Roads and Streets, p. 522. In 37 Cyc., supra, | land upon which it abuts was the subject of it is said: "The laying out of a highway its protecting care. Is this tract contiguous gives to the public a mere right of passage, in the sense in which the word is used? Is and the owner of the soil is not thereby di- it not in fact the next or adjoining tract? vested of his title to the land." See, also, Certainly, it is so in the sense that no other Lewis on Eminent Domain, § 589. And upon | tract intervenes. Suppose a river or a creek a discontinuance of the highway, the soil flowed between the railway and the land in and the freehold revert to the owner of the question, instead of a public road, could it land. Mitchell v. Bass, 26 Tex. 380; Elliott be urged, with any degree of plausibility, that on Roads & Streets, pp. 670, 671. This be- a farm so situated was not contiguous to the ing true, the county in this case merely pos- right of way, simply because so separated? sessed the right of easement over said public Just as much damage or injury would be ocroad, but appellee owned the title thereto, casioned from the grass in the one instance for which reason, in the present case, his as in the other. It is a matter of common land extended, in the literal sense, to the knowledge, I take it, that Johnson grass seed right of way of said railway company, and can be carried by the wind, or otherwise was absolutely contiguous thereto in the across streams, roadways, and even over admeaning of this statute, for which reason the joining tracts of land. A 60-foot roadway case must be affirmed. would not prevent the spread of this grass on the abutting tract, if it were allowed to mature and go to seed upon the adjoining right of way, because it might be carried by the wind across such road. We think the Legislature, in using the expression "contiguous land," must have intended to protect all tracts that would be actually contiguous to the railway right of way, were it not for such roadway, street, stream, etc. The writer, however, speaking for himself only, is also inclined to the view that appellee's tract of land in contemplation of this statute was contiguous to appellant's right of way, irrespective of whether or not he owned the fee to the scrip of land over which this public road ran. While it is true, as contended by appellant, that in its literal sense the word "contiguous" means adjacent, touching, near, adjoining, etc., still in a broader sense, the one in which the word was probably used in the statute, appellee's tract was contiguous to the railway right of way, since it was only separated therefrom by the public road. This law must be construed with reference to the purpose the Legislature evidently had in view in its enactment, that of protecting land lying along or adjacent to railroad tracks from being injured by reason of the spread of Johnson grass, which might be permitted to mature on the right of ways. Throughout the agricultural districts of this state prior to the enactment of the statute in question, railway companies had been the cause of Johnson grass spreading to adjacent tracts of land, through which they ran, to the detri ment of the landowners. This statute was intended to remedy this growing evil by requiring them, under penalty, to prevent such grass from going to seed upon their right of ways, and this purpose must be considered in construing it. Surely it must have been intended to protect those who came within the spirit, as well as within the letter, of the statute. The question arises, Who are contiguous landowners within the meaning of the law? In order for plaintiff to be damaged, must his tract actually abut on the right of way, or can the statute be so extended in its application as to reach and protect those whose tracts would abut except for an intervening public road? I think so. A public road, in my opinion, is not such a contiguous tract of land as would prevent the application of the statute, because such public road would need no such protection. It could not be thus injured, and therefore it was not the intention of the Legislature to protect it from the spread of such grass; but the tract of The cardinal rule in construing a statute is to arrive at the intention of the lawmakers in its enactment (Suth. Stat. Const. § 234); and this intent must be sought in the language of the statute (Id. § 237). And in arriving at the meaning of a particular word, we may consider the whole statute, as well as the purpose of the law. Chancellor Kent has well said: "In the exposition of a statute the intention of the lawmakers will prevail over the literal sense of the terms; and its reason and intention will prevail over the strict letter. When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt and the remedy in view; and the intention is to be taken or presumed according to what is consonant with reason and good discretion." rule of the common law that statutes in Our Revised Statutes provide: "That the derogation thereof shall be strictly convised Statutes; but that said statutes shall strued shall have no application to the Reconstitute the law of this state respecting the subjects to which they relate; and the provisions thereof shall be liberally construed with the view to effect their objects and promote justice." R. S. 1911, 1719, sec. 3. In New Orleans Water Works Co. v. Ernst (C. C.) 32 Fed. 5, 6, it was held that a person whose property was separated from a river only by a street or public highway was a contiguous person within the meaning of the law. And in Board of Supervisors v. Blacker, 92 Mich. 646, 52 N. W. 951, 16 L. R. A. 432, it was held that, notwithstanding the constitutional provision to the effect that each representative district shall consist of convenient and contiguous territory, two counties separated by a large body of water | brief was delivered to appellee's counsel on Sepwere convenient and contiguous in contem-tember 25th and printed copies two days later. plation of law. Again, in Vogel v. Little Rock, 54 Ark. 335, 15 S. W. 836, where it was sought to annex the village of Argenta to the city of Little Rock, which was separated therefrom by the Arkansas river, the application being resisted on the ground that the same was not contiguous to the city, since it was separated therefrom by a navigable stream, it was held that the territory was contiguous within the meaning of section 922 of Mansf. Dig., authorizing municipal corporations to annex contiguous territory lying in the same county. The brief covered only a few questions, chiefly questions of fact, and it was not alleged that appellee did not have sufficient time to brief the case after receiving the copy of appellant's brief. appellee's motion to dismiss the appeal for deHeld, in view of the postponement granted, that lay in filing of briefs would be denied. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.*] 2. MASTER AND Servant (§ 296*)—ACTION FOR INJURIES-INSTRUCTIONS-APPLICABILITY TO EVIDENCE. In a car repairer's action for personal injuries, where it appeared that defendant's employé on the engine which struck him saw him on the track while the engine was 12 feet away a charge that, if such employé saw and realized the danger, it was his duty to use all reasonable means that a person of ordinary prudence would have used under the circumstances to prevent injury, and that, if his failure to do so was the proximate cause of the injury, plaintiff could recover, was not without support in the evidence. Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § MASTER ANd Servant (§ 289*)-ACTION FOR PERIL. On evidence, in a car repairer's action for personal injuries, held, that it was for the jury to say whether defendant's employés, on the engine which struck plaintiff, exercised ordinary care to prevent the injury, and, if they did not, whether such care could have averted the injury. [Ed. Note.-For other cases, see Master and Servant, Ceut. Dig. §§ 1089, 1090, 1092–1132; Dec. Dig. § 289.*] If the fact that the title to the roadway was not in the appellee in the present instance would defeat his right of recovery, then it seems it would result in bringing about a condition of things as I think not contemplated by the lawmakers in the enactment of this statute. Doubtless throughout this state miles of county roads parallel one side or the other of the various lines of rail-3. way traversing the state; and if the respective counties through which these roads extend should hold title by deed or otherwise to said public highways, then, under the construction contended for by appellant, we would have the anomalous condition of landowners on the one side of such railways being protected from the encroachments of Johnson grass permitted to mature and go to seed on their right of ways, while those on the opposite side would be left unprotected. This, in my opinion, was never contemplated; but, on the contrary the statute, I believe, was intended to operate so as to protect contiguous landowners on both sides of such railway right of ways, notwithstanding such tracts might abut upon a public road, intervening between them and said railways; and for this additional reason, outside of the one heretofore expressed, I think that the proper disposition has been made of this case, but the decision herein is based alone on the reasons first assigned. On account, however, of the importance of the question involved, I have considered it not improper to give expression to the above views entertained by me. Judgment affirmed. INTERNATIONAL & G. N. R. CO. V. (Court of Civil Appeals of Texas. San Antonio. 1. APPEAL AND ERROR (§ 773*)-DISMISSALDELAY IN FILING BRIEFS. The record on appeal was filed with the clerk of the Court of Civil Appeals on July 30, 1912, and the cause was set for October 8th but at appellee's request was postponed until October 15th. A typewritten copy of appellant's 4. NEGLIGENCE (§ 59*)--"PROXIMATE CAUSE." An injury which could not have been foreseen or reasonably anticipated as the natural and probable result of a negligent act is not proximately caused by such act. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 72; Dec. Dig. § 59.* For other definitions, see Words and Phrases, vol. 6, pp. 5758-5769; vol. 8, p. 7771.] 5. Master and Servant (§ 248*)—ACTION FOR INJURIES-DISCOVERED PERIL. track jumped therefrom in anticipation of inWhere a car repairer riding cars on a side jury and ran in front of an engine on a parallel track, and where there was no evidence that the engineer and fireman knew that he was riding cars on the side track, nor that they could or would by ordinary care foresee that he would run in front of the engine, they could not anticipate probable injury to him until it became apparent that he was nearing the track without knowing of the engine's approach. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 801-804; Dec. Dig. § 248.*] 6. MASTER AND SERVANT (§§ 295, 296*)—AcTION FOR INJURIES -INSTRUCTIONS -CONTRIBUTORY NEGLIGENCE AND ASSUMED RISK. When plaintiff seeks a recovery upon the issue of discovered peril as well as upon other theories, charges on contributory negligence and assumed risk should be limited to be considered only upon the other theories, as such defenses cannot be urged to defeat liability arising by reason of discovered peril. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179, 1180-1194; Dec. Dig. §§ 295, 296.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes On Motion for Rehearing. 7. MASTER AND SERVANT (§ 286*)-ACTION FOR INJURIES-QUESTION FOR JURY. to wit, more than six miles an hour, in express violation of the orders and rules of defendant, and was thereby knocked down and injured, the injuries being set out in detail. He further alleged: "That the proxi In a car repairer's action for injuries by being struck by an engine, held, on the evidence, that the question whether the engineer saw plaintiff on the side of the car from which he jump-mate cause of the injury of plaintiff, as aforeed and ran in front of the engine was for the jury. [Ed. Note.-For other cases, see Master and Servant. Cent. Dig. $$ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*] Appeal from District Court, Harris County; Charles E. Ashe, Judge. Action by Frank Walters against the International & Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. said, was the negligence and carelessness of defendant receiver, and those of his servants and employés in charge of the said engine, in this, that they ran the said cars into the said siding to be brought in contact with the stationary ones thereon, or when they knew, or in the exercise of ordinary care would in contact with said cars, without the engine have known, that they would probably come being connected therewith so as to control their movement and make it possible for the cars to come together without undue and un Wilson, Dabney & King, of Houston, for necessary force, and without endangering the appellant. MOURSUND, J. Frank S. Walters filed this suit against T. J. Freeman, receiver, and afterwards, the receivership having terminated, the International & Great Northern Railway Company, the purchaser of the prop erties at the receiver's sale, was made a party to the suit. a Plaintiff alleged that on September 16, 1909, he was in the.employ of Freeman, receiver, as an inspector and car repairer in his yards at Spring; that it was his duty to inspect cars received in said yards for defects, and the air hose connected therewith, and to repair such defects when he could and couple up the air hose, and in the discharge of his duty it often became necessary for him to hang onto the side of cars while they were in motion in said yard; that on said date a number of cars were standing on siding, and certain employés were in charge of an engine attached to other cars which they were backing into the siding, where the others stood, for the purpose of coupling them together, and it became plaintiff's duty to inspect said cars and the air hose and to couple up the air hose, and to this end he was riding on the ladder, on the side of one of the cars attached to the engine, as was usual and customary under such circumstances; that upon the moving cars approaching the stationary ones the speed thereof was not reduced, as he expected would be done and as should have been done, but rather increased, and it became manifest to him that the moving cars would strike the others with unusual force, and being thereby put in danger, and fearing for his safety, he jumped to the ground and undertook to cross another track running parallel with the one on which the cars were moving and eight or ten feet distant therefrom, when he was struck by the engine which had been detached from the said cars and run upon the said track, and which was being run at an unusual, dangerous, and excessive rate of speed, safety of those of defendant's employés whose duties required them to be upon and about the said cars, and ran the said cars into the said siding with the engine detached therefrom at an excessive and unnecessary speed, in violation of the said rules and orders, well knowing, or in the exercise of ordinary care would have known, that the moving cars would thereby be caused to strike upon the stationary ones with undue and unnecessary force, which would endanger the safety of those employés whose duties required them to be upon and about the said cars; and in this, that the said employés in charge of the engine gave no warning of the movements of the said engine into and upon the said siding by ringing the bell or blowing the whistle, or in other manner, as was their duty to do, and kept no lookout ahead of the engine, as was their duty to do, and ran the engine at an unusual, dangerous, and excessive rate of speed, in violation of the orders and rules of defendant as aforesaid, and that, had they sounded the whistle and rung the bell or given other adequate warning, plaintiff would have been advised of the approach of said engine and have avoided contract therewith, or, if they had kept a reasonable lookout ahead of said engine, they would have discovered plaintiff in time to have avoided striking him by warning him of the approach of the engine, or by stopping the same, or slacking the speed thereof, or had they run the said engine at the usual and proper rate of speed, he would not have been injured; and in this, that those in charge of the said engine saw plaintiff and realized the danger of his being struck by the said engine in time to have avoided striking him, by the reasonable use of all the means at their command, both by giving warning and by stopping the said engine or slacking the speed thereof, but to use such means they wholly failed; and plaintiff says that he was in the exercise of ordinary care in leaving the said car and in undertaking to cross over the adjacent track under the at For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes tending circumstances, and that his injury | tember 29th appellee's motion to dismiss the was without fault or neglect on his part." We quote from appellant's brief its statement of defendant's pleadings, viz.: "Defendant, International & Great Northern Railway Company, replied, first, by general denial, and second, by a plea of contributory negligence on the part of the plaintiff in general terms and by a plea that plaintiff, in riding on the side of the moving cars, was not acting in furtherance of or in the discharge of any duty of the defendant but was acting in violation of the rules, whereby he assumed all dangers resulting from his said action in riding on the moving cars; that if plaintiff, in so riding, was in the discharge of his duty, then the injuries complained of by plaintiff resulted from risks and dangers which were ordinarily incident to the service in which he was engaged, and which he had assumed; that the risks and dangers in getting upon said moving cars, as well as the danger of jumping from said cars or crossing the adjoining track of defendant, were obvious and open to the plaintiff, and known to him and were assumed by him; that plaintiff's injuries were directly caused or contributed to by his own negligence in riding upon said moving cars and in alighting therefrom and in undertaking to cross the track of defendant in front of the approaching engine; that the engine which struck the plaintiff was open to the view of plaintiff, and if plaintiff had exercised his sense of sight and hearing, or undertaken to do So, could wholly have avoided being hurt; that both plaintiff and T. J. Freeman, receiver, at the time of the accident, were engaged in interstate and international commerce, and that the liability, if any, to plaintiff was governed by the laws of the United States, and that under these laws plaintiff was injured through risks and dangers, if any, which he had assumed; that the risk of riding upon said moving train, as well as the risk of jumping from same or of crossing the adjoining track of defendant, were risks which, under the law, plaintiff assumed, and for which he could not hold the defendant liable." appeal was filed. It is not alleged in the motion that appellee's counsel did not have sufficient time to brief the case after receiving the copy of appellant's brief. The brief covers only a few questions, the most important being questions of fact, and it is apparent that it could have been answered by devoting a few days to the task; in fact, appellee's counsel admitted in argument on the motion that it could be done in 12 hours if everything else was laid aside and attention given solely to the preparation of such reply. Following the decision of the Supreme Court in the case of S. A. & A. P. Ry. Co. v. Holden, 93 Tex. 211, 54 S. W. 751, our courts have frequently refused to dismiss appeals where the time left appellee was amply sufficient in which to answer appellant's brief. Counsel for appellee, in an argument on the motion filed since the submission was taken, insists that his statement concerning briefing the case in 12 hours should not be made the test as to whether the appeal should be dismissed. Certainly it would be exceedingly unfair to require counsel for appellee to brief a case in the least time in which it could possibly be done, when counsel for appellant has taken over a year's time. When appellant's briefs are not filed within sufficient time, appellee will be given the benefit of every doubt, and it must be evident from the nature of the brief that ample time has been afforded appellee to answer such brief, otherwise the appeal should be dismissed. While appellee had only 12 days in which to answer from the time he received the typewritten copy of the brief, yet, having asked and obtained a postponement of the submission for one week, such additional time should be considered in passing upon this motion, and, it not being alleged in the motion that appellee was injured or that he did not have ample time in which to answer appellant's brief, we overrule the motion to dismiss the appeal. Before taking up the assignments of error, we will make a brief statement of the facts bearing upon the issues submitted to the The trial resulted in a verdict and judg- jury. ment for plaintiff for $7,500. [1] Appellee has filed a motion to dismiss the appeal because briefs were not filed in the trial court nor in this court until September 26, 1913. The record was filed with the clerk of the Court of Civil Appeals of the First district on July 30, 1912, and the case, having been transferred to this court, was set for submission on October 8, 1913, but at the request of counsel for appellee the submission was postponed until October 15th. It appears that a typewritten copy of the brief was delivered by counsel for appellant to counsel for appellee about 11 o'clock a. m. on September 25, 1913, and on the morning of the next day two printed copies were delivered to said counsel for appellee. On Sep Plaintiff was a car inspector and repairer at Spring station and junction point, at which there were switching yards containing nine side tracks. A train had come in, and the engine crew and switchmen of same were busy "kicking" cars into a number of the side tracks for the purpose of carrying the train forward to Houston with such additional cars as ought to be switched into it. The cars were being "kicked" from a curved lead track into the different side tracks. A number of cars were standing on track No. 1, not more than 200 yards from the lead track, from which the switching was being done, and, as nine cars were "kicked” into track No. 1 to be added to the stationary train, plaintiff mounted the side of one of the cars The engineer and the Tuckers testified the engine was moving at the rate of four or five miles an hour. The cars were "kicked" upgrade and in fact did not come in contact with the stationary cars with any undue force. As the engine backed up track 2, the Tuckers were on the tender to keep a lookout; W. W. Tucker being on the same side as the engineer (that is, the side next to the kicked cars), while J. J. Tucker was on the other side, as was the fireman. Both of the Tuckers saw plaintiff hanging on the string of cars and saw him when he got off the cars and started across toward track 2. W. W. Tucker's testimony is not very clear, but, taking it most favorably towards plaintiff, it appears that when about 12 feet distant from plaintiff he saw that plaintiff was going to get on track 2 but did not give the stop signal until within about 5 feet of plaintiff, which was just at the time his brother called to plaintiff. At one place he states that plaintiff was about 5 feet from the engine "at the time he was about to mount the track"; at another place he gives the distance as 12 feet when plaintiff attempted to get on the track, and as 5 feet when he actually was on the track, and that he was about the center of the track when J. J. Tucker called to him and the witness gave the stop signal. to ride down to where the stationary cars | engine cut loose from the cars "kicked" into were, for the purpose of inspecting the cars track No. 1 in time to strike him as he was which were being added to said train, so running across track 2. As a matter of fact, that the train could go to Houston. The plaintiff testified he did not know that the rules of the company forbade the riding of engine ever ran into switch track No. 1, and cars through the yards by car inspectors, but the testimony of the engineer and the two the men frequently rode them for their con- Tuckers, who were on the tender of the envenience and to get through their work gine at the time plaintiff was injured, shows promptly. Plaintiff rode the cars upon this that the engine slowed down on the lead occasion to save himself a walk of less than track, and the cars were "kicked" into track 200 yards. At the time plaintiff mounted the 1, but the engine did not stop at all, as the cars the engine was not visible to him, being Tuckers threw the switch for track 2, and hid by the curve of the cars. There is no the engine without stopping moved into said evidence that the engineer or fireman, or track; the Tuckers jumping on the engine. any other member of the train crew, saw plaintiff mount the cars, and neither the engineer nor fireman knew he had gotten on the side of the cars until after plaintiff was injured. After "kicking" the string of cars into track No. 1, the engine was run back on track No. 2, distant about 10 feet from No 1, for the purpose of going after water and oil. The engineer was looking down the track in the direction he was going, watching for signals from the swing brakeman, W. W. Tucker, who was on the rear of the tender. He could have seen plaintiff on the side of the cars going down track No. 1 had he looked that way, but testified he did not do so on account of having his attention fixed down the track on which he was moving. Plaintiff concluded that the cars he was riding upon had been "kicked" with too much force and, fearing they would collide with such force as to subject him to danger, jumped off and ran diagonally across track No. 2 immediately in front of the engine, with his side toward the engine, and without looking to see whether the engine was coming on that track or not. He did not see the engine until he was on the track and the engine within about two or three feet of him. In fact, he did not know the engine had been detached from the cars he was riding. He heard no whistle or bell and saw the engine only in time to say that he saw it before it struck him. He testified the noise of the engine must have caused him to turn his head. He simply did not expect the engine to be back on that track and therefore did not look for it. He knew that engines were likely to be moved through the yards at any time, sometimes going back for water or oil or for other purposes. He also testified that the practice was to ring the bell when engines were moving to and fro in the yards. The evidence was conflicting as to whether the bell was rung upon this occasion. The rules of the company required the bell to be rung when the engine started but did not require the ringing to be kept up in the yards nor that the whistle be blown. Plaintiff testified the cars he jumped from were moving at the rate of about six miles an hour, and that the engine must have been going 20 miles an hour when it struck him. He based this estimate on the fact that the J. J. Tucker testified that the cars on which plaintiff was riding were going at the rate of about three miles an hour; that four or five feet before the engine got to plaintiff he jumped off and ran angling to the north; that as plaintiff entered track 2 witness called to him, "Look out, fellow, what in the hell do you mean?" that plaintiff was about four or five feet from the engine; that he glanced around and started to jump, at which time the engine hit him. He testified that he did not know plaintiff was going to enter track 2 until he did so, and that he immediately hallooed to him, and W. W. Tucker gave a violent stop signal, which was obeyed; the engine going about an engine's length before it stopped, which was about 62 feet. Plaintiff testified he was running across the track as fast as he could when he was struck. W. W. Tucker said plaintiff was moving at a speed just out of a walk, what he would call a trot. Of the cars to be inspected by plaintiff |