« ForrigeFortsett »
certain notes in his favor by other moving pic X. FORECLOSURE BY ACTION. ture concerns, agreed to discontinue his busi
(F) Pleading and Evidence. ness and warrant that no showhouse besides those existing should open in the town for a
$ 463 (Ark.) Evidence, in an action to forecertain period held to violate the Anti-Trust close a mortgage, held" to show that, at the Act as stated. ---Crandall v. Scott, 161 s. w. time the mortgagee's deed to the mortgagor 925.
releasing a condition in a prior deed was ereA combination in violation of the anti-trust cuted and deposited in a bank for delivery statute is void, irrespective of the common-law when the
mortgage was paid, there was no time distinction between reasonable and unreason
fixed within which payment should be made.able restrictions on trade.-Id.
Brown v. Allbright, 161 S. W. 1036.
New Trial, 88 108, 124, 167; Pleading, $ Wife, $8 171, 268; Pleading, g 423.
345-369; Trial, g 178; Venue, 88 36–72. I. REQUISITES AND VALIDITY.
MULTIFARIOUSNESS. (A) Nature and Essentials of Conveyances See Appeal and Error, $ 736.
as Security. $ 32 (Ark.) A deed absolute in form will be MUNICIPAL CORPORATIONS. construed as a mortgage if the proof of such intent is clear and convincing.-Prickett v. Wil See Appeal and Error, $& 172, 781; Cemeteries, liams, 161 S. W. 1023.
8 3; Constitutional Law, $ 115;_ Contempt,
§ 36; Counties; Courts, $ 231; Dedication; III. CONSTRUCTION AND OPERA Elections, $ 65; Electricity, 81; Eminent TION.
Domain, $$ 2, 119, 296; Evidence, SS 83, 242; (A) General Rules of Construction.
Injunction, 8 128; Licenses, $ 6;
§ 2; Railroads, $$ 76, 99, 236, 398; Schools $ 105 (Tex.Civ. App.) A deed and a bill of sale and School Districts; Street Railroads; Wawith a mortgage and notes simultaneously exe ters and Water Courses, § 183. cuted by the grantee as security for the purchase price referring to the same subject-mat- 1. CREATION, ALTERATION, EXIST. ter held but one act and to be construed as
ENCE, AND DISSOLUTION. one and the same agreement.–Vinson v. W. T. (A) Incorporation and Incidents of EsCarter & Bro., 161 S. W. 49.
istence. IV. RIGHTS AND LIABILITIES OF
$ 14 Tex.Civ.App.) Under Sayles' Ann. Civ.
St. 1897, art. 386a, a city with less than 2.000 PARTIES.
inhabitants could not be lawfully incorporated § 199 (Ark.) Where a senior mortgagee was so as to include more than two square miles of in possession as tenant of the administrator and territory, and, an attempt having been made heir of the deceased mortgagor, and not as to do it, the defect could not be cured by elimmortgagee, he could not be required to ac- inating the excess.-Wilson v. Carter, 161 S. count for rents and profits for the benefit of a W. 411. junior mortgagee.- Armistead v. Bishop, 161 S.
$ 15 (Tex.Civ.App.) Sayles' Ann. Civ. St. W. 182.
1897, art. 386b, enacted in 1895, providing for VI. TRANSFER OF PROPERTY MORT-held only to apply to those incorporated prior
the relinquishment of excess territory by cities, GAGED OR OF EQUITY OF
to 1895.-Wilson v. Carter, 161 S. W. 411. REDEMPTION.
Sayles' Ann. Civ. St. 1897, art. 386c, enacted $ 280 (Mo.App.) Though a deed did not state in 1897, and validating incorporation of cities directly that the grantee assumed a mortgage which had included more than two square miles yet, as the deed mentioned it and provided that of territory and whose city councils had rethe grantor should be released from liability for stricted the limits to prescribed bounds, held not it, it amounted to an assumption by the gran- applicable to a city so incorporated in 1911. tee.-Greer v. Orchard, 161 S. W. 875.
Id. $ 281 (Ark.) Where a deed recited that the
Rev. Civ. St. 1911, art. 776, validating inconsideration was a certain sum in cash, and corporation of cities which had included more the assumption of a $400 mortgage by the than two square miles of territory, held not to grantee, the grantee by accepting the deed im- apply to city incorporation proceedings which pliedly promised to discharge the mortgage. were subject to such defect but which had been Felker v. Rice, 161 S. W. 162.
dissolved by an election prior to the taking ef
fect of the act.-10. $ 283 (Ark.) A grantee assuming a mortgage on the premises as a part of the consideration
8 17 (Tex.Civ. App.) Where a municipal corwas a surety for the debt.-Felker v. Rice, 161 poration was illegally incorporated so S. W. 162.
contain more than two square miles of terri8 283 (Mo.App.) Where a grantee assumes a violation of Sayles' Ann. Civ. St. 1897, art. 386a,
tory but with less than 2,000 inhabitants in mortgage, not only does he become the principal but officers were elected and debts incurred, debtor between the parties, but the mortgagee, it was a corporation de facto.-Wilson v. Carter, after notice of the assumption, must treat the 161 S. W. 411. grantee as the principal and the grantor as surety.-Citizens' Bank of Senath v. Douglass,
II. GOVERNMENTAL POWERS AND 161 S. W. 601.
FUNCTIONS IN GENERAL. $ 283 (Mo.App.) Where mortgaged property
$ 53 (Mo.) The courts may inquire into the is conveyed to one who assumes the mortgage reasonableness of municipal ordinances.--Union debt, the grantee becomes the principal and the Cemetery Ass'n v. Kansas City, 161 S. W. 261. mortgagor and grantor his surety.-Greer v. Orchard, 161 S. W. 875.
III. LEGISLATIVE CONTROL OF MU$ 292 (Ark.) Evidence held to sustain a find NICIPAL ACTS, RIGHTS, AND ing that a defendant assumed in a deed to him
LIABILITIES. self to discharge a mortgage which covered part $ 64 (Ky.) The extent of legislative control of the land.---Felker v. Rice, 161 S. W. 162. over municipalities extends as far as is essential
to accomplish a result in which the state has does not repeal Ky. St. $ 3456, providing that an interest in its governmental capacity but the cost of improvements at street intersections not so as to deprive the municipality of discre- shall be paid by the city.-City of Henderson v. tion in the means of accomplishing the result. Connell, 161 s. w. 1121. -Kenton Water Co. v. City of Covington, 161 S. W. 988.
$ 417 (Ky.) That a drain had been construct.
ed along a portion of the route of the sewer $70 (Ky.) The establishment of a water sys- in question held not to preclude the sewer from tem in a city is not a governmental function in being an original improvement the cost of which the state can have such an interest as which was assessable against the abutting propwould give it power to compel its maintenance erty, under Ky. St. $ 3490.-Gesser v. McLane, therein.-Kenton Water Co. v. City of Coving- 161 S. W. 1118. ton, 161 S. W. 988.
$ 434 (Ky.) Under Ky. St. § 1336, making $73 (Ky.) Laws 1910, c. 83, requiring any the disturbance of cemetery property a misdecity, before establishing its own waterworks in meanor, such property cannot be sold under exany neighboring town annexed, to purchase the ecution to pay an assessment for the public property of the water company then supplying improvement made by the municipality in which such town, violates Const. § 181.-Kenton Wa- the property is located.-Cave Hill Cemetery ter Co. v. City of Covington, 161 S. W. 988. Co. v. Gosnell, 161 S. W. 980.
8 459 (Ky.) Ky. St. & 3490, subd. 9, relative IV. PROCEEDINGS OF COUNCIL OR to apportionment of the cost of the construc
OTHER GOVERNING BODY. tion of sewers in cities of the fourth class, not (B) Ordinances and By-Laws in General.
being mandatory, the council has power to as$110 (Ky.) The publication of an ordinance per front foot, on the abutting property and
sess the cost of a sewer, to the extent of $1 of the city of the fourth class by typewritten | provide for the payment of the cost in excess handbills was a sufficient compliance with Ky. I thereof out of the general fund.-Gesser v. McSt. $ 3487.-Gesser v. McLane, 161 S. W. Lane, 161 S. W. 1118. 1118.
8 469 (Ky.) Where a sewer was constructed
by a city of the fourth class on its side of a V. OFFICERS, AGENTS, AND EMPLOYÉS.
street forming the line between two cities, the
fact that the assessment therefor was not lev(B) Municipal Departments and Officers ied on the property abutting the street on the
opposite side over which it had no control did $ 180 (Tex.Cr.App.) A policeman of a city is not invalidate the assessment.-Gesser v. Mca public officer holding his office as a trust from Lane, 161 S. W. 1118. the state, and not as a matter of contract be- $ 470 (Ky.) A corner lot which has been astween himself and the city; the word applying sessed $1 per front foot for the construction of equally to every member of the police force.-Ex
a sewer on one street may be assessed for a parte Preston, 101 S. W. 115.
sewer constructed on the other street.-Gesser
v. McLane, 161 S. W. 1118. IX. PUBLIC IMPROVEMENTS,
$ 487 (Ky.) A purchaser who knew of a street (A) Power
improvement on which the assessment bad been
paid held presumed to have knowledge of Ky. $ 266 (Ky.) The authority of the city of Cov- St. $ 2834, part of the city charter permitting ington to construct and maintain a water sys
a lien for improvements and permitting correctem, granted by Ky. St. $ 3058, subsec. 4, held tions, so that he was not a purchaser without
correcting additionnot repealed by Laws 1910, c. 83.-Kenton Wa- notice, but was liable for
al assessment.-Richards v. Barber Asphalt ter Co. v. City of Covington, 101 S. W. 988.
Paving Co., 161 S. W. 1105.
The fact that the original assessment for a (B) Preliminary Proceedings and Ordinances or Resolutions.
street improvement paid by defendant's vendor
was erroneous, and that such error misled de8 292 (Mo. App.) As the statute requires no fendant and required him to pay an additional particular form of signature to a petition, the assessment held not sufficient ground for essignature of a corporate officer is binding if he toppel, in view of his presumed knowledge of had authority to bind it in ordinary corporate Ky. St. $2834, expressly authorizing a city contracts.-l'asche v. South St. Joseph Town to correct an erroneous assessment.-Id. Co., 161 S. W. 322.
Where the board of directors placed the active (F) Enforcement of Assessments and Spemanagement of a corporation in the hands of its secretary and president, the signing by the secretary of a petition for street paving held lien of a specia"tax bill issued under Kansas
$ 558 (Mo. App.) An action to enforce the binding.-Id.
A general resolution of the board of directors City charter, permitting such suits against at the end of the year, ratifying all of his acts, owners of the land charged, but providing that validates his signature as of the time of sign- only the title and interest of the defendants ing.-Id.
shall be affected by the proceedings, is not one Though the statute requires a petition for a in rem until jurisdiction of the subject-matter street improvement to be in writing, the author- is acquired.-Barber Asphalt Paving Co. v. ity of an officer of the corporation to sign Field, 161 S. W. 364. such petition need not be written.-Id.
$ 565 (Mo. App.) An action to enforce a spe$ 325 (Mo. App.) A finding by the board of cial tax bill, brought under Kansas City charpublic works that a petition for paving had
ter, providing that the owners of any interest been signed by the owners of a majority of the in the land charged may be made defendants, abutting property establishes prima facie the but only their right or interest in the land validity of such signatures.-Pasche v. South shall be affected, can only be maintained against St. Joseph Town Co., 161 S. W. 322.
one owning some interest in the land when ac
tion is brought.-Barber Asphalt Paving Co. v. (E) Assessments for Benefits, and Special Field, 161 S. W. 361.
$ 586 (Ky.) As cemetery property is free from $ 408 (Ky.) The provision of Acts 1912, c. the lien of public improvements, the court can113, that a city may assess the cost of street not, by indirection, cast such burden on a cemeimprovements against the property owners, etc., I tery corporation by making it personally lia
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER
ble for the assessment.-Cave Hill Cemetery | XI. USE AND REGULATION OF PUBCo. v. Gosnell, 161 S. W. 980.
LIC PLACES, PROPERTY, A landowner is not personally liable for an
AND WORKS. assessment for public improvements placed in (A) Streets and Other Public Wayı, front of or nearby his land.-Id.
8 648 (Mo.) Where a city uses a strip of land
for public use for more than ten years under X. POLICE POWER AND REGULATIONS.
claim of title, and improves the same, the strip
becomes a public street by adverse possession.(A) Delegation, Extent, and Exercise of Quinn v. St. Louis & S. F. R. Co., 161 S. W. Power.
$ 663 (Ky.) The sidewalk belongs to the pub$ 591 (Mo.) The city cannot surrender or bar-lic, and an abutting owner cannot compela gain away its police power.-Union Cemetery member of the public to leave the sidewalk, Ass'n v. Kansas City, 161 S. W. 261.
even though he is guilty of a violation of a $ 591 (Tenn.) The provision of section 16 of breach of the peace.-Hixson v. Slocum, 161 s. the ordinance of Morristown providing for the W. 522. inspection of slaughterhouses, which confers 8 663 (Tex.Civ.App.) Even though the abutpolice powers upon the inspector, is objection- ting owner owns the fee of the street, the city able.-Noe v. Town of Morristown, 161 s. w. is entitled to remove soil or gravel therefrom 485.
when necessary to properly grade it, and to The provision of section 13 of the ordinance use the gravel or soil in improving the streets of Morristown roviding for the inspection of in another locality.-City of La Grange v. slaughterhouses, which gives the inspector ab- Brown, 161 S. W. 8. solute power to dispose of the condemned meat, As Rev. Civ. St. 1911, art. 769, expressly auis objectionable as delegating to him a decision thorized cities owning waterworks to improve which should be controlled by law.-Id.
a highway to their plants even though they be The provisions of the ordinance of Morris- without the corporate limits, a city may use town regulating the inspection of slaughter-gravel and soil removed from a street within houses and the sale of meat, that certain acts its corporate limits for the purpose of imshould be "sufficient" evidence that the goods proving the highway to its water plant.-Id. were on sale, are objectionable.-Id. 8 592 (Mo.) Where a cemetery association was
XII. TORTS. incorporated by a special act, the right of the
(B) Acts Omissions Officers municipality in which it was located to pro
Agents. hibit the continued use of the burying ground cannot be denied on the ground that the char 8 745 (Tex.Civ.App.) municipal corporation ter of the municipality giving it authority to is not liable for the wrongful assault and impass such ordinances prohibited the passage of prisonment of the plaintiff by its officers without ordinances inconsistent with the state laws.- a showing of some wrongful act by the corporaUnion Cemetery Ass'n v. Kansas City, 161 tion itself.-Swanson v. Nacogdoches, 161 S. W. S. W. 261.
83. $ 609 (Mo.) Under Kansas City Charter 1909,
(C) Defects or Obstructions in Streets art. 1, § 1, par. 13, art. 3, § 1, par. 16, or
and Other Public Ways. under paragraph 41 alone, the city may prohibit the further use of a public burying ground
8 766 (Mo. App.) Where an injury results when it is detrimental to public health and its from a danger inherent in the plan adopted by continued use constitutes a nuisance.---Union a city for the improvement of a street, it is Cemetery Ass'n v. Kansas City, 161 S. W. 261. not liable, but if the danger has arisen from
negligent construction or maintenance liability $.611 (Tenn.) The ordinances of a town, pro- accrues.--Trippensee v. City of Jefferson, 161 viding for the selection of places for the in- S. W. 303. spection of animals to be slaughtered for food
8 766 (Tenn.) A city was responsible for the and confirming a contract which made the prem- death of children 11 and 9 years of age by ises of a company the only place where they drowning in a pond, which occupied the whole should be inspected and slaughtered, were void width of a public street, about 120 feet from a as not being within the powers conferred by public park.-Doyle v. City of Chattanooga, 161 the town charter (Acts 1903, c. 103).-Noe v. S. W. 997. Town of Morristown, 161 S. W. 485. An act authorizing the establishment of a mu
$ 768 (Ky.) In an action for injuries to a nicipal slaughterhouse, to be constitutional, pedestrian by the tilting of a stone in steps must provide that all persons should have a material whether the city's negligence consist
leading from one street to another, it was imright to resort to that place to do their owned of a defect in the construction or a failure slaughtering or to have it done by their own agents.-Id.
to keep the steps in proper repair.–Board of The original ordinance of Morristown, provid- Council of City of Frankfort v. Kirby, 161 S. ing for the selection of one or more places for
W. 1115. the inspection and slaughter of animals in
8 768 (Mo. App.) Where walks are not neglitended for food, is in the main valid.-Id.
gently constructed nor allowed to become or re8617 (Tenn.) The power to grant an exclu: not actionable.-Price v. City of Maryville, 161
main unsafe, an injury caused by mere slant is sive franchise, even of the limited class which S. W. 295. may be granted within a town, must be express A city is not liable for a step-off rendered ly conferred by the Legislature.-Noe v. Town necessary in the construction of a sidewalk, of Morristown, 161 S. W. 485.
where it is not negligently maintained and the $ 623 (Tex.Civ.App.) Under Rev. Civ. St. / plan is not manifestly unsafe.--Id. 1911, arts. 844, 856, and 965, a city council by A city held liable for injuries to a pedestrian resolution held authorized to require the re at night by stepping on a “low place" in the moval of a dilapidated wooden building located sidewalk, which resulted from a defect in the within the fire limits, where it was likely to walk, and was not a mere step-off arising from fall and endanger human life or to burn.- the topographical conditions, of which defect Howell v. City of Sweetwater, 161 S. W. 948. the city had had notice.-Id.
A city having properly condemned a wooden $ 772 (Mo.App.) Where a city allowed wabuilding within the fire limits, and the owner ter from one of its hydrants to run over the having refused to remove the same, the city sidewalk so that it formed slush with newly could enjoin the construction of improvements, fallen snow, it cannot escape liability for inand compel the removal of the building as a juries to one who fell upon the unevenly frozen nuisance.-Id.
slush, on the ground that the snow was a gen
eral condition.—Livingston y, City of St. Jo- XIII. FISCAL MANAGEMENT, PUBseph, 161 S. W. 304.
LIC DEBT, SECURITIES, AND
TAXATION. $ 784 (Mo.App.) Act of a city engineer in allowing hooks attached to a sewer cover to be (A) Power to Incur Indebtedness and Exso placed that they could be easily moved, so
penditures. that the cover would not remain in place, was not a part of the general plan of construction of the income and revenue provided for the year
8 863 (Ky.) An obligation of a city in excess adopted by the city, and rendered the city lia- is a violation of the Constitution, though it is ble for injuries suffered by a pedestrian by made payable in future years.-Southern Bitureason thereof.—Trippensee v. City of Jefferson, lithic Co. v. Detreville, 161 S. W. 560. 161 S. W. 303.
Where a city has created a debt which is not $ 791 (Mo.App.). Where the displacement of a in excess of the amount it can constitutionally sewer cover by which a pedestrian was injured raise by taxation, it cannot defeat the debt by was not the result of the act of a third per failing to make the necessary levy.-Id. son, but rather the negligence of the city in 8 867 (Ky.) Under Const. 88 157, 158, a muthe original construction, the city was charged nicipality, without a vote of the people, cannot with notice of the defect from the beginning. create in one year a debt to be thereafter paid --Trippensee v. City of Jefferson, 161 S. W. out of the income and revenue of subsequent 303.
years and for the payment of which no provi$ 794 (Ky.) Where a contractor, under a per- sion can be made out of the income and revenue mit from the city, obstructed the side of a for the year in which the indebtedness is crestreet with his engines and materials and laid ated. --Southern Bitulithic Co. v. Detreville, 161 a temporary board sidewalk around the ob S. W, 560. struction for public use, it was the duty of the city to use ordinary care that such walk
MURDER. should be safe for the use which the public See Homicide, 88 8-18. were invited to make of it.-Brentlinger V. Louisville Ry. Co., 161 S. W. 1107.
MUTUAL BENEFIT INSURANCE. 8 803 (Ky.) A pedestrian using a temporary walk around the engines and material of a con- See Insurance, 88 723-825. tractor obstructing one side of a street was bound to exercise such care for his own safety
NATIONAL BANKS. as might be reasonably expected of a person See Banks and Banking, 88 246, 253. of ordinary prudence in that situation.-Brentlinger v. Louisville Ry. Co., 161 S. W. 1107.
NAVIGABLE WATERS. $ 806 (Ky.) Plaintiff, walking on a temporary sidewalk built by a contractor around his ma- See Damages, $ 106; Ferries; Waters and chinery and material on one side of a street and Water Courses. held out to the public for use, had a right to assume that the walk was safe. - Brentlinger v.
I. RIGHTS OF PUBLIC. Louisville Ry. Co., 161 S. W. 1107.
8 | (Mo.App.) Under Const. art. 1, § 1, re$ 809 (Ky.) Where a contractor, under a per- serving to the people the free use of all navmit from the city, obstructed the side of a igable streams leading to the Mississippi as a street with his engines and materials and laid common highway a stream capable of transporta temporary walk around the obstruction for ing commerce in any manner in which commerce the public use, it was his duty to use ordinary is ordinarily conducted is a public highway. care that the walk should be safe.--Brentlinger Weller v. Missouri Lumber & Mining Co., 161 v. Louisville Ry. Co., 161 S. W. 1107.
S. W. 853. 8 816 (Ky.) Petition, in an action for injury § 19 (Mo.App.) The obstruction of a navigable from the projecting end of a street car as it stream is a public nuisance.-Weller v. Missouri turned across a temporary board sidewalk built Lumber & Mining Co., 161 S. W. 853. outside a contractor's machinery and materi- § 21 (Mo.App.) Where defendant maintained als, held good as against demurrers by the city a boom above plaintiff's sawmill, preventing bim permitting the walk and by the contractor.- from rafting logs down the branch of a navBrentlinger v. Louisville Ry. Co., 161 S. W. igable stream upon which the sawmill was lo. 1107.
cated, it is no defense that such channel came $ 816 (Mo.App.) Evidence held not a variance back to the main stream below the boom, and as showing that plaintiff walked into a ditch the logs might, by artificial means, have been instead of into a low place in the walk. - Price forced upstream.-Weller v. Missouri Lumber v. City of Maryville, 161 S. W. 295.
& Mining Co., 161 S. W. 853.
$ 26 (Mo.App.) A petition held to state a $ 819 (Tenn.) If a strip offered be dedicat. ed as a street contains thereon a nuisance, such cause of action for the maintenance of an ob
struction in a navigable river constituting a as a dangerous pond, slight evidence of accept- public nuisance.-Weller v. Missouri Lumber & ance by the municipality would be sufficient Mining Co., 161 s. W. 853. to make it liable for injuries arising from the In an action for damages for maintaining an pond.-Doyle v. City of Chattanooga, 161 S. obstruction in a navigable stream, evidence of W. 997.
damages not alleged by the petition is inadmissi$ 821 (Mo.App.) Whether the city was negli- ble.-Id. gent in permitting a defect to remain held for The question whether a stream is navigable is the jury.-Price v. City of Maryville, 161 S. W. one of fact for the jury.-Id. 295.
In an action for damages for obstructing a § 821 (Mo.App.) The question of the city's ant and its predecessors had deepened the chan
navigable stream, it is no defense that defendnegligence in permitting water to run nel and made it more suitable for the purpose the sidewalk from a hydrant forming slush
used.-Id. with the snow held for the jury.---Livingston v. City of St. Joseph, 161 S. W. 304.
NAVIGATION. $ 821 (Tenn.) Evidence held to make it a ju- See Navigable Waters. ry question whether a tract containing a dangerous pond was accepted by a municipality as
NEGATIVE PREGNANT. a street.-Doyle v. City of Chattanooga, 161 S. W. 997.
See Pleading, & 126.
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER
not concur in or expressly sanction it, or
knowing the danger fail to protect herself.See Adjoining Landowners, 8; Appeal and Johnson v. Springfield Traction Co., 161 S. W.
Error, $ 882; Bailment; Banks and Bank- 1193. ing, $ 54; Carriers, $$ 69, 280–347; Constitutional Law, $ 301; Death, $ 58; Drains, 88
(D) Comparative Negligence. 17, 57; Electricity, § 16; Estoppel, 56; 8101 (Ky.) The federal Employer's Liability Landlord and Tenant, 88 162–169; Naster Act only means that the employé can recover and Servant, 88 86–296; Municipal Corpora- a proportional amount bearing the same relations, &s_745-821; Physicians and Surgeons, tion to the full amount as the negligence at$ 24; Pleading, $$ 8, 34, 369; Railroads, şš tributable to the railroad company bears to the 108, 113, 114, 236–481'; Statutes, 8 253; entire negligence attributable to both.-NashStreet Railroads, 88 81–118; Telegraphs and ville, C. & Št. L. R. Co. v. Banks, 161 S. W. Telephones, ss 26–79; Trial, ss 84, 191, 194, 554. 203, 229, 242, 252, 260, 296.
§ 101 (Tex.Civ.App.) Acts 31st Leg. (1st Ex
tra Sess.) c. 10 (Rev. Civ. St. 1911, art. 6649). I. ACTS OR OMISSIONS CONSTITUT- only denies recovery because of contributory ING NEGLIGENCE.
negligence to the extent that the jury determines
is attributable to his negligence.—St. Louis, B. (A) Personal Conduct in General.
& M. Ry. Co. v. Vernon, 161 S. W. 84. 8 2 (Mo.App.) An injury is not caused by
Even where plaintiff's proof shows that he is negligence when the party charged with the guilty of contributory negligence as a matter of negligence owed no duty to the injured party. law, under Acts 31st Leg. (1st Extra Sess.) -Featherstone v. Kansas City Terminal Ry. c. 10 (Rev. Civ. St. 1911, art. 6649), the court Co., 161 S. W. 284.
can only direct the jury to diminish the dam$8 (Tex.Civ.App.) The care due to a person ages in proportion to plaintiff's negligence.-Id. intoxicated to the extent of being unable to take
101 (Tex.Civ.App.). In view of Rev. Civ. St. care of himself is that of reasonable care to 1911, art. 6649, providing that plaintiff's conavoid injuring him.-Texas Cent. Ry. Co. v. tributory negligence shall merely diminish his Rose, 161 S. W. 387.
damages proportionately to his negligence, a re(B) Dangerous
quested charge that if plaintiff was guilty of Substances, Machinery, and Other Instrumentalities.
contributory negligence he could not recover
held properly refused.-St. Louis Southwestern $ 23 (Tenn.) The owner of dangerous machin. Ry. Co. of Texas v. Martin, 161 S. W. 405. ery naturally attractive to a child is liable for injuries to one attracted thereto, while the ma
IV. ACTIONS. chinery is on the owner's premises.-Doyle v. City of Chattanooga, 161 S. W. 997.
(A) Right of Action, Parties, Preliminary
Proceedings, and Pleading. (C) Condition and Use of Land, Buildings,
$ 119 (Mo.App.) The last clear chance docand Other Structures.
trine is an exception to the rule that contribu$ 29 (Mo.App.) The owner of uninclosed land tory negligence is a complete defense, so that, need not make it safe for pasturage and is not where the facts found call for the application liable for injuries to stray cattle by falling into of the doctrine, the fact that plaintiff's negliexcavations thereon.-Wilt v. Coughlin, 161 S. gence is not pleaded or admitted is unimportW.888.
ant.-Johnson v. Springfield Traction Co., 161
S. W. 1193. II. PROXIMATE CAUSE OF INJURY.
(B) Evidence. $ 58 (Mo.App.) Plaintiff must show that the injuries would naturally and probably result § 121 (Tex.Civ. App.) Neither negligence nor from the negligent act and should have been causal connection between it and the injury will foreseen by defendant as likely to result there- be presumed from the fact of injury alone.from.-Wilt v. Coughlin, 161 S. W. 888.
Stone & Webster Engineering Corporation v. $ 59 (Tex.Civ.App.) An injury which could Brewer, 161 S. W. 38. not have been foreseen or reasonably anticipated
$ 124 (Mo.App.) In an action for negligence, as the natural and probable result of a negli- the general reputation of the party charged gent act is not proximately caused by such act.
with the negligence in respect to his being careInternational & G. N. R. Co. v. Walters, 161 ful or negligent is generally inadmissible. S. W. 916.
Hodges v. Hill, 161 S. W. 633. 8 59 (Tex.Civ.App.) If an injury follows an
$ 125 (Mo.App.) Proof of specific acts similar act of negligence in natural sequence, and to those on which the action was grounded, as there is no intervening agency, the wrongdoer distinguished from a custom or habit, to do is, as a matter of law, held to have had the such acts, is inadmissible.-Hodges v. Hill, 161 result in contemplation.-Ft. Worth Belt Ry. S. W. 633. Co. v. Cabell, 161 S. W. 1083.
Evidence as to specific acts of carelessness or
to general traits of negligence of the party III. CONTRIBUTORY NEGLIGENCE. charged therewith, without reference to the par
ticular act in issue, was inadmissible.-Id. (B) Children and Others Under Disability,
$ 134 (Mo.App.) Running an automobile at a $ 85 (Mo.App.) A child of tender years may speed above that permitted by statute is prima comprehend certain dangers so as to be guilty facie negligence.-Cabanne v. St. Louis Car Co., of negligence as a matter of law, and will be 161 S. W. 597. held negligent if he does so, or if the danger is $ 134 (Mo.App.) A causal connection between obvious to one of his age.-Battles v. United the alleged negligence and the injury need not Rys. Co., of St. Louis, 161 S. W. 614.
be shown by direct evidence, but may appear by $ 85 (Tenn.) A young boy would not be guilty a fair inference from the circumstances proved. of contributory negligence in jumping into a - Battles v. United Rys. Co., of St. Louis, 161 pond to save his young brother from drowning, S. W. 614. having acted in an emergency.-Doyle v. City of Plaintiff must prove that the alleged negliChattanooga, 161 S. W. 997.
gence proximately caused the injury, by evi
dence which amounts to more than mere conjec(C) Imputed Negligence,
ture.--Id. $ 93 (Mo.App.) Where plaintiff was not driv $ 134 (Tex.Civ.App.) Not only must negliing or directing the wagon on which she was gence upon defendant's part be shown, but the riding with her husband, and he was not her causal connection between it and the injury agent in so doing, his negligence in driving, if must be shown.-Stone & Webster Engineering any, was not imputable to her, where she did | Corporation v. Brewer, 161 S. W. 38.