note and debt sued upon in the case of Delaney against the Walkers. The issue there involved was whether Cora Walker was 11able for this note and debt. The same issue is here involved. The judgment in that suit settled this issue against appellant and in favor of Cora Walker, and is res adjudicata as to this suit. Moore v. Snowball (Tex. Sup.) 81 S. W. 5, 66 L. R. A. 745; Scott v. Bank, 84 S. W. 445, 11 Tex. Ct. Rep. 845. It follows that the judgment should be affirmed. Affirmed. On Rehearing. The appellant complains of our conclusions of fact, and asks that the same be modified. Possibly the statement in the opinion that "it cannot be successfully controverted, and is in fact admitted, that the note and debt for which the deed of trust was foreclosed is the same note and debt sued upon in the case of Delaney against the Walkers," is too sweeping. It was the same note declared upon in that case, and Mr. Dye, one of appellant's attorneys, testified that it is the same note that he introduced in evidence in that case. It is apparent from our conclusions of fact that it is for the same debt. While it is not admitted by counsel that the note and debt for which the deed of trust was foreclosed is the same note and debt sued upon in the case of Delaney against the Walkers, it is clear that such is the case. To this extent the opinion is modified. tain fees claimed by them for services as attorneys. The county judge being disqualified, a special judge was agreed upon, who tried the case. The trial before the court without a jury resulted in a judgment for defendant, to which plaintiffs excepted, and perfected an appeal. Conclusions of Fact. Morris & Crow, a firm of attorneys at law residing in Dallas, were employed as assistant counsel to represent W. A. Kesterson in the case of John Bailey et al. against W. A. Kesterson, in trespass to try title to 409 acres of land near the town of Pittsburg, of the value of about $25 per acre, then pending in the district court of Camp county. E. A. King was leading counsel for Kesterson, and Morris agreed to assist him in the defense of said cause in said district court for a fee of $100, which was paid. The contract of employment was made by letter written by King at Kesterson's request to Morris. This letter has been lost. Morris testified that the offer by letter was to pay $100 for his services in the district court. King, after testifying to writing the letter to Morris offering him $100 to assist him in the case, says: "I do not remember that I said anything about any court or courts. Just wrote that we wanted him to go into the case with me." Morris replied that he would accept the offer for employment, but Kesterson would have to pay his expenses in attending court. Morris was present and assisted King in the trial of said cause in said district court, and, judgment having been rendered for plaintiffs for one-half the land, he assisted in the preparation of the statement of facts and other necessary papers preparatory to an appeal by Kesterson. Morris returned to Dallas, and wrote a letter to Kesterson demanding an additional fee of $150 for representing him on appeal. To this letter no reply was made. After waiting a short time, Morris wrote E. A. King, and asked him to see Kesterson about such fee, and see if it was to be arranged. King replied that Kesterson was sick, and not able to attend to the matter of answering Morris' letter. Not wishing to desert the cause of a sick man, and knowing the time would soon expire for perfecting the appeal, Morris continued to assist with the appeal. Some time thereafter King wrote Morris that Kesterson understood that the $100 paid to him was to cover his services through all the courts, and further stated that he wanted him to go ahead with the appeal. Morris procured the transcript, briefed the cause, and did all necessary work to prepare it for submission in the appellate court. The case having been affirmed, Morris prepared and filed a motion for rehearing, and upon its being overruled he prepared a petition for a writ of error to the Supreme Court. This was refused. Kesterson paid the expenses of Morris to Camp county to try the cause, and also paid for printing the brief. During the pendency of the appeal Morris and Kesterson met at Pittsburg. At this meeting Morris demanded a fee of $150 for his services on appeal, but Kesterson refused to pay; claiming that the $100 paid was to pay for his services in all the courts. Kesterson told Morris that he expected him to go on with the case in the appellate court, and Morris replied that he would have to pay his fee of $150 if he did so. It was shown that $150 was a reasonable fee for representing Kesterson in the land suit on appeal. In fixing fees it is the custom of the attorneys of the Pittsburg bar to fix the amount for representing the case through all the courts, unless the services are definitely limited to the trial court. Morris had no knowledge of this custom. Morris testified that in the conversation between King, Kesterson, and himself, which occurred on about the 7th of March, 1904, King told Kesterson that in the event the Supreme Court decided the title case against him, and affirmed the decision of the trial court and the Court of Civil Appeals, the Baileys would bring a partition suit, but that he (King) would represent him (Kesterson) in that case without any additional fee. Kesterson then asked Morris if he would do the same thing, and Morris replied that he would if Kesterson would pay the $150 that he charged for the appeal in the original case. Kesterson then told Morris that he wanted him to go on and represent him in the partition suit in the event it came up. Shortly after this time the partition suit was filed to the May term, 1904, of the district court of Pittsburg, and Morris was present and filed an answer in said cause, setting up, as an offset to rent, taxes and improvements amounting to about $3,180, and asking that the improvements set out in said answer be given to Kesterson on the land set aside to him, if it could be done. Later, in May, 1904, the decree was agreed to and entered, dividing said land and appointing commissioners. This agreement judgment was prepared by Morris, and is in his handwriting. Kesterson does not, in his testimony, deny that Morris, with his knowledge, assisted in the partition suit, but says he did not employ him in that suit, and did not know that he was claiming anything for his services in that suit. It was shown that Morris' services were reasonably worth $100 in the partition suit. was a very small fee for the services of Morris & Crow in the district court alone. There being positive evidence that the employment of Morris & Crow had reference alone to the district court, and that the fee of $100 paid was for their services in that court, they were entitled to recover for the reasonable value of their services rendered at Kesterson's request in the appellate courts. The evidence shows that $150 would be reasonable compensation for such services. Again, Morris assisted in the partition suit, and he says that he was induced to do so by Kesterson, and that his services were rendered with his knowledge and for his benefit. Kesterson does not deny knowledge of the fact that Morris was assisting in that case, but does say he did not employ Morris, and did not know until this suit was brought that he was claiming pay for his services in the partition suit. There was evidence that Morris' services were worth $100 in that case. It is held that if a party induces an attorney reasonably to suppose that his services are desired, and avails himself of them, without objection, a promise is implied on his part to pay the attorney what such services are reasonably worth. Fore v. Chandler, 24 Tex. 146; Ector v. Wiggins, 30 Tex. 55. The offer of Morris not to charge for his services in the partition suit was made in a spirit of compromise, and was conditioned upon Kesterson's payment of the $150 fee for Morris' services in the appellate courts. This offer was not accepted, Kesterson having failed to pay that fee. It follows that the appellants were entitled to recover the reasonable value of the services rendered by them, and the trial court erred in not so holding. The case having been tried by the court without the intervention of a jury, the judgment is reversed, and here rendered for appellants for $250. Reversed and rendered. Opinion on Rehearing. We were in error in our conclusion to the effect that Kesterson did not deny knowledge of the fact that Morris was assisting in the partition suit. In the motion for rehearing our attention is called to the following statement in Kesterson's testimony: "I did not know that he [Morris] had ever done anything in that case [the partition suit] as an attorney until he testified in this case today." This evidence escaped our attention when the case was decided. In view of this testimony, the judgment allowing appellants $100 for services in the partition suit is er ror. The motion for rehearing is granted, and the judgment is reversed, and here rendered for appellants for $150 for the services of appellants in representing Kesterson in the case of Bailey et al. v. Kesterson in the appellate courts. WILLIAMSON et al. v. GULF, C. & S. F. RY. CO.* (Court of Civil Appeals of Texas. June 3, 1905.) 1. NEGLIGENCE - RAILROAD ABUTMENTS PLACES ATTRACTIVE TO CHILDREN. Defendant's railroad on each side of a creek in a city was built on a dump. A bridge had been constructed over the creek, with stone abutments 30 feet high, similar to those constructed by railroads generally, so laid as to form steps leading from the base of the dump to the railroad track on each side. Across defendant's railroad at that point was a beaten track, used by the public, connecting with the stone stairway; but there was no obstruction on the precipice side of the abutment to prevent a person from falling over the same, and defendant's right of way fence did not extend across the abutment. Such abutment was attractive to children, and while plaintiffs' child, four years of age, was attempting to walk down such steps, he fell from same, and received injuries from which he died. Held, that such facts were insufficient to show an invitation or permission to the public or to plaintiffs' child to use the abutment as a passway. [Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 47, 55.] 2. SAME-CARE AS TO TRESPASSERS. Where plaintiffs' child, in using the stone abutment of a railroad bridge as a passway, was a trespasser, the railroad company owed him no duty except to avoid willfully injuring him. [Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 45-47; vol. 41, Cent. Dig. Railroads, §§ 1235-1239.] Error from District Court, Dallas County; Richard Morgan, Judge. Action by E. B. Williamson and others against the Gulf, Colorado & Santa Fé Railway Company. From a judgment in favor of defendant, plaintiffs bring error. Affirmed. This is an action for damages, brought by plaintiffs in error against defendant in error for causing the death of plaintiffs' minor son. The trial court sustained a general demurrer to the first amended petition of plaintiffs, and, they declining to amend, the court dismissed the suit, rendering judgment for defendant, and from this action plaintiffs prosecute this writ of error. The petition alleged: That defendant owns and operates a railroad in Dallas county, which runs through the city of Dallas and city of Oak Cliff, and on or about July, 1900, constructed a bridge on its right of way across Cedar creek, in Oak Cliff, in a thickly settled and populous part of said city, near and north of the paper mill. That the abutments to said bridge are about 30 feet high above the creek, built of square or oblong stones, and so constructed as to form stone steps leading up each side from the outer edge of the base of the dump up to the track of said railway, forming a most attractive, beautiful, and fascinating stairway leading up the embankment, overlook Rehearing denied June 17, 1905, and writ of error denied by Supreme Court. ing the sparkling stream below as an overhanging precipice, and looking across said railroad, forming a most attractive and inviting footpath and roadway for pedestrians to cross the railroad at said point, whereby an invitation, direct and implied, was ex tended by defendant to the public and the child mentioned to use said stairway as a crossing of said railroad at said point. That at the time the child was injured there was a well-beaten path across defendant's roadway at said point, used by the public, and connected with said stairway leading over said railroad dump. That the fence extends along the right of way of defendant to said stairway, but not across same, leaving negligently an open way and invitation by defendant to the public and to said child to use said stairway, and it was so used by the public at the time said child was injured. That on the precipice side of said stairway there was no railing or obstruction whatever to prevent a person crossing from falling overboard, and the same was negligently omitted, and any one crossing said stairway who might lose his balance was sure to fall on the hard rocks and gravel at the bed of the stream underneath same, which at the highest point of the stairway was about 30 feet high. That said stairway was fascinating and dangerous, and was on the route along the railroad bed, and down said stairway along a path in common use by the public leading to South Oak Cliff, known as "Thomas' Hill," and to a pond to which people commonly resorted for the purpose of catching fish. That all of said facts were known to the defendant, or by reasonable diligence could have been known to it, and it negligently and knowingly constructed and so maintained said stairway as an open, unobstructed way across its right of way knowing it was in use by the public, and that it was attractive and dangerous, and without any notice to the public of its dangerous nature and character, whereby there was a direct and implied invitation to use said stairway and an intention to injure those who might use it. That June 6, 1902, George Dewey Williamson, son of plaintiffs, four years of age, on said direct or implied invitation of defendant, was attempting to walk down said stone steps of said abutments, when he lost his balance and fell a distance of about 25 feet on the dry stone bottom of the bank of said creek, and received injuries from the effects of which he died in about eight hours. That he was attracted to said stone steps by the direct or implied invitation of defendant and his childish inclination to walk or play thereon, and while going on the path from the railroad down said stairway to a fish pond beyond. That the dangerous nature of said steps rendered them attractive, but a dangerous place for children, and this fact was, or ought to have been, known by defendant. That at the time and before said injury plaintiffs were newcomers in said neighborhood, and had no knowledge whatever of said steps, and did not know of their attractive or dangerous condition. That said bridge is located near a large number of residences, and the children from that locality frequently go there to play and walk over said steps, and there was then no notice posted warning against trespassing on said premises. That said child, being of tender years, was not guilty of negligence in going on said steps, and it was accompanied by a brother eleven years old and a sister nine years old, all going fishing; and these children were of tender years, and not of sufficient discretion to know the danger of going down said steps, and were not guilty of negligence in allowing said injured child to go on same; and plaintiffs had no knowledge whatever of said piers, or that their children would go down same on their way to said fish pond, and were not guilty of negligence in allowing same. Plaintiffs claim damages in the sum of $20,000. Morris & Crow, for plaintiffs in error. Alexander & Thompson, for defendant in error. BOOKHOUT, J. (after stating the facts). The question presented is, did the court err in sustaining a general demurrer to the petition? The material allegations of the petition are, in substance, that defendant's railroad on each side of Cedar creek, in Oak Cliff, is built on a dump and that in constructing a bridge over said creek the defendant erected abutments of stone, so laid as to form stone steps leading from the base of the dump up to the railway track on each side; that from the top of the abutments to the bed of the creek is about 30 feet; that there was a well-beaten path across defendant's railway at said point, used by the public, and connecting with said stairway, leading over said dump; and that these steps formed "a most attractive, beautiful, and fascinating stairway leading up the embankment, overlooking the sparkling stream below as an overhanging precipice, and looking across said railroad, forming a most attractive and inviting footpath and roadway for pedestrians to cross the railroad at said point, whereby an invitation, direct and implied, was extended by defendant to the public and the child mentioned to use said stairway as a crossing of said railroad at said point." It was further alleged that there was a fence extending along the right of way of defendant to said stairway, but that it did not extend across the same, and that this was an invitation to the public and to plaintiffs' child to use said stairway. It was shown that there was no railing or other obstruction on the precipice side of said abutments to prevent a person from falling over the same. The petition did not show that this abutment was constructed in any manner different from the ordinary railroad bridge abutment where the track is built on a dump, or that this bridge abutment is not the same as the usual bridge abutments of all railroads. The abutment was on the defendant's right of way. Are these facts sufficient to show an invitation to the public and to the plaintiffs' child to go upon or cross over this bridge abutment? The rule established in this state is that, where the owner maintains upon his premises something which, on account of its nature and surroundings, is especially and unusually calculated to attract and does attract another, the court or jury may infer that he intended it as an invitation to the public to enter upon such premises. But where the owner makes such use of his property as others ordinarily do throughout the country, there is not, in legal contemplation, any evidence from which a court or jury may find that he had invited the party injured thereon, though it be conceded that his property, or something thereon, was calculated to and did attract. Railway Co. v. Morgan, 92 Tex. 98, 46 S. W. 98. The fact that the slope of the abutment was constructed with recess steps, in the absence of evidence that this is not the usual and ordinary way of constructing the same, does not show an invitation, express or implied, to make use of the steps as a stairway. Railway bridge abutments, whether constructed on a grade or on a dump, are so common and in such general use in the operation of railroads, that when erected on the railway right of way they cannot be said to furnish any evidence of an invitation to the public or children to go upon the same. Railway Co. v. Edwards, 90 Tex. 65, 36 S. W. 430, 32 L. R. A. 825; Dobbins v. Railway, 91 Tex. 60, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856. The facts alleged do not show an implied invitation to plaintiffs' child to go upon said bridge abutment. Again, it is insisted that there was a wellbeaten path over the right of way, connecting with said abutment, which was used by the public in crossing the railroad at said point. No such use of this pathway by the public was shown as would justify the conclusion that a person crossing the track over such pathway was a licensee. No express or implied permission on the part of the railroad company for the use of its right of way for a crossing was shown. Railway Co. v. Shiflet, 11 Tex. Ct. Rep. 490, 83 S. W. 677. The failure to extend the right of way fence so as to include the abutment to the bridge did not show an intention to make a crossing of the bridge abutment. The fact that no railing was placed on the precipice side of the abutment would tend to negative such a conclusion. Plaintiffs in error's child not being a licensee, but a trespasser, in entering upon the bridge abutment, the defendant in error only owed him the duty to avoid willfully inflicting injury to him. We conclude that the demurrer to the petition was properly sustained, and the judgment is affirmed. In a proceeding to condemn a railroad right of way, the court submitted a special verdict asking the market value of the 5.23 acres of land taken at or just prior to the appropriation, the value of the residue of defendant's land at or just before the condemnation of the 5.23 acres, and the market value of the residue of defendant's land just after the appropriation. The jury answered the first two questions "$12 per acre," and the third "$10.65 per acre. Held, that the answers were not responsive to the issues, and were insufficient to sustain a judgment. 2. SAME-PETITION. Under Sayles' Ann. Civ. St. art. 4447, providing that in proceedings to condemn land the statement filed with the county judge shall "state in writing the real estate and property sought to be condemned," the purpose of such condemnation, the name of the owner thereof, and his residence, if known, the petition need not allege the amount of defendant's land not taken which might be injured by the appropriation, such subject being a matter of proof. 3. SAME TAKING LAND FOR RAILROAD RIGHT OF WAY-INSTRUCTIONS. In proceedings to condemn land for a railroad right of way, an instruction requiring the jury to consider, in estimating defendant's damages, the construction of a proposed depot and switch at the intersection of plaintiff's railroad and that of another railroad, was erroneous as on the weight of evidence, in assuming that such construction constituted a special benefit to defendant's land. 4. SAME-DAMAGES-DEDUCTION OF BENEFITS. Where the construction of a certain railroad depot and switches a half mile from defendant's land was a benefit to him only in common with the community in general, it was not a special benefit, which the railroad company was entitled to have deducted from the amount of damages recoverable by defendant in condemnation proceedings. [Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 390-393.] 5. SAME-ADMISSIBILITY OF EVIDENCE. In condemnation proceedings, evidence as to particular purchases of land made by a witness in the vicinity was inadmissible without further proof that the lands purchased were similar in situation and otherwise to those of the defendant. [Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 267.] 6. SAME-DAMAGES-FLOODING LAND. Since a railroad is bound by statute to construct its railroad with necessary culverts and sluiceways, and is liable to a property owner for injuries caused by its failure to do so, damages sustained by an overflow caused by the construction of plaintiff's railroad embankment were not recoverable in a proceeding to condemn certain of defendant's land for a right of way. [Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, § 236.] Appeal from Hardeman County Court; W. J. Jones, Judge. Proceeding by the Panhandle & Gulf Railway Company to condemn certain land, belonging to R. H. Kirby, for a right of way. *Rehearing denied June 10, 1905. From a judgment assessing damages, Kirby appeals. Reversed. Osbourne, Marshall & Hall and Bowyer & Tillett, for appellant. H. C. Hord, Fires & Decker, and Duncan G. Smith, for appellee. SPEER, J. This is a condemnation proceeding instituted by appellee against appellant, and the appeal is from a judgment in the county court awarding appellant $1,203.51. After instructing the jury by general and special charges, the court submitted to them for determination the following special issues: "(1) What was the market value of the 5.23 acres of land at or just before the appropriation of same for roadbed and right of way purposes on the 12th day of April, 1902? (2) What was the market value of the residue of defendant's body of land at or just before the condemnation and appropriation of said 5.23 acres by appellant? (3) What was the market value of the residue of defendant's body of land just after the appropriation by plaintiff of said 5.23 acres?" The jury answered the first two questions, "$12 per acre," and the third, "$10.65 per acre," and upon this verdict the court proceeded to render judgment for the amount of $1,203.51, as aforesaid. It is insisted that the answers of the jury were not responsive to the special issues submitted, and were incomplete, and therefore the court erred in receiving and entering judgment on them. It is clear that within itself the verdict does not authorize judgment for any amount whatever, and that the court looked beyond it in entering the judgment he did. Du Bose v. Battle (Tex. Civ. App.) 34 S. W. 148; Galveston, H. & S. A. Ry. Co. v. Botts (Tex. Civ. App.) 55 S. W. 514; Oriental Investment Company v. Barclay (Tex. Civ. App.) 64 S. W. 80. It is not a case for the application of the rule that a cause will not be reversed for the failure of the court to submit an issue where there has been no request for such submission, because the court did submit these special issues in a manner satisfactory alike to both parties, but the difficulty is that the answers are not responsive and practically no answers at all. We apprehend the court arrived at the amount of the judgment upon a basis of 850 acres, the amount of land alleged by the appellee to be in appellant's farm. But in this statutory proceeding there is nothing to require such an allegation in the petition, and we do not think the owner can be thus limit ed in his recovery of damages to his entire tract by reason of the condemnation of a right of way through it. The demand of the statute with reference to the description required in the statement to be filed with the county judge is that it shall "state in writing the real estate and property sought to be condemned, the object for which the same is sought to be condemned, the name of the owner thereof and his residence, if known.” |