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to the motorman of an approaching car to stop the car, and such signal is seen by the motorman, and the car halted, an acceptance of the offer to become a passenger will be implied from the act of the motorman in stopping the car, and such person will be regarded as a passenger while he is in the act of getting upon the car. If in such case the person de siring to become a passenger attempts to board the car before it comes to a full stop, he is not necessarily guilty of contributory negligence; and if the speed of the car was slackened to such an extent as to lead him to believe that it was being stopped to allow hiin to get on, and a person of ordinary care would have so believed, and have attempted to get upon the car, he should be regarded as a passenger while making such attempt.
It is immaterial that the motorman may not have intended to stop the car for the purpose of allowing the passenger to get on. If the latter was at a place where passengers were usually received, and gave the usual sig. nal, which was seen by the motorman, and he thereupon slackened the speed of the car to such an extent as to lead a person of ordinary care to believe that he was thereby invited to become a passenger, such relationship would be created; the motorman not giving any warning that the car was not being stopped for the purpose of receiving passengers. Under such circumstances, the carrier would not be heard to say it had not given an implied acceptance of the offer to become a passenger.
It is a universal rule of law that one cannot disclaim responsibility for the consequences which usually and naturally result from his acts. If the appellant, in the exercise of ordinary care and prudence, could assume that the act of the motorman in checking the car was in response to his signal, and for the purpose of allowing him to board it, in acting upon such assumption and attempting to get on the car he had the right to rely upon the performance by the motorman of bis duty to use that high degree of care to protect him from injury wbich the law requires a carrier to exercise for the safety of its passengers. In other words, if the act of the motorman, who had seen appellant's sig. nal, reasonably induced appellant to believe that he was accepted as a passenger, while so believing he was entitled to protection as such.
The case of Conner v. St. Ry. Co., 105 Ind. 62, 4 N. E. 441, 55 Am. Rep. 177, announces the rule which we think should apply to all cases of this character. We quote from that opinion the following: “Being at the usual place where passengers were taken up, and having given notice to the person in charge of the car that he desired to be taken up, it was the plain duty of the driver or person in charge either to afford him reasonable opportunity to enter the car, or to notify the plaintiff, either by continuing the rapid pace, or in some other way, that he would not be tak
Instead of giving any sign that he would not be taken, the speed of the car was slackened, so that it was moving slowly when he attempted to get on. Having received the signal, and slowed up in a manner to invite the plaintiff to get on, it was a clear act of negligence in the driver or person in charge not to observe the plaintiff, if he did not observe him, and, while he was getting on the car, in a manner in which the defendant usually received such passengers, to cause the car to be ‘jerked' forward, as the jury found.”
The view of the law above expressed finds support in the following authorities: Maxey v. St. Ry. Co. (Mo. App.) 68 S. W. 1064; Maguire v. St. Ry. Co. (Mo. App.) 78 S. W. 838; Pfeffer v. St. Ry. Co. (Super. Buff.) 24 N. Y. Supp. 490; St. Ry. Co. Spabr (Ind. App.) 33 N. E. 446; St. Ry. Co. v. Duggan (Ill. App.) 4 Am. Elect. Cas. 409; Corlin v. St. Ry. Co. (Mass.) 27 N. E. 1000.
Appellee contends that, if it be conceded that the charge was erroneous in its statement of the degree of care required of the employés of the company, such error was harmless, because the undisputed evidence shows that they failed to use any care whatever to prevent the injury, and therefore, if the jury had found that appellant's statement of the circumstances under which he was injured was true, they must have found in his favor, notwithstanding the error in the charge. We cannot agree with appellee in this contention. The jury might have concluded that the act of the motorman in increasing the speed of the car before appellant had succeeded in his attempt to board it was not, under the circumstances, a failure to use ordinary care, since that act could not be held negligence as a matter of law.
The second assignment of error presented complains of the following paragraph of the charge:
"If you believe from the preponderance of the evidence that it was usual and customary for defendant's cars to stop or slow up at the crossing of defendant's line over the tracks of the H. & T. C. R. Co., in Houston Heights, and believe that on August 29, 1903, plaintiff signaled or called to the motorman of defendant's car to stop at said crossing for the purpose of taking passage on said car, and was prepared to pay his fare, and that in pursuance of said signal the car was checked for the purpose of admitting plaintiff as a passenger, and that, while in slow motion, the plaintiff, with due care, took hold of the handhold on the trailer and stepped on the running board, and that when plaintiff was about to enter said trailer the servant or servants of defendant in charge of said car suddenly and violently and negligently started the car forward, and that by reason of such negligence of defendant's servants, if you find they were negligent, plaintiff was thrown from the car and injured, and believe said injury was caused by the negligence of defendant's servant or servants in charge statement, the accuracy of which is not questioned, would not be considered because no reference was made to the record. These slight, technical violations of the rules, if objection was made at the proper time, would be sufficient ground to require the offending party to rebrief the case, but the court is not required to refuse to consider an assignment because of any technical violation of the rules. The primary purpose and object of the rules is to promote the dispensation of justice, and incidentally to aid in the dispatch of the business of the court by an orderly presentation of questions raised for determination, and any method of enforcing them which would defeat this primary purpose should not be adopted by the court. Under this view of our duty in the premises, we have decided that the assignments should be considered. We cannot understand, however, why able and experienced counsel familiar with the rules should fail to fully comply with them.
We do not think it necessary to discuss the remaining assignments presented in the brief. If they show any error, it is not such as is likely to occur upon another trial.
Because of the errors in the charge before indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded,
of the car, plaintiff is entitled to recover; and, if you so find the facts to be, you will find for plaintiff.”
We think two of the objections urged to this charge are valid. As we have before stated, the purpose of the motorman in checking the car was immaterial, if by that act appellant, under all the circumstances, was justified in believing that he was invited to get on the car; and appellant's right of recovery ought not to have been made to depend on whether the motorman checked the car for the purpose of receiving bim as a passenger. The charge is further objectionable in that it places upon appellant the burden of showing that he was not guilty of contributory negligence in attempting to board the car under the circumstances disclosed by the evidence. It is only in cases in which the allegations of the petition or the evidence of plaintiff show negligence on his part, as a matter of law, that the burden is upon him to refute the charge of contributory negligence, and appellant's evidence does not bring this case within that class. Ry. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; Pares v. Ry. Co. (Tex. Civ. App.) 57 S. W. 301; St. John V. Ry. Co. (Tex. Civ. App.) 80 S. W. 235.
Appellee objects to our consideration of the foregoing assignments on the ground that, as presented in appellant's brief they are not in conformity with the requirements of rules 29 and 31 (67 S. W. xv, xvi). The specific objections urged to the assignments are that they are not numbered from first to last in their consecutive order, and that the statements thereunder contain no reference to the pages of the record by which they can be verified. The first assignment presented in the brief is assignment No. 3 and the next is assignment No. 6. Assignments Nos. 1, 2, 4, and 5 are not presented. It thus appears that while the assignments presented follow each other in numerical order, in the sense that the first numbered is first presented, they are not numbered consecutively, as required by the rule. The evident design and purpose of the rule is to avoid the confusion and loss of time which would often occur in considering a brief which treated the first assignment last, and the last first, or presented the assignments so out of their regular order as to require an unnecessary expenditure of time on the part of the court whenever it became necessary to revert to any particular assignmnent presented in the brief. The statements under these assignments contain no reference to the pages of the record for verification, but the statements are full, and appellee raises no question as to their accuracy. While this court has repeatedly held that a mere reference to the record for the statement supporting a proposition advanced under an assignment is not sufficient, and in such case the assignment will not be considered, it has never been held, so far as we are aware, that an assignment followed by a full
GRIFFIN V. HARRIS et al. (Court of Civil Appeals of Texas, May 27,
1905. On Rehearing, June 24, 1905.) 1. HOMESTEAD SALE_COUNTY COURT RECORDS.
Where land of a lunatic on which he resided as head of a family was sold to pay debts, the question as to whether the purchaser acquired a good title is not controlled by the fact that the records in the guardianship proceeding failed to show that the property was adjudged a homestead, but depends on whether the property was in fact the homestead of the lunatic when it was ordered sold. 2. SAME-PROPERTY SUBJECT TO HOMESTEAD.
A tenant in common is entitled to a homestead in the land to the extent, of his interest, not exceeding 200 acres; and, if the joint tract exceeds 200 acres, he may claim his interest in the entire tract as a homestead to the extent of 200 acres.
[Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Homestead, $8 121, 122.) 3. SAME-WAIVER OF EXEMPTION.
Where a person was the head of a family, residing on land owned by him jointly with others, cultivating it, and owned no other land when he was adjudged a lunatic and the land sold, the fact that the court required the guardian to place the land on the inventory, as required by Rev. St. 1895, art. 1965, and failed to set it aside as a homestead, as required by article 2046, did not have the effect of waiving the homestead exemption and making it liable for the debts of the estate. 4. SAME-SALE TO PAY DEBTS-TITLE OF PURCHASER.
Under Const. art. 16, § 50, protecting the homestead from forced sale for the payment of debts, the county court has no power to order
•Writ of error denied by Supreme Court.
a sale of the homestead to pay the ordinary debts date; one note for $211.10, given by W. S. of the estate, and hence a purchaser under such
Church, dated July 21, 1902, secured by an order acquired no title, though he had no knowledge that the property was homestead.
chattel mortgage on crops; and $85.70 in
money, being community property of Alice Error from District Court, Fannin Coun- and Henry M. Griffin. On June 18, 1903, ty; Ben. H. Denton, Judge.
one C. L. Parr, alleging that he had an esAction by J. W. Harris against J. P. Grif- tablished claim against the estate of said fin and others. From a judgment for plain- lunatic, applied to the county court of Fantiff, the defendant Henry M. Griffin, by his nin county to require Alice M. Griffin, guardian ad litem, brings error. Reversed.
guardian of the estate of Henry M. Griffin, J. W. Donaldson, for plaintiff in error.
lunatic, to place on her inventory of said Thurmond & Steger and Richard B. Sem- estate the one-fourteenth of said 328 acres, ple, for defendants in error.
which interest said application stated that
said Henry M. Griffin owned in said 328 BOOKHOUT, J. This suit was institut- acres. On July 2, 1903, Alice M. Griffin ed by J. W. Harris, against J. P. Grillin and filed her answer to said application of C. L. others, to recover a one-sixteenth interest in Parr, and resisted such application, alleg. 328 acres of land situated in Fannin county,
ing that said interest of said Henry M. Grifand for partition. A trial before the court
fin in said 328 acres was one-sixteenth therewithout the intervention of a jury resulted
of, that it was the homestead of herself and in a judgment for plaintiff for the land sued
the minor child of herself and Henry M. for, and a decree for partition, and appoint- Griffin, about two years old, and was their ing commissioners to partition the land.
homestead when said lunatic was taken to From this judgment Henry M. Griffin, by
the lunatic asylum. The county court sushis guardian ad litem, prosecutes a writ of tained the application of C. L. Parr, and by error.
its judgment rendered July 6, 1903, ordered
said one-sixteenth of said 328 acres placed Conclusions of Fact.
on said guardian's inventory. Said judgHenry M. Griffin and Alice M. Griffin ment was complied with by said guardian were married on November 14, 1900, and as filing said additional inventory on July 8, the fruits of such marriage they have one 1903, which was approved by said court. child, about 3 years old. Henry M. Griffin On September 1, 1903, said guardian, Alice inherited through his mother, Mary Jane M. Griffin, applied to said county court for Griffin, deceased, a one-sixteenth interest in an order to sell said one-sixteenth of said the 328 acres of land described in the peti- 328 acres of land, stating that C. L. Parr tion. After his marriage he and his wife held a judgment against said lunatic for moved upon this 328 acres and lived in a $114,40, rendered by justice court of Prehouse situated thereon, and cultivated about cinct No. 8 of said Fannin county, with in20 acres of the land the first year, and terest at 8 per cent. from April 6, 1903 ; about 40 acres the second year, they so lived that there were other debts owing by the thereon. He had thereon his farming tools, estate; and that costs would be increased plows, cultivators, and household and kitch- by creditors forcing such sale, unless the en furniture. The house was not on the application was granted. On October 13, tract cultivated, but was on the 328 acres. 1903, the court made an order directing the The remainder of the land was owned, one- guardian to sell at public or private sale, as half by J. P. Griffin, the father of Henry M., she might deem most advantageous to said and the balance, seven-sixteenths, by his estate, for cash, said one-sixteenth of said brothers and sisters. Henry M. Griffin,
328 acres. while so living upon the land, was by the On December 28, 1903, said guardian reportproper authorities of Fannin county ad- ed to said county court that she had sold said judged a lunatic on October 8, 1902, and one-sixteenth of said 328 acres to J. W. Harsent to the State Lunatic Asylum at Austin, ris at private sale for $401 in cash, which where he has since been, and is now, con- sale was on the 7th day of January, 1904, fined. His wife, Alice M. Griffin, was ap- confirmed by said county court, and deed pointed guardian of the estate of Henry M. was ordered made by said guardian to plainGriffin, and duly qualified as such.
tiff for said one-sixteenth of said 328 acres, On October 10, 1902, said guardian filed which she did on the 9th day of January, her first inventory and list of claims, which 1904. showed that said estate owned the follow- Henry M. Griffin owned no land, except ing property, to wit: One horse, worth his interest in this 328 acres. The $401 $25; one buggy, worth $50; one saw, worth paid by J. W. Harris for the land was its $2; another saw, worth 50 cents; one fair market value, and this money was paid square, worth
50 cents—said property al- by the guardian on debts owing by the lunaleged in said inventory to be the community tic, Henry M. Griffin, except a small sum property of said lunatic and his wife, Alice still in possession of such guardian. M. Griffin. Said list of claims consisted of J. W. Harris, in purchasing the property che note for $320, dated July 17, 1902, bear- from the guardian, acted in good faith. ing 8 per cent. per annum interest from While he did not know that Henry M. Grifin claimed the property as his homestead, ily. It was proper to include the homestead he did know that he lived thereon with his in the inventory, and the fact that it was family at the time he was adjudged a luna- homestead furnishes no good reason for not tic.
including it therein. That the court failed Opinion.
to perform its full duty and set aside this
property as the homestead at the first term The learned trial judge was of the opin
of court after the inventory and appraiseion that, as the records of the county court
ment were filed, as required by the statute did not show that the land was the home
(Rev. St. 1895, art. 2046), did not have the stead of the lunatic, the county court had
effect of waiving the homestead exemption jurisdiction to order the sale of said land,
and making it liable for the debts of the esand that such sale and the confirmation
tate. We think it clear under the facts the thereof passed title to the purchaser. The
property was the homestead of Henry M. county court records did not affirmatively
Griffin at the time he was adjudged a lunshow that the land was not the homestead
atic and when it was sold by the guardian. of Henry M. Griffin. The question as to
Parr v. Newby, 73 Tex, 463, 11 S. W. 490; whether the purchaser, under the facts of
Crockett v. Templeton, 65 Tex. 136. this case, acquired a good title, is not con
The Constitution of the state (article 16, 8 trolled by the fact that the records in the
50) protects the homestead from forced sale guardianship proceedings failed to show
for the payment of all debts. Under this that the property was the homestead of the lunatic. As we understand it, the test is prohibition of the Constitution, the county
court is deprived of the jurisdiction or power was the property the homestead, in fact, of
to order a sale of the homestead to pay the the lunatic at the time it was ordered sold, and at the time the sale was confirmed? It
ordinary debts of the estate. Yarboro v.
Brewster, 38 Tex. 418; Hamblin v. Waris clear that Henry M. Griffin was entitled to a homestead in the land. It is held that
necke, 31 Tex. 91; McCloy & Trotter v. Ara tenant in common is entitled to a home
nett, 47 Ark. 445, 2 S. W. 71. The county stead in land, owned jointly by himself and
court not having the power to order the others, to the extent of his interest, not to
sale, no title passed to the purchaser at a sale exceed 200 acres. Clements v. Lacy, 51 Tex.
made in pursuance of such order. The order 150.
was a nullity, and it is immaterial whether It is further held that, where a tenant in
the purchaser had knowledge of the fact common owns jointly with others a tract in
that the property was the homestead or not. excess of 200 acres, he is entitled to claim
Having purchased under a void order, he his interest in the entire tract as homestead
took no title. Withers v. Patterson, 27 Tex. to the extent of 200 acres. Jenkins v. Volz,
500, 501, 86 Am. Dec. 643.
It follows from these remarks that the 54 Tex. 636; Lewis v. Sellick, 69 Tex. 379, 7 S. W. 673.
trial court erred in rendering judgment for Nor do we think it can be seriously con
J. W. Harris, defendant in error, and in not tended that such interest was not at the
rendering judgment for the plaintiff in error,
for an undivided one-sixteenth of the 328 time Henry M. Griffin was adjudged a lunatic, his homestead. He was the head of a
acres of land. The judgment is reversed
and here rendered for plaintiff in error, family and lived on the land, and had cultivated 20 acres of the land for nearly 2 years.
Henry N. Griffin, and his guardian ad litem,
for a one-sixteenth interest in the 328 acres He owned no other land. He had his farming tools and implements thereon; also his
of land described in the petition. The dekitchen and household furniture.
cree of the district court for partition is not
disturbed further than as stated above, but When it was sought to have the county
will be carried out by that court. The regucourt to require the guardian to inventory
lar guardian is entitled to the possession and said land as part of the estate of the luna
use of the land here recovered by plaintiff in tic, she resisted, upon the ground that it was the homestead of herself and minor child. By the terms of the statute the guardian
Opinion on Rehearing. was bound to return a full inventory and
Henry M. Griffin's interest inherited appraisement of the property of the estate.
through his mother in the 328 acres of land Rev. St. 1895, art. 1965. And upon complaint
was one-sixteenth, or 2012 acres.
The year in writing, by any one interested, setting
he was adjudged a lunatic he was cultivatforth that error has been made in the in
ing 40 acres of the 328 acres, an excess of ventory, and pointing out such error, and cit
194 acres over the interest owned by him. ing the guardian to show cause why it should
For this excess he paid rent to his father. not be corrected, the court, upon hearing, The records of the probate court in the matwas authorized to correct the same. Rev. ter of the guardianship of Henry M. Griffin St. 1893, art. 1976. The fact that the court showed that when the motion was made to ordered the guardian to correct her inven- | require the guardian to inventory this land tory by including the land therein did not the guardian resisted, setting up that it was adjudicate or determine that the property the homestead of herself and child. The was not the homestead of the lunatic's fam- estate of the lunatic, excluding the homestead
from the assets, is, and always has been, insolvent. When J. W. Harris purchased the property he knew that Henry M. Griffin lived upon the land with his family, and had his household and kitchen furniture, tools, and farming implements thereon, and that he owned no other homestead. J. W. Harris is the father of the guardian, Mrs. Griffin.
The statement in the opinion that "the county court records did not affirmatively show that the land was not the homestead of Henry M. Griffin” is liable to be misunderstood. By this we meant to say that the records .did not show that the question of homestead vel non had been passed upon by that court. It is true the court ordered the guardian to inventory the property, but this did not affirmatively adjudge that it was not the homestead. The records did show that the guardian, at the time the motion to require it to be placed on the inventory was heard, claimed and pleaded that it was the homestead of herself and child. The record in this respect is similar to that passed upon in Hamblin v. Warnecke, 31 Tex. 94, and it was there held that the records of the county court showed the property was homestead. It was shown on the trial that the land bad been in the possession of J. P. Griffin, the father of Henry M. Griffin, since the purchase by J. W. Harris, and that the rent of the property during such time was of the value of $80, and J. W. Harris recovered judgment for that amount. In the opinion nothing was said as to rents, but the judgment was here rendered for appellant for the land and $80 rent.
The motion for rehearing is overruled.
plaintiff alleged that the pin when in proper condition was adapted to the use and purpose intended, and if the pin had been suitable, and the head thereof surrounded with soft or malleable iron, particles would not have been thrown therefrom nor the injury occurred, plaintiff was not entitled to object to certain instructions on the theory that the work in which ile servant was engaged was dangerous of itself, and that defendant was bound to warn such seryant, who was a minor and inexperienced, though the danger was obvious. 3. SAME.
Where plaintiff alleged negligence in that a certain tool was defective and unsuitable, by reason of which his son was injured while using the same, a charge presenting conjunctively the propositions of negligence in furnishing plaintiff's son with such defective tool, and the failure to warn him of the dangers and risks incident to the work, was proper. 4. TRIAL-INSTRUCTIONS APPLICABILITY TO PROOFS.
Where, in an action for injuries to plaintiff's son wbile attempting to work with a defective tool furnished him, there was no evidence that he was attempting to perform work for defendant which was outside the scope of his employment, it was error for the court to charge that, if he was performing work outside the scope of his employment when he was in. jured, he assumed the risk and plaintiff could not recover.
Appeal from District Court, Ellis County; J. E. Dillard, Judge.
Action by W. T. Wood against the Texas Cotton Product Company. From a judgment for defendant, plaintiff appeals. Reversed.
Templeton & Harding, for appellant. Harry P. Lawther and Skinner & Supple, for appellee.
WOOD v. TEXAS COTTON PRODUCT CO.* (Court of Civil Appeals of Texas. May 20,
1905.) 1. MASTER AND SERVANT-INJURIES TO SERV. ANT-INSTRUCTIONS CURING ERROR.
An instruction, in an action for injuries to a servant, that when the master employs a minor to perform dangerous or hazardous work it is the master's duty to explain the proper manner of performing the work, etc., "unless the dangers and risks are patent and obvious to persons of like age and intelligence" of the minor, objectionable in limiting the master's duty to instruct to latent dangers, was cured by a special charge that if the jury found that the driftpin used by plaintiff's son, by which he was injured, had become defective and unsuitable, and that defendant's superintendent knew, or by the exercise of reasonable care ought to have known, of such defect, and plaintiff's son, while using such pin, was injured by reason of its defective condition, plaintiff was entitled to recover, unless the son, considering his age and experience, knew and appreciated the peril and danger of striking the pin when he did. 2. SAME-DUTY TO INSTRUCT-OBVIOUS DanGERS-INEXPERIENCED EMPLOYÉ--ISSUES.
Where, in an action for injuries to a seryant caused by a defective driftpin used by him,
TALBOT, J. This action was brought by the appellant to recover damages for loss of the services of his minor son, S. D. Wood, and for medical and other expenses incurred, on account of personal injuries alleged to have been inflicted upon his said son while engaged in the service of appellee, through its negligence. The petition alleged, in substance, that during the fall of 1902 appellee was in Ellis county, operating a gin and compress known as the “Round Bale system,” ginning and compressing cotton with extensive and complicated machinery, and in such work employed the 19 year old son of appellant, whose work was to weigh bales of cotton, sample, number, and check the same, making duplicates, keeping book records, and to assist in keeping the press in repair in case of break down, or from other causes should it fail to work. That to compress said bales the cotton is wound around a core pin, which is driven out by placing a driftpin made of steel against the end and striking the driftpin with a hammer. That the work of removing the core pin was no part of the regular work of the son of appellant, but that he was subject to the regular orders of the appellee. That on October 11, 1902, the employé whose duty it was to remove the core pin was absent, and the minor son of appellant was directed to perform that work by appellee, of the dangers of which
*Rehearing denied June 24, 1905.