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very much similar to ours, which authorizes ties that the trial court held the deed void upan estate to be created which may commence on the ground that in its character it was tesin futuro. The strong similarity between tamentary. The learned counsel for the appelthe deed there under consideration and those lant denies that the deed is in any respect tesin controversy here, together with the perti- tamentary, and insists that by it there was a nency of the opinion, induces us to set it out conveyance of the premises therein described in full:

to the grantee, and that tbe subsequent and Action in ejectment by appellant to recover questionable clause therein contained was incertain real estate and to quiet title thereto. tended by the grantor as a reservation or The error assigned is that the court erred in postponement of the full use and enjoyment of sustaining a demurrer to appellant's com- the realty by the grantee until after the death plaint. A condensed statement of the facts of the grantors; that after the demise of as they appear in the complaint is as follows: each of these the deed in question was to be

"That on November 18, 1867, one Bazzle in full force, or, in other words, that the comCarrico was the owner in fee simple of cer- plete enjoyinent of the use and occupation of tain described lands situated in Sullivan said land by the provision of the clause in county, Indiana. On that day he and his controversy was postponed until after the wife, Frances, duly executed to one Elza Car- death of Carrico and wife, and was then fully rico a deed for the real estate sought to be to vest in the grantee. Upon the other hand, recovered in this action; said deed being as the learned counsel for the appellee say that follows, to wit:

they do not controvert but what the instru" "This indenture witnesseth tbat Bazzle ment in question was intended by the parties Carrico and Frances Carrico, his wife, of as a deed, and not as will, and concede that Sullivan County in the state of Indiana, con- it has all the formalities of the former. But vey and warrant to Elza Carrico, of Sullivan they coutend that it was the evident purpose County, in the state of Indiana, for the sum and intent of the grantor to reserve all the of one hundred and fifty dollars, the follow- estate wbich he intended to convey, and that ing real estate, in Sullivan County, in the the deed was not to take effect until after the State of Indiana, to wit: the northeast quar- death of himself and wife, and that hence it ter of the northeast quarter of section 31, must be held to be testamentary in its chartownship seven, north of range eight west, acter, and therefore void, for the reason that with the exception of ten acres off the east it is not executed in accordance with requireside of the forty acres, containing thirty ments of the statute on wills. The instruacres, more or less. The above obligation to ment in question calls for a judicial construcbe of none effect until after the death of the tion, and in this the court must seek for, and said Bazzle Carrico and Frances Carrico, be guided by, the intention of the grantor. then to be in full force. In witness whereof, And this intention must be deduced and arthe said Bazzle Carrico and Frances Carrico rived at by consideration of all of its parts, bave hereunto set their hands and seals, this and in this construction we must observe and 18th day of November, 1867.

adhere to the rule that this deed, in both the " 'Bazzle Carrico.

[Seal.] granting part and clause under consideration, her

must be construed most strongly against the " 'Frances X Carrico. (Seal.] grantor and in favor of the grantee. mark.

“It was a principle recognized by the feudal ""State of Indiana, Sullivan County-ss.:

law that there should always be a known Before me, Benson Usrey, a justice of the owner of every freehold estate, and that the peace in and for said county, this 18th day title thereto should never be in abeyance. of November, 1867, came Bazzle Carrico and Hence at common law a freehold to comFrances Carrico, and acknowledged the exe

mence in futuro could not be conveyed, for cution of the annexed deed.

the reason that the same would be in abey"'Witness my hand and official seal. Ben- ance from the execution of the conveyance son Usrey, J. P. [Seal.]'”

until the future estate of the grantee should "This deed was recorded in a few days aft- vest. Under the statute of this state a freeer its execution in the recorder's office of hold estate may be created to commence in Sullivan county, Indiana. On March 9, 1870, futuro (section 29:59, Rev. St. 1881 ; section Elza Carrico and wife conveyed the land in 3379, Rev. St. 1894); and hence the commoncontroversy, by a warranty deed, to appellant, law principle above stated has been entirely for and in consideration of the sum of two

abrogated. This deed is in the statutory hundred and fifty dollars ($2.30), and they form, and in the granting part accords with provided in this deed that the land was con- the provisions of section 2927, Rev. St. 1881 reyed subject to the life estate of Bazzle and

(section 3346, Rev. St. 1894), and contains Frances Carrico. This deed was also ac- what are by law made operative words of knowledged and recorded. Bazzle Carrico

conveyance, and in effect transfers all the esdied on September 6, 1872, and his wife, tate or interest of the grantors in the lands Frances, died on January 11, 1892. Other in suit to the grantee. The terms 'convey and facts not necessary to be considered in the warrant,' when given their legal purport or determination of this case are omitted.

acceptation, fully indicate an intention to “We are informed by the briefs of the par- i convey a present estate to the grantee ani! defend the title thereto, and in no way is it, of many authorities upon the question inapparent or to be inferred from these words volved, held that such an instrument must that the grantors intended to devise the real be construed as conveying a present interest estate in question. The instrument was ac- in the real estate, the full enjoyment of knowledged and recorded in like manner as which was postponed until after the grantor's are other deeds. Therefore we fail to recog. death. In the case of White, Adm'r, v. Hopnize anything which signifies that it was in-kins, 80 Ga. 154, 4 S. E. 863, cited in Cates tended to serve the purpose of a will. The V. Cates, supra, the deed contained this question then arises, what was the purpose clause or condition: 'The title to the above intended to be served by the inapt expression, described tract of land to still remain in the namely, 'To be of none effect until after the said Lemuel Hopkins (grantor) for and durdeath of said Bazzle Carrico and Frances Car- | ing his lifetime, and at his death to immerico, then to be in full force.' It is evident diately vest in the said Lewis Hopkins (gran. that the drafting of the indenture in question tee].' It was held by the Supreme Court of was not skillfully performed, and that there Georgia in that case that an absolute title by it very closely approximates to what may was by this deed conveyed to the grantee; be termed the 'danger line,' by which a judi- that it passed a present interest in the land, cial construction might result in adjudging and took effect immediately, and after its the deed to be a nullity.

execution it was irrevocable by the grantor. “While it may be said in regard to the In Graves V. Atwood, 52 Conn. 512, 52 Am. point under consideration that the author. Rep. 610, the deed contained the following: ities 'fight on both sides of the question, "The condition of this deed is such that I however, we find that in the later decisions hereby reserve all of my right, title and in. the courts are inclined to uphold a deed of terest in the aforesaid described pieces of this character, if, upon a reasonable inter- land, with all the buildings thereon during pretation of all its parts, it can be said that my natural life. It was held by the court the grantor did not intend to create, or, in that this condition, read in the light of the other words, execute, that which must be grant, was to be interpreted as a reservation construed and held to be yoid. In constru- of the same measure of use thereafter as tening written instruments, courts · frequently ants for life as the grantor had before endo—and properly, too-give to an expression joyed as its owner. In Webster v. Webster, a meaning different from that which it or- 33 N. H. 18, 66 Am. Dec. 705, the condition dinarily bears, in order to import sense into

was: 'Reserving all the right, title and init, and make it speak that which, upon an

terest in and unto the above named land,' inspection of the whole, the parties really etc., 'for and during my natural life.' In intended that it should. We find that there Bunch v. Nicks, 50 Ark. 367, 7 S. W. 563, is no ambiguity in the granting clause of the the deed contained the following clause: deed in the case at bar, and consequently 'And the deed shall go into full force and we are left free to effectuate the intention

effect at my death,' The court held this of the grantor expressed in the subsequent

deed to be a valid one, conveying a present clause or condition. The grantors had, as we title to the grantee, with the right of poshave seen, by operative words, clear and session and use postponed until the grantor's significant, conveyed an interest or fee in death. In Wyman v. Brown, 50 Me. 139, the präsenti to the grantee. Having done this, deed was as follows: "This deed. not to take they could not, in legal parlance 'blow hot effect during my lifetime-to take effect and and cold,' or, in other words, reserve or take be in force from and after my death.' This back that which they had granted. In the was held to be valid. In the case of Abcase of Owen v. Williams, 114 Ind. 179, 15 bott v. Holway, 72 Me. 298, the instrument N. E. 678, the instrument in contest was in contained this clause: "This deed is not to the form of a deed, and in the granting take effect and operate as a conveyance clause, by its terms, 'did convey and war- until my decease. This was held to be a rant to Williams after my decease and not good and valid conveyance. In Shackelton before.' This court held that the phrase v. Sebree, 86 Ill. 616, the deed contained 'after my decease and not before' did not covenants of warranty, and also this clause: make the deed testamentary, but was meant "This deed not to take effect until after my and operated to show that the grantee's use death-not to be recorded until after my deand enjoyment of the realty would not begin cease. This instrument was held operative under the deed until after the death of the as a deed, and not intended as a testamengrantor. In the case of Cates v. Cates, 135 tary disposition of property. These author. Ind. 272, 34 N. E. 957, the deed therein in ities—most of them, at least-were citeå controversy was also in the statutory form, with approval by this court in Cates v. Cates, but contained the following ' reservation: supra. "The grantor Prior Cates hereby expressly "It is a settled rule that in the interpreexcepts and reserves from this grant all the tation of an instrument, where the terms estate in said lands, and the use, occupa- employed are ambiguous or susceptible of tion, rents and proceeds thereof unto himself more than one meaning, the court will conduring his natural life.' This court in that sider the subsequent acts of the parties to case, upon a full review and consideration ascertain how they understood it, and as indicating what construction they placed upon , opinion, but correctly construed the instruit. H. G. Olds Wagon Works v. Coombs, 124 ment executed to Katherine Flora McLain Ind. 62, 24 N. E. 589, and cases there cited; and Mattie Lou McLain. We are of the Lyles v. Lescher, 108 Ind. 382, 9 N. E. 365. opinion that all three instruments are not However, while it is proper to resort to this of a testamentary nature, but that they were rule to show a practical construction by the intended as deeds. In view of the fact that parties, still, after all, the intention must there is some question in the case as to the be determined from the words of the instru- delivery of these instruments, we are not ment. The manner in which this deed was prepared to reverse and render. Therefore treated by the parties in this case, as it ap- the judgment will be reversed, and the cause pears, is briefly as follows: It was execut- remanded. ed in 1867 for a valuable consideration, and Reversed and remanded. duly recorded. In 1870, during the lifetime of the grantors, for a valuable consideration, the grantee sold and conveyed the land to the appellant, subject to the life estate of the LEWIS v. HOUSTON ELECTRIC CO. former. This deed was also recorded. Baz

(Court of Civil Appeals of Texas. June 2, zle Carrico died in 1872, two years and over

1905.) after the conveyance to the appellant.

1. CABBIEB AND PASSENGER—WHEN RELATION Frances, his wife, died in 1892, nearly BEGINS. twelve years after this second conveyance; When a person desiring to become a pasand not until after her death, so far as it is

senger on a street car stations himself at a

place where the cars are accustomed to redisclosed, was this deed called in question.

ceive passengers, and signals or calls to the moThese subsequent acts of the grantors, in suf- torpan of an approaching car to stop the car, fering the deed to be placed upon record, and and such signal is seen by the motorman, and in permitting the land to be sold and con

the car slows up, an acceptance of the offer to

become a passenger will be implied from the veyed by their grantee to the appellant, sub

act of the motorman; and such person is enject to their life estate, are incompatible titled to be regarded as a passenger while in with the contention of appellee, and hostile

the act of getting on the car, though he at. to the theory now advanced and advocated

tempts to board the car before it comes to a full

stop, and irrespective of whether the motorman by him. In Broom's Maxims, star page 540, intended to stop the car for the purpose of alin translating a fundamental maxim of the lowing him to get on. law, it is said: 'A liberal construction should [Ed. Note.-For cases in point, see vol. 9, be placed upon written instruments, so as to

Cent. Dig. Carriers, 88 988, 989.] uphold them, if possible, and carry into ef

2. SAME-CONTRIBUTORY NEGLIGENCE. fect the intention of the parties. Applying

The attempt of a passenger to board a

street car while it is in motion is not conthe reason and the principle as laid down tributory negligence, as matter of law. by the authorities cited, and guided by the [Ed. Note.-For cases in point, see vol. 9, rule of construction that the clause in con- Cent. Dig. Carriers, 8 1369.) troversy must be construed most favorably 3. APPEAL HARMLESS ERROR INSTRUC

TIONS. to the grantee, we cannot hold that the

In an action for injuries to a passenger, grantors intended that this obligation was

where the court charged that plaintiff was reto be null and void, but we are constrained quired to prove that the injuries were caused to decide that it conveyed a present interest by the failure of the defendant's employés to use in the real estate to the grantee, the full

ordinary care, and failed to give a charge de

fining negligence as between a carrier and a enjoyment of which was by the subsequent

passenger, or stating the degree of care clause intended to be postponed until after quired of a carrier for the protection of a pasthe death of both of the grantors. By so

senger, defendant's contention that the error

was harmless, because the undisputed evidence holding we carry into effect the intention

showed that defendant's servants failed to use of the parties, and we fail to recognize any care whatever to prevent the injury, and wherein this construction works an injury therefore, if the jury had found plaintiff's stateor injustice to any one. This interpreta

ment of the circumstances under which he was

injured was true, they must have found in his tion, we think, will simply carry out the

favor, notwithstanding any error in the charge, intention of Carrico and his wife, and give was untenable. protection to the rights of a purchaser, ac- 4. INJURY TO PASSENGER CONTRIBUTORY quired on the faith of their deed and their

NEGLIGENCE-BURDEN OF PROOF.

In an action for injuries to a passenger, acts. The conclusion we have reached ren

where plaintiff's evidence did not show negliders it unnecessary to consider the repug

gence on his part, as matter of law, the burden nancy, if any, existing between the grant was on the defendant to establish its plea of and the exception. However, when such

contributory negligence. does exist, it is well settled that the latter is

[Ed. Note.-For cases in point, see vol. 9,

Cent. Dig. Carriers, $ 1399.] void. See cases cited in Cates v. Cates, su

5. APPEAL - ASSIGNMENTS OF ERROR-BRIEFS pra. It therefore follows that the court err

-RULE OF COURT. ed in sustaining the demurrer to the com

Where some assignments of error are not plaint."

discussed in appellant's brief, and those disWe have reached the conclusion that the

cussed are permitted to retain their original trial court erred in the construction placed

numbers, instead of being consecutively number

ed, as required by rule 29 for the Courts of upon the two deeds first mentioned in the Civil Appeals (67 S. W. xv), but are discussed

re

in the same order as if they had been consecu- in every part.” The defendant answered by tively numbered, there is a mere technical vio- general demurrer, general denial, and pleas lation of the rule, which is insufficient to require the court to refuse to consider the as

of contributory negligence, in which it is signments.

averred, in substance, that plaintiff was in6. SAME.

jured while lying in an intoxicated condition Where assignments of error discussed in by the side of defendant's track, obscured appellant's brief are followed by statements

from the view of the operatives of the car, containing no reference to the pages of the record for verification, as required by rule 31

or, if he was not injured while so lying near for the Courts of Civil Appeals (67 S. W. xvi), the track, he was injured while attempting but otherwise sufficient, there is a mere techni

to board defendant's car at a place where cal violation of the rule, which is insufficient to

said car did not stop to receive passengers, require the court to refuse to consider the assignments.

and without giving any notice to the op

eratives of said car of his desire to become a Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

passenger thereon. The trial in the court

below, by a jury, resulted in a verdict and Action by C. P. Lewis against the Houston

judgment in favor of the defendant. Electric Company. From a judgment in fa

It is unnecessary to set out the evidence vor of the defendant, plaintiff appeals. Re

at length; it being sufficient to say that there versed.

is sufficient evidence to support the allegaHume, Robinson & Hume, for appellant. tions of the petition, and there is also evi. Baker, Botts, Parker & Garwood, for appel- dence sufficient to establish the averments lee.

of defendant's pleas of contributory negli

gence. PLEASANTS, J. This is a suit by appel- The accident in which appellant was inlant against appellee to recover damages for jured occurred near his residence, in Houston personal injuries. The appellee company op- Heights, and near the point at which the erates an electric street car line in the city street car track crosses the track of the of Houston, and between that city and Hous- Houston & Texas Central Railroad Compaton Heights, a suburb thereof. Plaintiff al- ny. He testified as follows: "I went through leges in his petition that he was injured on the house and out of the front door, and August 29, 1903, by the negligence of de- went across the little path that leads from fendant's employés; the circumstances un- my gate to the H. & T. O. Railroad track; der which he was injured being thus stated: that being the place I had been in the habit "That on or about said date the plaintiff, de- of getting on the Houston Electric Compasiring to take passage to said city by said ny's street car. I went there for the purpose line, and with the purpose of doing so, and of getting on that car. When the car got being prepared to pay his fare therefor, sig- up pretty close to the Central tracks, I heard naled and called to a car thereof, and to the the two bells to go ahead, and then I yelled motorman of said car, whereto was attached to the motorman to stop. He was probably another car, called a “trailer,' returning from eight or ten feet from me, and I threw up said Houston Heights, to stop where the de- my hand and I yelled to him to stop. I fendant's track for incoming cars crossed the thought the motorman was looking at me, as track of said Houston & Texas Central Rail- his face was turned towards me. I think he road Company; it being usual and customary must have seen me as he came over the railfor the cars of said line to stop or slow at road track. When I yelled to the motorman, that place for the receipt of passengers. he turned off the power, and the car came That thereupon the said cars were checked, over the Central tracks very slowly. It was and while passing over said crossing in slow pulling a trailer, a rear car, and as the trailer motion, and as, from said checking and slow- came over, and just about the time the car ing, he believed, for the purpose of admitting was off the tracks-probably three or four him thereto, the plaintiff, with due care, took feet from it-they threw on the power, and hold with his hand of the stanchion or the the car pulled out; but in the meantime, behandhold thereof of the trailer, and stepped | fore they threw on the power, I had caught on the running board thereof, and was about ahold of the car, and had my foot on the to enter and seat himself therein, when said running board. The extra speed thrown on cars were, by the defendant and its servants it pulled my feet from under me, and I went and agents operating them, suddenly, vio- down. That is the last I remember until lently, and negligently jerked and driven for- after my arm was off. I was going to ride ward, and thereby and by reason thereof the on the car. I had the money to pay my plaintiff was shaken and torn from his hold fare." On cross-examination he testified: of hand and feet, thrown to the ground, his “When I left the house I took the path and body caught and dragged by the car along went to where the street car line crosses the and over the cross-ties and the track for a Houston & Texas Central Railroad. I went distance of sixty feet, his left arm cut, mash- straight down the H. & T. C. tracks and saw ed, and severed from his body by the wheels the car coming. It was probably seventyof the car, his ribs broken, wrenched, and five feet from me. I was standing on the dislocated, and his head, body and limbs, left-hand side of the track, from seven to members and organs, bruised and lacerated nine feet from the H. & T. C. track, on the

cross over.

side towards town. The H. & T. C. crosses tween a carrier and passenger, or stating the the street car line diagonally at that place. degree of care required of a carrier for the When I gave the signal to the motorman, protection of a passenger, was given the jury. the car was right at the Central Railroad It is clear from this statement that the tracks—the motor car. It bad not begun to charge complained of required appellant to

The motorman had his hand on prove that his injuries were caused by the the brake, and was looking sideways, to- failure of appellee's employés to use ordinary wards me. I believe he saw me. There was care, and it is unnecessary to cite authority nothing to keep him from seeing me. There to sustain the proposition that a carrier owes was a man on the front end of the car with its passengers the duty to exercise that high the motorman, on the left-hand side of the degree of care to prevent injury to them which motorman, and probably two feet from him. a very careful, prudent, and competent perThe front car was an open summer car. The son would exercise under like circumstancar did not come to a stop before it crossed ces. It follows that, if the pleading and evithe H. & T. C. tracks. It checked up com- dence raise the issue of whether appellant susing across the railroad track, after I gave tained the relation of passenger to the appelthe signal. The front car came on across. lee carrier at the time he was injured, the I made no effort to get on the front car. charge contains an affirmative misstatement The trailer then came on across.

I was of the law, which will require a reversal of standing about nine feet from the H. & T.

the judgment of the trial court. From the C. track. I made an effort to get on the evidence offered by the appellant, before set trailer about the second seat from the front, out, the jury were authorized to find that he as well as I remember. I was on the left- left his home with the intention of taking hand side. As well as I remember, I caught passage on appellee's car to the city of Housahold of the trailer with my right hand. It ton, and, in furtherance of this intention, he was going slow. I stood upon the running

took a position near appellee's track at a board. I do not think I got both my feet place where it was accustomed to stop its on the running board. I had one hand ahold cars for the purpose of receiving passengers ; of the car, and one foot in midair, and they that when the car, on its way to the city, apthrew on the power and gave the car a sud- proached the appellant, he called and signalden jerk, and I fell. Don't know whether I ed to the motorman to stop; and that the fell to the ground. After my head struck I

motorman saw his signal, or heard his call, don't remember anything about it. I was and slowed the car down, and the appellant, unconscious after that. It was good dusk or

being prepared and willing to pay his fare, dark at the time. I gave the signal to the and believing that the car was being stopmotorman by throwing up my hand and ped for the purpose of taking him on as a bollering to him. I told him to stop. I say

passenger, attempted to board it, and, while he was looking at me and saw me. I was

so doing, was injured. The pleading supnot under the influence of liquor at the time." ports these facts, and, if they are true, appelThere was testimony from other witnesses to

lant was, in contemplation of law, a passenthe effect that appellee's cars were frequent- ger at the time he received his injuries; and ly stopped for the purpose of receiving pas- appellee was charged with the duty of using sengers at the place at which appellant says

that high degree of care to protect him from he attempted to board the car on this oc

injury which a very careful, prudent, and casion.

competent person would have used under like The first assignment of error presented in circumstances. It may often be difficult to appellant's brief assails the charge of the determine just when the relation of carrier court on the ground that it instructs the jury and passenger begins, and what acts of the that, to entitle plaintiff to recover, he must parties are necessary to create such relation, prove by a preponderance of the evidence but there are certain well-established general that his injury was caused by the failure of principles by which the facts of each particuthe defendant's employés to use ordinary care lar case must be tested. The relationship in the operation of the car by which he was

may arise before the person desiring to beinjured.

come a passenger actually gets on the conveyParagraphs five and six of the charge are ance of the carrier, and it may continue as follows:

after he leaves the conveyance, but it can "(5) The plaintiff is required by law to only be created by contract between the parprove the negligence by him alleged by a pre- ties, expressed or implied. From the nature ponderance of the evidence, in order to en- of the business conducted by street car compatitle him to recover.

nies, no express contract of carriage is made “(6) Negligence,' as used in this connec- with the great majority of those who ride on tion, means the want of, or failure to use, their cars, and the essential elements of the ordinary care. By ‘ordinary care' is meant contract—the offer and its acceptance-must that degree of care which an ordinarily pru- ordinarily be implied from the acts of the dent person would use under the same or parties. When a person desiring to become similar circumstances to prevent injury and a passenger upon a street car stations himaccident."

self at a place where the cars are accustomNo instruction defining negligence as be- ed to receive passengers, and signals or calls

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