* cause, and that therefore he was not entitled | common carrier by [or] railroad under or by to recover. virtue of any of the provisions of this act to recover damages for personal injuries to an employé. * * The fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé." Acts (1st Extra Sess.) 1909, p. 280; Revised Statutes 1911, art. 6649. We will not undertake to follow at length appellant's argument in support of this contention. The contention here made would be applicable in determining liability of the defendant as it exists at common law and as applied by the courts of this state prior to the passage of the Employers' Liability Act. As we understand it, the rule urged by appellant is the same, in effect, as that formerly given by the courts of this state for the holding that contributory negligence of the plaintiff was an absolute bar to his right of recovery even where it was indisputably shown that the defendant's negligence was a contributing cause of the injury. Some of the authorities base the reason of the rule upon the view that, where plaintiff's negligence contributed to the injury, his contributory negligence breaks the causal connection between the injury and defendant's negligence; in other words, his negligence is the proximate cause, and not the negligence of defendant. Among the authorities that so hold are 2 Labatt on the Law of Master and Servant, p. 2234; 2 Cooley on Torts, pp. 1411, 1412, 1414; 1 Shearman & Red. on Negligence, p. 88; Wharton on Negligence, pars. 300, 303, 133. On the other hand, our Supreme Court has stated the reason of the rule as follows: "The reason why a person who, if guilty of contributory negligence contributing to his own injury, cannot recover is because the policy of the law will not ordinarily permit one to recover who is himself at fault." Hays v. Railway, 70 Tex. 607, 8 S. W. 493, 8 Am. St. Rep. 624. In Railway v. Sympkins, 54 Tex. 619, 38 Am. Rep. 632, it is said: "If a party be wrongfully on the track under such circumstances, or, being there, acts in such a way as to be himself the proximate cause of his own injury, he will be precluded from recovery on grounds of public policy, as being himself guilty of contributory negligence. Although the company's agents may have failed in proper watchfulness, the injured person is regarded as being himself too directly a cause of the injury to be allowed to complain. It is not that no wrong has been done by the company in the negligence of its agents, but that the injured party is precluded from complaining of that wrong." To the same effect, are Railway v. Adams, 44 Tex. Civ. App. 288, 98 S. W. 224, and Railway v. Olds, 112 S. W. 792. But the reason for the former rule that denied a recovery to a plaintiff whose own negligence contributed to his injury is beside the question now before us. [3] That was the law before the adoption of the Employers' Liability Act, and it will be presumed that the Legislature knew the law at the time the act was adopted, and intended to take away from it some of its rigors. The act is as follows: "That in all actions hereafter brought against any such We [4] This act changes the rule of the common law which precludes the injured employé from recovering where his negligence contributed to his injury, and substitutes therefor a denial of recovery for only such an. amount as the jury may determine from the evidence is attributable to his negligence. The question here presented is not a new one in this court, for substantially the same question was presented and overruled in Houston Belt & Terminal Company v. Woods, 149 S. W. 376; writ of error refused. quote from the opinion: "By a second proposition under the second assignment it is contended that it was error for the court in the part of the charge complained of to submit to the jury whether the negligence of defendant, if shown, in providing lighting which was insufficient and not reasonably safe was the proximate cause of the injury. and death of John Woods, for the reason, as it contends, the undisputed testimony shows that the alleged injury to John Woods was caused by his own voluntary act in taking the lighted lantern into a place of danger, in violation of orders and instructions, when it was not necessary for him to do so, and that such voluntary act on his own part intervened between the alleged negligence of defendant and the injury, and became itself the proximate and supervening cause, without which the injury would not have occurred, thus leaving the alleged negligence of defendant remote in its relation to the injury, and not actionable in law. The claim of broken causal connection because of contributory negligence on the part of the deceased, if it could be allowed, would have the effect of entirely abolishing the doctrine of contributory negligence in every case. The negligence of defendant was a continuing negligence, and, if it resulted in the injury and death of Woods, was the proximate cause thereof, and the only effect of Woods' contributory negligence would be to bar a recovery therefor under the law as it stood prior to the adoption of the act of April 13, 1909; but, since the adoption of that act. the only effect of contributory negligence of the injured party would be, not to bar a recovery, but to diminish the damages in proportion to the amount of negligence attributable to the injured employés." The first four propositions under the assignment are overruled. By its fifth proposition under the first as signment appellant asserts that under the eighth paragraph of the court's charge, above quoted, it was left for the jury to say whether or not, if plaintiff had been found negligent in not having his train properly under control, such negligence was a contributing or concurrent proximate cause with negligence of the defendant; whereas, it contends that the law is that such negligence of plaintiff, if shown, would necessarily be a concurrent and proximate cause, and refers to the cases of Railway v. McCoy, 90 Tex. 264, 38 S. W. 36; Railway v. Rowland, 90 Tex. 365, 38 S. W. 756; Culpepper v. Railway, 90 Tex. 631, 40 S. W. 386, and other cases in support of its contention. In the cases referred to the court charged the jury on the question of plaintiff's contributory negligence, and submitted the question as to whether such contributory negligence was the proximate cause of plaintiff's injury in such a form as to mislead the jury, and to impress upon their minds that, although the plaintiff was guilty of negligence in doing an act which necessarily caused his injury, they might yet find for him, if they found it did not contribute to his injury, and it was held that such a charge was erroneous, and required a reversal of the judgment. No such vice is found in the portion of the charge here complained of. A similar complaint was made of a charge in Railway v. Lester, 99 Tex. 221, 89 S. W. 752, and our Supreme Court, in passing upon the point, uses the following language: "This question has been presented to this court so frequently of late that it suggests the propriety of calling the attention of the bar to the following cases upon which the objection is based [citing the McCoy, Rowland, and Culpepper Cases]. Chief Justice Gaines wrote the opinion in each of those cases, and carefully distinguished the charges being then examined from charges like this. The charges in those cases were held to be erroneous, because they submitted the question as to whether the negligent act contributed to the injury in such form as to mislead the jury, and to impress upon their minds that, although the plaintiff was guilty of negligence in doing an act which necessarily caused his injury, they might yet find for the plaintiff, if they found it did not contribute to his injury." affirmative error, nor was it misleading or confusing as complained in the sixth proposition. The first assignment and all the propositions thereunder are overruled. Under the second and third assignments of error appellant presents the proposition that the court erred in the ninth paragraph of its charge in telling the jury that, if they did not believe from the evidence that plaintiff was guilty of any negligence on the occasion of the collision, as submitted by the court, they would not diminish plaintiff's damages in the event they found he was entitled to recover, and in the tenth paragraph of the charge, which states the elements of damage. The contention here made is that it was error to confine the jury to the contributory negligence of plaintiff in the particulars pleaded by defendant and submitted in the charge, but that, if on the trial acts of plaintiff were proved which raised the issue of plaintiff's contributory negligence, they should have been submitted, although not alleged. It is contended that plaintiff's own testimony showed his contributory negligence, where he says, in effect, that he assumed that the main line was clear because the switch target showed white, and that he acted partly on this assumption in coming into the switch at the rate of speed he did. Defendant did not plead that plaintiff was. contributorily negligent in this regard; but it argues that under the Employers' Liability Act the common-law rule in vogue in Texas that the burden upon the issue of contributory negligence is upon the defendant has been abrogated, or at least the rule that contributory negligence must be specifically pleaded is of necessity abolished by the act. There can be no question, we think, that plaintiff's testimony did not make him prima facie guilty of contributory negligence as a matter of law, but at most only raised the issue of such negligence on his part, and that it did raise such issue is doubtful. He did not testify that he relied entirely on the switch target being white instead of red; but all his testimony shows that he reasonably anticipated the extra freight was on the side track as it should have been, or, if not, that the switchboard would have been turned to show red instead of white, lining up the track for the siding, and that, in ad as he ought, of the presence of the extra on the main track, that, until he had reason to apprehend the contrary, it was proper for him to run his train at any rate of speed within the limit prescribed by the rule of 25 miles per hour, and that as soon as he did discover that the extra was on the main line he used every means at hand to avoid the collision and injury. In Parks v. San Antonio Traction Com-dition, he would have received due warning, pany, 100 Tex. 222, 94 S. W. 331, 98 S. W. 1100, it is held, in effect, that a charge stating generally the law governing the defense of contributory negligence, which directs a verdict for defendant, if, from the evidence, such negligence is found to have existed, and to have proximately contributed to cause plaintiff's injury, is not affirmative error against defendant, though the evidence was conclusive that the act, if negligent, was also a proximate cause. [5] We hold that the charge in the respect in which it is here complained of was not [6-8] It will be thus seen that the testimony not only did not show negligence on plaintiff's part as a matter of law on account of his assumption of a clear track because et al. (Court of Civil Appeals of Texas. Texarkana. of the switch target being white, but, if be- [evidence, which we will not pause to set out lieved by the jury, he was thereby exon- or restate, was ample, we think, to justify erated from any negligence whatever. But the amount of the award. We suggest that we cannot agree with appellant's counsel in cases of this kind it would be the better that the act referred to has abrogated the practice to have the jury make a finding as common-law rule placing the burden of to whether they find the plaintiff guilty of pleading and proving contributory negligence contributory negligence, and, if they do so of the plaintiff upon the defendant. The find, then to find the amount of the damages act itself does not abolish the defense of con- he sustained, and also the extent they dimin tributory negligence, but recognizes it. True, ish his damages on account thereof. There the defense is a qualified one; but to the being no reversible error in the record, the extent it is allowed and recognized it is per- judgment of the court below is affirmed. fect. It will not allow the defendant to es- Affirmed. cape all the corsequences of its wrong merely because the plaintiff has contributed thereto by his wrong; but it requires a defendant to respond in damages for all the injuries its HOUSTON OIL CO. OF TEXAS ▼. JONES wrong inflicts, less the proportion thereof that the plaintiff contributes thereto by his negligence. When plaintiff alleges and proves facts which show that he has been hurt as a result of another's negligence, he has done all that the law requires of him in order to a recovery. If the defendant would escape so much of the consequences of its wrong as the plaintiff by his negligence has wrought to himself, then it should plead and prove it. Rosenbaum Grain Co. v. Mitchell, 145 S. W. 1188. It is only where the proof made by plaintiff shows that he is prima facie guilty of contributory negligence as a matter of law that the court is justified, without pleadings of defendant, to instruct a verdict for defendant, and under the act in question the court could, in such case, only instruct the jury to diminish in proportion to the amount of the negligence attributable to plaintiff. The assignments and propositions thereunder are overruled. [9, 10] We will not discuss the remaining assignments of error presented by appellant in detail, because to do so would extend this opinion, already too long, beyond all reasonable bounds. It must suffice to say that we have carefully examined all the assignments and the several propositions submitted under them, and are of the opinion that no 1. APPEAL AND ERROR (§ 499*)-RECORDRESERVATION OF GROUNDS OF REVIEW. Assignments of error based on the refusal of the court to give a peremptory instruction for appellant must be overruled in the absence of anything in the record to show that such instruction was ever called to the court's attention or acted on by it. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. 499.*] 2. APPEAL AND ERROR (§ 1070*)-REVIEWHARMLESS ERROR-VERDICT AND JUDGMENT. Where the petition alleged that a described tract contained 160 acres, and sought recovery of an undivided one-half, or, if it contained more, an undivided one-half of 160 acres, that the verdict and judgment awarded an undivided one-half of the land as set forth in the petition, without more definite description, was not a fundamental error, since it cannot be said as a matter of law that the petition failed to describe the 160 acres claimed, and the verdict and judgment were in conformity there with. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. § 1070.*] 3. ADVERSE POSSESSION (§ 95*)-TRIAL-ADMISSIBILITY OF EVIDENCE. Evidence of failure to pay taxes on land during the time it was alleged that adverse possession was being asserted was material and admissible as against the claimants by adverse possession. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 530-532; Dec. Dig. § 95.*] reversible error is pointed out in any of them. The special charges requested by defendant, the refusal to give which is the basis of several assignments of error, were properly refused, because such of them as were correct were sufficiently covered by the court's charge. Several of the special charges directed that 4. APPEAL AND ERROR (§ 1056*)-REVIEWHARMLESS ERROR-EXCLUSION OF EVIDENCE. in the event the jury found that plaintiff's Refusal to admit evidence of failure to pay injuries were contributed to by his negli- taxes on land during the time it was claimed gence to find for defendant. These were in- that adverse possession was being asserted by correct, because they ignored the act provid-appellees was reversible error where, in view of all the testimony, the exclusion of such eviing that the effect of such contributory neg-dence is deemed to have been injurious to apligence is to diminish the damages only. The assignment which complains that the verdict of the jury is excessive must be overruled. There is nothing in the record to indicate that the jury found that the plaintiff was contributorily negligent, or that they diminished the damages suffered by him by reason of any such negligence on his part. The pellant. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.*] Appeal from District Court, Newton County; W. B. Powell, Judge. Action by H. C. Jones and another against the Houston Oil Company of Texas. From *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes a judgment for plaintiffs, defendant appeals. Reversed and remanded. Hightower, Orgain & Butler and W. H. Davidson, all of Beaumont, and H. O. Head, of Sherman, for appellant. Jno. B. Warren, of Houston, for appellees. LEVY, J. This was an action of trespass to try title brought by the appellees against appellant to recover an undivided one-half interest in a tract of land described by metes and bounds in the petition. Appellant answered by denial and plea of not guilty. In a trial to a jury there was a verdict and judgment for appellees for an undivided onehalf of 160 acres out of the land described in the petition. There was a trial agreement that the title to the land in controversy was good in the Houston Oil Company of Texas, and that it has title thereto unless same has been divested out of the said company by the adverse possession of those under whom plaintiffs claim. The verdict of the jury was in favor of appellees. [1] The first and second assignments are presented together, and must be overruled. The assignments are predicated on the refusal to give a peremptory instruction for appellant. The record does not show that the special charge of peremptory instruction was ever called to the court's attention or acted on by him. The fourth assignment is based on a bill of exception to certain evidence. We think Pa. 126, 22 Atl. 1048; Boyd v. Railway Co., there was no error. Thornton v. Britton, 144 101 Tex. 411, 108 S. W. 813. [3, 4] The seventh assignment predicates error upon the refusal to permit evidence of the failure to pay taxes on the land in suit during the time it was claimed D. M. Jones was asserting adverse possession. It has been ruled that such evidence was proper and material. Harris v. Wagnon, 148 S. W. 606. Considering all the testimony in this case, it is deemed injurious to appellant to have been denied the evidence sought, and is reversible error. The other assignments, except the one involving the sufficiency of the facts, should be overruled. It is not necessary to pass on the facts, and we do not undertake to do so. The judgment is reversed, and the cause remanded for another trial. MADRID et al. v. STATE. (Court of Criminal Appeals of Texas. Oct. 15, Where the indictment and evidence would have sustained a conviction of either assault to murder, maiming, or robbery, but the offenses all arose out of one transaction, the state was required to elect the offense for which it would seek a conviction, since, while defendants could be convicted of any one, they could not be con [2] The third assignment is presented as a fundamental error. The contention is that the verdict of the jury awarded appellees an undivided one-half of 160 acres of the land described in plaintiffs' petition, and the judg-victed of more than one. ment describes the land awarded to appellees merely as an undivided one-half interest of a 160 acres of land out of the land described in the plaintiffs' petition, setting out the metes and bounds of the entire land as in the petition. The point made is that there was no sufficient and definite description of 160 acres, one-half interest in which was awarded appellees, by which such 160 acres can be identified. It was alleged in the petition that the land so described had been surveyed for appellees on several occasions, beginning in 1872 as 160 acres of land, and that it contained 160 acres. Plaintiffs further alleged that they were the owners of a one-half undivided interest in the land de [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678.*] 2. CRIMINAL LAW (§ 1167*)—INDICTMENT— SEPARATE OFFENSES. Where an indictment in separate counts charged assault to murder, maiming by cutting off prosecutor's ears, and robbery, defendants were not prejudiced by the fact that the court only submitted the charge of robbery, since the for the most grave offense, included in the instate was entitled to elect and ask a conviction dictment, which the evidence would support. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. § 1167.*] 3. INDICTMENT AND INFORMATION (§ 171*)— JOINT DEFENDANTS-SEPARATE CONVICTION. persons named did unlawfully and willfully Where an indictment charged that three make an assault on prosecutor, etc., all were not entitled to an acquittal unless the evidence showed that they jointly committed the offense, but one or more could be convicted according to the proof of guilt. scribed, and in the alternative that, if it [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 536, 537, 549; Dec. Dig. § 171.*] CRIMINAL LAW (§ 111*)-JURISDICTION-OF- county line and evidences of the crime were Where an offense was committed near a •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes ty under Code Cr. Proc. 1911, § 238, providing Appeal from District Court, Erath Counthat an offense committed on the boundary of ty; W. J. Oxford, Judge. any two counties may be prosecuted in either. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 229; Dec. Dig. § 111.*] 5. CRIMINAL LAW (§ 775*)-INSTRUCTIONSALIBI. Where, in a prosecution for robbery, the court gave the ordinary charge of alibi and then gave a special charge at defendants' request that though the jury might believe beyond a reasonable doubt that defendants were present at or near the place where the alleged assault was committed, yet if they further found that there was any mistake as to the personal identity of defendants as being parties who committed the offense, or if they had reasonable doubt as to whether they were the parties, they should acquit, the defendants' identity as the persons guilty of the offense was sufficiently submitted. Mose Madrid and others were convicted of robbery, and they appeal. Affirmed. C. Nugent, of Matador, B. E. Cook, of Stephenville, and W. F. Ramsey and C. L. Black, both of Austin, for appellants. C. E. Lane, Asst. Atty. Gen., for the State. HARPER, J. On the 4th day of February, 1913, the appellants were indicted by the grand jury of Erath county. The indictment contains three counts; the first charging them with assault to murder one J. D. Roasewell, the second charging them with maiming him by cutting off his ears, and the third charging them with robbing the said Roasewell. It may be said the evidence offered in behalf of the state would support either and all the above counts. However, the court 6. CRIMINAL LAW (§ 800*)-INSTRUCTIONS- only submitted the third count in the indictWILLFUL. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1833-1837; Dec. Dig. 8 775.*] In a prosecution for robbery, it was prop-ment, and appellants insist that, as the evier for the court to define the word "willful" dence, if it would support the third count, and require that the jury find that the robbery was unlawful and willfully committed, though the statute defining the offense does not in terms require that the robbery be willfully done. [Ed. Note.-For other cases, see Criminal Law. Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. $ 800.*] 7. CRIMINAL LAW (§ 1172*)-INSTRUCTIONS PREJUDICE. Accused, in a prosecution for robbery, was not prejudiced by an instruction that the robbery must have been willfully committed, since such requirement only imposed an additional burden of proof on the state. [Ed. Note.-For other cases. see Criminal Law, Cent. Dig. $$ 3128. 3154-3157, 31593163, 3169; Dec. Dig. § 1172.*] 8. CRIMINAL LAW (§ 1124*)-MOTION FOR NEW TRIAL-NEWLY DISCOVERED EVI would also support the other two counts, the court should in his charge have submitted all three of the counts; that if the court had done so the jury might have found appellants guilty of either assault to murder or maiming, and, as the punishment for either of these two latter offenses is less than that affixed to the offense of robbery, appellants were materially injured by the court only submitting the graver offense for their consideration. [1] While it is true that under the indictment in this case and the evidence adduced thereunder the appellants could have been convicted of either assault to murder, maiming, or robbery, yet as it was all one transaction they could not be convicted of all three offenses, nor any two or them, and it has always been held that, when the elements entering into a transaction would constitute two or more offenses, the state has the right to elect which one of the offenses for which it will seek a conviction. [2] By the court only submitting robbery, appellants suffered no injury of which they will be heard to complain. Under the charge of the court, if the jury had not believed, beyond a reasonable doubt, that appellants were guilty of robbery as charged in the third count, they would have been compelled to acquit appellants, even though they had believed them guilty of either maiming or assault to murder. This is a matter of which the appellants cannot be heard to complain, as the state has the right to elect and ask a conviction for the most grave offense which the evidence will support. Branch, in his Criminal Law, correctly states the rule to be: "He (state's counsel) may carve as large an offense out of a single transaction as he can, but he must cut only once"-citing Grisham v. State, 19 Tex. App. 513; Paschal v. State, 49 Tex. Cr. R. 111, 90 S. W. 878; For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |