he
public highway. 1t subsequently
amended its answer. enlarginS it's dis
claimer and restricting it's defense to an
easment over one of the roads. The trial
resulted in a judgment for the defend
ant county for the road claimed by it
in its last amendment and for all costs
of suit. Upon appeal the court of civil
appeals reformed the judgment so as to
tax against the county all costs which
accrued up to the time of fling the sec
ond disclaimer
1t is claimed in this applca lion that
the court of civil appeals erred in re-
forming the judgment us to costs. We
are of the opinion that thai court did
not err in its ruling and would have
deemed it unnecessary to express in
writing our views upon the question
but for the fact that it seems. from
their opinion. that they had difficulty
in following the decision of this court
in the case of Keyser VS.. Mensback, II
Tex, "a.
If the plaintiff, upon the filing of the
second disclaimer, had taken Judgment
thereon and had declined to prosecute
his claims as to the road claimed by the
county. he would undoubtedly have been
entitled to recover his costs. Having
continued TO prosecute his suit and hay
ing failed to recover the road claimed
in its last answer by the defendant. his
position was no worse as to costs in
Cured before that answer was filed. BY
reason of the last disclaimer he was
the successful party as to II part of the
land to which the defendant in the in
ception of its defense had SET up title.
He rightfully prosecuted his suit to the
time of the second disclaimer. and he
was entitled to his costs previously in
CURED. He failed in the subsequent
prosecution and was justly chargea bic
with the costs which thereafter ac-
crued.
Opinion Ivy Gaines, {. ].
Texas and New Orleans Railway Com
pany VS.. w. l.. Bingle; motion for re-
hearing of IN applica ton for 1t writ of
of error, i'll Il case from Liberty county.
First district. Ovcrruled
Suit against the railroad company to
recover damages for personal injuries
resulting to an employee from .lefectiS e
machinery.
The main question presented IN the ap-
plication is one upon which there is
great conflict of authority and which
it would seem has never been quite def
nitely settled in this court. Therefore,
before we passed upon the application
in this case we examined the question
with great care and reviewed the author
tiles. with the result that we are of the
opinion that the court of civil appeals
did not err in it's disposition of the case.
The servant. by entering the employ
ment of the master. assumes all the
ordinary risks incident to the business,
but not those arising from the mas
ter's neglect. 1t is the duty of the mas
ter to exercise ordinary care to furnish
him a safe place in which to work, safe
machinery and appliances. to select
careful and skillful co-workers. and. in
case of dangerous and complicated
business. to make such reasonable rules
for its conduct as may be proper 10
protect the servants employed therein.
The servant has the right to rely upon
the assumption that the master has
done his duty. but if he becomes APP
prised that he has not and learns that
the machinery is defective. the place
unnecessarily dangerous. or that proper
rules are not enforced. he assumes the
risk incident TO that condition of af-
fairs. unless he informs the master
and the latter promises to correct the
evil. In this latter event, so long as he
has reasonable grounds to expect and
does expect that the master will fulfill
his promise. he does not by continuing
in the employment assume the ad-
ditional risk arising from the masters
neglect If he then be injured by rca-
son of that neglect he may recover, pro-
vided it be found that man of ordi-
nary prudence, under all the circum-
stances, would have encountered the
danger of continuing in the service.
We do not regard the decision in the
case of the Gulf. Colorado and Santa Fe