WILLSON, C. J. (after stating the facts as above). The assignments are predicated upon the action of the trial court in giving certain instructions, and in refusing to give certain requested instructions, to the jury.

used as a place for wagons to stand while | kinson & Davidson, of Mt. Vernon, for apbeing loaded from cars on said city track, pellee. and as a way for them when loaded to go to Depot street. On the occasion when appellee was injured he, assisted by others, had loaded a wagon with doors and window sash from a car spotted on the city track for the purpose; and was standing in the wagon, holding window sash loaded thereon, while one Jess Jones drove the mules along said way toward Depot street. According to testimony admitted on appellee's behalf, the wagon had moved only a few feet when steam emitted from one of appellant's locomotives on the track immediately east of the way, and 25 or 30 feet from the wagon, enveloped the mules, so frightening them as to cause them to run, whereby appellee was thrown from the wagon and injured.

In the fifth paragraph of his charge the court told the jury it was not the duty of railway companies

"to keep a lookout for persons traveling along a highway adjacent to its tracks for the purpose of preventing frightening animals driven upon them, but are only required to operate their locomotives without unusual or unnecessary noise and emission of steam, and in case they become aware that animals are about to become frightened or have become frightened, then to refrain from making any unnecessary noises and emitting unnecessary steam that would be likely to frighten them."

[1] First. It is insisted that the fifth paragraph of the charge given, when considered in connection with the sixth and eighth paragraphs thereof, was erroneous and calculated to mislead the jury to the prejudice of appellant's right. We think the part of the charge objected to was not applicable to the case made by the testimony, and should not have been given, but we think it was more calculated to help than to harm appellant with the jury, and therefore that appellant should not be heard to complain of it. It appeared without dispute in the testimony that appellee, with the wagon and team of mules, was not "on a highway adjacent to" appellant's tracks, but was on its premises for the purpose of unloading freight from one of its cars, and therefore was within a rule stated as follows in 3 Elliott on Railroads, § 1248:

"One who comes upon the premises of a railroad company, in the usual course of business with it, for the purpose of loading and unloading or delivering and receiving freight, is not a mere licensee, but is entitled to the care due In the sixth paragraph he defined negli- one who is invited to come upon the premises gence as meaning:

"The failure to exercise such care in the performance of a legal duty as a person of ordinary care and prudence would exercise under the same circumstances."

of another."

[2] Appellant owed to appellee as an invitee the duty to use ordinary care for his safety while he was on its premises. Railway Co. v. Cardwell, 187 S. W. 1073. The

In the seventh paragraph he told the jury question for the jury was whether appellant

it was

had exercised such care or not. That question was we think sufficiently submitted to the jury by said sixth and eighth paragraphs of the charge. It follows that we are of the opinion, not only that the contention with

"the duty of persons in control of or using teams easily frightened and unaccustomed to noises and steam such as are ordinarily incident and reasonably necessary in the proper operation of a locomotive to exercise such care and prudence in approaching near to such loco-reference to said fifth paragraph should be motive as persons of ordinary care and pru- overruled, but also that the contention with dence would exercise under the same circum- reference to said eighth paragraph (that the stances for their own safety. And a failure jury were thereby wrongfully authorized to to use such care would be negligence." find appellant guilty of negligence if they believed the mules were "frightened from

In the eighth paragraph he instructed the

jury to find in appellee's favor if they lieved that appellee was injured by being thrown from a wagon by mules "frightened by steam or noise escaping from one of de fendant's locomotives," and further believed "that such steam and noise was caused to escape by the negligence" of appellant's employés.

be-noise or the escape of steam from a locothat appellant's employés "were without motive," although they might also believe knowledge of the fright of the team or even of their proximity to the locomotive") should brief that it was of the opinion that appelbe overruled. It appears from appellant's lee must recover, if at all, on the "discoverhas been said above, we do not agree to that, ed peril" doctrine. As indicated by what but think he was entitled to recover if it appeared that appellant had failed to discharge a duty it owed him to exercise ordinary care for his safety while on its prem

The judgment from which the appeal is prosecuted was in appellee's favor for $1,750. E. B. Perkins, of Dallas, J. M. Burford, of Mt. Pleasant, and King & Estes, of Texarkana, for appellant.

T. C. Hutchings, of Mt. Pleasant, and Wil-ises at its invitation.

[3, 4] In the seventh paragraph of the charge the trial court told the jury, as appears from the statement above, that it was "the duty of persons in control of or using teams easily frightened and unaccustomed to noises and steam such as are ordinarily incident and reasonably necessary to the proper operation of a locomotive" to exercise care for their own safety. Appellant contends it was appellee's duty to exercise care with reference to the mules, whether they were easily frightened, etc., or not, and insists that the instruction therefore was erroneous. view of said paragraph of the charge given, appellant requested the court to instruct the jury that it was

In

"the duty of persons in control of or using teams which from any cause or for any reason may become frightened while being driven about or near where any locomotives are, or where anything may occur to frighten such teams, to exercise such care and prudence to prevent such teams from running away and causing injury as a person of ordinary care would exercise under the same or similar circumstances for their own safety."

If it was error to refuse the request to give to the jury the instruction just quoted (and we think it was, if the testimony made a question as to whether appellee was guilty of contributory negligence or not), the error should, we think, be treated as harmless, in view of the fact that it appeared without dispute in the testimony that the mules were "skittish, and would run away sometimes." But we have not been referred to, and have not found in the record, testimony which we think required the submission to the jury of an issue as to whether appellee was guilty of contributory negligence or not. There is nothing in the record as we read it suggest ing that appellee did anything which contributed to cause the mules to run away which a reasonably prudent person would not have done, or failed to do anything such a person situated as he was would have done to prevent them from running away, or injury to himself when they did run away. The judgment is affirmed.

TEXAS & P. RY. CO. v. McGRAW. (No. 1993.) (Court of Civil Appeals of Texas. Texarkana, Nov. 14, 1918. Rehearing Denied Nov. 21, 1918.)

1. MASTER AND SERVANT 135-INJURY TO SERVANT-WARNING.

In a railway repairman's action for injury, due to being struck by an engine while at work near a track in a train shed, where there was evidence that it was customary to signal or give warning of the approach of locomotives, defend

ant owed plaintiff the duty of giving such warning.

2. MASTER AND SERVANT 289(4)—INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE.

A railway repair man, who was injured by a locomotive while engaged at his regular work near a track in a train shed, was not guilty of contributory negligence, as a matter of law, where he could assume that a custom of giving warning of the approach of engines would be observed.

Appeal from District Court, Harrison County; P. O, Beard, Judge.

Action by T. P. McGraw against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Appellee was struck by a locomotive engine and thereby injured while working for appellant in its shops at Marshall. On the ground that appellant's employés in charge of the engine were guilty of negligence in failing to warn him of its approach, he sued and recovered the judgment for $11,000, from which the appeal is prosecuted. It appeared from the testimony that the shops in which appellee was working were in a building 300 or 400 feet long east and west, and about 200 feet wide north and south. Two tracks about 16 feet apart, on which locomotive engines were operated, entered the shops from the east and passed west through it. Appellee was engaged in making endgates for coal cars. For this purpose he was using heavy pieces of plank about 8 feet long, which he placed lengthwise on trestles set near the north one of the two tracks. The ends of the planks projected from the trestles north towards the track, and so near to it that there was not space between the ends of the plank and the track for appellee to safely stand while an engine moved thereon past the trestles. Appellee door (as it lay on the trestles) he was makwas working at the northwest corner of a ing, when a locomotive pushing a car entered the shops from the east and moved west 60 or 70 feet on said north track. As the engine approached appellee, he was warned by a switchman accompanying it to move from the place he was standing, and did so. At once, after the engine passed on west, appellee returned to the place he moved from, and proceeded with the work he was engaged in doing when he was warned to get out of the way of the locomotive. In from 15 to 30 minutes after the engine passed west, it returned east, striking appellee as it passed him where he stood at work, to wit, at the northwest corner of door he was engaged in making. Four hundred or 500 men worked in the shops, and it had been the custom to give warning to those of them in the way of

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locomotives moving on the track; but on | to, believed appellee's testimony; and we have this occasion no warning was given to appel- found nothing in the record indicating the lee as the engine moved back east, and he did existence of a good reason why they should not know until the engine struck him that it not have believed it. was moving east on the track.

[2] We think the contention made that it appeared as a matter of law that appellee was guilty of contributory negligence also should be overruled. Appellee had a right to assume that the custom always before ob-reversible error, where the substance thereof Refusal to give instructions requested is not served to warn him of the approach of an engine toward the place he was at work would not be discontinued without notice to him, and we do not think it can be said that he was guilty of negligence, as a matter of law, in acting on such an assumption on the occasion in question.

If the consequences to appellee of the injury he suffered were as serious as he testified they were, the judgment is not exces- This was a suit of trespass to try title, sive. Evidently the jury, as they had a right | brought by appellee against appellants. The For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

land involved was 290 acres of the Jedekiah Payne survey in Harrison county. It appeared from the testimony that appellee owned the land and was entitled to the judgment he obtained, unless he had conveyed it to L. W. Lloyd, under whom appellants asserted title. Appellants claimed that appellee, acting by his attorney in fact, one Williams, conveyed the land to said Lloyd by a deed dated April 15, 1886, and, that deed having been lost, that appellee, in lieu thereof, acting by said Williams as such attorney, made another deed to said Lloyd June 11, 1894. As supporting their contention appellants offered, and the court admitted in evidence, the record, made December 23, 1901, of an instrument dated said June 11, 1894, purporting to be a deed made by said Williams as attorney in fact for appellee, and to convey the land in controversy to said Lloyd. In the instrument was a recital that it was made by Williams as a substitute for a deed he had made as attorney in fact for appellee April 15, 1886, which had been lost or mislaid. Appellee filed an affidavit attacking this instrument as a forgery, and on the trial testified that he had never himself conveyed, and had never authorized Williams to convey, the land to Lloyd.

On special issues submitted to them the jury made findings as follows: (1) That ap pellee did not, before June 11, 1894, the date of the instrument referred to above, make to said Williams a power of attorney authorizing him to sell and convey the land in controversy. (2) That Williams did not, as appellee's attorney in fact, execute said instrument dated June 11, 1894, purporting to be a deed conveying said land to Lloyd. (3) That Williams did not, as said Lloyd's attorney in fact, execute a deed dated April 15, 1886, conveying the land to Lloyd. (4) That appellee never received any money from Lloyd as the purchase price of the land. On the finding made by the jury the trial court rendered judgment for the land in appellee's favor, and appellants thereupon prosecuted this appeal.

Lane & Lane, of Marshall, for appellants. G. L. Huffman and Cary M. Abney, both of Marshall, for appellee.

Having made such proof, appellants asked the court to submit to the jury as issues in the case the following:

"(1) Did L. W. Lloyd make to W. C. Snider the notes read in evidence before you in payment of the land in controversy? Lloyd to the land in controversy?

"(2) Did W. C. Snider make a deed to L. W.

"(3) Did L. W. Lloyd pay to W. C. Snider the purchase money of the land in controversy?"

[1, 2] The refusal of the court to submit the issues indicated to the jury is the basis of the fourth, fifth, and sixth assignments. The assignments will be overruled. It will be seen by reference to the statement above that the jury found that appellee "never received any money from Lloyd as the purchase price of the land," which was a sufficient answer to the third of the three questions set out above. The first of the other two was immaterial, in view of the fact that there was no evidence that appellee ever saw the notes or knew of their existence. It was not error of which appellants can complain to refuse to submit the other question to the jury, because an affirmative reply thereto would not have been warranted by testimony before the jury. The evidence, aside from the recitals in the notes, plainly indicated that, if appellee conveyed the land to Lloyd, he did not do so by a deed made himself, but did so by a deed Williams made as his attorney in fact. The recitals in the notes would not have warranted a finding that appellee himself made a deed to Lloyd, because as to appellee they were hearsay, and not competent as evidence to show that he had made such a deed. And the fact that the notes appeared to be over 30 years old did not give them value they otherwise did not have as evidence. Mackay v. Armstrong, 84 Tex. 159, 19 S. W. 463; Magee v. Paul, 159 S. W. 325.

[3, 4] There were no subscribing witnesses to the execution by Williams of the instrument dated April 15, 1886, purporting to be a deed conveying the land in controversy from appellee by said Williams as his attorney in fact to L. W. Lloyd, and the execution WILLSON, C. J. (after stating the facts thereof was never acknowledged by said Wilas above). At appellants' instance the trial liams before an officer authorized to take court admitted in evidence two instruments such acknowledgments. The instrument was purporting to be promissory notes made by admitted to record December 23, 1901, on afL. W. Lloyd to appellee in part payment for fidavits made by one Scott and one McCown the land in controversy. The notes were dat- November 4, 1901, that they were acquainted ed April 16, 1886, and were for $75 each, with said Williams' handwriting and believpayable June 28 and August 28, 1886, respec-ed that the signature to the instrument purtively. Each of the notes contained a re- porting to be his signature was in fact his cital as follows:

"This note holds a vendor's lien on said land until paid, as set forth in the deed of conveyance this day made by said Snider to me." 207 S.W.-36

signature. The instrument and the affidavits referred to were not reproduced at the trial, but appellants offered the record thereof in evidence. The court admitted the rec

ord so far as it was of the instrument itself, | mony showing that he had parted with the but excluded it so far as it was of the affi- title. The burden was on appellants to prodavits. The action of the court in excluding duce that testimony. That being true, we the affidavits is assigned as error, but we do not think it was error for the court to so think it was not. It is evident that the rec- instruct the jury. Boswell v. Pannell, 107 ord of the affidavits was offered for the pur- Tex. 433, 180 S. W. 593; Steiner v. Jester, pose alone of proving that the instrument 86 Tex. 415, 25 S. W. 411; Williamson v. was in fact executed by Williams. The orig- Gore, 73 S. W. 563; Chittim v. Martinez, 94 inals of the affidavits, had they been pro- Tex. 141, 58 S. W. 948. As to the refusal duced and offered, clearly would not have of the court to tell the jury that they could been admissible for that purpose, because predicate a finding on circumstantial evihearsay. If the original affidavits would not dence, we do not think it at all likely appelhave been competent evidence, of course the lants were thereby prejudiced. The jury record thereof was not. If, however, it was were, in effect, told to consider that kind of error to exclude the record of the affidavits testimony when it was admitted. as evidence, it was not an error which enti- There is no error in the judgment, and it is tled appellants to a reversal of the judg-affirmed. ment. The most appellants can claim would have resulted, had the affidavits been admitted, is that the jury might have found that Williams did in fact execute the deed as attorney for appellee. Had the jury made such a finding, the judgment should not have been different, in view of the finding that (Court of Civil Appeals of Texas. appellee never authorized Williams to convey the land as his attorney in fact.

MATAGORDA CANAL CO. v. STYLES. (No. 7166.)

Dec. 19, 1918.)

31

CEEDING WITH CASE.

1. MANDAMUS

Galveston.

COMPELLING PRO

of mandamus to compel district court to proceed
with trial of cause pursuant to law, unless its
action in continuing cause amounts to a re-
fusal so to proceed.
2. CONTINUANCE

MOTION-DISCRETION.

36-ON COURT'S OWN

Discretion of trial judge in method of control and disposition of docket of his court is large, and, unless continuance of cause on his own motion is so unreasonable as to be clear abuse of discretion, continuance cannot be regarded as refusal to proceed with trial pursu ant to law.

[5, 6] The record warrants the statement that it conclusively appeared that appellee By Vernon's Sayles' Ann. Civ. St. 1914, art. owned the land in controversy, unless, act-1595, Court of Civil Appeals cannot issue writ ing by Williams as his attorney in fact, he had conveyed it to Lloyd. Hence it may be said the testimony presented only two questions for the jury: (1) Did Williams undertake as attorney in fact for appellee to convey the land to Lloyd? (2) If he did, was he then authorized to act for appellee, so as to bind him by the undertaking? The two questions, substantially, were submitted to the jury, and both were answered in the negative. Appellants do not contend that the answers did not demand the rendition of judgment in appellee's favor. They insist, however: (1) That the answers made were not warranted by the testimony; and (2) that the answers probably would have been Action of trial judge in continuing on his different, but for the error, they allege, of own motion cause involving water rights, until the court in instructing the jury that the board of water engineers, in pending proceedburden was on them (appellants) to estab-ing, had determined rights of parties, held not an abuse of discretion justifying holding that lish their defense to appellee's suit by a preponderance of the evidence, and the further by order of continuance he refused to proceed with trial pursuant to law. error, they assert, of the court in refusing to instruct the jury that

"An issue of fact may be proven by circumstantial evidence, or by direct evidence, or by both circumstantial and direct evidence."

The contentions are overruled. The testimony of appellee as a witness was a sufficient support for the answers the jury made. We do not think the court erred when he told the jury that the burden was on appellants to establish their defense against the recovery sought by appellee by a preponderance of the testimony. Appellee had shown title to the land, and unquestionably was entitled to recover in the absence of testi

3. CONTINUANCE

36-ON COURT'S OWN

MOTION-DISCRETION.

Application for writ of mandamus by the Matagorda Canal Company against Samuel J. Styles. Application denied.

C. R. Wharton, of Houston, for applicant. Gaines & Corbett, of Bay City, and Wm. H. Wilson, of Houston, for respondent.

PLEASANTS, C. J. This is an application to this court for a writ of mandamus to compel the respondent, who is judge of the district court of Brazoria county, to proceed to trial and judgment in a suit in said district court brought by the relator against the Markham Irrigation Company, filed in No

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