the parting cars testified that he looked at [12] There is yet another reason for over. the couplings to see if there was any defect, ruling appellant's claim of error in the and that he found none, but there was expert court's rejection of the written report of an testimony, that we think competent, offered examination of appellee at the time of his inin behalf of appellee, to the effect that, with juries on the T. & B. V. Railway. Dr. A. P. ordinary handling, cars will not part as those Howard was permitted to testify, as a witunder consideration did unless there were de ness, that on the occasion he referred to he fects in the track or in the couplings. It examined appellee and failed to find any eviwas also shown, as before stated, that there dence of injury, and the mere fact that apwere low joints in the track, and that the pellee on the trial denied that Dr. A. P. particular cut of cars that were being switch-Howard made any such examination was not ed broke apart at three different places be- such an impeachment of the witness as aufore they were switched off of the main thorized in his corroboration the introduction line track upon which the operation began, of the report made by him at the time. See and we think it was for the jury to say McKensie v. Watson, 36 Tex. Civ. App. 235, whether, if low joints in the track were per- 81 S. W. 1017; Hardin v. F. W. & D. C. Ry. missible, the couplers, in the exercise of due Co., 49 Tex. Civ. App. 184, 108 S. W. 490; care, should have been made to extend per- Taliaferro v. Goudelock, 82 Tex. 521, 17 S. W. pendicularly such distance, or otherwise ar

792. ranged so as to preclude a parting because of [13] Under appellant's twenty-fourth aslow joints in the track, At least the evi- signment of error, objection is urged to the dence seems to render it certain that the action of the court in permitting appellee uncoupling was brought about because of a to give the following testimony: “Excluding defect in either the track or the couplings, one debt of $90 which is in doubt, the quesand whether one or the other would seem tion of whether I owe it, I owe about $115. I to be immaterial, if, as a proximate result, am indebted to Dr. Langford and have been appellee was injured.

off and on since my child was born; I owe [9] The testimony of the witnesses named Jackson & Tatum $6. I owe Wilson Bros. in the fifteenth to the twenty-first assign- $17 or $18, I am not positive. I owe Mr. Ira ments of error, inclusive, to the effect that Wood $2, and I owe Hillman Bros. $8. I may it would have been dangerous for appellee, owe $15 or $20 around the place there, and under the circumstances, to have attempted this W. B. Summers debt. When I opened either to jump off of the moving car upon up business down there I bought $121. The which he was stationed, or to have ascended Summers debt was for furniture, and I paid on the end ladder, was relevant to the issue on that up to the time of the fire, and have of contributory negligence, and the court, the bills to show it, and the reason why I therefore, committed no error in admitting have not met those obligations is that my this testimony.

wife has been constantly sick and in awful [10] Nor do we think the court committed bad shape for the last two years and a half. any error of which appellant can complain Well, I have been crippled for seven months relating to its plea that appellee was a ma- —this accident, and in that fire, in February lingerer. Appellant was permitted, in sup- last, I lost over $790, and this past February port of this plea, to go rather fully into I was out of employment for two months an accident and claim of injury on appellee's after the fire, and I only worked four days part during the previous year on the T. & in May when received this injury, and since B. V. Railway, and the mere exclusion, re

then I have been unable to earn any money gardless of the sufficiency of the objection whatever or do anything." thereto, of the statement by Dr. M. L. Lang It appears that appellant had offered a ford that on one occasion he noticed the number of witnesses who testified to the plaintiff go across the street, and “noticed effect that appellee's general reputation for that, in walking with his crutches, his crutch- truth and veracity and for honesty and es were absolutely useless as far as the as- integrity was bad in the town of Mart, where sistance plaintiff was getting from them,” he formerly lived, and one of them, at least, etc., will not authorize us we think to re

on cross-examination by appellee, gave names verse the judgment. The answer offered par- of persons whom he had heard so state, and takes of the nature of a conclusion of the testified that appellee was indebted to him witness, and, as we view the record, it is not and, as reported, to some or all of the other clear that the entire issue was not irrelevant. persons, and that: “I think his (appellee's)

[11] No connection whatever between the reputation is bad because he won't pay his accidents was shown, nor was there evidence debts, and I think that any man that don't offered tending to show a settled course of pay his honest debts is a bad man.” It seems action or system on appellee's part in the that appellee's testimony quoted above was maintenance of fictitious claims, and nothing admitted in explanation of such impeaching seems better settled than that, under such cir- testimony, and the only objections thereto cumstances, an isolated transaction of the that we are called upon to consider by the kind is inadmissible as proof that on the propositions submitted under the assignment occasion at issue appellee was simulating his named are: First: "In a suit for damages injuries.

for personal injuries, it is error to admit

plaintiff's testimony, to the effect that he is, ery only and, inasmuch as no assignment poverty-stricken and has been unfortunate in raises the question of an excess in the verlife." Second: “The introduction of immate- dict and judgment after the action of the rial and irrelevant testimony by the plaintiff court in requiring a remittitur, we think the does not justify the admission over objection assignments relating to the argument as well by the defendant of improper testimony to as that alleging an excess in the verdict explain it." The proposition first quoted should at all events be now overruled. points out no specific error and is evidently We conclude by stating, as before, that a too general to require consideration. The careful examination of the record discloses second proposition is almost if not quite as no error for which we think the judgment general as the first in that it entirely fails should be reversed, and, believing that the to give any specific reason why the quoted evidence supports the material issues alleged testimony is “improper."

and submitted, it is ordered that the judg[14] It cannot be said that the testimony ment be affirmed. developed by appellee on cross-examination of appellant's impeaching witnesses was either immaterial or irrelevant. Oftentimes nothing short of a cross-examination which TEXAS MIDLAND R. R. V. NELSON. compels an impeaching witness to state both

(Court of Civil Appeals of Texas. Dallas. the source of the reports to which he testifies Dec. 6, 1913. Rehearing Denied and their nature will enable a party either to

Jan. 3, 1914.) test the correctness of the impeaching evi- 1. EVIDENCE (8 117*)-RELEVANCY-SHOWING dence or to protect the person assailed, and BY OTHER EVIDENCE. it has uniformly been held that such cross

In an action for the value of a horse, wag. examination is permissible.

on, and harness in a collision at a crossing

where, though a witness testified that some [15] Nor can it be said that under no cir- six or seven years before the accident the drivcumstances is evidence explanatory of im er was addicted to drink and when drinking peaching testimony authorized. On the con was in a stupor and unconscious of what he trary, under circumstances and with limita-intoxicated at the time of the accident or that

was doing, there was no evidence that he was tions not necessary to here notice, such evi- he was addicted to drink within a reasonable dence is often both material and relevant. time prior to the accident, and the witness who See St. L. & S. W. Ry. Co. of Tex. v. Bry- found a bottle of whisky among the débris of son, 41 Tex. Civ. App. 245, 91 S. W. 829; when it happened, evidence as to the finding

the wagon was two blocks from the accident Roberts v. Commonwealth, 94 Ky. 499, 22 of such bottle was properly excluded. S. W. 845; 2 Wigmore on Evidence, g 112; [Ed. Note. For other cases, see Evidence, Annis v. People, 13 Mich. 517. So that we Cent. Dig. $ 136; Dec. Dig. § 117.*] feel unable to sustain as made the objections 2. TRIAL (8 191*)-INSTRUCTIONS-PROVINCE to appellee's testimony now under considera


In an action for injuries to property sustion, Moreover, other testimony of like gen- tained in a crossing accident, an instruction eral import was admitted, without objection that if some one warned the driver of the apon appellant's part. That appellee's wife proaching train, and if he heard the warning was an invalid was testified to by Dr. Lang- and could have stopped in time to have preford without objection and the wife, herself, for defendant was properly refused even if

vented the accident but failed to do so, to find also appeared as a witness and testified to otherwise proper, since it made the failure to her condition. Evidence was admitted with-heed such warning negligence per se, while it out objection that the plaintiff's business was marily prudent person under all the facts and

would not constitute negligence unless an ordiburned up in February, 1912, and that he had circumstances would have observed it. been out of employment up until a little while

[Ed. Note. For other cases, see Trial, Cent. before he got hurt, thus raising an infer- Dig. SS 307, 308; Dec. Dig. 8 191.*] ence of an inability to pay his debts and 3. RAILROADS ($ 351*)—CROSSING ACCIDENTS hence of an origin for his ill repute that was

-ACTIONS-INSTRUCTIONS. without moral turpitude. In view of all

In an action for injury to property in a

crossing accident, an instruction that if the which, we think the twenty-fourth assign- engineer believed that plaintiff's driver saw the ment of error must be overruled.

approaching train and believed that he would [16] The only remaining assignments re stop, and if when he attempted to cross the late to certain arguments on the part of ap- to find for defendant was properly refused

engineer did all he could to prevent the injury, pellee's counsel in his closing address to the where there was evidence that the driver's jury, and to an alleged excessiveness in the view of the crossing was obstructed by deverdict and judgment. As to these assign- fendant's cars on a siding, since it permitted

the jury to find for defendant, even though the ments, we think it sufficient to say that, in driver went upon the track as the result of dethe case of at least two of the arguments, fendant's negligence. the court in answer to appellant's objection [Ed. Note.-For other cases. see Railroads. expressly instructed the jury to disregard Cent, Dig. $$ 1193-1211, 1213-1215; Dec. Dig.

$ 351.*] then. The remaining argument, as to which the jury were not so instructed, as indeed Appeal from Kaufman County Court; all of the arguments, went not to the issue James A. Cooley, Judge. of liability, but to the amount of the recov Action by J. R. Nelson against the Texas *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Midland Railroad. Judgment for plaintiff, years, nor had he seen him in the stupid and defendant appeals. Affirmed.

condition described by witness, nor did witH. C. Coke and S. W. Marshall, both of ness see him drinking prior to or at the time Dallas, and Dashiell, Crumbaugh & Coon, of

of accident. The court declined to permit Terrell, for appellant. Ed. R. Bumpass, of the witness to testify as above indicated to Terrell, for appellee.

the jury. The court's action is assigned as

error. We are of opinion that the facts above RASBURY, J. The appellee sued appel- detailed do not in any respect cure the oblant in the court below for $200, alleged to be jection found by us on trial of the Wiggins the value of a horse, wagon, and harness Case. It is clear that in the absence of other destroyed by appellant in a collision in the facts or circumstances having some reasontown of Terrell at the intersection of appel- able proximity to the time of the accident, lant's road and Moore avenue, a public high-indicating the drink babit on the part of way, between appellant's train and appellee's Wiggins, and in the absence of any definite wagon while being driven by John Wiggins. fact or circumstance tending to prove drunkThe grounds of negligence alleged by appel- enness on the day of the accident, evidence lee, the defenses urged by appellant, and the that six or seven years ago he was addicted evidence adduced upon trial of the case are

to drink would also be speculative and resubstantially identical with those set out in mote, and hence inadmissible in support of our opinion delivered November 29, 1913, in the allegation of drunkenness, and insufficient the case of Texas Midland Railroad v. John to support a charge upon such issue. Wiggins, 161 S. W. 445, not yet officially re

[2] The court did not err in refusing to ported, which are adopted as a part of this instruct the jury as requested by appellant opinion, except where departed from. Wig- that if some one warned Wiggins of the apgins was appellee's driver, and the opinion proaching train by halloaing to him and he referred to disposes of an appeal taken by ap- heard the warning and could have stopped pellant in this case from a judgment for his horse in time to have prevented the acWiggins for damages for injuries sustained cident, but failed to do so, to then find for by Wiggins in said collision, which at the appellant. Assuming the facts raised the issame time destroyed the property herein sued sue covered by this charge, and conceding the for. Upon trial of this case appellee recover- | right of appellant to have the facts constied verdict for $150.

tuting its defense grouped, yet an analysis of The issues raised on this appeal by appel- the charge discloses that the failure to heed lant under authority of its first, second, third, the warning is made negligence per se, while fourth, fifth, seventh, and eighth assignments the correct rule is that Wiggins should have of error are decided adversely to appellant observed the warning, if the jury believed in the Wiggins Case, and for that reason we that an ordinarily prudent person under all will not discuss them here.

the facts and circumstances would have [1] On the trial of the Wiggins Case ap

done so. pellant offered to prove by its witness Clark

[3] The tenth and eleventh assignments of the presence of a bottle containing whisky in error complain in substance of the refusal of the wagon driven by Wiggins in substantia- the court to instruct the jury that if appeltion of the allegation that Wiggins was drunk lant's engineer believed that Wiggins saw the on the morning of the accident and appeared approaching train and believed that he would drowsy and careless on approaching the stop and not attempt to cross the track, crossing where the collision occurred. There and that when he did attempt to cross the enwe held that no proof having been offered gineer did all he could do to prevent the inthat Wiggins was intoxicated at the time jury, to then find for appellant. Without atof the accident, and the witness who found tempting a discussion at length of this issue, the bottle being two blocks from the accident, we are of opinion that it is sufficient to say and the bottle being found among the débris that the charge should not have been given. of the wagon after it was demolished, the It ignored and withdrew from the jury a proof was too remote. On the trial of this consideration of the duties imposed by law case the same witness was offered, the jury upon appellant under the issues made by withdrawn, and the witness examined, who appellee. It permitted the jury to find for the testified, as he did on the trial of the Wiggins appellant, even though Wiggins got upon the Case, of finding the bottle containing whisky, track as the result of the negligence of apand then testified that Wiggins was once in pellant. The evidence sustained the finding his employ for a period of a year, during of the jury that Wiggins was placed in a which time he was a whisky "fiend” or position of danger because his view of the "worm," and when drinking was in a stupor crossing was obstructed by appellant's cars and in substance unconscious of what he was on a siding. Whether this was true or not, doing. On cross-examination witness said it it was in evidence before the jury, and if the had been six or seven years since he employ- jury believed it, as the verdict indicates, the ed Wiggins, since which time he had seen him effect of the charge would have been to tell daily, with occasional lapses, but had never the jury that, even though he was in a posiseen him intoxicated during said period of tion of danger brought about by the Degli

161 S.W.-69


gence of appellant, nevertheless appellantment was rendered, set the same aside, and would not be liable if its engineer believed granted a new trial, but such order had not he was not in a position of danger or did all been entered, wherefore defendant prayed he could to prevent the accident when Wig- that the same be entered nunc pro tunc as of gins' danger was apparent and when it was date November 16, 1910. This motion was, too late for Wiggins to avoid the collision. on December 28, 1912, denied by the then The judgment is affirmed.

justice of the peace after hearing evidence, to which ruling defendant excepted, and gave notice of appeal to the county court for

civil cases. Appeal bond was filed DecemSOUTHWESTERN LAND CORPORATION ber 30, 1912. The county court for civil casV. NEESE.

es dismissed the appeal for want of juris(Court of Civil Appeals of Texas. San Anto- diction, whereupon an appeal to this court Dec, 10, 1913.)


[1, 2] There is only one question to be deUnder Rev. Civ. St. 1911, art. 2393, re

termined upon this appeal, and that is whethquiring appeals from justice's court to be per er the county court erred in dismissing the fected within 10 days from the date of the appeal from the justice's court for want of judgment, and article 747, providing that a writ of certiorari to review a judgment of a jurisdiction. The appeal to the county court justice of the peace shall not be granted more is from an order entered two years later than than 90 days after the date of the judgment, the judgment, by which order the justice's no appeal could be taken from an order refus-court refused to enter nunc pro tunc an oring, to enter nunc pro tunc an order setting aside a judgment granted more than two years der setting the judgment aside. When a before, and granting a new trial, since the judgment nunc pro tunc is entered, it bestatute does not permit the county court to entertain an appeal for the sole purpose of comes the final judgment of the court, and deciding whether such order should have been an appeal may be taken therefrom, and a reentered nunc, pro tunc, and, if the appeal vision of the entire proceedings had. But brought up the entire case, the application, this was not an appcal from a judgment enhowever unfounded, and whensoever made, would have the effect of a motion for a new

tered nunc pro tunc, but from an order retrial filed within the time prescribed by stat- fusing to enter nunc pro tunc an order setute.

ting aside a final judgment. Our statutes [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. 88 493-501; Dec. Dig. provide two methods of securing appellate 8 147.*]

revision of a justice's court judgment; one 2. JUSTICES OF THE PEACE (8 148*)—APPEAL, is by certiorari, the other by an appeal. In DECISIONS REVIEWABLE.

this case no appeal was perfected within the When a judgment nunc pro tunc is enter time prescribed by article 2393, Revised Stated by a justice of the peace, it becomes the utes 1911, nor was any writ of certiorari profinal judgment of the court, and an appeal may be taken therefrom, and a revision of the en-cured within the time prescribed by article tire proceedings had.

747. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. $ 502; Dec. Dig. $ 148.*] late jurisdiction, the trial in such case is de

[3] When the county court acquires appel3. JUSTICES OF THE PEACE ($ 162*)-APPEAL

Article 1950, Revised Statutes 1911. EFFECT.

An appeal from a judgment of the justice's An appeal from a judgment of the justice's court annuls the judgment.

court annuls the judgment. Jordan v. Moore, [Ed. Note. For other cases, see Justices of 65 Tex. 363; Railway Co. v. Mosty, 8 Tex. the Peace, Cent. Dig. $$ 600, 603, 605; Dec. Civ. App. 330, 27 S. W. 1057; Harter v. Dig. $ 162.*]

Curry, 101 Tex. 187, 105 S. W. 988. Appeal from Bexar County Court; John

In this case the judgment itself was not H. Clark, Judge.

appealed from in either of the methods Action by C. L. Neese against the South- prescribed by statute. If an appeal from an western Land Corporation. From a judg-order refusing to enter nunc pro tunc an ment of the county court dismissing an ap- order setting aside a judgment carries to the peal from justice's court, defendant appeals. county court the entire case, then an apAffirmed.

plication for such an order, however unSearcy & Browne, of San Antonio, for ap founded, would have all the effect of a mopellant.

tion for new trial filed within the time pre

scribed by statute, and overruled during the MOURSUND, J. On November 15, 1910, term, although such application was filed C. L. Neese recovered a judgment by de. long after the term of court expired. On fault in the justice's court against the South- the other hand, our statute does not permit western Land Corporation for $135, although the county court to entertain an appeal for there was an answer on file. On December the sole purpose of deciding whether an or. 16, 1912, the defendant filed a motion alleg- der should have been entered nunc pro tunc ing that the justice of the peace who had setting aside a final judgment of the jusrendered the judgment, but was no longer in tice's court. The county court cannot enter office, had, during the term at which the judg-| the order, nor can it, as an appellate court, •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes


order the justice's court to enter the same. ( retains its powers and jurisdiction in matters It is clear that the county court did not ac- of eminent domain. This being true, it bequire jurisdiction of the case, and that the comes our duty to reverse the judgment of court was correct in dismissing the attempt the lower court dismissing this case, and to ed appeal.

remand the cause for trial, which is accordWe have omitted to state any of the facts ingly done. bearing upon the merits of the controversy Reversed and remanded. whether the justice of the peace should have entered the order nunc pro tunc, because the only question for us to determine was wheth

WESTERN UNION TELEGRAPH CO. v. er the county court acquired jurisdiction by

KERSTEN. the attempted appeal.

(Court of Civil Appeals of Texas. Galveston. The judgment is affirmed.

Dec. 22, 1913.)
On motion for rehearing. Motion overruled.

For former opinion, see 161 S. W. 369.
BALCH et al. v. SAN ANTONIO, F. & N. R.

PLEASANTS, C. J. In an able motion for CO.

rehearing filed by counsel for appellee, it is (Court of Civil Appeals of Texas. San Anto- very earnestly insisted that this court erred nio. Dec. 20, 1913.)

in the opinion heretofore filed herein in holdEMINENT DOMAIN ($ 172*)—JURISDICTION OF ing that the charge given the jury by the COURTS-COUNTY Court.

A county court has jurisdiction in matters trial court was erroneous in the respects of eminent domain, such jurisdiction not be stated in said opinion. ing taken away by Acts 321 Leg. c. 24, dimin- We adhere to our conclusion that the ishing the jurisdiction of the county court of charge was incorrect; but we agree with Kendall county.

counsel that the errors in the charge pointed [Ed. Note.-For other cases,

see Eminent Domain, Cent. Dig. 88 470_472; Dec. Dig. 8 out in said opinion are not such, in view of 172.*]

the evidence in the case, as would require a Error to Kendall County Court; J. w. reversal of the judgment. We reversed the

judgment because we concluded that the evi. Lauhon, Judge.

dence failed to show that appellee could have Action by the San Antonio, Fredericksburg been present at his brother's funeral if the & Northern Railroad Company against Alice

telegram had been promptly delivered, and Balch and another. Judgment dismissing

the errors in the charge were only pointed out the proceeding. Defendants bring

for the purpose of preventing their repetiReversed and remanded.

tion upon another trial. Kampmann & Burney, of San Antonio, for The motion for rehearing is overruled. plaintiffs in error.




CARL, J. This suit was instituted in the

TAFOLLA V. STATE. county court of Kendall county by the San Antonio, Fredericksburg & Northern Railroad (Court of Criminal Appeals of Texas. Dec. 10,

1913.) Company, defendants in error, against Alice Balch and E. J. Beall, plaintiffs in error, to 1. WEAPONS (8 13*) — CARRYING – JUSTIFICAcondemn a strip of land for right of way for The rule that, where a person going about the railway company over the land of plain- his usual business is informed that unknown tiffs in error in that county. Commissioners persons will likely assault him or have threatwere appointed as provided by law and made will not justify a person who on election day

ened to do so, he may prepare for his defense their award, to which award objections were is interesting himself in the candidacy of anothfiled by plaintiffs in error. The court there- er, and who several times during the day is takupon dismissed said cause, upon the ground

en by officers from within the inhibited limits

near the polls, in carrying a pistol, even though that the Thirty-Second Legislature of Texas he had reason to believe from assaults made (General Laws 1911, page 30), had diminished on others that he was likely to be assaulted. the jurisdiction of the county court of Ken- [Ed. Note.-For other cases, see Weapons, dall county so as to deprive it of the power Cent. Dig. 88 16, 17; Dec. Dig. § 13.*] to act in matters of this kind. The judgment | 2. CRIMINAL LAW ( 829*)— TRIAL-REFUSAL

OF INSTRUCTIONS COVERED. of dismissal of said cause has been brought

In a prosecution for carrying a pistol, it to this court, by plaintiffs in error for re- was not error to refuse instructions covered by view, and is assigned as error.

those given. The Supreme Court of this state has di

[Ed. Note.-For other cases, see Criminal rectly passed upon this question in the case Law, Cent. Dig. $ 2011; Dec. Dig. $ 829.*] of Southern Kansas Ry. Co. of Texas V.

Appeal from Bexar County Court; J. R. Vance, 104 Tex. 90, 133 S. W. 1043, in Davis, Judge. wbich it is held that, while the general civil

Pete Tafolla was convicted of carrying a and criminal jurisdiction of the county court pistol, and appeals. Affirmed. may be diminished or taken away, it still C. E. Lane, Asst. Atty. Gen., for the State.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep's Indexes

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