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child to remain where it is until such time as his wife and the conduct and condition of its age and condition will justify the father Sams on one of the streets of Plainview a in assuming its custody."

short time prior to the accident when Mrs. Our own Supreme Court (Legate v. Le Sams was killed. The prevailing and ingate, 87 Tex. 248, 28 S. W. 281), has said in fluencing considerations indicated in this cases of this kind: “The right of the parent opinion, requiring, as we think, an affirmance or the state to surround the child with proper of the judgment of the trial court, devitalize influences is of a governmental nature; while the force of the position of appellants as to the right of the child to be surrounded by any technical error committed by the trial such influences as will best promote its physi-judge in the admission of this testimony, and cal, mental, and moral development is an in- make it of little weight, if any, in regarding herent right, of which, when once acquired, the matter of the real interests of the child, it cannot be lawfully deprived.”

considering its helplessness and the present As stated, there is no question as to the possession of the Mitchells in ministering to citizenship of the grandfather Sams and the the child for its present welfare. The same excellence of his wife, the paternal grand-testimony was in substance delivered by anmother. There is, however, the question that other witness on the stand, the brother of the Mitchells know this infant better and are Runyon, who saw the occurrences detailed in endeared to it deeper on account of the pre- the depositions, and upon the whole we think vious association and solicitude in sickness the error harmless, and overrule the assignand in health than any other one person; that ment. they understand better its physical well-be The court's judgment in this cause, the ing, and we all know that a child of this age form of which we commend, is merely a depis to a considerable extent passing through a

rivation of the father, and a permission of critical period in infantile existence; prob- the custody of the maternal grandparents, ably since the death of its mother, at which subject to the further order of the court, witb time it was about seven months of age, it has the further provision for the right of visitabeen a "bottle baby,” sustained by artificial tion of the father at all reasonable times for food. We do not say that the evidence shows the purpose of seeing the child, and our conthat the paternal grandparents will not give clusion is upon the whole that the judgment this child the same attention as the maternal of the court as to the present custody of this grandpa rents; but we do say that it is a

child is proper. demonstrated fact, from the birth of this

Judgment affirmed. baby, through all infantile vicissitudes, the deep solicitude and successful nurture manifested by the appellees point to the correct

ELLERD V. CAMPFIELD. ness of the trial court's conclusions. The fol

Amarillo. lowing cases, involving controversies between (Court of Civil Appeals of Texas.

Nov. 22, 1913. On Motion for Rehearthe parent and grandparents, and decided in

ing, Dec. 20, 1913.) favor of the latter, touch this case upon some 1. TRIAL (8 349*)--SPECIAL Issues-DISCREfeatures of the question involved; the prime TION OF COURT. consideration in some of the cases being the trict and county courts that special issues

The rule of the Supreme Court for the disbest interests of the physical condition of should be submitted only wben the pleadings the child, and in some of the cases blended contain several combinations of fact, each of with a moral and mental welfare of the in- which constitutes a cause of action or ground fant, and considered by the court in awarding the court and a definition of the character of

of defense, is not a limitation of the power of the child to the grandparents who had in the the cases which should be submitted to the past the care and custody of the infant, and jury on special issues; but, under the statute, to which we refer without further extending the court, on the request of either party or on the limits of this opinion: McKercher v. issues, and a party complaining must show that

its own motion, may submit a case on special Green, 13 Colo. App. 270, 58 Pac. 406; State he was prejudiced thereby before he can comex rel. Thompson v. Porter, 78 Neb. 811, 112 plain. N. W. 286; Gardenhire v. Hinds, 38 Tenn.

[Ed. Note.-For other cases, see Trial, Cent. (1 Head) 410; Ex parte Davidge, 72 S. C. 16, Dig. $ 590; Dec. Dig. & 349. * ] 51 S. E. 269; Jones v. Darnall, 103 Ind. 569, 2. TRIAL ($ 255*)-INSTRUCTIONS-DEFINITION

OF TERMS-REQUESTS--NECESSITY. 2 N. E. 229, 53 Am. Rep. 545 ; Hussey y. Whit

The failure of the court to define legal ing, 145 Ind. 580, 44 N. E. 640, 57 Am. St. phrases in its instructions is not error, unless Rep. 220.

the party objecting requests a charge defining [4] The appellant insists that the court im- the terms, and, in the absence of a special re

quest, the failure to define the word “agreeproperly admitted and considered the deposi- ment in an instruction is not error. tion of one Runyon and his wife taken in an [Ed. Note.-For other cases, see Trial, Cent. other suit between the same parties; this Dig. $$ 427, 428; Dec. Dig. § 255.*] record disclosing that in that case the same 3. APPEAL AND ERROB ($_1027*)--HARMLESS question, that is, the custody of this child,

ERROR-ERRORS NOT AFFECTING RESULT. was involved. This testimony purports to the issue was whether the time for payment

Where, in an action on vendor's lien notes, reveal certain occurrences between Sams and I had been extended under an agreement be

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

an

tween an agent of plaintiff and defendant, and jury upon special issues” submitting a propthe jury specifically found that no agreement osition that “the charge of the court should was made, rulings involving the authority of the agent to make the agreement were imma- be submitted on special issues only when the terial.

pleadings contain several combinations of (Ed. Note. For other cases, see Appeal and fact, each of which constitutes a cause of Error, Cent. Dig. $ 4033; Dec. Dig. $ 1027.*) action or ground of defense, and is sufficientOn Motion for Rebearing.

ly supported by the evidence to require a charge upon

which

issue has been 4. APPEAL AND ERROR (8 690*)-QUESTIONS REVIEWABLE-BILL OF EXCEPTIONS.

formed.” An assignment of error complaining of the Appellant is attempting to apply rule 61, exclusion of evidence, not supported by the quoted as above, and promulgated by the Subill of exceptions applicable to the assignment, preme Court of the state for the district and does not raise any question on appeal. (Ed. Note.-For other cases, see Appeal and county courts, with reference to charges and Error, Cent. Dig. $$ 2897-2899, 2902–2904, instructions by those courts to juries. This 2006, 2908; Dec. Dig. § 690.*]

rule is not intended as a limitation upon Appeal from District Court, Hale County; the power of the trial court and a definition L. S. Kinder, Judge.

of the character of case which should be Action by John W. Campfield against John submitted to the jury upon special issues. J. Ellerd. From a judgment for plaintiff, de- It is very plain from our statute that, upon fendant appeals. Affirmed, and motion for request of any party to the suit, and at the rehearing overruled.

present time, without any request, the court, Madden, Trulove & Kimbrough, of Amaril- upon its own motion, may submit the cause lo, and L. R. Pearson, of Plainview, for ap

in such a manner. The appellant has not pellant. Mathes & Williams and Graham & suggested in the slightest in what manner

he was injured by a submission of this Graham, all of Plainview, for appellee.

cause upon special issues. In reading the HENDRICKS, J. This suit was filed by brief proffered in this court for a reversal the appellee, John W. Campfield, against of the cause, we are unable to find any stateJohn J. Ellerd, the appellant, to recover in ment of the evidence of any witness that an the trial court on two vendor's lien notes agreement of extension in accordance with amounting to $1,150 each; also, for the usual the defendant's pleadings was ever made; attorney's fees and foreclosure of the ven- and, again, the court has quite a plenary dor's lien upon the land and for which the power in this respect, and, to say the least notes were partly given. The appellant, El- of it, it would certainly be incumbent upon aplerd, admitted the execution of the notes in pellant, in a matter of this kind, to show question, but specifically alleged that the some deprivation of a legal right or some notes had not matured at the time the suit abuse of discretion, when, under the statute, was instituted, for the reason that an agree- either party requests such a submission, and ment had been made between him and one E. the jury is so instructed; and, as a concrete E. Winn, the alleged authorized agent of proposition, we take it would be hard to Campfield, to extend the time of payment of show injury. the notes in question until February 9, 1913,

[2] Appellant assigns as error the action of and the suit having been instituted prior to the court in submitting to the jury special that time was premature and should be abat- issue No. 1, which we quoted above, for the ed. The court, at the request of the appel- reason, as indicated in his proposition, that lee, submitted the case to the jury on special “it is the province of the court to charge the issues, and the first issue tendered by the jury on questions of law involved in the court was as follows: "Was there an agree case, and all legal propositions should be dement between E. E. Winn and the defendant, fined.” And in his argument under this asJohn J. Ellerd, by which it was agreed that signment he further says that the court does the payment of the notes in controversy was not undertake to give a legal definition of extended from February 9, 1912, until Feb- "agreement,” but leaves this question of law ruary 9, 1913"—the court further instructing entirely to the jury; and that “it is well the jury that, if they gave an affirmative settled that questions of law, with only a answer to this question, the jury would few exceptions, are for the court, and all proceed to answer further questions submit- legal phrases and terms, such as 'agreement,' ted by him; but, if they answered the first negligence,' etc., should be defined by the question in the negative, it would not be nec- court in its charge, and a failure of the essary to answer any subsequent questions court to define legal phrases is error.” embodied in the charge.

Appellant has a misconception of the law [1] The appellant claims that this cause upon this subject as applicable to the parand the issues involved therein should not ticular question involved, the authorities cithave been submitted to the jury on special ed are not in point, and a failure of the trial issues, “because the issues of fact and of court to define legal phrases or give definilaw involved in this case were not such as tions is ordinarily not error unless the party could be fairly and legally presented to the who is objecting in the appellate court to the

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

omission of the trial court in this respect, case, upon the matter of the sincerity of this has himself requested a charge of the lower appeal, and have concluded to affirm the court desiring a definition of the terms used case without the 10 per cent. damages rein the general charge. We think this is well quested. illustrated by the following cases: Arkansas We find no error in this record, and the Construction Co. v. Eugene, 20 Tex. Civ. App. judgment of the trial court is affirmed. 601, 50 S. W. 736; Lagow V. Grover, 77 Tex. 448, 14 S. W. 141; Texas Midland R.

On Motion for Rehearing. Co. v. Ritchey, 49 Tex. Civ. App. 409, 108

[4] The appellant, Ellerd, in this cause S. W. 732; Texas & Pacific R. Co. v. O'Don. complains that this court erred in failing to nell, 58 Tex. 27. The omission of the trial pass upon his first assignment of error, statcourt to define the term “ordinary care” is ing as one of his reasons that witness Walter not affirmative error and cannot be com-Day, whose testimony was rejected by the plained of where a special instruction de trial court, would have testified, if permitted fining them has not been requested. Western by the court, in substance that he had no Union Telegraph Co. v. James, 31 Tex. Civ. absolute knowledge of the business relations App. 503, 73 S. W. 79, writ of error refused existing between Winn and Campfield, “or in 97 Tex. 651, 73 S. W. 79, no opinion. that he knew in a general way that they

The appellant in this case failed to request were partners.” In referring to the appelany definition of the trial court as to the lant's brief on this subject, and applicable meaning of the term “agreement,” and hence to this assignment, the statement under the we believe is not in an attitude to complain assignment is as follows: "The witness Walunder the decisions.

ter Day testified that he had been acquainted [3] The appellant submits other assign- with the witness E. E. Winn and the plainments upon other alleged errors of the trial tiff Campfield for the past five years, and court, which we deem to be entirely imma- that he knew in a general way the business terial on this appeal for the reason that which the said E. E. Winn looked after for when the jury specifically answered that the plaintiff Campfield; that he did not rethere was not any agreement entered into be member any certain transaction, but knew in tween the agent Winn and the defendant El

a general way. Upon objection by plaintiff's lerd, as to the extension of the notes, neces-counsel, this testimony was by the court exsarily the whole defense of the appellant cluded from the jury. Defendant's Bill of failed.

Exception No. 3, Tr. pp. 35, 36." The succeeding questions, as to whether or

The above statement in appellant's brief not the agent had the authority, or whether of the offered testimony of Walter Day is a it was within the apparent scope of Winn's correct reflection of defendant's bill of exauthority to make the agreement, or whether ception No. 3, referred to herein by appelthe court committed error in other portions lant, and his bill of exception No. 3 has no of the charge, or whether special charges reference whatever to any testimony of Day submitted and refused by the trial court up-“that he knew in a general way that they on such questions were error, are clearly were partners.” The statement of the testiunavailing, for if the agreement was not mony in bill of exception No. 3, made by made the predicate of appellant's defense is appellant in his original brief, and the bill of gone. We are unable to ascertain from ap- exceptions in the transcript sustaining it, pellant's brief, or from the record, that the present a character of testimony we thought alleged failure upon the part of the trial

was plainly inadmissible and that it was uncourt to do certain things complained of, or

necessary to discuss it. in doing other things charged as error, af In re-reading appellant's brief especially fected in any respect the action of the jury applicable to this assignment, we do not find in finding that an agreement was not made a single reference offered in the assignment, between Ellerd and the agent Winn; and, the proposition, the statement, or the “reagain, appellant's assignments, with the marks,” of any offered testimony of Walter statements thereunder, with reference to Day "that he knew in a general way that such other errors charged against the trial they (Winn and Campfield) were partners." court, are quite abstract in their presenta- | We find such a statement, in reading the tion with insufficient statements, and, as record, in another and different bill of exstated above, without even a presentation to ceptions, which is not assigned; but we are this court of any testimony of any witness not saying that we would consider such teswith reference to any part of the record that timony would have effected a reversal of the any agreement for extension of the particu- case, but simply state that appellant has not lar indebtedness was ever made.

complained that the court rejected such tesThe appellee suggests in this case that the timony, nor was it called to the attention of appeal is one for delay and requests an af- this court in any way, and defendant's bill firmance of the cause with 10 per cent. dam- of exception No. 3 supporting the assignages under the statute. We have gone toment does not raise such a question. the record and statement of facts in this The motion for rehearing is overruled.

TBINE,

This is the second appeal in this case. On TRINITY & B. V. RY. CO. V. BLACK- the former appeal, in which a verdict was SHEAR.

instructed for the railroad, the judgment (Court of Civil Appeals of Texas. Dallas. was reversed and cause remanded. 131 S. W. Nov. 22, 1913. Rehearing Denied 854. The evidence on this appeal is pracDec. 20, 1913.)

tically the same as on the former appeal, and 1. RAILBOADS ($ 396*)-INJURIES NEAB TRACK from which we conclude that, as appellee was --- NEGLIGENCE — Res IPSA LOQUITUR Doc. plowing in his field adjacent to appellant's

The res ipsa loquitur doctrine will raise right of way and about 50 feet from the railà presumption of negligence by defendant rail- road track, a passing freight train picked up road company, where plaintiff while plowing a loose iron spike and threw it with great in his field about 50 feet from the track was force into appellee's field, which spike struck struck by a spike "picked up” by a passing freight train and thrown with great force into him in the side, breaking his ribs, and causplaintiff's field.

ing him much suffering, loss of time, etc. [Ed. Note.-For other cases, see Railroads, [1] The first assignment of error complains Cent. Dig. 88 1341-1343, 1357; Dec. Dig.

of the court's refusal to give a peremptory 396.*]

charge to find for appellant. The proposition 2. RAILROADS (8 364*)-INJURIES NEAR RIGHT OF WAY-DUTY OF COMPANY.

submitted under this assignment is: “Before A railroad company was bound to operate a plaintiff can recover of a defendant in a its train so as not to interfere with plaintitf's case such as this, in order to show negligence enjoyment of his premises near the right of he must prove that the injury was one which way by casting missiles from the train and under the law the defendant must have aninjuring plaintiff.

[Ed. Note.- For other cases, see Railroads, ticipated as a result of the alleged acts of Cent. Dig. 88 1252, 1253; Dec. Dig. § 364.*] negligence.” As a test of liability under the 3. DAMAGES (8 208*)

· JURY QUESTIONS evidence in this case, was it incumbent upon TIME OF DAMAGE.

appellee to show that the accident could have In an action against a railroad company for injuries by being struck by a spike thrown been reasonably foreseen or anticipated? We by a passing train while plaintiff was in an think not. The rule of res ipsa loquitur apadjoining field, whether plaintiff was rendered plies here. As in a case where a passenger unable to sleep on his left side by reason of is injured from a derailment of a train at a the injury, so as to be entitled to damages on that ground, held a jury question,

place where the track and train are entirely [Ed. Note. For other cases, see Damages, under the control of the company, the preCent. Dig. 88 54, 64, 68, 132, 144, 145, 205, 220, sumption of negligence arises. Railway Co. v. 533, 534; Dec. Dig. § 208.*]

Parks, 97 Tex. 131, 76 S. W. 740; Railway 4. APPEAL AND ERROB ($ 216*) - INSTRUC- Co. v. Wood, 63 S. W. 164; Street, Per. InTIONS-NECESSITY OF REQUEST.

Any error in not limiting the recovery for juries, 8 196; Railway Co. v. Troutman, 138 loss of time to the gum alleged in the petition S. W. 427. to bave been lost was one of omission of which

[2] The appellant introduced no evidence defendant cannot complain, where he did not to explain the accident, but there was eviask a special charge correcting such omission, especially where the evidence did not show that dence tending to show the condition of the the damage for loss of time exceeded that track, from which the jury might legitiamount, it being unlikely that the award for mately infer that a loose spike was on the that item was greater than shown by the evi-track and was thrown by the train. The apdence. (Ed. Note.–For other cases, see Appeal and pellee, to show liability, was not called upon Error, Cent. Dig. 88 627-641, 660, 662–676; to prove negligence on the part of the appelDec. Dig. 8 216.*]

lant, as the fact of its train throwing the Appeal from District Court, Hill County, spike or missile on the premises of appellee Horton B. Porter, Judge.

and injuring him made it liable for all damAction by C. M. Blackshear against the ages resulting, irrespective of the question of Trinity & Brazos Valley Railway Company. negligence. Appellee was on his own premisFrom a judgment for plaintiff, defendant ap- es, and, while appellant had the right to

operate its own trains along its tracks, it peals. Affirmed.

was legally bound to so operate them as to N. H. Lassiter and Robt. Harrison, both of not interfere with appellee's peaceful enjoyFt. Worth, and Morrow & Morrow, of Hills- ment of his premises by throwing thereon boro, for appellant. H. B. Porter and Col- missiles which caused injury to him. Hay v. lins, Cummings & Shurtliff, all of Hillsboro, Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279: and W. F. Ramsey and Chas. L. Black, both. St. Peter v. Denison, 58 N. Y. 416, 17 Am. of Austin, for appellee.

Rep. 258; Steger v. Barrett, 124 S. W. 174;

Cooley on Torts (1st Ed.) 332. RAINEY, C. J. Appellee sued appellant [3] The court did not err in refusing to to recover damages for personal injuries in- give special charge No. 10, to the effect that fiicted upon him by a train throwing an iron the jury could not allow plaintiff damages spike and striking him in the side, breaking for being unable to sleep on his left side. his ribs, causing great suffering, etc. A Plaintiff alleged and testified as to his being trial resulted in a verdict and judgment in unable to sleep at night on his left side, by appellee's favor for $6,000, from which this reason of smothering spells when trying to appeal is prosecuted.

sleep on that side. The doctor testified that

*Por other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

he did not think the smothering spells were held to sustain a finding that the horse entered produced by the injury. Under the state of on the track at a point where railroad emthe evidence, the charge ought not to have left an opening in the fence, authorizing a re

ployés, putting in a new crossing negligently been given. The court had already with

covery. drawn from the jury the evidence of smoth [Ed. Note.–For other cases, see Railroads, ering spells, and, as the evidence on the ques. Cent. Dig. 88 1608–1620; Dec. Dig. § 443.* ] tion of sleeping at night was conflicting, it

Error to Jefferson County Court; R. W. was for the jury to determine, and it was

Wilson, Judge. proper for counsel to argue it to the jury.

Action by J. F. Cunniff against the Texas [4] Error is predicated upon the charge to & New Orleans Railroad Company. From a the jury which is as follows: “If you find for judgment for plaintiff, defendant brings erplaintiff, you will find for him such an

ror. Affirmed. amount as you believe from the evidence will be a fair and just compensation in cash

Baker, Botts, Parker & Garwood, of Housfor the injuries suffered by him as a direct ton, and Hightower, Orgain & Butler, of and proximate result of defendant's negli- Beaumont, for plaintiff in error. O'Fiel & gence, if any negligence there was, taking O'Fiel, of Beaumont, for defendant in error. into consideration only the physical and mental pain, if any, suffered and to be suf

REESE, J. J. F. Cunniff sued the Texas fered by him, and the amount of time lost by & New Orleans Railroad Company in the jushim, if any, from his usual and customary tice court, to recover $150, the value of a vocation." The allegations claimed in the mare alleged to have been killed by one of petition for loss of time was $1,000, and ap- defendant's trains. On trial in the justice pellant contends the court should have limit- court he recovered judgment for $100. Deed a recovery for loss of time to the $1,000, fendant appealed, and in the county court and, as the court did not do this, it was plaintiff recovered a like judgment, from calculated to cause the jury to assess a

which this appeal is prosecuted. much higher amount than they otherwise

A gang of men were engaged in putting in would have done. If this was error, it was

a new crossing about 100 yards from appelone of omission, and appellant should have lee's house. There was another crossing berequested a special charge correcting the tween a quarter and a half a mile south of omission, and, not having done this, it will this point. Appellant's track was fenced, but not be heard to complain, especially when the while engaged in the work of putting in the evidence does not show the damages for loss new crossing the men cut an opening in the of time exceeded that amount. It is not

fence. Their foreman testified that this probable the jury allowed damages for loss place was kept open in the daytime, but that of time in a greater amount than shown by he was always careful to have it closed at the evidence. City of Dallas v. Jones, 93 night when the men quit work, so as to preTex. 38, 49 S. W. 577, 53 S. W. 377; Railway vent stock straying upon the track, and that Co. v. Motwiller, 101 Tex. 515, 109 S. W. 918. it was so closed on the night appellee's mare

Appellant has presented other assignments was killed. Appellee turned his mare out of error on the questions of "anticipation of about 9 o'clock at night, and the next mornaccident and negligence,” which, in our viewing found her lying dead on the appellant's of the case, do not affect the liability of the track at the old crossing aforesaid. She was appellant, and what we have heretofore said lying in the culvert or stock gap on the south on these points makes it needless to say side of the crossing, and up against the south more.

wall of this stock gap. She had a gash in Complaint is made that the verdict is her neck from near the shoulder to the ear. excessive. From the nature of the injury, as Appellee testified that he did not know shown by the evidence, we are not prepared whether any bones were broken or not. It is to say the jury were wrong. They had the appellant's contention that the mare was witnesses before them, and they were in a

struck on this crossing, and, as no negligence better position to weigh the evidence than

was shown in the operation of the train, apwe. Their verdict is not so large as to indi- pellant was not liable. Appellee contends cate prejudice or passion, and the judgment that the fence where the men were working will not be disturbed.

on the new crossing was negligently left open, The judgment is affirmed.

and that his mare strayed onto the track through this opening, and that she became frightened by a train approaching from the

north, and ran down the track to the north TEXAS & N. 0. R. CO. v. CUNNIFF.

stock gap at the south crossing, where she was (Court of Civil Appeals of Texas. Galveston. caught by the engine and carried across Nov. 22, 1913. Rehearing De

this crossing to the place where she was nied Dec. 18, 1913.)

found, killing her. He testified that his mare RAILROADS (§ 443*)--KILLING OF STOCK ON TRACK-EVIDENCE-SUFFICIENCY.

was shod, and that the next morning he In an action against a railroad company traced the tracks of a shod horse onto the for the killing of a horse on the track, evidence track at the point where the new crossing •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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