On Motion for Rehearing.

to wit, more than six miles an hour, in ex7. MASTER AND SERVANT (8 286*)-ACTION ror press violation of the orders and rules of INJURIES-QUESTION FOR JURY.

defendant, and was thereby knocked down In a car repairer's action for injuries by and injured, the injuries being set out in debeing struck by an engine, held, on the evidence, that the question whether the engineer saw plain tall. He further alleged: "That the proxitiff 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 said, was the negligence and carelessness of jury.

defendant receiver, and those of his servants [Ed. Note. For other cases, see Master and and employés in charge of the said engine, in Servant, Cent. Dig. $$ 1001, 1006, 1008, 1010 1015, 1017-1033, 1036-1042, 1044, 1046–1050 ; this, that they ran the said cars into the Dec. Dig. $ 286.*]

said siding to be brought in contact with the

stationary ones thereon, or when they knew, Appeal from District Court, Harris Coun

or in the exercise of ordinary care would ty; Charles E. Ashe, Judge. Action by Frank Walters against the In- in contact with said cars, without the engine

have known, that they would probably come ternational & Great Northern Railroad Company. Judgment for plaintiff, and defendant their movement and make it possible for the

being connected therewith so as to control appeals. Reversed and remanded.

ca rs to come together without undue and unWilson, Dabney & King; of Houston, for necessary force, and without endangering the appellant.

safety of those of defendant's employés

whose duties required them to be upon and MOURSUND, J. Frank S. Walters filed

about the said cars, and ran the said cars inthis suit against T. J. Freeman, receiver, and to the said siding with the engine detached

therefrom at an excessive and unnecessary afterwards, the receivership having terminated, the International & Great Northern speed, in violation of the said rules and orRailway Company, the purchaser of the prop- dinary care would have known, that the mov

ders, well knowing, or in the exercise of orerties at the receiver's sale, was made a

ing cars would thereby be caused to strike party to the suit.

Plaintiff alleged that on September 16, upon the stationary ones with undue and un1909, he was in the.employ of Freeman, re

necessary force, which would endanger the ceiver, as an inspector and car repairer in quired them to be upon and about the said

sa fety of those employés whose duties rehis yards at Spring; that it was his duty to inspect cars received in said yards for de cars; and in this, that the said employés in fects, and the air hose connected therewith, charge of the engine gave no warning of the and to repair such defects when he could movements of the said engine into and upon and couple up the air hose, and in the dis- the said siding by ringing the bell or blowing charge of his duty it often became necessary

the whistle, or in other manner, as was their for him to hang onto the side of cars while duty to do, and kept no lookout ahead of the they were in motion in said yard; that on engine, as was their duty to do, and ran the said date a number of cars were standing on engine at an unusual, dangerous, and exa siding, and certain employés were in cessive rate of speed, in violation of the orcharge of an engine attached to other cars ders and rules of defendant as aforesaid, and which they were backing into the siding, that, had they sounded the whistle and where the others stood, for the purpose of rung the bell or given other adequate warncoupling them together, and it became plaining, plaintiff would have been advised of the tiff's duty to inspect said cars and the air approach of said engine and have avoided hose and to couple up the air hose, and to contract therewith, or, if they had kept a this end he was riding on the ladder, on the reasonable lookout ahead of said engine, they side of one of the cars attached to the engine, would have discovered plaintiff in time to as was usual and customary under such cir- have avoided striking him by warning him cumstances; that upon the moving cars ap- of the approach of the engine, or by stopping proaching the stationary ones the speed there the same, or slacking the speed thereof, or of was not reduced, as he expected would be had they run the said engine at the usual done and as should have been done, but and proper rate of speed, he would not have rather increased, and it became manifest to been injured; and in this, that those in him that the moving cars would strike the charge of the said engine saw plaintiff and others with unusual force, and being thereby realized the danger of his being struck by put in danger, and fearing for his safety, he the said engine in time to have avoided strikjumped to the ground and undertook to cross ing him, by the reasonable use of all the another track running parallel with the one means at their command, both by giving on which the cars were moving and eight or warning and by stopping the said engine or ten feet distant therefrom, when he was slacking the speed thereof, but to use such struck by the engine which had been detach- means they wholly failed; and plaintiff says ed from the said cars and run upon the said that he was in the exercise of ordinary care track, and which was being run at an un- in leaving the said car and in undertaking to usual, dangerous, and excessive rate of speed, I 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.” appeal was filed. It is not alleged in the mo

We quote from appellant's brief its state- tion that appellee's counsel did not have sufment of defendant's pleadings, viz.: “De- ficient time to brief the case after receiving fendant, International & Great Northern the copy of appellant's brief. The brief Railway Company, replied, first, by general covers only a few questions, the most imdenial, and second, by a plea of contributory portant being questions of fact, and it is negligence on the part of the plaintiff in gen- apparent that it could have been answered eral terms and by a plea that plaintiff, in by devoting a few days to the task; in fact, riding on the side of the moving cars, was appellee's counsel admitted in argument on not acting in furtherance of or in the dis- the motion that it could be done in 12 hours charge of any duty of the defendant but was if everything else was laid aside and attenacting in violation of the rules, whereby he tion given solely to the preparation of such assumed all dangers resulting from his said reply. action in riding on the moving cars; that if Following the decision of the Supreme plaintiff, in so riding, was in the discharge of Court in the case of S. A. & A. P. Ry. Co. v. his duty, then the injuries complained of Holden, 93 Tex. 211, 54 S. W. 751, our courts by plaintiff resulted from risks and dangers have frequently refused to dismiss appeals which were ordinarily incident to the ser- where the time left appellee was amply suffivice in which he was engaged, and which he cient in which to answer appellant's brief. had assumed; that the risks and dangers in Counsel for appellee, in an argument on the getting upon said moving cars, as well as the motion filed since the submission was taken, danger of jumping from said cars or crossing insists that his statement concerning briefthe adjoining track of defendant, were ob- ing the case in 12 hours should not be made vious and open to the plaintiff, and known to the test as to whether the appeal should be him and were assumed by him; that plain- dismissed. Certainly it would be exceedingly tiff's injuries were directly caused or contrib- unfair to require counsel for appellee to brief uted to by his own negligence in riding up a case in the least time in which it could on said moving cars and in alighting there possibly be done, when counsel for appellant from and in undertaking to cross the track of has taken over a year's time. When appeldefendant in front of the approaching en lant's briefs are not fired within sufficient gine; that the engine which struck the plain- time, appellee will be given the benefit of tiff was open to the view of plaintiff, and if every doubt, and it must be evident from plaintiff had exercised his sense of sight the nature of the brief that ample time and hearing, undertaken to do so, has been afforded appellee to answer such could wholly have avoided being hurt; that brief, otherwise the appeal should be dismiss. both plaintiff and T. J. Freeman, receiver, at ed. While appellee had only 12 days in the time of the accident, were engaged in which to answer from the time he received interstate and international commerce, and the typewritten copy of the brief, yet, hav. that the liability, if any, to plaintiff was ing asked and obtained a postponement of governed by the laws of the United States, the submission for one week, such additional and that under these laws plaintiff was in time should be considered in passing upon jured through risks and dangers, if any, this motion, and, it not being alleged in the which he had assumed; that the risk of rid- motion that appellee was injured or that he ing upon said moving train, as well as the did not have ample time in which to answer risk of jumping from same or of crossing the appellant's brief, we overrule the motion to adjoining track of defendant, were risks dismiss the appeal. which, under the law, plaintiff assumed, and Before taking up the assignments of error, for which he could not hold the defendant we will make a brief statement of the facts lia ble."

bearing upon the issues submitted to the The trial resulted in a verdict and judg- jury. ment for plaintiff for $7,500.

Plaintiff was a car inspector and repairer [1] Appellee has filed a motion to dismiss at Spring station and junction point, at the appeal because briefs were not filed in which there were switching yards containing the trial court nor in this court until Sep-nine side tracks. A train had come in, and tember 26, 1913. The record was filed with the engine crew and switchmen of same were the clerk of the Court of Civil Appeals of the busy "kicking" cars into a number of the side First district on July 30, 1912, and the case, tracks for the purpose of carrying the train having been transferred to this court, was forward to Houston with such additional set for submission on October 8, 1913, but at cars as ought to be switched into it. The cars the request of counsel for appellee the sub- were being “kicked" from a curved lead track mission was postponed until October 15th. into the different side tracks. A number It appears that a typewritten copy of the of cars were standing on track No. 1, not brief was delivered by counsel for appellant more than 200 yards from the lead track, to counsel for appellee about 11 o'clock a. m. from which the switching was being done, on September 25, 1913, and on the morning of and, as nine cars were "kicked" into track the next day two printed copies were deliv- No. 1 to be added to the stationary train, ered to said counsel for appellee. On Sep-' plaintiff mounted the side of one of the cars


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 The engineer and the Tuckers testified the plaintiff mount the cars, and neither the en- engine was moving at the rate of four or five gineer nor fireman knew he had gotten on the miles an hour. The cars were “kicked" upside of the cars until after plaintiff was in- grade and in fact did not come in contact jured. After “kicking" the string of cars with the stationary cars with any undue into track No. 1, the engine was run back on force. As the engine backed up track 2, the track No. 2, distant about 10 feet from No 1, Tuckers were on the tender to keep a lookfor the purpose of going after water and oil. out; W. W. Tucker being on the same side The engineer was looking down the track in as the engineer (that is, the side next to the the direction he was going, watching for sig- kicked cars), while J. J. Tucker was on the nals from the swing brakeman, W. W. Tuck- other side, as was the fireman. Both of the er, who was on the rear of the tender. He Tuckers saw plaintiff hanging on the string could have seen plaintiff on the side of the of cars and saw him when he got off the cars cars going down track No. 1 had he looked and started across toward track 2. W. W. that way, but testified he did not do so on Tucker's testimony is not very clear, but, account of having his attention ixed down taking it most favorably towards plaintiff, it the track on which he was moving. Plaintiff appears that when about 12 feet distant from concluded that the cars he was riding upon plaintiff he saw that plaintiff was going to had been "kicked" with too much force and, get on track 2 but did not give the stop sigfearing they would collide with such force as nal until within about 5 feet of plaintiff, to subject him to danger, jumped off and ran which was just at the time his brother called diagonally across track No. 2 immediately in to plaintiff. At one place he states that front of the engine, with his side toward the plaintiff was about 5 feet from the engine “at engine, and without looking to see whether the time he was about to mount the track”; the engine was coming on that track or not. at another place he gives the distance as 12 He did not see the engine until he was on the feet when plaintiff attempted to get on the track and the engine within about two or track, and as 5 feet when he actually was three feet of him. In fact, he did not know on the track, and that he was about the centhe engine had been detached from the cars ter of the track when J. J. Tucker called he was riding. He heard no whistle or bell to him and the witness gave the stop signal. and saw the engine only in time to say that J. J. Tucker testified that the cars on he saw it before it struck him. He testified which plaintiff was riding were going at the the noise of the engine must have caused rate of about three miles an hour; that four him to turn his head. He simply did not or five feet before the engine got to plaintiff expect the engine to be back on that track he jumped off and ran angling to the north ; and therefore did not look for it. He knew that as plaintiff entered track 2 witness callthat engines were likely to be moved through ed to him, “Look out, fellow, what in the hell the yards at any time, sometimes going back do you mean?” that plaintiff was about four for water or oil or for other purposes. He or five feet from the engine; that he glanced also testified that the practice was to ring around and started to jump, at which time the bell when engines were moving to and the engine hit him. He testified that he did fro in the yards. The evidence was conflict- not know plaintiff was going to enter track ing as to whether the bell was rung upon this 2 until he did so, and that he immediately occasion. The rules of the company requir- hallooed to him, and W. W. Tucker gave a ed the bell to be rung when the engine start-violent stop signal, which was obeyed; the ed but did not require the ringing to be kept engine going about an engine's length before up in the yards nor that the whistle be it stopped, which was about 62 feet. blown.

Plaintiff testified he was running across Plaintiff testified the cars he jumped from the track as fast as he could when he was were moving at the rate of about six miles struck. W. W. Tucker said plaintiff was an hour, and that the engine must have been moving at a speed just out of a walk, what going 20 miles an hour when it struck him. he would call a trot. He based this estimate on the fact that the of the cars to be inspected by plaintiff some were destined to points beyond the of injury and to run across said track, under state.

the circumstances he claims he did, and be. [2, 3] By the first assignment of error lieve that those in charge of the engine knew complaint is made because the court in- of plaintiff's position on the car, and of his structed the jury, if they believed the Tuck- probable ignorance of the approach of the ers saw plaintiff and realized the danger to engine, if he was ignorant thereof, or in the which he was being exposed of being struck exercise of ordinary care would have known by the engine, then it was their duty to use thereof and would, in the exercise of such all reasonable means at their command that care, have foreseen that plaintiff, under the persons of ordinary prudence would have circumstances, would probably jump from used, under the circumstances, to prevent the car and run across the track, and in so injury to plaintiff; and if the jury believed doing would be exposed to the danger of they failed to use such means, and that being struck by the engine, and believe that such failure was the proximate cause of those in charge of the engine, in the everthe injury to plaintiff, then to return a ver- cise of ordinary care, should and could have dict for plaintiff. The contention is that rung the bell or blown the whistle or given there is no evidence to support the submis- other warning to plaintiff of the approach sion of said issue. In view of W. W. Tuck of the engine, and that, had either been er's testimony, we think the evidence jus- done, he would have been advised of the tified the submission of the issue. If he approach thereof and avoided contact theresaw plaintiff about to enter track 2 while with, and you believe they failed to do either the engine was 12 feet distant from plain- to warn him, and believe such failure, if tiff, then his brother also saw him under any, was negligence, and that such neglithe same circumstances, and the jury could gence was the proximate cause of the illfind that they should have at once called to jury of plaintiff, you will return a verdict plaintiff and given a stop signal instead of for plaintiff; but, unless you so find, you waiting until he had stepped on the track. will return a verdict for defendant.” The From the evidence it appears that a heavy objection made to this charge is that it engine cannot be stopped in less distance submits various matters concerning which than that testified to in this case, namely, there is no evidence, and that the issue about 62 feet, so it is not made to appear whether failure to blow the whistle or ring that a stop signal alone would have availed the bell was the proximate cause is made anything; but, as the engine was going dependent upon contingencies of an uncerslowly, the extra distance might have been tain character dependent upon actions of of much avail if plaintiff had been warned plaintiff not to be anticipated or foreseen. by the Tuckers as he was about to step on There is no evidence that the persons in the track. In considering this matter we charge of the engine, viz., the engineer and of course must view the evidence most fa- fireman, who were the only persons who vorably to appellee and must necessarily could give signals by means of whistle or discard the testimony of J. J. Tucker as to bell, knew that plaintiff was riding the the position of plaintiff when he called to cars until after he was injured; nor is there him and accept that of W. W. Tucker as any evidence that they knew he was probto the distance from the engine when he ably ignorant of the approach of the enfirst saw that plaintiff was about to step gine, nor that they could or would, in the upon the track. It follows that, if J. J. exercise of ordinary care, have foreseen Tucker saw plaintiff all the time, he also that plaintiff would jump from the cars saw him about to step on the track when which in fact did not collide violently with 12 feet distant from the engine, and it was the stationary ones, nor that, if he did jump for the jury to say, in view of all the cir- off, he would run across track 2 instead of cumstances, whether said J. J. Tucker and staying between the two tracks. If it should W. W. Tucker exercised ordinary care to be contended that the Tuckers were paruse all the means in their power to pre- tially in charge of the engine and saw plainvent the injury, and, if they did not exer- tiff on the cars, then the fact remains that cise such care, whether by exercising the they could not reasonably anticipate that sa me they could have averted the injury. plaintiff would become apprehensive withWe overrule the assignment.

out cause and jump from the cars, and that [4, 5] By assignment No. 2 another com- he was ignorant of the approach of the enplaint is made of the charge; the portion gine and would run across right in front objected to being copied in the assignment of the same instead of staying between the and being very long. After requiring the two tracks. An injury which could not finding of various matters, descriptive of have been foreseen or reasonably anticipated how plaintiff came to be injured, as al- as the natural and probable result of a neg. leged by him, the court aûùed the follow-ligent act is not proximately caused by such ing: “And you believe 'kicking the cars act. At the time when the appellee claims into the siding at the rate of speed at which the employés of appellant should have given they were 'kicked' would have caused a warning by ringing the bell or blowing the person of ordinary prudence, situated as whistle, there were no facts or circumstaueplaintiff was, to jump from the car for fear, es known to them which would cause them to reasonably anticipate that the failure to ring the bell or blow the whistle would cause NUNN V. PADGITT BROS. et al. injury to appellee or any one else. Under (Court of Civil Appeals of Texas. Dallas. the facts they could not anticipate injury Nov. 22, 1913. Rehearing Denied to appellee as probable until it became ap

Dec. 20, 1913.) parent that he was verging upon track 2 in 1. CHATTEL MORTGAGES (8$ 220-222, 225*)—

CONVERSION BY MORTGAGOR. a manner indicating that he did not know

While a chattel mortgagor in possession of the existence of the engine on said track. may sell the property in recognition of the T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 mortgagee's right, a sale in denial of such right S. W. 162; Kreigh v. Westinghouse c. K. would be a conversion by the mortgagor and & Co., 152 Fed. 120, 81 C. C. A. 338, 11 L. also by the purchaser if he persisted in deny

ing mortgagee's right. R. A. (N. S.) 684; Railway v. Reiden, 48 Tex.

[Ed. Note.-For other cases,

see Chattel Civ. App. 401, 107 S. W. 661; Pullman Co. Mortgages, Cent. Dig. SS 468–470; Dec. Dig. $$ V. Caviness, 53 Tex. Civ. App. 540, 116 s. 220-222, 225.*] W. 412; Railway v. Elliott, 55 Fed. 949, 5 2. TROVER_AND CONVERSION (8 11*)-OWNERC. C. A. 347, 20 L. R. A. 582; Railway v.

SHIP OF PROPERTY. Welch, 100 Tex. 118, 94 S. W. 333. We sus certain the ownership thereof at his peril, bis

Since one who buys personalty must astain the assignment.

possession in denial of the real owner's right if The third assignment relates to the suff- the seller had no authority to sell is a converciency of the evidence, while the fifth com-sion of the property. plains of the verdict as excessive. In view Conversion, Cent. Dig. 88 95-98; Dec. Dig. $

[Ed. Note.-For other cases, see Trover and of another trial, we will not go into the 11.*] matters raised by these assignments.

3. CHATTEL MORTGAGES (S$ 220-222*)-SALE There is no merit in the fourth assign- OF PROPERTY-CONVERSION BY MORTGAGOR. ment of error complaining of the charge on Where the mortgagee of chattels sold the contributory negligence under the federal mortgage notes to plaintiff and subsequently Employers' Liability Act of 1908, and the in effect a mortgagor in possession as to plain

purchased the mortgaged property, he became same is overruled.

tiff ; and hence his subsequent sale of the [6] Assignment No. 6 is overruled. The property in denial of plaintiff's rights was a court did not err in refusing to give the

(Ed. Note.-For other cases,

see Chattel charge on assumed risk. In view of the Mortgages, Cent. Dig. 88 468-470; Dec. Dig. 88 fact that the issue of discovered peril was 220–222.*] in the case, it would have been improper 4. CHATTEL MORTGAGES (8 225*)—Recording to have given the charge in question, which -EFFECT BETWEEN PARTIES. applied to the whole case. When plaintiff That a chattel mortgagor denied, when he seeks a recovery upon the issue of discovered sold property covered by a recorded chattel

mortgage, that the property was incumbered peril as well as upon other theories, charg- I would not be a defense to the right of the es on contributory negligence and assumed mortgagee to sue the purchaser of the proprisk should be limited to be considered only erty for its conversion by the denial of such

mortgagee's rights. upon the other theories, as such defenses

(Ed. Note.-For other cases, Chattel cannot be urged to defeat liability arising Mortgages, Cent. Dig. $$ 468-470; Dec. Dig. by reason of discovered peril. Railway v. 1 8 225.*] Finn (Civ. App.) 107 S. W. 94; 8. C., 101 Tex. 5. CHATTEL MORTGAGES ($ 225*)_RECORDING 511, 109 S. W. 918; Kelley v. Railway, 101 -EFFECT AS TO PURCHASERS. S. W. 1166; Railway v. Scarborough, 104

The fact that the county clerk advised purS. W. 408.

chasers of property covered by a recorded

chattel mortgage that the property was not The judgment is reversed, and the cause mortgaged would not prevent the purchasers remanded.

from being liable to the mortgagee for its con

version. On Motion for Rehearing.

[Ed. Note. For other cases, see Chattel MOURSUND, J. [7] We have carefully Mortgages, Cent. Dig. $$ 468-470; Dec. Dig. S

225.*] considered appellee's motion for rehearing 6. CHATTEL MORTGAGES ($ 225*)—PURCHASE and conclude that the evidence is sufficient OF MORTGAGED PROPERTY-CONVERSION BY for the jury to find that the engineer, not- PURCHASER. withstanding his denial, did see appellee on

That defendant agreed to advance money the side of the car. However, we are still recorded chattel mortgage only on condition

with which to purchase property covered by a of the opinion that the evidence did not that mortgagors should first convey to her that justify the submission of the issue whether she might convey to her son and in that meththose in charge of the engine should have od give her what she considered greater secu

rity for the money advanced would not pregiven signals by bell or whistle. There were vent defendant's purchase from being a converno facts charging them with notice that ap- sion of the property as to mortgagee. pellee did not know the engine was on the (Ed. Note.-For other cases, see Chattel other track, nor that appellee would proba- Mortgages, Cent. Dig. $8 468–470; Dec. Dig. bly jump from the cars, and, if so, that he

§ 225.*] would run across in front of the engine in. 7. CHATTEL MORTGAGES (8 170*)–CONVERSION

OF PROPERTY. stead of remaining between the tracks.

Whoever with actual or constructive now The motion is overruled.

tice of the chattel mortgage is directly or in•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes


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