INTERNATIONAL & G. N. RY. CO. v. JONES.1 (Court of Civil Appeals of Texas. Jan. 30, 1901.) RAILROADS-NEGLIGENCE-FLAGMAN-LIGHTS -LOOKOUT-DAMAGE-VERDICT-APPEAL AND ERROR-BILL OF EXCEPTIONS. 1. Plaintiff's husband was killed by cars in the yards, used by defendant and other railroads, at a street crossing which was in constant use by the people of the town in going from one part of the town to the other. The crossing was not properly lighted, and had no flagman. At the time of the accident the brakeman on the car, which was being pushed by the engine, was sitting down looking away from the track, with his lantern in such position that it could not be seen in the direction in which the car was moving, or that in which deceased approached the track. Held, that the question of defendant's negligence in not having a flagman at such crossing, or lights on the car, or a man keeping a lookout, was for the jury. 2. A bill of exceptions to the exclusion of evidence will not be considered, unless it shows the grounds on which the evidence was excluded. 3. Plaintiff's husband, a deaf-mute, when killed by defendant's cars was 50 years of age, had no fixed occupation, and was not shown to have ever earned over $15 a month, and was discharged from his last place, where he earned $8 per month, for incompetency, and was usually in debt. At the time of his death he had separated from his wife, and was living on the charity of relatives, and was in poor health. Held, that a verdict of $1,500 damages for negligently causing his death was excessive, and should be reduced to $500. Appeal from district court, Wood county; J. G. Russell, Judge. Action by Kate Jones against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals. Modified. W. B. Teagarden, for appellant. F. J. McCord, J. A. Germany, and B. B. Hart, for appellee. FLY, J. This is a suit for damages instituted by appellee, as the widow of W. H. Jones, who was killed by the cars of appellant in the town of Mineola, Wood county, Tex., on the night of November 7, 1899. The jury returned a verdict in favor of appellee for $1,500. The evidence establishes that deceased was killed while on a street crossing, in the yards used by appellant and other railroads, which crossing was in constant use by the people of the town in going from one part of it to another. crossing was not properly lighted, and no flagman was placed on the street to warn those crossing the three tracks at the point where the death occurred. Deceased was killed by a freight car, which, with three other cars, was being pushed by a locomotive belonging to appellant over the crossing. A brakeman was on the car that ran over deceased, but he was seated on the north side of the car, which was moving west, and look 1 Rehearing denied February 27, 1901. The ing north, with his lantern in such a position as not to be seen by those in front or to the south of the car. Deceased was crossing from south to north, and could have been seen by the brakeman had he been on the outlook. The evidence does not show such a case of contributory negligence on the part of deceased as would have justified an instruction to find for appellant on that ground. The evidence was sufficient to raise the issue as to the duty devolving upon appellant to have a flagman at the crossing, and it was not error to submit the issue to the jury. Railway Co. v. Magee, 92 Tex. 616, 50 S. W. 1013. There was evidence tending to show that deceased was in the street when he was struck, but, if he was not, he was in a few feet of it, at a point where people were constantly passing, and had there been a flagman he could probably have given warning to deceased of the approach of the cars, whether he had been directly in the street or at a point a few feet east of it. There was evidence to the effect that the brakeman on the car that struck deceased was sitting down on the top of the car, on the north side, with his lantern on his side towards the east; that the car was moving west, and that the light could not be seen towards the west or south; that the brakeman was looking to the north, away from the railroad; and it was not error to submit the issue as to negligence in not having lights on the car and a man keeping a lookout. The charge properly submitted every issue in the case. Appellant sought to introduce in evidence a declaration on the part of deceased that he had permanently abandoned his wife, and never expected to have anything more to do with her. The evidence was excluded, but upon what grounds does not appear in the bill of exceptions. It is a rule well settled in this state that a bill of exceptions to the exclusion of evidence must disclose the ground upon which it was excluded. Hagerty v. Scott, 10 Tex. 525; Whitehead v. Foley, 28 Tex. 268; Johnson v. Crawl, 55 Tex. 571; Telegraph Co. v. Arwine, 3 Tex. Civ. App. 156, 22 S. W. 105; Cabell v. Holloway, 10 Tex. Civ. App. 307, 31 S. W. 201; Kolp v. Specht, 11 Tex. Civ. App. 685, 33 S. W. 714; Cunningham v. Holt, 12 Tex. Civ. App. 150, 33 S. W. 981. Appellant complains of excess in the verdict, and we think that the evidence, as shown by the record, sustains the complaint. The evidence establishes that deceased was a deaf-mute, and had no fixed profession, occupation, or trade; that he moved from point to point, sometimes working in the salt works at Saline, then on a farm, and then in a hotel. There was evidence to the effect that he was a good farm hand, and that farm hands were paid from $18 to $20 per month, although deceased was not shown to have earned more than $10 or $15 a month at farm work. He was discharged from the hotel for inefficiency. Why he quit the salt works does not appear. It appears from the testimony, also, that he had inherited some property, but had spent it, or at least gotten rid of it, and that he was usually in debt, both before and after his marriage. At the time of his death he had separated from his wife, was living on the charities of a relative, and had no money. He had left his watch with the man for whom he did his last farm work as a pledge for money that he owed him. Deceased at the time of his death was expecting his brother to send him money to pay his passage back to Mississippi, where the brother lived. Deceased did not seem equal to the responsibility of taking care of himself, and was advised against marriage because he could not support himself and a wife. He was over 50 years old when killed, and was in poor health. The testimony as to the condition of his health at the time of his death was uncontroverted, although there was testimony that prior to that time he was healthy. The appellee was making sufficient for her support during the time the marriage relation existed between her and deceased. the hotel where he did his last work he was to be paid only $8 a month. As deceased grew older, his earning capacity would probably be decreased. There was at least no indication of a change for the better in his capacity to earn money, and, even if his past be taken as the criterion for the future, there is no reasonable basis for a verdict in the sum found by the jury. There is slender support in the testimony for a verdict in any sum, but as there is evidence to the effect that deceased did sometimes work, and did sometimes earn small wages, and that the wife was entitled to her share of such wages, this court will not set aside the whole of the verdict, but will suggest a remittitur of $1,000. If the remittitur indicated is made within 10 days from the rendering of his opinion, the judgment for $500 will be affirmed; otherwise, it will be reversed, and the cause remanded. GULF, C. & S. F. RY. CO. v. POWELL. (Court of Civil Appeals of Texas. Jan. 26, 1901.) At MASTER AND SERVANT-RAILROADS-INJURY TO SWITCHMEN-EVIDENCE-SUFFICIEN CY-CONCURRING NEGLIGENCE. 1. The evidence showed that the handle bar with which a switch was held in place was insecurely fixed, and that by reason of the rapid approach of a switch engine the bar, and consequently the switch points, became displaced, and the tender was derailed, and plaintiff, a switchman, was injured. It was the special duty of the foreman of the switch crew to see that the switch was in position, and this was also the duty of plaintiff and that of the fireman, who was absent from the engine. The switch target indicated safety, but, on account of the excessive speed of the engine, and his position thereon, plaintiff could not determine whether the bar was securely fastened or not. The foreman testified that he passed along the track within 40 feet of the switch in question for the purpose of seeing that it was in position, and that the target indicated that the switch was secure. Held sufficient to go to the jury on the question of defendant's negli gence. 2. The fact that a servant's injuries are caused by the concurring negligence of the master and a third person confers no right of action on the master as against such person. Appeal from district court, Tarrant county; Irby Dunklin, Judge. Action by E. J. Powell against the Gulf, Colorado & Santa Fé Railway Company and another. From a judgment for plaintiff, the named defendant appeals. Affirmed. J. W. Terry and West, Smith & Chapman, for appellant. Carlock & Gillespie, for appellee Powell. Stanley, Spoonts & Thompson, for Texas & P. Ry. Co. CONNER, C. J. We adopt from appellant's brief the following statement of the nature and result of this suit, viz.: "Appellee was injured by the derailment of the tank of a switch engine on which he was serving as switchman. He charges that the accident was due to improper adjustment of the switch, excessive speed and absence of the fireman from the engine, whose duty it was to keep a lookout. The switch was the property of the Texas & Pacific Railway Company, over whose track the defendant's engine was passing. The defense was based substantially on the propositions that the absence of the fireman did not contribute to the accident; that it was the duty of the plaintiff to look out for the switch; and that he was in the best position to perform that duty, and, if he could not ascertain its improper adjustment, the defendant could not otherwise be negligent in failing to ascertain it. The speed of the engine was not excessive, and, if so, did not contribute to the accident; and that, if the speed of the engine was excessive, plaintiff had the power and authority to check it by signaling the engineer, and, failing to do so, could not complain that the defendant, by some other agent, had not done so. Appellant made the Texas & Pacific Railway Company a party, and prayed that in the event judgment was rendered against it, on the ground of any defect in the switch, that it would recover over against the Texas & Pacific. The court charged the jury to find a verdict in favor of the Texas & Pacific Railway Company. There was a verdict and judgment against appellant for the sum of $2,500." The questions made on this appeal arise principally out of the alleged insufficiency of the evidence to support the verdict and judgment, and to authorize the submission of the issues given in charge to the jury. We will not incumber the record by setting out the evidence in full. We think it sufficient to say that, after a careful examination of the record, we have been unable to say, in the language of the assignments, that the evidence did not authorize the submission of the several issues given in the charge, or that the motion for new trial should have been granted for want of sufficient evidence to sustain the verdict and judgment in appellee's favor. Briefly stated, the facts show that the engine in question was backing northward upon a switch track owned by the Texas & Pacific Railway Company to a point beyond the switch at which the derailment occurred. The engine crew proper consisted of a foreman, the engineer and fireman, and the appellee and one Smedly as switchmen; that appellee was standing upon the footboard of the tank on the left-hand side in the discharge of his duty; that the engineer was also located on the same side going north; that the switch stand was on the opposite side of the track from the side on which appellee and the engineer were located. The evidence tended to show that it was the special duty of the foreman to see that the switches were all properly lined up and in position for the safe passage of engines and cars. This also was included among the duties of the appellee as a switchman, and of the fireman. The evidence established the fact that the switch in question was in good order, but tended to show that the handle bar with which the switch was turned was, at least, partially out of the notch or "socket," as it is designated in the record, fixed to hold it in place. The evidence, we think, authorized the finding that the switch bar had not been securely placed in its position, by reason of which the switch points became displaced, and the tender derailed, and appellee injured. The fireman was absent from his place of duty on the engine. Had he been in his place, and looking, he would have been in better posi tion to have seen whether the switch bar was secure in its socket than either the en gineer or appellee. Switch stands are provided with what is termed a "target" or piece of tin about 1% feet each way, one side of which is white and the other side red; in the present instance the white indicated the proper position of the switch for the main line and the red for the side track. The testimony tends to show that these targets during the day serve as the principal indication to engine crews of the condition of switches. The foreman of the crew testified that, in the discharge of his duty, he had gone along the track prior to the passage of the engine for the purpose of seeing that the switches were in position; that he passed along within 40 feet of the switch in question; that the target showed white for the main line (the line sought); and that the switch was secure. But the evidence, we think, warrants the inference that he was negligent in failing to see that the switch bar was securely fastened. There was also evidence to the effect that the engine was running at a speed of 15 miles an hour, contrary to an ordinance of the city of Ft. Worth, whose jurisdiction extended over the place of the accident, restricting engines and cars to a speed not exceeding 6 miles an hour. Appellee observed that the switch target so appeared as to indicate safety; he noticed nothing wrong with the switch or switch point or handle bar, but testified that at the speed at which they were going, and in the position in which he was located, he could not well determine whether the bar was securely fastened in its socket. The evidence also authorized the finding that in the absence of the fireman, which was the case here, the speed of the engine was under the control of the engineer, and that appelice was not required, if indeed authorized, to signal him to slacken the speed unless he saw an obstruction or had cause to stop to perform some work directed by the fireman. As stated, we think the evidence tends to show that the handle bar with which the switch was held in place was but partly or insecurely fixed in the "socket"; that by reason of the rapid approach of the engine the handle bar, and consequently the switch points, became displaced, by reason of which the tender was derailed and appellee injured as alleged; that the foreman, whose especial duty it was to see that switches were in condition for the safe passage of cars and engines, was guilty of negligence in failing to discover its condition, and securely fasten in its place said handle bar; and that such negligence of the foreman was a proximate, contributing cause of appellee's injuries. The evidence on these issues being sufficient, in our opinion, to support the verdict and judgment in appellee's favor, the motion for new trial was properly overruled, notwithstanding the alleged insufficiency of the evidence on other issues to support such verdict. We cannot say from the evidence that within the knowledge of appellee there was such constant violation of the ordinance regulating the speed of engines as to cast upon him the risk of all injuries resulting therefrom, but, if we assume that it was so, we think the negligence of the foreman was at least a contributing cause of the derailment and injury in question, and dangers and injuries so brought about were not among the assumed risks of appellee's service. Railway Co. v. Hannig (Tex. Civ. App.) 49 S. W. 116; Railway Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. 493, 27 L. Ed. 266. The jury in effect found that appellee was without contributory negligence in failing to discover the absence of the fireman and in the failure to signal the engineer to abate the speed of the engine, and on the whole we have failed to discover error for which the judgment in appellee's favor should be reversed. Nor do we find error in the peremptory instruction in favor of the appellee the Texas & Pacific Railway Company. There was no evidence to support a finding that the switch | points, stand, or other connections were defecuve, or that said railway company was guilty of negligence in failing to replace the handle bar securely in its socket, or in failing to discover that the same had not been done. Appellant's agents assumed this duty, and the court limited the plaintiff's right to recover to the negligence of appellant alone. If appellant be guilty of negligence as alleged and such negligence was a cause of the injury, the concurring negligence of the Texas & Pacific Railway Company, if any, confers upon appellant no right of action. Railway Co. v. Nass (Tex. Sup.) 59 S. W. 870. There appearing no reversible error in the proceedings below, it is ordered that the judgment be in all things affirmed. -DECLARATIONS OF CONSPIRATOR- 1. The evidence sufficiently establishing an alleged fraudulent conspiracy, declarations made in pursuance and in furtherance thereof by one of the parties are not inadmissible as hearsay. 2. In an action by junior incumbrancers to set aside a foreclosure sale of realty by a senior incumbrancer, on the ground that defendants conspired to fraudulently procure a secret sale to enable the purchaser, one of the defendants, and one of the beneficiaries in a deed of trust of the same property, to buy the property and defraud the other beneficiaries and creditors of the owner, the charter of a mercantile company, in which the insolvent mortgagor was interested, occupying the premises prior to the alleged conspiracy, showing on its face that the purchaser was a stockholder and charter member thereof, was properly submitted on the issue of fraud, and for the purpose of showing his interest and motive. Error from district court, Hunt county; Howard Templeton, Judge. Suit by Waples-Platter Grocer Company and others against John V. Hughes. There was a decree for plaintiffs, and defendant brings error. Affirmed. Alexander & Thompson, for plaintiff in error. Neyland & Neyland and W. H. Allen, for defendants in error. NEILI, J. So far as the questions to be determined between the parties to this writ of error are concerned, this case may be regarded as a suit in equity brought by defendants in error as creditors of one George W. Hardi, having a mortgage upon the real estate involved, the property of their debtor, to cancel and set aside a sale made by a substitute trustee by virtue of a prior mortgage, upon the ground that such sale was fraudulently made, in pursuance of a conspiracy entered into be 1 Rehearing denied February 27, 1901. tween the plaintiff in error, the substitute trustee, and one J. H. Cook, for the purpose of defrauding defendants in error, and depriving them of their lien on said property. The court, before whom the case was tried without a jury, set aside the sale, and canceled the deed made by the substitute trustee to plaintiff in error, John V. Hughes, and after decreeing a lien upon the property in favor of the latter, by virtue of the mortgage under which such sale was made, to the extent of the indebtedness secured by said mortgage, it then, subject to said lien, decreed a foreclosure of their subsequent lien in favor of defendants in error. The following, which we adopt, are the conclusions of fact (from which may be seen more fully the nature of this case) found by the trial judge: "(1) On and prior to the 22d day of November, 1894, one G. W. Hardin was a merchant doing business in the town of Quinlan, Hunt county, Texas, and that on said date he was insolvent, and was indebted to divers firms and persons and corporations; among them, he was indebted to the Powers Lumber Company in the sum of $1,625 and interest, and to Hughes Bros. Manufacturing Company, of which corporation John V. Hughes, one of the defendants herein, was president, in the sum of $825 and interest, and to the Waples-Platter Grocer Company in the sum of $1,125 and interest; that, in order to secure the above-named and other creditors, the said G. W. Hardin did, on the 22d day of November, 1894, make, execute, and deliver to Garnett N. Hardin, as trustee, a deed in trust to said Garnett N. Hardin, as trustee for the benefit of the said creditors, of the land in controversy, and a stock of goods, wares, and merchandise, in Quinlan, Hunt county, Texas. (2) That, at the time of the execution of the said deed of trust by the said G. W. Hardin, there existed two prior liens on the land in controversy, one in favor of G. M. Lumpkin for the sum of $238.80 and interest on the same, and one in favor of the Western Securities Company for the sum of $900. (3) That shortly after the failure of G. W. Hardin, and the execution of said deed to Garnett N. Hardin, the trustee sold the stock of goods, wares, and merchandise to Mrs. Ann Hardin, and there was thereupon organized a corporation known as the 'Quinlan Mercantile Company,' with J. H. Cook as manager, and the business was conducted in a building on the land in controversy, and in the same house occupied by G. W. Hardin at the time of his failure and the execution of his trust deed, and Hughes Bros. Manufacturing Company and G. W. Hardin were interested in said corporation. (4) That some time during November, 1895, John V. Hughes, president of the Hughes Bros. Manufacturing Company, one of the beneficiaries in the deed in trust executed by G. W. Hardin, and who had accepted said instrument, and J. H. Cook and G. W. Hardin conspired together to fraudulently pro cure the secret sale under the said prior lien of the Western Securities Company of the land in controversy, and to enable and procure John V. Hughes, the president of the Hughes Bros. Manufacturing Company, one of the accepting beneficiaries of the deed of trust executed by Hardin, to purchase said land in controversy, and defraud the other beneficiaries and creditors of Hardin out of same; that they, acting together in said collusion, procured the secret appointment of S. J. Mason as substitute trustee in the deed of trust to the Western Securities Company, and, acting together in fraud of the other creditors, did fraudulently procure the secret sale of said property, and that John V. Hughes became the purchaser of the same for the sum of $900, said J. V. Hughes paying said $900 by the check or draft of Hughes Bros. Manufacturing Company on National Exchange Bank of Dallas; that said sale was made during the pending of this suit. (5) That, after the purchase of said property by said John V. Hughes, he sold various lots of said property conveyed by said G. W. Hardin to said Garnett N. Hardin, trustee, and in which the beneficiaries had an interest, and from said sales realized a sufficient sum, which, subtracted from the $900 and interest thereon, paid by him for said superior lien, would leave the said John V. Hughes entitled to the sum of $291.65, the amount for which judgment was rendered in his favor, together with a foreclosure of his mortgage lien. (6) That the Powers Lumber Company acquired a lien on the land in controversy by virtue of the deed in trust executed by G. W. Hardin to Garnett N. Hardin, trustee, and its acceptance thereof, and that the Waples-Platter Grocer Company acquired a lien on said land by virtue of same instrument and its acceptance thereof, and that G. M. Lumpkin had a superior lien to either of these, and that W. H. Berry had a superior lien on the lots in Roberts to either of the above-named parties, for the sum of $170." Conclusions of Law. 1. Certain declarations of J. H. Cook, an alleged co-conspirator of plaintiff in error in the procurement of the fraudulent sale, were introduced in evidence, over the latter's objection that such declarations were hearsay. The action of the court in admitting the declarations over such objection is made the basis of the first, second, and third assignments of error. That such declarations were hearsay being the only ground of objection to their introduction, it may be assumed that the evidence sufficiently established the alleged fraudulent conspiracy between the parties, and that such declarations were made in pursuance and furtherance of such conspiracy; and upon this assumption, which is fully borne out and warranted by the record, such declarations were unquestionably admissible in evidence. Gas Co. v. State (Tex. Civ. App.) 54 S. W. 289. 2. Upon the issue of fraud, and for the purpose of showing the interest of plaintiff in error and his motive for entering into the conspiracy, the charter of the Quinlan Mercantile Company, which shows upon its face that he was a stockholder and charter member, was properly admitted in evidence. 3. The decree of the court is fully supported by the pleadings and sustained by the evidence, and, as no error is assigned which requires its reversal, it is affirmed. WESTERN UNION TEL. CO. v. NORRIS.1 (Court of Civil Appeals of Texas. Jan. 5, 1901.) TELEGRAPHS AND TELEPHONES - VERDICT FOR MENTAL SUFFERINGS WARRANTED AMENDED PETITION-NO NEW CAUSE OF ACTION MANDATE FOR NEW TRIAL NOT BARRED EVIDENCE PROPERLY ADMITTEDUNREPEATED MESSAGE CONTRACT ON BLANK-NEGLIGENCE-PRIMA FACIE. 1. A telegram announcing the fatal illness of the son of the addressee was not delivered, for error in the address as received. A message that such parties could not be found was sent back to the sender, and the body of the son, who had died in the meantime, was immediately buried. Had the message been properly delivered, the parents would have had the body of their son held for them, and would have brought it to their home for burial. Held, that the mental sufferings of the father and mother were suflicient to warrant a verdict of $1,000. 2. In an action for negligent failure to deliver a telegram, an amended petition, alleging, as an additional act of negligence, the message sent by the receiving operator to the sender to the effect that the parties could not be found, did not state a new cause of action, as the injury was alleged to have been produced by negligence in failing to correctly transmit and deliver the message, and the amendment was not barred by limitations. 3. Where a case was reversed on appeal, a mandate for a new trial applied for six years later was properly granted; there being no statute limiting the time within which a mandate must be applied for. John 4. A telegram: "Come on first train. Norris is dying,"-was sent from P., signed by a deputy marshal, to J. W. Norris and wife. Norris had a son who was confined in the jail at P., and the telegram referred to him. The receiving operator received the message as addressed to J. W. Nortys. Held, in an action for a failure to deliver the message, that evidence that plaintiff would have understood the message to refer to his son if it had been delivered, and would have wired back to hold the body until he arrived, and that the same would have been done, was properly admitted. 5. Where a stipulation on a telegraph blank provided that the company would not be liable for any mistake in the transmission of the message unless the same was a repeated message, a party aggrieved by failure to deliver an unrepeated message which was negligently transmitted can recover damages, since the telegraph company, as a common carrier, must use ordinary care in the performance of its contracts. 6. Where the name of the addressee of a telegram was changed from "Norris" to "Nortys" in the transmission of the message, such change was prima facie evidence of the company's negligence. 1 Writ of error denied by suprême court. |